2009-27037 ResoRESOLUTION NO. 2009-27037
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING ON FIRST READING, A LEASE
AGREEMENT BETWEEN THE CITY AND MOON THAI SOUTH BEACH, INC.
(MOON THAI), FOR THE LEASE OF APPROXIMATELY 2216 SQUARE FEET OF
CITY OWNED PROPERTY, LOCATED AT 22 WASHINGTON AVENUE, MIAMI
BEACH, FLORIDA, FOR THE PURPOSE OF AN OUTDOOR CAFE ASSOCIATED
WITH THE RESTAURANT TO BE OPERATED BY MOON THAI AT 816
COMMERCE STREET, WHICH IS DIRECTLY ADJACENT TO AND WEST OF THE
SUBJECT CITY PROPERTY; SAID LEASE HAVING AN INITIAL TERM OF FIVE
YEARS, WITH AN OPTION TO RENEW FOR FOUR YEARS AND 364 DAYS, AT
THE CITY'S SOLE DISCRETION; WAIVING BY 5/7THS VOTE, THE
COMPETITIVE BIDDING AND APPRAISAL REQUIREMENTS, AS REQUIRED BY
SECTION 82-39 OF THE MIAMI BEACH CITY CODE; FURTHER SETTING A
PUBLIC HEARING ON APRIL 22, 2009, FOR THE SECOND READING (AND
FINAL APPROVAL) OF THE LEASE AGREEMENT.
WHEREAS, the City and Moon Thai South Beach, Inc. (Moon Thai) have negotiated a five
(5) year lease, with an option to renew for an additional four (4) years and three hundred sixty four
(364) days, at the City's sole discretion, for the use of approximately 2216 square feet of vacant City-
owned property located at 22 Washington Avenue (the Property) for an outdoor cafe associated with
Moon Thai's operation of a restaurant located at 816 Commerce Street, (which is directly adjacent to
and west of the Property); and
WHEREAS, Section 82-39 of the Miami Beach City Code, governing the sale/lease of
public property, requires a public bidding process, a Planning Department analysis, and an
independent appraisal to determine the value of the leasehold interest; as well as a public hearing to
obtain citizen input; and
WHEREAS, On March 2, 2009 Land Use and Development Committee voted to move
forward to the City Commission for approval the Lease Agreement for the said property with Moon
Thai South Beach, Inc.; and
WHEREAS, Section 82-39 of the City Code further provides for the waiver of the
competitive bidding and appraisal requirements, by 5/7ths vote of the Mayor and City Commission,
for leases of City land, upon a finding by the Mayor and City Commission that the public interest
would be served bywaiving such conditions, and the Administration would hereby recommend that
the Mayor and City Commission approve said waiver; and
WHEREAS, The Administration recommends that the City Commission approve the Lease
Agreement for said property with Moon Thai as the property does not readily lend itself for public use
at this time.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve
on first reading, a Lease Agreement between the City and Moon Thai South Beach, Inc. (Moon
Thai), for the lease of approximately 2216 square feet of City-owned property, located at 22
Washington Avenue, Miami Beach, Florida for the purpose of an outdoor cafe associated with
restaurant to be operated by Moon Thai at 816 Commerce Street, which is directly adjacent to and
2('09-270:c7
west of the subject City property; said lease having an initial term of five years, with an option to
renew for four years and 364 days, at the City's sole discretion; waiving by 5/7ths vote, the
competitive bidding and appraisal requirements, as required by Section 82-39 of the Miami Beach
City Code; further setting a public hearing on April 22, 2009, for the second reading (and final
approval) of the Lease Agreement.
PASSED and ADOPTED this 18th day of March, 2009.
ATTEST:
L~
CITY CLERK
Robert Parcher
MA OR
Matti- Herrera Bower
JMG\HMFWPIACV\mis
T.•IAGENDA120091March 181RegularlMoon Thai 1st Reading.RES.doc
APPROVED AS TO
FORM ~ LANGUAGE
8~ FOR EXECUTION
i3 ~4
ats
COMMISSION ITEM SUMMARY
Condensed Title:
Request for Approval, on First Reading, a lease agreement between the City and Moon Thai South Beach, Inc. for the lease of approximately
2216 sf of City-owned property at 22 Washington Avenue for an outdoor cafe, waiving by 5/7th vote the competitive bidding and appraisal
requirements and further setting a public hearing on April 22, 2009 for second reading.
Ke Intended Outcome Su ooted:
Increase resident satisfaction with the level of services and facilities.
Supporting Data (Surveys, Environmental Scan, etc.): Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the
best places to do business and 61 % of the same group would recommend Miami Beach as a place to do business. The Tenant's request to
Lease 22 Washin ton Avenue su orts the Surve 's findin s.
Issue:
Should the Cit a rove the lease a reement?
item Summa iKecommenaation:
On April 11, 2006 the City Commission passed Resolution No. 2006-26171 approving a Lease Agreementwith Manpriya, Inc., forthe remaining
portion of an undeveloped lot previously acquired by the City adjacent to 816 Commerce Street for use as an outdoor cafe. The square footage
rent of $25 psf was based on a comparable analysis made to the sidewalk cafe permit fees of $15 psf and increased to $25 per square foot
due to tenancy rights attached to a Lease Agreement that allows the tenant to provide improvements on the property. In the March 16, 2006 as
in the March 3, 2009 City Planning Department's analysis, the outdoor cafe was deemed to be consistent with the land use designation
contained in the Comprehensive Plan and required that the Lease Agreement prohibit the placement of any speakers in or around the Property
and/or the attachment of any speakers to the restaurant building, with the use restricted to outdoor dining. The restaurant was never developed
and the City terminated the Lease Agreement on August 8, 2006. The City retained the security deposit of $8,500.
On November 18, 2008, the City was approached by Moon Thai South Beach, Inc. as the new Tenant of 816 Commerce Street, resulting in a
proposed outdoor cafe lease agreement for five (5) years, with an option to renew for an additional four (4) years and three hundred sixty four
(364) days, with the renewal option being at the City's sole discretion. The lease is for the use of approximately 2216 square feet of vacant City-
owned property located at 22 Washington Avenue (the Property) as an outdoor cafe. The lease terms are substantially based on the previous
Lease Agreement dated April 11, 2006 with Manpriya, Inc. for the same property. During the first and second years of the initial term, Moon Thai
South Beach, Inc. has agreed to pay the City a base rent of twenty five ($25) dollars per square foot. Commencing the third year of the term,
Moon Thai South Beach, Inc, will compensate the City with the greater of thirty ($30) dollars psf or 3% of gross receipts for all sales, to include
sales from the exterior and interior of the restaurant. Overall, the five year Base Rent to the City will be $310,240.
Staff has conducted a current review of restaurant properties for comparables, but finds that there are no comparables and the previous
comparison to the sidewalk cafe in the 2006 review is still consistent in the determination of the $25 per square foot rent. The outdoor cafe will
provide over 70% of the restaurant seating, which is why it is recommended that the percentage of rent based on gross receipts should be
calculated on the restaurant as a whole.
On March 2, 2009, the item was heard by the Land Use and Development Committee (LUDC). At that time, residents of the neighborhood
identified that the terms of the Lease Agreement should be consistent with the previously negotiated terms with Manpriya, Inc., including the
limitation of sound and outdoor entertainment. Pursuant to the LUDC meeting, requested terms of the lease were added. Suggestions dealing
with pedestrian traffic, noise violations, and garbage disposal do not require inclusion in the lease as these issues are either addressed by
current City Code, or otherwise do not apply to this location.
Section 82-39 of the Miami Beach City Code, governing the sale/lease of public property, provides that the lease of any City-owned property,
including option periods, requires a public bidding process; a Planning Department analysis; an independent appraisal to determine the value of
the leasehold interest; two (2) readings of the proposed lease; and a public hearing to obtain citizen input. Section 82-39 further provides for the
waiver of the competitive bidding and appraisal requirements, by 5/7ths vote of the Mayor and City Commission, upon a finding by the Mayor
and City Commission that the public interest would be served by waiving such conditions.
The Administration recommends that competitive bidding and appraisal requirements be waived by 5/7ths vote and the Commission approve, on
first reading, the Lease Agreement for 22 Washington Avenue, for an initial term of 5 years, with an option to renew for 4 years and 364 days at
the City's sole discretion; further setting a public hearing on April 22, 2009 for the second readin (and final approval) of the Lease A reement.
Adviso board Recommendation:
On March 2, 2009 the Land Use and Development Committee voted to move forward to the City Commission the Lease Agreement with
recommended additional Ian ua e.
Financial Information:
Source of Amount Account
Funds: n/a 1
Financial Impact Summary:
Cit Clerk's Office Le islative Trackin
Ana Cecilia Velasco extension 6727
Sign-Offs: f
Department it t r Assistant y M ager City Manager
AP ~ ACV JMG
T.•IAGENDA120091Marc 181ReguiarlMoon Thai 1st Reading SUM.doc
m MIAMIBEACH
AGENDA ITEM 7C
DATE -~ g'~
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti H. Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: March 18, 2009
SUBJECT: A RESOLUTION OF THE MAYO ND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING ON FIRST READING, A LEASE AGREEMENT BETWEEN
THE CITY AND MOON THAI SOUTH BEACH, INC., FOR THE LEASE OF APPROXIMATELY
2216 SQUARE FEET OF CITY OWNED PROPERTY, LOCATED AT 22 WASHINGTON
AVENUE, MIAMI BEACH, FLORIDA, FOR THE PURPOSE OF AN OUTDOOR CAFE
ASSOCIATED WITH A RESTAURANT OPERATION LOCATED AT 816 COMMERCE
STREET, WHICH IS DIRECTLY ADJACENT TO AND WEST OF THE SUBJECT CITY
PROPERTY; SAID LEASE HAVING AN INITIAL TERM OF FIVE YEARS, WITH AN OPTION
TO RENEW FOR FOUR YEARS AND 364 DAYS, AT THE CITY'S SOLE DISCRETION;
WAIVING BY 5/7THS VOTE, THE COMPETITIVE BIDDING AND APPRAISAL
REQUIREMENTS, AS REQUIRED BY SECTION 82-39 OF THE MIAMI BEACH CITY CODE;
FURTHER SETTING A PUBLIC HEARING ON APRIL 22, 2009, FOR THE SECOND
READING (AND FINAL APPROVAL) OF THE LEASE AGREEMENT.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOMES SUPPORTED
To ensure well-maintained facilities.
ANALYSIS
The subject Property (see attached site plan) is the remaining portion of an undeveloped lot that had been
previously acquired by the City for the completed expansion of a portion of Washington Avenue (between
Commerce Street and South Pointe Drive). Due to its size and location, the Administration deems that the
Property does not readily lend itself for public use at this time.
On April 11, 2006 the City Commission passed Resolution No. 2006-26171 approving a Lease Agreement
between the City of Miami Beach and Manpriya, Inc., for 2080 square feet of land adjacent to a planned
restaurant at 816 Commerce Street for use as an outdoor cafe, for which the Tenant was to pay the greater
of $25 per square foot or 5% of gross receipts to include the interior and exterior of the restaurant. At that
time, staff reviewed properties for comparable rents. However, due to the unique nature of this parcel as a
stand alone property with attachments to the adjacent property, no comparable parcels were found. The
square footage rent was based on a comparable analysis made to the sidewalk cafe permit fees of $15 per
square foot. The increase to $25 per square foot was based on the tenancy rights attached to a Lease
Agreement that allows the tenant to provide improvements on the property, as opposed to the Sidewalk
Commission Memo 22 Washington Lease Agreement
March 78, 2009
Page 2 of 4
Cafe which is on a public right-of-way and does not hold any tenancy rights.
In 2006, Manpriya performed due diligence with respect to the impact on the neighborhood by meeting with
the stakeholders. There were no objections to the proposed lease, with the caveat that the restaurant
withhold from any outdoor entertainment. In the March 16, 2006 City Planning Department's analysis, the
outdoor cafe was deemed to be consistent with the land use designation contained in the Comprehensive
Plan and required that the Lease Agreement prohibit the placement of any speakers in or around the
Property and/or the attachment of any speakers to the restaurant building, with the use restricted to
outdoor dining. Planned improvements for the land in order to be functional as an outdoor cafe were
included in the terms of the agreement.
The restaurant was never developed and the City placed Manpriya, Inc. in default of the Lease Agreement
for nonpayment and ultimately terminated the Lease Agreement on August 8, 2006. The City retained the
security deposit of $8,500 but deemed that further legal action was not in the best interest of the City based
on a cost factor and that the City was not negatively impacted as the Tenant had not begun any
improvements to the property.
On November 18, 2008, the City was approached by an agent of Moon Thai South Beach, Inc. inquiring as
to the possibility of assigning or assuming the Lease Agreement from Manpriya, Inc. As the new Tenant of
816 Commerce Street, the principal of Moon Thai South Beach, Inc. was interested in continuing with the
concept of establishing an outdoor cafe on the subject property.
The City of Miami Beach (City) and Moon Thai South Beach, Inc. have negotiated a five (5) year lease
agreement, with an option to renew for an additional four (4) years and three hundred sixty four (364) days,
with the renewal option being at the City's sole discretion. On February 3, 2009 the City conducted a
survey of the property and found that the property was in fact 2216 square feet. The lease is for the use of
approximately 2216 square feet of vacant City-owned property located at 22 Washington Avenue (the
Property) as an outdoor cafe associated with a restaurant operation located at 816 Commerce Street,
which is directly adjacent to and west of the subject property. The lease terms are substantially based on
the previous Lease Agreement dated April 11, 2006 with Manpriya, Inc. for the same property.
Moon Thai South Beach, Inc. has currently leased the property at 816 Commerce Street for a restaurant
with the expected opening to be May 2009 based on the completion of Tenant improvements. On March 2,
2009, the item was heard by the Land Use and Development Committee (LUDC). At that time, residents
of the neighborhood identified that the terms of the Lease Agreement should be consistent with the
previously negotiated terms with Manpriya, Inc., including the limitation of sound and outdoor
entertainment. Pursuant to the LUDC meeting, the following requested terms of the lease were added:
1) The enterprise will not be permitted to apply for Special Event Permits.
2) The operation will not interfere with pedestrian traffic.
3) Any delivery, take-out, valet, taxi or sidewalk cafe must only utilize Commerce Street; these
activities will not be allowed on Washington Avenue.
4) No televisions will be permitted to be part of the Outdoor Cafe.
5) Hours of operation are to close at 11 p.m. Sunday through Thursday and midnight Friday and
Saturday.
6) There shall be no bar counter allowed outside. Liquor and food operations of the outdoor cafe
shall only be done in conjunction with the adjacent restaurant operations and only when the
interior kitchen is operational.
7) Outdoor seating shall be counted in the overall seating of the restaurant.
Suggestions dealing with pedestrian traffic, noise violations, and garbage disposal do not require inclusion
Commission Memo 22 Washington Lease Agreement
March 18, 2009
Page 3 of 4
in the lease as these issues are either addressed by current City Code, otherwise do not apply to this
location, or are required in the normal course of business operations.
The proposed new Tenant negotiated the terms of the Lease Agreement regarding the Base Rent and
Percentage of Gross, based on an assessment of the Tenant's financial obligations to the building property
owner. As a start-up business in an area which does not have the sidewalk cafes found on Lincoln Road
and Ocean Drive, the Tenant cited the market conditions in proposing and agreeing to the following terms
and conditions:
BASE RENT: During the first and second years of the initial term, Moon Thai South Beach, Inc. has
agreed to pay the City a base rent of twenty five ($25) dollars per square foot. Commencing
the third year of the term, the base rent will increase to thirty ($30) dollars per square foot.
PERCENTAGE OF GROSS: Commencing the third year of the term, Moon Thai South Beach, Inc,
will compensate the City with the greater of $30 psf or 3% of gross receipts for all sales, to
include sales from the exterior and interior of the restaurant.
A yearly "true-up" to reconcile the Base Rent amounts with the actual "gross receipts" will be performed by
a Certified Public Accountant (at Moon Thai's sole cost and expense) at the end of each contract year, and
any amounts due above the Base Rent will be due and payable to the City within 45 days of the end of
each contract year. The City also reserves the right to conduct annual audits.
Staff has conducted a current review of restaurant properties for comparables, but finds that there is no
comparable situation with a restaurant leasing only the outdoor cafe space from a separate property owner;
each case identifies the outdoor space within the Demised Premises as a whole. The comparable to the
sidewalk cafe in the 2006 review is still consistent in the determination of the $25 per square foot rent. The
outdoor cafe will provide over 70% of the restaurant seating, which is why it is recommended that the
percentage of rent based on gross receipts should be calculated on the restaurant as a whole.
Overall, the five year Base Rent to the City will be $310,240, not including any projection of percentage of
gross. The tenancy versus a concession is justified by Moon Thai's ability to make leasehold improvements
to the Property, as contemplated in Subsection 9.1 of the Lease Agreement.
DEVELOPMENT: Moon Thai, at its sole cost and expense, will develop the Property into the
aforementioned outdoor cafe, and demolish and remove any improvements at Lease termination (at
the City's discretion).
USE: Moon Thai agrees to use the Property solely as an outdoor cafe to serve the patrons and
guests of the adjoining restaurant at 816 Commerce Street. Furthermore, Moon Thai agrees not to
place any speakers in or around the Property and/or attach any speakers to the exterior of the
restaurant building at 816 Commerce Street. The Planning Department analysis dated March 3, 2009
(attached) supports the Lease and recommends the condition of use as stated above, and further
defined in Subsection 8.4 of the Lease. The Planning Department condition of use is consistent with
expressed City Commission concerns relating to the previous lease on this property and has been
incorporated in order to mitigate those concerns.
IMPROVEMENTS: Moon Thai has collaborated with the Planning Department and the City
Administration in the design and layout of the outdoor cafe pavers, tables, chairs and umbrellas prior
to the execution of the Lease Agreement.
• PERFORMANCE BOND: Moon Thai agrees to provide a performance bond, or other similar
Commission Memo 22 Washington Lease Agreement
March 18, 2009
Page 4 of 4
instrument (e.g. irrevocable letter of credit, surety bond, etc.) acceptable to the City, in an amount
equal to the estimated costs to demolish and remove any improvements constructed on the property
at the termination and/or expiration of the lease term.
Section 82-39 of the Miami Beach City Code, governing the sale/lease of public property, provides that the
lease of any City-owned property, including option periods, requires the following:
1) a public bidding process;
2) Planning Department analysis;
3) an independent appraisal to determine the value of the leasehold interest
4) two (2) readings of the proposed lease; and
5) a public hearing to obtain citizen input.
Section 82-39 further provides for the waiver of the competitive bidding and appraisal requirements, by
5/7ths vote of the Mayor and City Commission, upon a finding by the Mayor and City Commission that the
public interest would be served by waiving such conditions.
A Department of Planning analysis finds that the use of this area as an outdoor cafe is consistent with the
land use designation contained in the Comprehensive Plan. (attached)
CONCLUSION
Based on the unique disposition of this undeveloped parcel of land, and its limited use due to the size and
location, it was determined in 2006 that the parcel would not be subject to public bidding as it could only be
used with any functionality by the adjacent property. This continues to be the determination upon current
review of the property.
Staff has conducted an internal review of possible comparable properties with findings that the Sidewalk
Cafe is the closest parallel. Due to the cost factor of an appraisal when measured against the rent value of
the property, the cost of an outside appraisal is not justified.
The Administration recommends that the Mayor and City Commission approve, on first reading, a Lease
Agreement between the City and Moon Thai South Beach, Inc., for use of the Demised Premises, located
at 22 Washington Avenue, said Lease having an initial term of five (5) years, with an option to renew for
four (4) years and three hundred and sixty four (364) days at the City's sole discretion; hereby waiving by
5/7ths vote the competitive bidding and appraisal requirements as required by Section 82-39 of the Miami
Beach City Code; and further setting a public hearing on April 22, 2009 for the second reading (and final
approval) of the Lease Agreement.
JMG\H 1~ mis
Attachments
T.~IAGENDA120091March 181RegularlMoon Thai 1st Reading.MEM.doc
u:o~ 1uM>oP'~N1411Y ~~ Ieul' IwPM dOd 14d+IhP W.M PPleu~ dOd
P~~Y~ ~~Y~~ ~~~ ~'A O~ '~ ~8~~m 2m2_>
»~~~~~~~ ~
~ ~€
R
~g€Q~ ~~~~~
~~ ~~ L
~
1
p
J ~ ~~~ ~~~ F.. ad
~
~
\ [1
<p
~j
y~(~ ~~ A~ C~19~1 C ~~Q~
y~~
O~ ~~$~~ ~a*
r1.~ N
C NN
~~
~
\ 2L
I GG L>'1
~
G Q
r /
Qmn-y~yI ~$~{V~ (I
1.21; ~mL 1 I LF~ N~ ~ ;Cy~Aa ~~~m
~.. > ~j ~~m ~H
a a 4~
g ~ ~i ~~m
1~ ~ ~ ~
~
~`~
G 4~ ~ ~
~~'°
'~ Ft FI
~ R~~g
pp
~' ~ ~I
ZO
~
.R6o
' O \ H ~ 'F z g6~ ~~~
m ~'
>
}d~ ~ I
0~$~4 ; ,rv,°~ ~.Im,. I
~ 1 ~ b Tnmm >g
~ ~ 4D ~ ~ ~ g9pp~ sSq~~i
8
~
~ ~~iR~~ ~y
O ~ ~ O
a~~~a ~
O '~
~ 8 ' ~ ~~n
~ ~
~
~ ~ ~ ~
~
~
O ~ \
~
~
O ;
~O ~
a ~ ~ ~ ~ea
\ ~ ~ e
°o ~ ~ ~ ~ m ~~~~
E s ~ ~,
~; `
'" ~ € ~ A " Q ~ ~ i ~#
3E ~
•
~
VZ Z ~~.~
~~~~~ °a 2 6 ~~''~'
f O
I ~m
o~~ i ~ ~ ~ ~ ~~ ~~
z-
~
~ti 2
eT ~ m a~' ~ ~ o b 4 :
• ~ ~ ~ ~ ~ ~~~ ~~~
i ~~ ~p~ m~ o
,{
w~. uapr ~-en
5 ~/ ~ ~
ti~ ~
y
q
I k ' ~ O /
~g$$ //
33dd
~` /
$
~~ d ~ ~ Oq
Odd
~
e~'Y Q
1
.o
~
~~t O .O COQ
" ~~ O
o
c
0 ~
1 ~ ~
A
~ Oa4; o0Q0
00 q C~
~ O ~ ~Z
~
m
Z ~ ~ F
~~
~
~ = I
O 7
p
O' S 9 2
°o' ~ _ ~ ! ~
2
0 ~
Z . ~ .
~ :`~. m
.O
0
> `
,
~ f ~ Ir
O
® ~ C
o° i ~ "' I
~o ~ '
~ ~ m ~~
~ x
~` ~ = - ~.
COMMERCE STREET
8
t~
COMMERCE PARKWAY
D p
ST/R MOOS ~ p
S&,
[
~
~ ~Nje~~~1~~lgNE~~±ys~l~~ M
~'~IS'9ji
~ ii
~
m~
y~ . eL
~a~j ~a
ss ~ °F
CC w
i ~
8'16 COMMERCE STREET Eg g LL a ~~
1x! 1 y a
Y
Miami Beach, FL 6 € 3 _ ~ ~ '~ ~Y ~~ i^D
~~ 1 ~ ti ~ '
l;,~a~
PLANNING DEPARTMENT
INTEROFFICE MEMORANDUM
TO: Ana Cecilia Velasco, Asset Manager
FROM: Jorge G. Gomez, Planning Director ,~,~ ,, w ~~ ~~'~'
DATE: March 3, 2009 d.~..o,,.m,.~a
SUBJECT: Analysis of Proposed Lease with Moon Thai South Beach, Inc.
22 Washington Avenue
Pursuant to your request, this memorandum will serve as a planning analysis of the
proposed lease agreement between the City and Moon Thai South Beach, Inc., for the use
of two thousand eighty (2,216) square feet, square feet of vacant City-owned property,
located at 22 Washington Avenue, for an outdoor cafe associated with a restaurant
operation located at 816 Commerce Street, which is directly adjacent to and west of the
subject property.
Section 82-38 of the Code of the City of Miami Beach requires that any proposed sale or
lease of City-owned land be analyzed from a planning perspective so that the City
Commission and the public are fully appraised of all conditions relating to the proposed sale
or lease. The following is an analysis of the criteria delineated in the Code:
1. Whether or not the proposed use is in keeping with City goals and objectives
and conforms to the City Comprehensive Plan.
The subject property, 22 Washington Avenue, is designated CPS-1, Commercial Limited
Mixed-Use on the Future Land Use Map of the City's Comprehensive Plan The Lease
Agreement between the City and Moon Thai South Beach, Inc. for the use of this area as a
outdoor cafe would be consistent with the land use designation contained in the
Comprehensive Plan.
2. The impact on adjacent property, including the potential positive or negative
impacts such as diminution of open space, increased traffic, noise level or enhanced
property values, improved development patterns and provision of necessary
services. Based on the proposed use of the property, the City shall determine the
potential impact of the project on City utilities and other infrastructure needs and the
magnitude of costs associated with needed infrastructure improvements. Should it
become apparent that further evaluation of traffic impact is needed, the proponent
shall be responsible for obtaining a traffic impact analysis from a reputable traffic
engineer.
The site is currently vacant. The proposed outdoor cafe would diminish open space only in
the sense that the currently vacant area becomes occupied with tables, chairs and
landscaping; however, the site would remain open to the sky and the landscaping would be
improved. There would be a moderate increase in traffic generation and demand for
necessary services due to the increased occupancy of the restaurant. Noise levels should
be contained, as there is no entertainment permitted in this district. An additional condition
of approval, prohibiting outdoor speakers, is part of the lease, in order to ensure that there is
Proposed Lease -Moon Thai South Beach, Inc.
22 Washington Ave.
March 2, 2009
Page 2
no negative impact as a result of background music being played too loudly.
3. A determination as to whether or not the proposed use is in keeping with a
public purpose and community needs, such as expanding the City's revenue base,
reducing City costs, creating jobs, creating a significant revenue stream and
improving the community's overall quality of life.
The subject property is the remaining portion of a lot that had been previously acquired by
the City for the expansion of a portion of Washington Avenue (between Commerce Street
and South Pointe Drive) which has already been completed, and the subject parcel does not
readily lend itself for public use at this time.
4. Determination as to whether or not the development is in keeping with the
surrounding neighborhood, will block views, or create other environmental
intrusions, and evaluation of the design and aesthetic considerations of the project.
The proposed development is generally in keeping with the commercial nature of the
district, will not block views or create aesthetic intrusions, as long as the operation is
regulated to minimize crowds, noise and impacts upon the surrounding neighborhoods.
5. The impact on adjacent properties, whether or not there is adequate parking,
street, and infrastructure needs.
Proper safeguards and precautions should be taken to ensure that there are no negative
impacts on adjacent properties. No entertainment or outdoor music will be permitted; the
lease prohibits outdoor speakers from being placed in the outdoor cafe area. Parking is a
problem throughout the City, and the proposed lease may have a moderate effect on the
need for parking, since it would add a number of seats to the proposed restaurant.
6. A determination as to whether or not alternatives are available for the
proposed disposition, including assembly of adjacent properties, and whether the
project could be accomplished under aprivate-ownership assembly.
Due to the configuration of these properties, after the expansion of Washington Avenue,
there is sound reasoning for assembling the parcels. Otherwise, the City owned property
would continue to prevent access to the Washington Avenue facade of the 816 Commerce
Street building. By leasing the property to the restaurant for use as a outdoor cafe area, the
City is helping to alleviate a problematic situation.
7. Within the constraints of public objectives, the department should examine
financial issues such as job generation, providing housing opportunities, and the
return to the City for its disposition of property.
The proposed lease should increase the viability of the restaurant at the subject location,
thereby enhancing the economic vitality of the area. No housing opportunities are
contemplated. The City will receive a return for its property.
8. Such other items as the Planning Department may deem appropriate in
analysis of the proposed disposition.
Planning Staff recommends that the any approved lease continue to contain a provision
prohibiting outdoor speakers from being attached to the exterior of the building or placed in
any manner in the outdoor cafe area..
JGG/RGL
F:IPLAN\$ALL\GEN_CORRIINTEROFF\Shapiro Moon Thai planning analysis.doc
LEASE AGREEMENT ~y~~--~~~~-~
~ ~~ ~~~
THIS LEASE AGREEMENT, made this day of /l - ~,~~
between the CITY OF MIAMI BEACH, a Florida municipal corpora ~ r-gin ~-e-v~~~
~, /
to as City ), and MOON THAI SOUTH BEACH, INC., a Florida ..,..~F..~~a~ruii, ~nereinatter
referred to as "Tenant").
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 as the "Demised
Premises", located at 22 Washington Avenue, Miami Beach, Florida 33139, and
more fully described as follows:
Approximately two thousand eighty (2,216) square feet of unimproved
land. Such Demised Premises are specified in Exhibit A, which is
hereby made a part of this Lease Agreement (the Lease or the
Agreement).
2
3
Term.
2.1. Tenant shall be entitled to have and to hold the Demised Premises for an
initial term of five (5) years, commencing on the day of , 2009
(Commencement Date), and ending on the day of , 2014.
2.2. The City, at its sole discretion, may grant Tenant an option to renew
Agreement for one additional term of four (4) years and 364 days. In the
event Tenant wishes to request said renewal option, Tenant shall
communicate said request, in writing, to the City at least 180 days priorto the
end of the initial term.
Rent.
3.1 Base Rent:
Base Rent for the Demised Premises shall begin to accrue as of
2009 (the Commencement Date), and shall be based upon the
total leasable space of 2,216 square feet.
3.1.1 During the first and second year of the initial term of this Lease,
Base Rent for the Demised Premises shall be twenty five dollars
($25.00) per square foot, or a total annual Base Rent of fifty five
thousand four hundred dollars and no/100 ($55,400); payable in
Agenda Item R-1 C
Date 3-18-oq
monthly installments of four thousand thirty three dollars and
33/100 ($4,616.66).
3.1.2 The Base Rent shall be increased in the third year to thirty dollars
($30.00) per square foot, or a total annual Base Rent of sixty six
thousand four hundred eighty and no/100 ($66,480); payable in
monthly installments of five thousand five hundred forty dollars
and 00/100 ($5,540.00) for the remainder of the initial term.
3.1.3 Base Rent shall be due and payable on the first day of each
month throughout the Term of this Agreement.
3.1.4 Notwithstanding anything in this Section 3 or in the Agreement, the
City reserves the right to re-negotiate the Base Rent amount
concurrent with Tenant's right to exercise, and City's approval (if at
all) of, the renewal term.
3.1.5 Percentage of Gross Receipts vs. Base Rent.
Commencing on the third year of the initial term, in the event that the
amount equal to three (3%) percent of Tenant's annual gross receipts
(GR) exceeds the Base Rent amount provided in Section 3.1 herein
(and as same may be increased annually pursuant to Subsections
3.1.1 and 3.1.2), then Tenant shall also pay to the City the difference
between the amount of the GR and the Base Rent amount, no later
than 45 days after the conclusion of the third Lease year and every
Lease year during the initial (and the renewal, if approved) term.
The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by the Tenant from its operations related
to this Agreement, AND INCLUDING, without limitation, all income,
whether collected or accrued, from the restaurant operation at 816
Commerce Street, Miami Beach, Florida. Any amounts that may be
due for any Federal, State, or City sales tax, or other tax,
governmental imposition, assessment, charge or expense of any kind
and required by law to be remitted to the taxing authority, or other
governmental authority, shall be the sole responsibility of Tenant.
3.2 Late Payment.
It is expressly agreed and understood by and between the parties hereto that
any installments of rent accruing under the provisions of this Agreement
which shall not be paid when due shall bear interest at 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 Landlord's behalf to enforce this Section shall not
constitute a waiver of this provision with respect to future accruals of past
due rent. No interest will be charged for payments made within the grace
2
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 $50.00 for any payments
submitted after the grace period.
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
c/o Revenue Supervisor
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 Agreement,
including such records and accounting related to the restaurant operation 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.
A monthly report of gross receipts must be submitted to the City, through the
Finance Department's Revenue Manager, to be received no later than thirty (30)
days after the close of each month.
5. INSPECTION AND AUDIT.
Tenant shall maintain its financial records pertaining to its operation pursuant to this
Agreement and including the restaurant operation at 816 Commerce Street for
a period of three (3) years after the conclusion of the initial term, or (if approved) the
last renewal 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
3
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.
The City Manager or his designee shall be entitled to audit Tenant's records
pertaining to its operation and including the restaurant located at 816 Commerce
Street, as often as it deems reasonably necessary throughout the Term of this
Agreement, and three (3) times within the three (3) year period following termination
of the Agreement, regardless of whether such termination results from the natural
expiration of the Term or for any other reason. The City shall be responsible for
paying all costs associated with such audits, unless the audit(s) reveals a deficiency
of five (5%) percent or more in Tenant's statement of gross receipts for any year or
years audited, in which case the Tenant shall pay to the City, within thirty (30) days
of the audit being deemed final (as specified below), the cost of the audit and a sum
equal to the amount of the deficiency revealed by the audit, plus interest; provided,
however, the audit shall not be deemed final until Tenant has received the audit and
has had a reasonable opportunity to review the audit and discuss the audit with the
City. Nothing contained within this Section shall preclude the City's audit rights for
resort tax collection purposes.
Tenant shall submit at the end of each Lease year and in any event no later that
June 30th of each year, an Annual Statement of Gross Receipts, (including the
restaurant at 816 Commerce Street), in a form consistent with generally
accepted accounting principles. Additionally, such Statement shall be
accompanied by a report from an independent CPA firm.
6. TAXES, ASSESSMENTS. AND UTILITIES.
6.1 Tenant agrees to and shall pay before delinquency all taxes (including but
not limited to Resort Taxes) and assessments of any kind assessed or levied
upon Tenant by reason of this Agreement 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 bylaw for licenses or permits for
any business, activities, or operations of Tenant upon the Demised Premises
and/or the adjoining restaurant at 816 Commerce Street, and shall
maintain same current and in good standing throughout the Term of this
Agreement.
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
4
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.
6.3 Procedure If Ad Valorem Taxes Assessed.
During the term of this Agreement, 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 On or prior to the Commencement Date, Tenant shall to pay the City a
Security Deposit, in the sum of nine thousand two hundred thirty three dollars
and 33/100 ($9,233.33). Said Security Deposit is to ensure the full and
faithful performance by the Tenant of each and every term, covenant and
condition of this Agreement. In the event that Tenant defaults in respect of
any of the terms, provisions, covenants and conditions of this Agreement,
including but not limited to, the payment of any rent, the City may use, apply
or retain the whole or any part of the Security Deposit for the payment of
such rents in default or any other sum which the City may expend or be
required to expend by reason of the Tenant's 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.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Agreement, the Security
Deposit or any balance thereof shall be returned to the Tenant, without
interest, upon the expiration of the Agreement 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.
7.4 In the event of a bona fide sale of the Demised Premises, as delineated in
this Agreement, 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 re-
5
entry 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 Agreement, shall not be
deemed such termination of this Agreement as to entitle the Tenant to
recovery of the Security Deposit and the Security Deposit shall be retained
and remain the possession of the City.
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 Thursday commencing on 11:30 a.m., and ending no
later than 11:00 p.m., and Friday through Saturday, commencing on 11:30
a.m., and ending no later than 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, shall be closed when the restaurant is closed).
8.2 Tenant and owner of the restaurant at 816 Commerce Street shall at all
times throughout the Term of the Agreement be one and the same and
cannot exist independently of each other. Tenant acknowledges and agrees
that its use of the Demised Premises shall be, and remain at all times
throughout the Term, an ancillary use to Tenant's restaurant at 816
Commerce Street.
The number of seating on the Demised Premises 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. Any and all alcoholic beverages served at the outdoor cafe shall
be serviced by Tenant's restaurant. All tables and chairs will be removed
and stored each night at close of business.
8.3 Tenant hereby warrants and represents that Moon Thai, Inc. 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 speakers, or any other device used to
amplify sound, on or around the Demised Premises. Tenant further agrees to
not attach any televisions, speakers, or any other device used to amplify
sound, to the exterior of the restaurant building at 816 Commerce Street.
Furthermore, Tenant shall in no manner use the Demised Premises, or
6
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).
8.5 Tenant agrees that any (i) valet parking and/or a taxi cab stand; (ii) delivery
and/or take-out service; and (iii) any Sidewalk Cafe permit, if approved by the
City in conjunction with the Tenant's restaurant operation at 816 Commerce
Street shall not utilize Washington Avenue and will be limited to Commerce
Street.
8.6 No application for a City of Miami Beach special event permit shall besought
by Tenant for the Demised Premises and Tenant's restaurant building at 816
Commerce Street during the term of the Lease Agreement.
8.7 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the term of this Agreement 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 or government 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, or
commit 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 Agreement 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 this Subsection 8.8, the City Manager, in his
sole determination and judgment, shall have the right to automatically
terminate this Lease, without any liability to 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 law(s) would have the effect of limiting or modifying the
City's rights to terminate this Lease pursuant to this Subsection.
9. Improvements.
9.1 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 the his sole discretion. All permanent (fixed) improvements to the Demised
Premises shall become the property of the City upon termination of the
7
Lease. Notwithstanding the preceding sentence, the City may require that
Tenant, upon termination of the Agreement, remove all permanent (fixed)
improvements to the Demised Premises (at his/her sole discretion), without
damage to the Demised Premises or cost to the City. Furthermore, upon the
lawful termination of the Agreement, 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 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 of
improvements shall be the sole responsibility of Tenant.
9.2 Performance Bond.
Tenant shall deliver to the City a Performance Bond, or other similar
instrument (e.g. Letter of Credit, Surety Bond, etc.) acceptable to the City, in
an amount equal to the estimated cost to demolish and remove, at the City's
sole discretion, any improvements constructed on the Demised Premises, at
the termination and/or expiration of the Agreement.
10. City's Right of Entry.
10.1 The City, or its authorized agent or agents, shall have the right to enter upon
the Demised 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
Agreement the Tenant may be required to perform, and the performance
thereof by the City shall not constitute a waiver of the Tenant's default.
10.2 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.
11. Tenant's Insurance.
The Tenant shall, at its sole cost and expense, comply with all insurance
requirements of the City. It is agreed by the parties that the Tenant shall not
occupy the Demised Premises until proof of the following insurance
coverages have been furnished to and approved by the City's Risk Manager:
8
Comprehensive General Liability in the minimum amount of
$1,000,000 per occurrence for bodily injury and property damage.
The City of Miami Beach must be named as an additional insured
party on this policy.
Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
All-Risks property and casualty insurance, written at a minimum of
80% of replacement cost value and with replacement cost
endorsement, covering 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 the Lease) and all leasehold
improvements installed in the Demised Premises by or on behalf
of Tenant.
Proof of these coverages must be provided by submitting original certificates
of insurance. All policies must provide thirty (30) days written notice of
cancellation to both the City's Risk Manager and Asset Manager at 1700
Convention Center Drive, Miami Beach, Florida, 33139. All insurance policies
shall be issued by companies authorized to do business under the laws of
the State of Florida and must have a rating of B+:VI or better per A.M. Best's
Key Rating Guide, latest edition, and certificates are subject to the approval
of the City's Risk Manager.
12. Assignment and Subletting.
12.1. 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 Agreement. 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 Agreement, 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 Agreement 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.
12.2 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
9
as a waiver of the duty of the Tenant or the legal representatives orassigns
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.
12.3 Any violation of the provisions of this Agreement, 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, orunder-tenants or occupants. If the Agreement be assigned, the
City may and is hereby empowered to collect rent from the assignee; if the
Demised Premises or any part thereof be underlet or occupied by any
person, other that the Tenant, the City, in the event of the Tenant's 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.
13. Maintenance and Repair.
13.1 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 needed 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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
10
applicable building codes and life safety codes of governmental authorities
having jurisdiction.
13.6 THE DEMISED PREMISES ARE BEING 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 permitted 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 Tenant's sole cost and expense.
All permanent (fixed) improvements to the Demised Premises shall remain
the property of the City upon termination and/or expiration of this Agreement.
Upon termination and/or expiration of this Agreement, 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.
14. Governmental Reaulations.
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
shall pay all costs, expenses, claims, fines, penalties, and damages that may be
imposed because of Tenant's failure to comply with this Section, and shall
indemnify and hold harmless the City from all liability arising from each non-
compliance.
15. Intentionally Omitted.
16. Condemnation.
16.1 If at any time during the term of this Agreement 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 initiated by the City of Miami Beach), then this Agreement shall be
terminated as of the date of such taking, and shall thereafter be completely
null and void, and neither of the parties hereto shall thereafter have any
rights against the other by reason of this Agreement or anything contained
11
therein, except that any rent prepaid beyond the date of such taking shall be
prorated to such date, 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 Agreement, up to the date of such taking.
16.2 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 right 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.
17 Default.
17.1 Default by Tenant.
At the City's option, any of the following shall constitute an Event of Default
under this Agreement:
17.1.1 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;
17.1.2 Any other payment provided for under this Agreement is not paid
promptly when and where due;
17.1.3 Demised Premises shall be deserted, abandoned, or vacated;
17.1.4 Tenant shall fail to comply with any material 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; or
such longer period of time acceptable to the City, at its sole
discretion;
17.1.5 Receipt of notice of violation from any governmental authority
having jurisdiction dealing with a code, regulation, ordinance orthe
like, which remains uncured within the time specified in such
notice of violation or such period of time acceptable to the City
Manager, at his sole discretion;
17.1.6 Any petition is filed by or against Tenant under any 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
12
any state for the purpose of discharging or extending the time for
payment of debts;
17.1.7 Tenant shall become insolvent;
17.1.8 Tenant shall make an assignment for benefit of creditors;
17.1.9 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
17.1.10 The leasehold interest is levied on under execution.
17.1.11 Tenant'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.
18 Riqhts on Default.
18.1 Riqhts on Default.
18.1.1 In the event of any default by Tenant as provided herein, the City
shall have the option to do any of the following in addition to and
not in limitation of any other remedy permitted by law or by this
Agreement;
18.1.2 Terminate this Agreement, 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 arrearages 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 Demised Premises, or
through decrease in rent, or otherwise.
18.1.3 Declare the entire amount of the rent which would become due
and payable during the remainder of the term of this Agreement 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 Notices section of this
Agreement; 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 term and such payment shall be considered,
construed and taken to be a debt provable in bankruptcy or
13
receivership.
18.1.4 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-
letthe 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.
18.1.5 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.
18.1.6 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the provisions
of this Agreement which shall not be paid when due shall bear
interest at 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 City's behalf to enforce this Section shall not
constitute a waiver of this provision with respect to future accruals
of past due rent. 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 fifty ($50.00) dollars for any payments submitted after
the grace period.
18.1.7 If Tenant shall default in making any payment of monies to any
person orforany 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.
18.1.8 The rights of the City under this Agreement shall be cumulative
14
but not restrictive to those given by law and 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.
18.2 Default by City.
Failure of the City to perform any of the covenants, conditions and
agreements of the Agreement 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.
However, in the event the City fails to perform within the initial thirty (30) day
period provided above, and such failure to perform prevents Tenant from
operating its business in a customary manner and causes an undue hardship
for the Tenant, then such failure to perform (regardless of circumstances
beyond its control) as indicated above, shall constitute a default by the City.
18.3 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 to pursue any and all remedies
available at law or in equity, including the right to sue for and collect
damages, including reasonable attorney fees and costs, to terminate this
Agreement (and all of its obligations hereunder by giving notice of such
election to the City, whereupon this Agreement shall terminate as of the date
of such notice), to specifically enforce Tenant's rights; and/or to enjoin the
City.
19. Indemnity Against Costs and Charges.
19.1 Tenant shall be liable to the City for all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of the Tenant's breach of any of the
provisions of this Agreement. Any sums due the City under the provisions of
this item shall constitute a lien against the interest of the Tenant and the
Demised Premises and all of Tenant's property situated thereon to the same
extent and on the same conditions as delinquent rent would constitute a lien
on said premises and property.
19.2 If Tenant shall at any time be in default hereunder, and if the City shall deem
it necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, Tenant will reimburse the City for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
15
reasonable attorney's fees, whether suit be brought or not and if suit be
brought, then Tenant shall be liable for expenses incurred at both the trial
and appellate levels.
20. Indemnification Against Claims.
20.1 Tenant shall indemnify 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 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:
20.1.1 An act or omission on the part of the Tenant, or any employee,
agent, invitee, or guest, assignee orsub-tenant of the Tenant;
20.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or
the building in which the Demised Premises is located or any of its
facilities by the Tenant, or any employee, agent, invitee, or guest,
assignee or sub-tenant or the Tenant, but not to include
trespassers upon the Demised Premises;
20.1.3 Any breach, violation, or non-performance of any undertaking of
the Tenant under this Agreement;
20.1.4 Anything growing out of the use or occupancy of the Demised
Premises by the Tenant or anyone holding or claiming to hold
through or under the Agreement.
20.2 Tenant agrees to pay all damages to the Demised Premises or other facilities
used in connection therewith, caused by the Tenant or any employee, guest,
or invitee of the Tenant.
21. Signs and Advertising.
Without the prior written consent of the City, 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.
22. Damage to the Demised Premises and/or Restaurant at 816 Commerce Street.
22.1 If the Demised Premises and/or restaurant at 816 Commerce Street shall
be damaged by the elements or other casualty not due to Tenant's
negligence, or by fire, but are not thereby rendered untenantable, as
determined by the City, in whole or in part (hereinafter referred to as "such
occurrence"), Tenant shall as soon as possible after such occurrence, utilize
16
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 occurrence,
the Demised Premises and/or restaurant at 816 Commerce Street shall be
rendered untenantable, as determined by the City, only in part, Tenant shall
as soon as possible utilize its insurance proceeds to cause the damage to be
repaired, and the rent for the Demised Premises shall be abated
proportionately as to the portion of the Demised Premises rendered
untenantable; provided however, if either the Demised Premises and/or
restaurant at 816 Commerce Street are by reason of such occurrence,
rendered more than 50% but less than 100% untenantable, as determined
by the City, Tenant shall promptly obtain a good faith estimate, from a
licensed contractor acceptable to the City, of the time required to render the
Demised Premises and/or restaurant at 816 Commerce Street tenantable.
If such time exceeds sixty (60) days, the City and/or Tenant shall have
the option of canceling this Agreement, which option shall be exercised
by the requesting party in writing within ten (10) days of the end of the
sixty (60) day period, and the Agreement shall be terminated within
thirty (30) days from the date thereof.
22.2 If the Demised Premises and/or restaurant at 816 Commerce Street shall
be rendered wholly untenantable by reason of such occurrence, Tenant shall
utilize its insurance proceeds to cause such damage to be repaired and the
rent for the Demised Premises shall be abated in whole; provided, however,
that the Tenant shall have the right, to be exercised by notice in writing
delivered to the City within sixty (60) days from and after said occurrence, to
elect not to reconstruct the destroyed Demised Premises and/or restaurant,
and in such event, this Agreement and the tenancy hereby created shall
cease as of the date of said occurrence, the rent to be adjusted as of such
date. If the Demised Premises shall be rendered wholly untenantable, the
City and/or Tenant shall have the right, to be exercised by notice in writing,
delivered to the other party within thirty (30) days from and after said
occurrence, to elect to terminate this Agreement, the rent to be adjusted
accordingly.
23. Quiet Enioyment.
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 Agreement.
24. Waiver.
24.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, 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
17
effect.
24.2 A waiver of any term expressed herein shall not be implied by any neglect of
the City 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.
24.3 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.
25. Notices.
The addresses for all notices required under this Agreement 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: Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Moon Thai, Inc.
816 Commerce Street
Miami Beach, Florida 33139
Attn: Jack Punma
With copies to: Mr. Jack Punma
5901 Mariposa Court
Coral Gables, Florida 33146
All notices shall be hand delivered and a receipt requested, or by certified mail with
return receipt requested, and shall be effective upon receipt.
26. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, 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 Agreement.
18
27. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, 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 Agreement shall be valid and be
enforced to the fullest extent permitted by law.
28. Captions.
The captions contained herein are for the convenience and reference only and shall
not be deemed a part of this Agreement or construed as in any manner limiting or
amplifying the terms and provisions of this Agreement to which they relate.
29. 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 gender shall include all genders.
30. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of
the State of Florida.
31. Limitation of Liabil
The City desires to enter into this Agreement 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 Agreement, 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 Agreement 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 Agreement, 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 ornon-performance of any obligations imposed upon
the City by this Agreement. Nothing contained in this Section or elsewhere in this
Agreement 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.
32. 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 can be removed without material injury to the Demised
Premises, free of all liens, claims and encumbrances and rights of others or broom-
19
clean, togetherwith 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 Agreement 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.
33. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
34. Venue.
This Agreement 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.
CITY AND 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
AGREEMENT.
(INTENTIONALLY LEFT BLANK)
20
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 , 2009.
ATTEST:
CITY:
CITY OF MIAMI BEACH, FLORIDA
BY:
Robert Parcher, CITY CLERK Matti Herrera Bower, MAYOR
ATTEST:
SECRETARY
(Print Name)
CORPORATE SEAL
(affix here)
TENANT:
MOON THAI SOUTH BEACH ,INC.
BY:
PRESIDENT
(Print Name)
T:\AGENDA\2009\March 18\Regular\LUDC Memo Moon Thai LEASE.doc
APPROVED AS TO
FORM & LANGUAGE
d~ FOR EXECUTION
\~ 3 ~` ~ 1
21
EXHIBIT A
Description of Demised Premises
A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No. 3, according to the plat
thereof, recorded in Plat Book 2, at page 81, of the Public Records of Dade County,
Florida, being more particularly described as follows: Bounded on the North by the South
R/W line of Commerce St.; Bounded on the West by the East line of Lot 2; Bounded on the
South by the North R/W line of Biscayne Court; Bounded on the East by a line that is a
perpendicular distance of 100 feet westerly and parallel to the East RNV line of Washington
Avenue.
~u -'- '"'~' ~ '" l ,t
j it $~,
_~ -h
i ~
i ~
... ~a
il;+~ G
t
t
`~\~3 $~
~.
SJUTH POINTS DRIVE
4t5'
~~,~,_. iOA~
~~
a~ r~
t
4~ r
~~~~
r'
~,
_ ~; ~li
+~
Vi
1~ " zs~.sa __, q.__._
22
fi