HomeMy WebLinkAboutSobe Toscana LLC Lease AgreementD sign Envelope ID: 4FB10067-0D60-8E04-81E&CC82F8926EB3
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LANDLORD: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Sobe Toscana, LLC
816 Commerce Street
Miami Beach, Florida 33139
SOBE TOSCANA, LLC LEASE AGREEMENT
Docusign Envelope ID4FB15p67-OD5DAEN-81E8-CCB2F892BE83
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made this _ day of , 2026, by and between
the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized and existing under the laws of
the State of Florida (hereinafter referred to as "City'), and SORE TOSCANA LLC, a Florida limited liability
company (hereinafter referred to as "Tenant').
1. Demised Premises.
The City, in consideration of the rentals hereinafter reserved to be paid and of the covenants,
conditions and agreements to be kept and performed by the Tenant, hereby leases, lets and
demises to the Tenant, and Tenant hereby leases and hires from the City, those certain premises
hereinafter referred to asthe "Demised Premises", located at 22 Washington Avenue, Miami Beach,
Florida 33139, and more fully described as follows:
Approximately two thousand one hundred eighty -even (2,187) square feet of land with any existing
improvements. Such Demised Premises arespecifed in Exhibit A, which is hereby made a partof this Lease.
Tenant is currently leasing the Demised Premises from the City pursuant to that certain Lease
Agreement dated August 9, 2017, as amended by that certain Amendment No. 1 to Lease
Agreement dated December 17, 2021 (collectively, the "Existing City Lease'). Although the agreed
upon size of the Demised Premises under the Existing City Lease is 2,216 square feet, the parties
hereby agree for purposes of this Lease that the size of the Demised Premises is 2,187 square
feet: however, no change is being made to the location or size of the Demised Premises. Tenant
is also currently leasing from Miami Beach, LLC, a Florida limited liability company ("816
Commerce Street Owner), and shall, during the Term of this Lease, continue to lease the
restaurant space adjacent to the Demised Premises having a physical address of 816 Commerce
Street, Miami Beach, Florida 33139 ("Restaurant at 816 Commerce Street') pursuant to that
certain Lease dated May 2017 by and between Tenant, as tenant, and 816 Commerce Street
Owner, as landlord (the "816 Commerce Street Lease").
2. Term.
2.1 Tenant Shall be entitled to have and to hold the Demised Premises for a term of nine (9) years and
three hundred sixty-four (364) days, commencing on June 1. 2027 (the "Commencement Date*),
and ending on May 30, 2037 (the "Term'). (The Commencement Date is the day after the last day
of the term of the Existing City Lease.") Notwithstanding anything to the contrary herein, if the
Existing City Lease has been terminated prior to the Commencement Date, then this Lease shall
be null and void and of no further force or effect.
2.2 Termination for Convenience.
This Lease may be terminated, in whole or in part, by the City or Tenant, for convenience and
without cause, upon the furnishing of sixty (60) days prior written notice to the other parry; provided,
however, that neither the City nor the Tenant shall exercise its right to terminate under this provision
at any time during the first three (3) years of the Lease Term. In addition to the foregoing, the City
shall not exercise this Termination for Convenience without prior formal consent from the City
Commission.
In the event of termination by either party pursuant to this subsection, both parties herein
acknowledge and agree that they shall not have any claim, demand, or cause of action of
whatsoever kind or nature, against the other party, its agents, servants and employees (including,
but not limited to, claims for any start-up costs, interference in business or damages for interruption
of services, or interference in its concession operations)(collectively. "Claims') other than any
Claims related to any liabilities and obligations which have accrued as of the effective date of the
termination or obligations which survive the expiration or termination of this Lease. In no event shall
either party be liable to the other parry for any indirect, incidental, special, lost profits or
consequential damages.
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2.3 Termination of 816 Commerce Street Lease and/or Easement Agreement.
Notwithstanding anything contained herein to the contrary, in the event either the 816 Commerce
Street Lease or the Easement Agreement (as further described in Section 8.9 hereco is terminated
or no longer in effect for any reason, Tenant shall have the right, in its sole discretion, to terminate
this Lease for convenience with not less than thirty (30) days' written notice to City.
In the event that the 816 Commerce Street Lease expires, is terminated or is no longer in effect for
any reason, the City, at the sole discretion of the City Manager, shall have the fight to terminate
this Lease for Convenience with no less than thirty (30) days' written notice to Tenant.
3. Rent.
3.1 Base Rent.
Base Rent for the Demised Premises during the Term shall begin to accrue as of the
Commencement Date; based upon the total leasable space of 2,187 square feet as follows:
The Base Rent for the Demised Premises during the Term shall be as follows:
Square Feet:
2187
Base Rent:
$
30J2
Annual Increase:
3%
PSF
Monthly
Annual
Year
Base
gent
Base Rent
Base Ran
1
$
3072
$ 5.598.72
$67,184.64
2
$
31.64
$ 5,766.68
$69,200. 18
3
$
32.59
$ 5.939.68
$71,276.18
4
$
33,57
$ 6,117.87
$73,414.47
5
$
34.58
$ 6,301.41
$75,616.90
6
$
35.61
$ 6,490.45
$77,885.41
7
$
36.68
$ 6,685.16
$80,221.97
8
$
37,78
$ 6.885.72
$82,628.63
9
$
38.92
$ 7.092.29
$85,107.49
10
$
40.08
$ 7,305.06
$87,660.72
$ 770,196.60
TOTAL BASE RENT $770,196,60
3.1.1 Base Rent shall be due and payable on the first day of each month throughout the Term of this
Lease, along with applicable sales tax. The Rent shall escalate annually on June 11'of each year
by three percent (3%).
3.2 Late Payment.
If any payment due from Tenant shall be overdue more than five (5) business days, a late charge
of five percent (5%) of the delinquent sum may be charged by City. If any payment due from Tenant
shall remain overdue for more than fifteen (15) calendar days, an additional late charge in an
amount equal to the lesser of the highest rate permitted by law or one and one-half percent (1Y%)
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per month (eighteen percent It8%) per annum) of the delinquent amount may be charged by City,
such charge to be computed for the entire period for which the amount is overdue and which shall
be in addition to and not in lieu of the five percent (5%) late charge or any other remedy available
to City.
3.3 Sales and Use Tax.
It is also understood that Tenant shall also include and forward to the City any and all additional
sums for all applicable sales and use tax, now or hereafter prescribed by State, Federal or local
law, and now described by Florida Statute 212.031. It Is the City's intent that it is to receive all
payments due from Tenant as net of such Florida State Sales and Use Tax.
3.4 Location for Payments.
All rents or other payments due hereunder shall be paid to the City of Miami Beach at the following
address:
City of Miami Beach
Finance Department
1700 Convention Center Drive
Miami Beach, Florida 33139
4. Maintenance and Examination of Records.
Tenant shall maintain current, accurate, and complete financial records on an accrual basis of
accounting related to its operations pursuant to this lease, including such records and accounting
relatedto the Restaurant at 816 Commerce Street. Systems and procedures used to maintain these
records shall include a system of internal controls and all accounting records shall be maintained
in accordance with generally accepted accounting principles and shall be open to inspection and
audit by the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts, expenses,
and profit and loss statements, and such records shall be maintained as would be required by an
independent CPA in order to audit a statement of annual gross receipts and profit and loss
statement pursuant to generally accepted accounting principles.
Inspection and Audit
Tenant shall maintain its financial records pertaining to its operation pursuant to this Lease and
including the Restaurant at 816 Commerce Street for a period of three (3) years after the conclusion
of the Term and such records shall be open and available to the City Manager or his designee, as
deemed necessary by the City Manager or his designee. Tenant shall maintain all such records at
its Principal office, currently located at 816 Commerce Street, Miami Beach, Florida, 33139 or, if
moved to another location, all such records shall be relocated, at Tenant's expense, to a location
within the City of Miami Beach, within ten (10) days' written notice from the City Manager or his
designee that the City desires to review said records.
Taxes, Assessments, and Utilities.
6.1 Tenant agrees to and shall pay before delinquency all taxes (including but not limited to Resod
Taxes) and assessments of any kind assessed or levied upon Tenant by reason of this Lease or by
reason of the business or other activities and operations of Tenant upon or in connection with the
Demised Premises and/or the adjoining Restaurant at 816 Commerce Street.
Tenant shall also pay for any fees imposed by law for licenses or permits for any business, activities,
or operations of Tenant upon the Demised Premises and/or the adjoining ground level Restaurant
at 816 Commerce Street and shall maintain same current and in good standing throughout the
Term of this Lease.
Docusigo Envelope ID: 4FB10067-01350.8E0441E9-CC82F8926EB3
6.2 Utilities.
The City shall not be responsible for providing electrical or water service, or any and all other utilities
to and/or for, and/or in connection with. the Demised Premises.
Requests for installation of electrical, water and/or any and all other utilities shall be submitted in
writing to the City Manager or his designee. Installation and connection of any and all utilities, as
and if approved by the City, will be performed at Tenant's sole cost and expense.
Tenant shall be responsible for payment of all utility bills for the Demised Premises.
6.3 Ad Valorem Taxes.
During the term of this Lease, Tenant shall be solely responsible for all taxes of whatever nature
lawfully levied upon or assessed against the Demised Premises and improvements, sales, or
operations thereon, including but not limited to, Ad Valorem taxes.
7. Security Deposit.
7.1 In connection with the Existing City Lease, Tenant paid to the City Twelve Thousand Four Hundred
Seventy and 55/100 Dollars ($12,470,55) as the original security deposit (the -Original Deposir).
The City is still holding the Original Deposit, which shall be applied to the Security Deposit required
pursuant to this Lease, which is Twelve Thousand Four Hundred Seventy and 551100 Dollars
($12,470.55) (the"Security Deposit"), The City acknowlcdgoa and agrooc that no additional Security
deposit is required. Said Security Deposit is to ensure the ful I and faithful performance by the Tenant
of each and every tear. covenant and condition of this Lease. In the event that Tenant defaults with
respect to any of the terms, provisions, covenants and conditions of this Lease, including but riot
limited to, the payment of any rent, the City may use, apply or retain the whole or any part of the
Security Deposit for thepayment of such rents in default or any other sum which the City may
expend or be required to expend by reason of the Tenants default, including any damages or
deficiency in the re -letting of the Demised Premises, whether such damages or deficiency may
accrue or after summary proceedings or other re-entry by City. If the Security Deposit is reduced
by such use or application, Tenant shall deposit with the City within ten (10) days after written
notice, an amount sufficient to restore the full amount of the Security Deposit. In addition, if the
City receives any check from Tenant which is returned by Tenant's bank for insufficient funds,
uncollected funds, or otherwise, the City may require that the Security Deposit be increased by an
amount of up to two installments of the then current Base Rent. in which event Tenant shall pay
such amount to the City within ten (10) days after written notice and such sum shall be part of the
Security Deposit.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the Security Deposit or any balance thereof shall be
returned to the Tenant, without interest, upon the expiration of the Lease and peaceful surrender of
the Demised Premises.
7.3 City shall not be required to keep the Security Deposit in a segregated account and the Security
Deposit may be commingled with other funds of City and in no event shall the Tenant be entitled to
any interest on the Security Deposit.
T4 In the event of a bona Htle sale of the Demised Premises, as delineated in this Lease, the City shall
have the right to transfer the Security Deposit to the purchaser for the benefit of the Tenant and the
City shall be considered by the Tenant free from all liability for the return of such Security Deposit,
and the Tenant agrees to look to the new owner/landlord solely for the return of the Security Deposit,
if such Security Deposit is actually transferred, and it is agreed that this shall apply to every transfer
or assignment made of the Security Deposit to any new owner/landlord.
It is expressly understood that the issuance of a warrant and the lawful reentry, to the Demised
Premises by the City for any default on the part of the Tenant, prior to the expiration of the term of
this Lease, shall not be deemed such termination of this Lease as to entitle the Tenant to recovery
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of the Security Deposit and the Security Deposit shall be retained and remain the possession of
the City
TS Tenant shall provide a Limited Guaranty (the Guaranty") by the principal of SOBE TOSCANA LLC,
Catherine Arrighi Guitars. for the entire Term of this Lease but liability under the Guaranty shall be
limited to the amount of Forty -Three Thousand One Hundred Eighteen and 04/100 Dollars
($43,118.04). A copy of the Guaranty is attached as Exhibit C hereto.
8. Use and Possession of Demised Premises.
8.1 The Demised Premises shall be used by the Tenant solely as an outdoor cafe to serve the patrons
and guests of Tenant's adjoining Restaurant at 816 Commerce Street. The outdoor cafe shall have
days and hours of operation from Sunday through Saturday, commencing at 12:00pm and ending
no later than 12:OOam midnight. Notwithstanding the preceding hours of operation, the outdoor
cafe on the Demised Premises shall only be open when the Restaurant at 816 Commerce Street
is open for business (and, conversely, it should be closed when the restaurant is closed). Hours of
operation will at all times comply with all applicable City regulations that may exist from time to time
to the extent more restrictive than those set forth above and elsewhere in this Lease, including
noise ordinances.
8.2 Tenant and owner/tenant of the Restaurant at 816 Commerce Street shall at all times throughout
the Term of the Lease be one and the same and cannot exist independently of each other. Tenant
acknowledges and agrees that its use of the Demigod Premises shall be, and remain at all times
throughout the Term, an ancillary use to Tenarl Restaurant at 816 Commerce Street. Additionally,
Tenant's operation will not interfere with pedestrian traffic.
The number of seats on the Demised Premises shall not exceed 93 and shall be included in the
overall seating count of Tenant's Restaurant at 816 Commerce Street. There shall be no bar counter
of any kind as part of the Demised Premises and all food served shall be prepared within the interior
kitchen of the Tenant's restaurant, with the exception of tableside preparation of certain dishes, and
only when the interior kitchen is operational. Any and all alcoholic beverages served at the outdoor
cafe shall be serviced by Tenant's restaurant All tables and chairs wilt be locked each night at close
of business. Any exception to this requirement shall be at the sole and absolute discretion of the
City Manager or his designee. Tenant shall further maintain the Demised Premises and abide by
the conditions set forth in Exhibit B of the Lease.
The City Manager or his/her designee may cause the immediate removal, relocation and/or storage
of all or part of any furniture located on the Demised Premises in emergency situations or for public
safety considerations. Upon written and/or verbal notification by the City Manager of a hurricane or
other major weather event, or the issuance of a hurricane warning by Miami -Dade County (or other
government agency), whichever occurs first, the Tenant shall, within not more than four (4) hours
of same, remove and place indoors all tables, chairs, umbrellas and any other outdoor furniture
located on the Demised Premises. The notification by the City Manager of a hurricane or other
major weather event, or the issuance of a hurricane warning, shall constitute a public emergency
situation as referenced in this section. The City Manager may remove, relocate, and/or store any
outdoor furniture found on the Demised Premises that has otherwise not been removed by the
Tenant pursuant to this subsection. Any and all costs incurred by the City for removal, relocation
and/or storage of Tenant's furniture shall be the responsibility of the Tenant.
8.3 Tenant hereby warrants and represents that SOBE TOSCANA LLC is the owner of the Restaurant
at 816 Commerce Street and shall, throughout the Term of the Lease, remain as the owner of said
restaurant, unless any change in ownership is approved by the City Manager, in writing, prior to
such change taking place. Change of ownership for purposes hereof shall include, without
limitation, a sale, exchange, assignment, transfer or other disposition by Tenant of all or a portion
of Tenant's interest in the restaurant, whether by operation of law or otherwise.
8.4 Tenant agrees not to place any televisions or other screens for the projection of images on or
around the Demised Premises. Tenant further agrees to not attach any televisions or other screens
Docusign Envelope ID'. 4FB10067-OD5D E0 lEe-CC82F8926EB3
to the exterior of the Restaurant building at 816 Commerce Street. Furthermore, Tenant shall in no
manner use the Demised Premises, or Tenant's Restaurant at 816 Commerce Street, as an outdoor
entertainment or open-air entertainment establishment, and hereby acknowledges that such uses
are prohibited (whether as main or accessory uses). However, subject to the next sentence in this
Section 8.4, Landlord grants Tenant a revocable license to play recorded, background music at
ambient levels, subject to compliance with all applicable law and regulations, including without
limitation City noise ordinances. The City Manager may, in his or her sole discretion, revoke the
foregoing license to play recorded, background music at ambient levels at any time by written notice
to Tenant and if the City Manager revokes this permission, then Tenant shall immediately
discontinue playing any music at the Demised Premises and remove any speakers or other
device(s) used to amplify sound into the Demised Premises, including any such equipment installed
on the exterior of the Restaurant building at 816 Commerce Street.
8.5 Tenant agrees that any valet parking operation and/or taxicab stand may be conducted either from
Washington Avenue or Commerce Street, subject to Tenant securing the required approvals from
the City's Parking Department. Any outdoor concession area, if approved by the City in conjunction
with the Tenant's operations at the Restaurant at 816 Commerce Street, shall not utilize Washington
Avenue and will be limited to Commerce Street. Furthermore, any and all deliveries to the
restaurant shall be limited to the alley located on the south side of 816 Commerce Street.
e.6 Tenant shall follow City procedure and policy in applying for any special event permits, provided,
Tenant acknowledges and agrees that the City shall have no obligation to approve any special
event permit for the Demised Premises.
8.7 It is understood and agreed that the Demised Premises shall be used by the Tenant during the
Term of this Lease only for the uses contemplated herein, and for no other purpose or use
whatsoever. Tenant will not make or permit any use of the Demised Premises that, directly or
indirectly, is forbidden by public law, ordinance orgovernment regulation, or that may be dangerous
to life, limb or property. Tenant may not commit waste on the Demised Premises, use the Demised
Premises for any illegal purpose, orcommit a nuisance on the Demised Premises. In the event that
the Tenant uses the Demised Premises for any purpose not expressly permitted herein, then the
City may declare this Lease in default pursuant to Section 18, or without notice to Tenant, restrain
such improper use by injunction or other legal action.
8.8 Notwithstanding anything to the contrary contained herein, in the event of a breach by Tenant of
any conditions in this Section 8.7, the City Manager, in his sole determination and judgment, shall
have the right to automatically terminate this Lease, without any liabililyto the City; said termination
effective upon three (3) days written notice to Tenant. By executing the Lease, Tenant hereby
agrees to this condition, and further voluntarily and knowingly waives and releases any and all
rights now or hereinafter conferred upon Tenant pursuant to Florida Statutes including, without
limitation, the procedures set forth in Chapter 83, Florida Statutes' for removal in nonresidential
tenancies; the Miami -Dade; and the Miami Beach Code (respectively); to the extent this and
applicable laws) would have the effect of limiting or modifying the City's rights to terminate this
Lease pursuant to this Subsection.
8.9 Subterranean Grease Trap Easement Use.
Tenant acknowledges that a subterranean grease trap system (the "Facilities") has been installed
beneath a potion of the Demised Premises (the "Easement Area"), measuring approximately 204
square feet, pursuant to an Easement Agreement executed between the City, the Tenant. and the
Restaurant Owner, incorporated herein by reference and attached hereto as Exhibit E. The
Easement Agreement grants a non-exclusive, subterranean easement for the operation and
maintenance of a 500-gallon grease trap to support Tenant's Restaurant at 816 Commerce Street.
Tenant agrees to comply with the terms and conditions of said Easement Agreement and
specifically all obligations of the "Tenant" and "Grantee" under said Easement Agreement including,
without limitation, the obligation to pay the annual use fee, as described in Section 6 of the
Easement Agreement.
Docusign Envelope 10: 4FB10067-ODSD-8E04-81E8-CC82F8N6EB3
9- Improvements
9A Any improvements on the Demised Premises shall be subject to the prior written approval of the
City Manager, which approval, if given at all, shall be at their sole discretion. As part of such
approval, the City Manager may require a Performance Bond for any proposed Improvements. All
permanent (fixed) improvements to the Demised Premises shall become the property of the City
upon termination of the Lease. Notwithstanding the preceding sentence, the City, at the CC&
sole discretion, may require that Tenant, upon termination of the Lease, remove all
permanent (fixed) improvements to the Demised Premises, without damage to the Demised
Premises or cost to the City. Furthermore, upon the lawful termination of this Lease, all personal
property and trade fixtures may be removed by the Tenant from the Demised Premises without
damage to the Demised Premises. Tenant will permit no liens to attach to the Demised Premises
arising from, connected with or related to the construction of any improvements. Moreover, such
construction shall be properly permitted and done in compliance with all applicable Municipal,
County, Slate and Federal regulatory requirements, and shall be accomplished through the use of
licensed, reputable contractors who are acceptable to the City. Any and all costs, permits and or
licenses required for the installation and maintenance of improvements shall be the sole
responsibility of Tenant.
9.2 Performance Bond. (INTENTIONALLY OMITTED)
9.3 City's Right of Entry
The Cry, or Its authortzed agent or agents, shaft have the right to enterupon the Damilsed Premises
at all reasonable times for the purpose of inspecting same, preventing waste, making such repairs
as the City may consider necessary and for the purpose of preventing fire, theft or vandalism.
However, the City agrees that whenever possible, the City shall provide reasonable notice, in
writing, to Tenant, unless the need to enter the Demised Premises is an emergency, as deemed by
the City at its sole discretion, which if not immediately addressed could cause property damage,
loss of life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the
City to do any work that under any provisions of this Lease the Tenant may be required to perform,
and the performance thereof by the City shall not constitute a waiver of the Tenant's default.
9.4 If the Tenant shall not be personally present to permit entry onto the Demised Premises at any time,
for any reason, and any entry thereon shall be necessary or permissible, the City, or its agents,
may enter the Demised Premises, including, without limitation, forcibly entering the Demised
Premises, without rendering the City or such agents liable therefore.
10. Tenant's Insurance Requirements
10.1 The Tenant shall procure prior to the Commencement Date and maintain throughout the Term, the
below required insurance. The maintenance of proper insurance coverage is a material element of
the Lease and failure to maintain or renew wverage may be treated as a material breach of the
Lease, which could result in withholding of payments or termination of the Lease.
(A) Worker's Compensation Insurance for all employees of the vendor as required by Florida
Statute 440, and Employer Liability Insurance for bodily injury or disease. Should the Tenant
be exempt from this Statute. the Tenant and each employee shall hold the City harmless
from any injury incurred during performance of the Lease. The exempt Tenant shall also
submit (1) a written statement detailing the number of employees and that they are not
required to can Workers' Compensation insurance and do not anticipate hiring any
additional employees during the Term of this Lease or (ii) a copy of a Certificate of
Exemption,
(13) Commercial General Liability Insurance on an occurrence basis, to include: Premises
Operations; Independent Contractors, Contractual Liability; Personal & Advertising Injury,
Products -Completed Operations; Broad Form Property Damage including Completed
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Operations: and Underground, Explosion and Collapse Property Damage, with limits no
less than $1,000,000 per occurrence and $2,000,000 aggregate, for bodily injury and
property damage. City of Miami Beach must be included as an additional insured by
endorsement with respect to this coverage.
(C) All -Risk property and casualty insurance, written at a minimum of eighty (80%) percent of
replacement cost value and with replacement cost endorsement, covering all leasehold
improvements installed in the Demised Premises by or on behalf of Tenant and including
without limitation all of Tenant's personal property in the Demised Premises (including,
without limitation, inventory, trade fixtures, floor coverings, furniture, and other property
removable by Tenant under the provisions of this Lease).
(D) Liquor Liability Insurance on an occurrence basis, including property damage, bodily injury
and personal & advertising injury with limits no less than $1,000,000 per occurrence.
(E) Business interruption insurance, sufficient to insure Tenant for no less than one (1) full year
of loss of business, with the City named thereon as loss payee to the extent permitted by
applicable law.
10.2 Additional Insured. The City of Miami Beach must be included by endorsement as an additional
insured with respect to all liability policies (except Professional Liability and Workers'
Compensation) arising out of work or operations performed on behalf of the contractor including
materials, parts, or equipment furnished in connection with such work or operations and
automobiles owned, leased. hired or borrowed in the form of an endorsement to the contractors
Insurance
10.3 Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not
be cancelled, except with notice to the City of Miami Beach C/O EXIGIS insurance Compliance
Services.
10.4 Waiver of Subrogabon. Vendor agrees to obtain any endorsement that may be necessary to affect
the waiver of subrogation on the coverages required. However, this provision applies regardless of
whether the City has received a waiver of subrogation endorsement from the insurer.
10.5 Acceptability of Insurers. Insurance must be placed with insurers with a current AM. Best rating of
A: VII or higher. If not rated, exceptions may be made for members of the Florida Insurance Funds
(i.e. FWCIGA. FAJUA). Carders may also be considered if they are licensed and authorized to do
insurance business in the State of Florida.
10.6 Verification of Coverage. Tenant shall furnish the City with original certificates and amendatory
endorsements, or copies of the applicable insurance language, effecting coverage required by this
contract. All certificates and endorsements are to be received and approved by the City before work
commences. However, failure to obtain the required documents prior to the work beginning shall
not waive the Contractors obligation to provide them. The City reserves the right to require
complete, certified copies of all required insurance policies, including endorsements, required by
these specifications, at any time.
CERTIFICATE HOLDER MUST READ:
MIAMI BEACH REDEVELOPMENT AGENCY and
CITY OF MIAMI BEACH
Go EXIGIS Insurance Compliance Services
P.O. Box 4668- ECM #35050
New York, NY 101634668
Kindly submit all certificates of insurance, endorsements, exemption letters to our seining agent,
EXIGIS, at Certificate-miamibeach@riskworks.com.
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10.7 Special Risks or Circumstances. The City of Miami Beach reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior experience, insurer. coverage.
or other special circumstances.
10.8 Compliance with the foregoing requirements shall not relieve the Tenant of his liability and
obligation under this section or under any other section of this Lease.
11. Assignment and Subletting.
11.1 Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in part, without
the prior written consent of City which shall not be unreasonably withheld. Such written consent is
not a matter of right and City is not obligated to give such consent. If granted as provided herein,
the making of any assignment or sublease will not release Tenant from any of its obligations under
this Lease. A sale or transfer of a majority interest of the stock of Tenant's corporate entity shall be
deemed an assignment, and for purposes of this Lease, the City shall have the right to approve the
new majority owner. Said approval shall be provided in writing. Tenant is prohibited from assigning
or subletting this Lease to any person or entity which is not of the same or higher financial
responsibility as Tenant, as shall be determined by City, in its sole judgment and discretion. Further,
Tenant shall be prohibited from any changes in ownership, whether in the Demised Premises or
the Restaurant located at 816 Commerce Street, as set forth in Subsections 8.2 and 8.3.
11.2 Any consent by the City to any act of assignment shall apply only to the specific transaction thereby
authorized. Such consent shall not be construed as a waiver of the duty of the Tenant or the legal
representatives or assigns of the Tenant, to obtain from the City Consent to any other Or subsequent
assignment, or as modifying or limiting the rights of the City under the foregoing covenants of the
Tenant not to assign without such consent.
11.3 Any violation of the provisions of this Lease, whether by act or omissions, by assignee, sub -tenant,
or under -tenant or occupant, shall be deemed a violation of such provision by the Tenant, it being
the intention and meaning of the parties hereto, that the Tenant shall assume and be liable to the
City for any and all acts and omissions of any and all assignees, sub -tenants, or under -tenants or
occupants. If the Lease be assigned, the City may and is hereby empowered to collect rent from
the assignee; if the Demised Premises or any part thereof be undertet or occupied by any person,
other that the Tenant, the City, in the event of the Tenants default, may, and is hereby empowered
to, collect rent from the under -tenant or occupants; in either of such events, the City may apply the
net amount received by it for rent herein reserved, and no such collection shall be deemed a waiver
of the covenant herein against assignment or the acceptance of the assignee, under -tenant or
occupant as tenant, or a release of the Tenant from the further performance of the covenants herein
contained on the part of the Tenant.
11.4 In case the City or any successor owner of the Demised Premises shall convey or otherwise
dispose of any portion thereof to another party (and nothing herein shall be construed to restrict or
prevent such conveyance or disposition), such other party shall thereupon be and become landlord
hereunder and shall be deemed to have fully assumed and be liable for all obligations of this Lease
to be performed by the City, including the return of any Security Deposit. Tenant shall attorn to such
other party, and the City or such successor owner shall, from and after the date of conveyance, be
free of all liabilities and obligations hereunder. The City shall use commercially reasonable efforts
to cause any transferee of the property to execute an assumption agreement in customary form.
12. Maintenance and Repair
12.1 Tenant shall maintain the Demised Premises and any fixtures and appurtenances thereon, and, at
its sole cost and expense, shall make all repairs thereto as and when headed to preserve them in
good working order and condition. This shall include, but not be limited to, Tenant being responsible
for maintenance and repair of any and all improvements, such as fences, walkways, pavers,
ground -coverings, landscaping, and gates. For the sake of clarity, Tenant shall nave no obligation
to maintain, repair or replace any underground improvements belonging to the City or any utility or
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Docusign Envelope ID: 6FB10081-01)51)8E0481EB-CC82F89@BEBa
anything below ground (hereinafter referred to as "Underground Infrastructure") other than the
Facilities (as defined in Section 8.9) and any other equipment installed by or at Tenant's direction
or request.
12.2 All damage or injury of any kind to the Demised Premises shall be the obligation of Tenant, and
shall be repaired, restored or replaced promptly by Tenant at its sole cost and expense to the
satisfaction of the City, but shall not include any damage or injury of any kind arising from the
Underground Infrastructure other than the Facilities and any other equipment installed by or at
Tenant's direction or request.
12.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to the
original work or installations and shall be done in good and workmanlike manner.
12.4 If Tenant fails to make such repairs or restorations or replacements, the same may be made by the
City, at the expense of the Tenant, and all sums spent and expenses incurred by the City shall be
collectable and shall be paid by the Tenant within ten (10) days after rendition of a bill or statement
thereof.
12.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or improvements made by
Tenant to the Demised Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
12.6 TI IC DEMISED PREMISES ARE DOING LEASED IN THEIR PRESENT "AS IS" CONDITION.
Tenant may construct or cause to be constructed, such exterior improvements to the Demised
Premises, as reasonably necessary for it to carry on its pflnndted use(s): provided, however, that
any plans for such improvements shall be first submitted to the City Manager for his prior received
written approval, which approval, if granted at all, shall be at the City Manager's sole and absolute
discretion. Additionally, any and all approved improvements shall be made at Tenants sole cost
and expense. Ail permanent (fixed) improvements to the Demised Premises shall remain the
property of the City upon termination and/or expiration of this Lease. Upon termination and/or
expiration of this Lease, all personal property and non -permanent trade fixtures may be removed
by the Tenant from the Demised Premises, provided that they can be (and are) removed without
damage to the Demised Premises. Tenant will permit no liens to attach to the Demised Premises
arising from, connected with, or related to the design and construction of any improvements.
Moreover, such construction shall be accomplished through the use of licensed. reputable
contractors who are acceptable to the City Manager. Any and all permits and or licenses required
for the construction and/or installation of improvements shall be the sole cost and responsibility of
Tenant.
13. Governmental Regulations
The Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules, orders,
regulations, and requirements of any and all governmental bodies, including but not limited to
Federal, State, Miami -Dade County, and City governments, and any and all of their departments
and bureaus applicable to the Demised Premises and shall also comply with and fulfill all rules,
orders, and regulations for the prevention of fire, all at Tenant's own cost and expense. Tenant shell
pay all costs, expenses, claims, fines, penalties, and damages that may be imposed because of
Tenants failure to comply with this Section, and shall indemnify and hold harmless the City from all
liability arising from each non-compliance.
14. Intentionally Omitted.
15. Condemnation
15.1 If at any time during the term of this Lease all or any part or portion of the Demised Premises are
taken, appropriated, or condemned by reason of Eminent Domain proceedings (except if the
Eminent Domain proceedings are initialed by the City of Miami Beach), then this Lease shall be
terminated as of the date of such taking, and shall thereafter be completely null and void, and
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neither of the parties hereto shall thereafter have any rights against the other by reason of this
Lease or anything contained therein, except that any rent prepaid beyond the date of such taking
shall be prorated to such sate, and the Tenant shall pay any and all rents, additional rents, utility
charges, or other costs including excess taxes for which it is liable under the terms of this Lease,
up to the date of such taking.
15.2 Except as hereunder provided Tenant shall not be entitled to participate in the proceeds of any
award made to the City in any such Eminent Domain proceeding, excepting, however, the Tenant
shall have the night to claim and recover from the condemning authority, but not from the City, such
compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on
account of any and all damage to Tenant's business by reasons of the condemnation and for or on
account of any cost or loss which Tenant might incur in removing Tenant's furniture and fixtures.
16. Default.
16.1 Default by Tenant.
At the City's option, any of the following shall constitute an Event of Default under this Lease:
16.1.1 Rent, or any installment thereof is not paid promptly when and where due within fifteen (15)
days of due date and if Tenant shall not cure such failure within five (5) days after receipt of
written notice from the City specifying such default;
16.1.2 Any other payment provided for under this Lease is not paid promptly when and where due
within fifteen (15) days of due date and if Tenant shall not cure such failure within five (5)
days after receipt of written notice from the City specifying such default;
16.1.3 Demised Premises shall be deserted, abandoned for a period of thirty (30) days or more,
or vacated;
16.1.4 Tenant shall fail to comply with any term, provision, condition or covenant contained herein
other than the payment of rent and shall not cure such failure within thirty (30) days after
the receipt of written notice from City specifying any such default; unless such default is one
which cannot be cured within thirty (30) days because of circumstances beyond the Tenant's
control, and the Tenant within such thirty (30) day period shall have commenced and
thereafter shall continue diligently to prosecute all actions necessary to cure such default
and Tenant cures such default within sixty (60) days from the date of receipt of the City's
default notice. However, in the event the Tenant fails to cure such default within the
foregoing cure period, Tenant shall be in default.
16.1.5 Receipt of notice of violation from any governmental authority having jurisdiction dealing
with a code, regulation, ordinance or the like, which remains uncured within the time
specified in such notice of violation (subject to appeal periods exercised by Tenant)or such
period of time acceptable to the City Manager, at his sole discretion,
16.1.6 Any petition is filed by or against Ten, ant under a section or chapter of the Bankruptcy Act,
as amended, which remains pending for more than sixty (60) days, or any other proceedings
now or hereafter authorized by the laws of the United States or of any state for the purpose
of discharging or extending the time for payment of debts;
16.1.7 Tenant shall become insolvent,
16.1.8 Tenant shall make an assignment for benefit of creditors;
16.1.9 A receiver is appointed for Tenant by any court and shall not be dissolved within thirty (30)
days thereafter, or
16.1.10The leasehold interest is levied on under execution.
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16.1.11Tenant's violation of the provision of Subsection 8.8 herein, which shall result in an
automatic termination of the Lease, as further provided in said subsection.
17. Rights on Default.
17.1 Rights on Default.
17.1.1 In the event of any default by Tenant as provided herein, the City, after expiration of all
applicable notice and cure periods, shall have the option to do any of the following in
addition to and not in limitation of any other remedy permitted by law, in equity or by this
Lease:
17.1.2 Terminate this Lease, in which event Tenant shall immediately surrender the Demised
Premises to the City, but if Tenant shall fail to do so the City may, without further notice, and
Without prejudice to any other remedy the City may have for possession or armarages in
rent or damages for breach of contract, enter upon Demised Premises and expel or remove
Tenant and his effects in accordance with law, without being liable for prosecution or any
claim for damages therefore, and Tenant agrees to indemnify and hold harmless the City
for all loss and damage which the City may suffer by reasons of such termination, whether
through inability to re -let the Dismissed! Premises, or through decrease in rent, or otherwise.
17.1.3 Declare the entire amount of the rent which would become due and payable during the
remainder of the Term of this Lease to be due and payable immediately, in which event
Tenant agrees to pay the same at once, together with all rents therefore due, at the address
of the City, as provided in the NoBces section of his Lease: provided, however, that such
payment shall not constitute a penalty, forfeiture, or liquidated damage, but shall merely
constitute payment in advance of the rents for the remainder of said Tenn and such payment
shall be considered, construed and taken to be a debt provable in bankruptcy or
receivership.
17.1.4 Enter the Demised Premises as the agent of Tenant, by force if necessary, without being
liable to prosecution or any claim for damages therefore, remove Tenant's property there
from, and re -let the Demised Premises, or portions thereof, for such terms and upon such
conditions which the City deems, in its sole discretion, desirable, and to receive the rents
therefore, and Tenant shall pay the City any deficiency that may arise by reason of such re -
letting, on demand at any time and from time to time at the office of the City; and for the
purpose of re -letting, City may (i) make any repairs, changes, alterations or additions in or
to said Demised Premises that may be necessary or convenient; (ii) pay all costs and
expenses therefore from rents resulting from re -letting, and (iii) Tenant shall pay the City
any deficiency as aforesaid.
17.1.5 Take possession of any personal property owned by Tenant on said Demised Premises and
sell the same at public or private sale, and apply same to the payment of rent due, holding
the Tenant liable for the deficiency, if any.
17.1.6 It is expressly agreed and understood by and between the parties hereto that any
installments of rent or any other amounts accruing under the provisions of this Lease which
shall not be paid when due shall bear interest at the rate of eighteen percent (18%) per
annum, not to exceed the maximum legal rate of interest per annum then prevailing in
Florida, from the date when the same was payable by the terms hereof, until the same shall
be paid by Tenant. Any failure on the Citys behalf to enforce this Section shall not constitute
a waiver of this provision with respect to future accruals of past due rent or other amounts
due under this Lease. No interest will be charged for payments made within the grace
period, such grace period to be defined as within five (5) days of the due date. In addition,
there will be a late charge of five percent (5%) for any payments submitted after the grace
period.
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171.7 If Tenant shall default in making any payment of monies to any person or for any purpose
as may be required hereunder, the City may pay such expense but the City shall not be
obligated to do so. Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof. All sums of money payable by Tenant
to the City hereunder shall be deemed as rent for use of the Demised Premises and
collectable by the City from Tenant as rent, and shall be due from Tenant to City on the first
day of the month following the payment of the expense by the City
17.1.8 The rights of the City under this Lease in the event of a default by Tenant shall be distinct,
separate and cumulative with and in addition to those given by law. The failure on the part
of the City to exercise promptly any rights given hereunder shall not operate to waive or to
forfeit any of the said rights.
17.1.9 Notwithstanding anything in this Section 17 or this Lease, in the event of a default by the
Tenant, the City hereby agrees and acknowledge that in no event shall the T7gpgp(J]B liable
for any incidental, indirect, special or consequential damages, including without limitation
loss of revenue and lost profits, of City which may be alleged as a result of the Tenant's
default.
17.2 Default by City
Failure of the City to perform any of the covenants, conditions and agreements of the Lease which
are to be performed by the City and the continuance of such failure for a period of thirty (30) days
after notice thereof in writing from Tenant to the City (which notice shall specify the respects in
which Tenant contends that the City failed to perform any such covenant, conditions and
agreements) shall constitute a default by the City, unless such default is one which cannot be cured
within thirty (30) days because of circumstances beyond the City's control, and the City within such
thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute
all actions necessary to cure such defaults and cured such default within sixty (60) days from the
date the City receives notice of the default fMM Tenant —However, in the event the City fails to cure
such default during the foregoing cure period, the City shall be in default.
Subject in all cases to the limitation of liability set forth in Section 30, the rights of the Tenant under
this Lease in the event of a default by the City shall be distinct, separate and cumulative with and
in addition to those given by law. The failure on the part of the Tenant to exercise promptly any
rights given hereunder shall not operate to waive or to forfeit any of the said rights.
17.3 Tenant's Rights on Default:
If an event of the City's default shall occur, Tenant, to the fullest extent permitted by law, shall have
the right and option to terminate this Lease and all of its obligations hereunder by giving written
notice of such election to the City, and shall further have the right to pursue any actions at law to
obtain damages resulting from the City's default, subject to the limitation upon the City's liability as
set forth in Section 30. Notwithstanding anything in this Section 17.3 or the Lease, in the event of
a default by the City, Tenant hereby agrees and acknowledges that in no event shall the City be
liable for any incidental, indirect, special or consequential damages, including without limitation loss
of revenue and lost profits, of Tenant which may be alleged as a result of the City's default.
ta. Indemnity Against Costs and Charges.
18.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable attorneys fees,
and damages which may be incurred or sustained by the City, by reason of the Tenants breach of
any of the provisions of this Lease. Any sums due the City under the provisions of this item shall
constitute a lien against the interest of the Tenant in the Demised Premises and all of Tenant's trade
fixtures and personal property situated thereon to the same extent and on the same conditions as
delinquent rent would constitute a lien on Tenant's property.
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Dowsign Envelope ID: 41`1310087-0 5D-8Eo4,81E&CCB2F8928E93
18.2 If either party shall at any time be in default hereunder, and if the other party shall deem it necessary
to engage an attorney to file suit to enforce such partys rights and the other party's obligations
hereunder, the prevailing party will be entitled to be reimbursed for its reasonable expenses
incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, at both
the Mal and appellate levels.
19. Indemnification Against Claims.
19.1 Tenant shall indemnity and save the City harmless from and against any and all claims or causes
of action (whether groundless or otherwise) by or on behalf of any person, firm, or corporation, for
personal injury or property damage occurring upon the Demised Premises or upon any sidewalk,
parking lot or other facility or appurtenance used in connection with the Demised Premises,
occasioned in whole or in part by any of the following:
19.1.1 An act or omission on the part of the Tenant, or any employee, agent, contractor, invitee, or
guest, assignee or sub -tenant of the Tenant;
19.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or any of its facilities by the
Tenant, or any employee, agent, contractor, invitee, or guest, assignee or sub -tenant of the
Tenant, but not to include trespassers upon the Demised Premises during the time when
Tenant is closed for business and/or Tenant and none of its employees, agents, contractors,
invite", assignees or subtenants are not present at the Demised Premises;
19.1.3 Any breach, violation, or non-performance of any undertaking of the Tenant under this
Lease;
19.1.4 Anything arising out of or related to the use or occupancy of the Demised Premises by the
Tenant or anyone holding or claiming to hold through or under the Lease.
19.2 Tenant agrees to pay all damages to the Demised Premises or other facilities used in connection
therewith, caused by the Tenant of any employee, agent, contractor, assignee, subtenant, guest,
or invitee of the Tenant.
19.3 Notwithstanding anything contained in this Lease to the contrary. Tenant's indemnification
obligations hereunder shall not apply to any claims or causes of action to the extent they arise from
the City's, and/or its employees' or agents', gross negligence or willful misconduct.
19,4 Tenant's obligations to indemnify the City pursuant to the foregoing provisions and Sections 13,
17.1.2, 18, and 31 shall survive the expiration or earlier termination of this Lease.
20. Signs and Advertising.
Without the prior written consent of the City, at the City's sole but reasonable discretion, Tenant
shall not permit the painting and display of any signs, plaques, lettering or advertising material of
any kind on or near the Demised Premises. All additional signage shall comply with signage
standards established by the City and comply with all applicable building codes, and any other
Municipal, County, State and Federal laws
21. Damage to the Demised Premises andfor Restaurant at 816 Commerce Street.
If the Demised Premises shall be damaged by the elements or other casualty (collectively,
"Casualty"), but the Demised Premises are not thereby rendered untenantable, as determined by
the City Manager, in whole or in part (hereinafter referred to as "such occurrence"), Tenant shall as
soon as possible after such occurrence, utilize its insurance proceeds to cause such damage to be
repaired and the rent for the Demised Premises shall not be abated. If by reason of such Casualty,
the Demised Premises shall be rendered untenantable, as determined by the City Manager, only
in part, Tenant shall as soon as possible utilize its insurance proceeds to cause the damage to the
Demised Premises to be repaired, and the rent for the Demised Premises shall be abated
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proportionately as to the portion of the Demised Premises rendered untenantable ("Partial
Abatement"): provided however, that the Partial Abatement period shall not exceed such period as
would be reasonable to repair the damage to the Demised Premises but not to exceed sixty (60)
days. If the City Manager determines the Demised Premises is by reason of such Casualty,
rendered more than 50% untenantable ("Materially Untenantable'), as determined by the City
Manager, unless the parties agree otherwise, then rent shall be fully abated for 60 days from the
date of the occurrence of a Casualty, after which Tenant shall pay the full amount of rent. The fact
that Tenant shall be obligated to pay rent shall not serve to modify the requirements set forth in
Section 8.2.
22. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or disturbed
in possession of the Demised Premises so long as Tenant complies with the terms of this Lease.
23. Waiver.
23.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of the either
party to insist upon the strict performance of any of the conditions, covenants, terns or provisions
of this Lease, or to exercise any option herein conferred, will not be considered or construed as a
waiver or relinquishment for the future of any such conditions. covenants, terms, provisions or
options but the same shall continue and remain in full force and effect.
23.2 Awaiver of any term expressed herein shall not be implied by any neglect of either party to declare
a forfeiture on account of the violation of such term if such violation by continued or repeated
subsequently and any express waiver shall not affect any term other than the one specified in such
waiver and that one only for the time and in the manner specifically stated.
23.3 The receipt of any sum paid by Tenant to the City after breach of any condition, covenant, term or
provision herein contained shall not be deemed a waiver of such breach, but shall be taken,
considered and construed as payment for use and occupation, and not as rent, unless such breach
be expressly waived in writing by the City.
24. Notices.
The addresses for all notices required under this Lease shall be as follows, or at such other address
as either party shall be in writing, notify the other:
CITY:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to:
City Attorney
City of Miami Beach
1700 Convention Center Drive, 4" floor
Miami Beach, Florida 33139
TENANT:
SOBE TOSCANA LLC
816 Commerce Street
Miami Beach, Florida 33139
Attn: Catherine Arighi Gutters
With copies to:
Shuns & Bowen LLP
200 S- Biscayne Boulevard, Suite 4100
Miami, Florida 33131
Attn: Alexander 1. Tachmes. Esq.
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Docusigo Envelope 10: V1110067-ODW-BEI t-81 E& C82F8926E93
All notices shall be hand delivered and a receipt requested, or by certified mail with return receipt
requested, and shall be effective upon receipt.
25. Entire and Binding Agreement.
This Lease, together with all exhibits hereto, contains all of the agreements between the parties
hereto relating to the matters set forth herein, and it may not be modified in any manner other than
by agreement in writing signed by all the parties hereto or their successors in interest The terms,
covenants and conditions contained herein shall inure to the benefit of and be binding upon the
City and Tenant and their respective successors and assigns, except as may be otherwise
expressly provided in this Lease.
26. Provisions Severable.
If any term or provision of this Lease or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
27. Captions.
The captions contained herein are for the convenience and reference only and shall not ha deemed
a part of this Lease or construed as in any manner limiting or amplifying the terns and provisions
of this Lease to which they relate.
28. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural shall include the
singular, and the use of one gentler shall include all genders.
29. Governing Law.
This Lease shall be governed by and construed in accordance with the law of the State of Florida.
30. Limitation of Liability.
The City desires to enter into this Lease only if in so doing the City can place a limit on the City's
liability for any cause of action for money damages due to an alleged breach by the City of this
Lease, so that its liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00)
Dollars and no/100. Tenant hereby expresses its willingness to enter into this Lease with the
Tenant's recovery from the City for any damage action for breach of contract to be limited to a
maximum amount of Ten Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any
other term or condition of this Lease, Tenant hereby agrees that the City shall not be liable to Tenant
for damage in an amount in excess of Ten Thousand ($10,000.00) Dollars for any action or claim
for breach of contract arising out of the performance or non-performance of any obligations
imposed upon the City by this Lease. Nothing contained in this Section or elsewhere in this Lease
is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in
Florida Statutes, Section 768.28. Notwithstanding the foregoing, in the event the City terminates
this Lease during the first three (3) years other than as a result of a default by Tenant, the limitation
of liability in any claim or action for breach of contract shall be One Hundred Thousand Dollars
($100,000.00).
31. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the term herein demised, or the sooner termination thereof,
peaceably and quietly leave, surrender and yield upon to the City the Demised Premises, together
with any and all equipment, fixtures, furnishings, appliances or other personal property, if any,
located at or on the Demised Premises and used by Tenant in the maintenance, management or
operation of the Demised Premises, excluding any trade fixtures or personal property, if any. which
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can be removed without material injury to the Demised Premises, free of all liens, claims and
encumbrances and rights of others, and in a broom -clean condition, together with all structural
changes, alterations, additions, and improvements which may have been made upon the Demised
Premises, in good order, condition and repair, reasonable wear and tear excepted, subject,
however, to the subsequent provisions of this Article. Any property which pursuant to the provisions
of this Section is removable by Tenant on or at the Demised Premises, upon the termination of this
Lease and is not so removed may, at the option of the City, be deemed abandoned by the Tenant,
and either may be retained by the City as its property or may be removed and disposed of at the
sole cost of the Tenant in such manner as the City may see fit. If the Demised Premises and
personal property, If any, be not surrendered at the end of the term as provided in this Section, the
Tenant shall make good the City all damages which the City shall suffer by reason thereof, and
shall indemnify and hold harmless the City against all claims made by any succeeding tenant or
purchaser, so far as such delay is occasioned by the failure of the Tenant to surrender the Demised
Premises as and when herein required.
32. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay money is
involved.
33. Vanua.
This Lease shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by
either party with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami -Dade County, Florida.
CITYAND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT MAY HEREIN
AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS LEASE.
34. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES OR PLASTIC STRAWS. Pursuant to Section 82-7 of the City Code, as may
be amended from time to time, effective August 2, 2014, the City has prohibited the use of expanded
polystyrene food service articles by City Contractors, in connection with any City contract, lease,
concession agreement or Special event permit. Additionally, pursuant to Section 82-385 of the City
Code, as may be amended from time to time, no polystyrene food service articles will be allowed
in the right-of-way, and no polystyrene food service articles can be provided to sidewalk cafe
patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded
polystyrene is more particularly defined as blown polystyrene and expanded and extruded foams
that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any
number of techniques including, but not limited to, fusion of polymer spheres (expandable bead
foam), injection molding, foam molding, and extrusion -blown molding (extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids, trays,
coolers, ice chests, and all similar articles that consist of expanded polystyrene. Tenant agrees not
to sell, use, pro -Ada food in, or offer the use of expanded polystyrene food service articles at the
Demised Premises or in connection with this Lease. Tenant shall ensure that all vendors operating
in the Demised Premises abide by the restrictions contained in this Section 35. A violation of this
section shall be deemed a default under the terms of this Lease. This subsection shall not apply to
expanded polystyrene food service articles used for prepackaged food that have been filled and
sealed prior to receipt by the Tenant or its vendors.
Additionally, Tenant agrees to comply (and ensure compliance by its vendors) with Section 48-92
(c) of the City Code, which states that it is unlawful for any person to carry any expanded
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polystyrene product onto any beach or into any park within the City or for any business to provide
plastic straws with the service or delivery of any beverage to patrons on the beach.
35. Inspector General Audit Rights
35.1 Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis, perform reviews,
audits, inspections and investigations on all City contracts, throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by or on behalf
of the City.
35.2 The Office of the Inspector General is authorized to investigate City affairs and empowered to
review past, present and proposed City programs accounts, records, contracts and
transactions. In addition, the Inspector General has the power to subpoena witnesses, administer
oaths, require the production of witnesses and monitor City projects and programs. Monitoring
of an existing City project or program may include a report concerning whether the project is on
time, within budget and in conformance with the contract documents and applicable law. The
Inspector General shall have the power to audit, investigate, monitor, oversee, inspect and
review operations, activities performance and procurement process including but not limited
to project design, bid specifications, (bid/proposal) submittals, activities of the Tenant. its officers,
agents and employees, lobbyists, City staff and elected officials to ensure compliance with the
contract documents and to detect fraud and corruption. Pursuant to Sectinn 2-376 of the City
Code. the City is allocating a percentage of its overall annual contract expenditures to fund the
activities and operations of the Office of Inspector General.
35.3 Upon ten (10) days, written notice to the Tenant. the Tenant shall make all requested records and
documents available to the Inspector General for inspection and copying. The Inspector General
is empowered to retain the services of independent private sector auditors to audit. investigate,
monitor. oversee, inspect and review operations activities. performance and procurement
process including but not limited to project design, bid specifications, (bid/proposal) submittals,
activities of tine Tenant its officers, agents and employees, lobbyists, City staff and elected officials
to ensure compliance with the contract documents and to detect fraud and corruption.
35.4 The Inspector General shall have the right to inspect and copy all documents and records in the
Tenant's possession, custody or control which in the Inspector General's sole judgment. pertain
to performance of the contract. including. but not limited to original estimate files, change order
estimate files, worksheets. proposals and agreements from and with successful subcontractors
and suppliers, all omiect-related correspondence, memoranda, instructions, financial
documents, construction documents, (bid/proposal) and contract documents, beck- change
documents, all documents and records which involve cash, trade or volume discounts, insurance
proceeds, rebates, or dividends received, payroll and personnel records and supporting
documentation for the aforesaid documents and records.
35.5 The Tenant shall make available at its office at all reasonable times the records, materials. and
other evidence regarding the acquisition (bid preparation) and performance of this Agreement for
examination, audit, or reproduction, until three (3) years after final payment under this Agreement
or for any longer period required by statute or by other clauses of this Agreement. In addition:
(a) If this Agreement is completely or partially terminated, the Tenant shall make available
records relating to the work terminated until three (3) years after any resulting final
termination settlement: and
(b) The Tenant shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement unfit such appeals,
litigation, or claims are finally resolved.
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35.6 The provisions in this section shall apply to the Tenant, its officers, agents, employees,
subcontractors and suppliers. The Tenant shall incorporate the provisions in this section in all
subcontracts and all other agreements executed by the Tenant in connection with the
performance of this Agreement.
35.7 Nothing in this section shall impair any independent right to the City tc conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they be
construed to impose any liability on the City by the Tenant or third parties.
36. Tenant's Compliance with Anti -Human Trafficking Laws.
Tenant agrees to comply with Section 787.06, Florida Statutes, as may be amended from time to
time, and has executed the Certification of Compliance with Anti -Human Trafficking Laws, as
required by Section 787.06(13), Ronde Statutes, incorporated herein by reference and attached
hereto as part of Exhibit D.
37. Prohibition on Contracting with a Business engaging in a Boycott.
Tenant warrants and represents that it is not currently engaged in, and will not engage in, a
boycott, as defined in Section 2-375 of the City Code. In accordance with Section 2-375.1(2xa)
of the City Code, Tenant hereby certifies that Tenant is not currently engaged in, and agrees for
the duration of the Agreement to not engage in, a boycott of Israel, as certified in the affidavit
incorporated herein by reference and attached hereto as part of Exhibit D.
39. Prohibition Against Contracting with Foreign Countries of Concern When an Individual's
Personal Identifying Information May Be Accessed.
Tenant hereby agrees to comply with Section 287.138, Florida Statutes, as may be amended from
time to time, which states that as of January 1, 2024, a governmental entity may not accept a bid
on, a proposal for, or a reply to, or enter into, a contract with an entity which would grant the entity
access to an individual's personal identifying information (Pit). unless the entity provides the
governmental entity with an affidavit signed by an officer or representative of the entity under
penalty of perjury attesting that the entity does not meet any of the criteria in Paragraphs 2(a)-(c)
of Section 287.138, Florida Statutes: (a) the entity is owned by a government of a foreign country
of concern; (b) the government of a foreign country of concern has a controlling interest in the
entity; or (c) the entity is organized under the laws of or has its principal place of business in a
foreign country of concern (each a'Prohibited Entity"). A foreign country of concern is defined in
Section 287.138 (1)(c), Florida Statutes, as may be amended from time to time, as the People's
Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People's
Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Madum, or the Syrian
Arab Republic, including any agency of or any other entity of significant control of such foreign
country of concern. Additionally, beginning July 1, 2025, a governmental entity may not extend or
renew a contract with a Prohibited Entity. Tenant warrants and represents that it does not fall within
the definition of a Prohibited Entity, and as such, has caused an authorized representative of Tenant
to execute the "Prohibition Against Contracting with Entities of Foreign Countries of Concern
Affidavit', incorporated herein by reference and attached hereto as part of Exhibit D.
39. Prohibition on Contracting with an Individual or Entity which has Performed Services for
Compensation to a Candidate for City Elected Office.
Tenant warrants and represents that, within two (2) years prior to the Commencement Date, Tenant
has not received compensation for services performed for a candidate for City elected office, as
contemplated by the prohibitions and exceptions of Section 2-379 of the City Code.
For the avoidance of doubt, the restrictions on contracting with the City pursuant to Section 2-379
of the City Code shall not cooly to the following:
(a) any individual or entity that provides goods to a candidate for office;
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Docusign Envelope ID: 4FB10067-0D56BEW-81E8 C8211`8926EBB
(b) any individual or entity that provides services to a candidate for once if those same
services are regularly performed by the individual or entity in the ordinary course of
business for clients or customers other than candidates for office. This includes, without
limitation, banks, telephone or internet service providers, printing companies, event
venues, restaurants, caterers, transportation providers, and office supply vendors; or
(c) any individual or entity which performs licensed professional services (including for
example, legal or accounting services.
40. Florida Public Records Law.
40.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as
may be amended from time to time.
40.2 The term "public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance or
in connection with the transaction of official business of the City.
40.3 Pursuant to Section 119.0701 of the Florida Statutes, if Tenant meets the definition of
'Contractor" as defined in Section 119.0701(l )(a), Tenant shall:
40.3.1 Keep and maintain public records required by the City to perform the service;
40.3.2 Upon request from the Citys custodian of public records, provide the City with a copy of
the requested records or allow the records to be inspected or copied within a reasonable
time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or
as otherwise provided by law;
40.3.3 Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed, except as authorized by law, for the duration
of the contract term and following completion of the Lease if Tenant does not transfer the
records to the City;
40.3A Upon completion of the Lease, transfer, at no cost to the City, all public records in
possession of Tenant or keep and maintain public records required bythe City to perform
the service. If Tenant transfers all public records to the City upon completion of the Lease,
Tenant shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If Tenant keeps and maintains
public records upon completion of the Lease, Tenant shall meet all applicable
requirements for retaining public records. All records stored electronically must be provided
to the City, upon request from the City's custodian of public records, in a format that is
compatible with the information technology systems of the City.
40.4 Request for Records; Noncompliance,
40.4.1 Arequest to inspect or copy public records relating to the City's contract for services must
be made directly to the City If the City does not possess the requested records, the
City shall immediately notify Tenant of the request, and Tenant must provide the records to
the City or allow the records to be inspected or copied within a reasonable time.
40.4.2 Tenant's failure to comply with the City's request for records shall constitute a breach of
this Lease, and the City, at its sole discretion, may: (11 unilaterally terminate the Lease; (2)
avail itself of the remedies set forth under the Lease, and/or (3) avail itself of any available
remedies at law or in equity.
40.4.3 A Tenant who fails to provide the public records to the City within a reasonable time may
be subject to penalties under s. 119.10.
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40.5 Civil Action.
40SA If a civil action is filed against a Tenant to compel production of public records relating to
the City's contract for services, the court shall assess and award against Tenant the
reasonable costs of enforcement, including reasonable attorney fees, it:
40.5.1.1 The court determines that Tenant unlawfully refused to comply with the public
records request within a reasonable time; and
40.5.1.2 At least 8 business days before fling the action, the plaintiff provided written
notice of the public records request, including a statement that Tenant has not
complied with the request, to the City and to Tenant.
40.5.2 A notice complies with subparagraph 40.5.1.2 if it is sent to the City's custodian ofpublic
records and to Tenant at Tenant's address listed on its contract with the City or to Tenant's
registered agent. Such notices must be sent by common carrier delivery service or by
registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by
the sender and with evidence of delivery, which may be in an electronic format.
40.5.3 A Tenant who complies with a public records request within 8 business days after the
notice is sent is not liable for the reasonable costs of enforcement
40.5 IF THE TENANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE TENANT'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS
AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACH FL.GOV
PHONE: 305-673-7411
41. Existing City Lease for Demised Premises.
As of the date of execution of this Lease, the Existing City Lease remains unchanged and in full
force and effect.
42. City's Proprietary and Regulatory Capacity.
In all respects hereunder, City's obligations and performance is pursuant to City's position as the owner
of the Demised Premises acting in its proprietary capacity. In the event City exercises its regulatory
authority as a governmental body, the exercise of such regulatory authority and the enforcement of any
rules, regulations, laws and ordinances (including through the exercise of the City's building, fire, code
enforcement, police department or otherwise) shall be deemed to have occurred pursuant to City's
regulatory authority as a governmental body and shall not be attributable in any manner to City as a party
to this Lease or in any way be deemed in conflict with, or a default under, the City's obligations hereunder.
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D sign Envelope ID: VII10067-0050-8EN-81E8-CC82F8926EI 3
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by the respective
duly authorized officers and the respective corporate seals to be affixed this _ day of
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ATTEST: CITY:
CITY OF MIAMI BEACH, FLORIDA
By. [(��w���.��e�b � I�
r;H ,., a By
Rafael E. Granado, City Clerk Enc T. Carpenter ity Manager
5118120261 10:53 AM EDT
WITNESS. TENANT
SOBE TOSCANA, LLC
By: qy(i Soo`Cmp., Manager
By.
Name: i0. Name. 'C�- i. ✓'�c��
U Title: _ ne -
Date: 0-3 jy�? 6
By: AgSNFGro Mr.
By
Name: `f.1%
Date:dle:
�72 6
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUT I,� I
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