2016-29638 Reso RESOLUTION NO. 2016-29638
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMISSION COMMITTEE,
FOLLOWING A DULY ADVERTISED PUBLIC HEARING, AND WAIVING, BY
5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY, APPROVING AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE
AGREEMENT BETWEEN THE CITY AND FLORIDA FOOD DISTRICT INC. (AS
TENANT), SUBSTANTIALLY IN THE FORM ATTACHED TO THIS
RESOLUTION, INVOLVING THE USE OF APPROXIMATELY 2,216 SQUARE
FEET OF CITY-OWNED UNIMPROVED LAND, LOCATED AT 22 WASHINGTON
AVENUE, MIAMI BEACH, FLORIDA, CURRENTLY USED AS AN OUTDOOR
SEATING AREA; SAID LEASE HAVING AN INITIAL TERM OF TWO (2) YEARS,
WITH ONE (1) RENEWAL TERM OF FOUR (4) YEARS AND 364 DAYS, AT THE
CITY'S OPTION AND TO RUN CONCURRENT WITH THE TENANT'S
LEASE/USE OF AN ADJACENT EXISTING RESTAURANT LOCATED AT 816
COMMERCE STREET, MIAMI BEACH, FLORIDA.
WHEREAS, the City and Alpha 22 LLC are parties to a Lease Agreement, dated October
16, 2013 (the Lease), involving the use of approximately 2,216 square feet of City owned
unimproved land, located at 22 Washington Avenue, Miami Beach, Florida (the Property); and
WHEREAS, the Property is adjacent to an existing restaurant space located at 816
Commerce Street, Miami Beach, Florida (the Restaurant), and is currently used as an outdoor
seating area, concurrent with the lease/use of the Restaurant; and
WHEREAS, the Lease was for a period of five (5) years, commencing on November 1,
2013 and ending on October 31, 2018, with an option to renew for an additional four (4) years and
three hundred sixty four (364) days, at the City's sole discretion; and
WHEREAS, the Administration was advised that Alpha 22 LLC (Alpha) was selling the
Restaurant business to Florida Food District Inc., and in connection with the sale had assigned the
Restaurant lease to Florida Food District Inc., and therefore needed to assign the Lease to the
Property to Florida Food District Inc.; and
WHEREAS, on December 9th 2015, the City Commission adopted Resolution 2015-
29238, approving Amendment No. 1 to the Lease; which amendment approved the change in the
ownership of the Restaurant, in accordance with Section 8.3 of the Lease; consented to the
assignment of the Lease, in accordance with Section 12.1 of the Lease, without releasing Alpha
from liability under the Lease; and amended the Lease to include a six month rolling guaranty, by
Philippe Carteau, individually, the owner of Florida Food District Inc.; and
WHEREAS, Alpha never executed Amendment No. 1 or the Assignment and
Assumption of Lease for the Property; and
WHEREAS, On June 7, 2016, the City terminated the Lease based upon Alpha's non-
performance; and
WHEREAS, On June 28, 2016, the City filed an action for eviction against Alpha and
Florida Food District Inc. in Miami-Dade County Circuit Court Case No. 2016-001696-CC-24; and
WHEREAS, on July 27, 2016, the Circuit Court entered a Final Judgment for Eviction in
favor of the City; and
WHEREAS, upon termination of the Lease, a new lease must be executed for the
Property; and
WHEREAS, Florida Food District Inc. has made all payments which were in arrears
under the Lease and continued to keep the payments to the City current; and
WHEREAS, the discussion of a new lease with Florida Food District Inc., based upon the
same terms and conditions previously approved pursuant to Resolution No. 2015-29238 for the
assignment and assumption of the Lease, was submitted to the Finance and Citywide Projects
Committee (FCWPC) at its October 28, 2016 meeting, and the FCWPC recommended approving
a new lease agreement with Florida Food District Inc. (Tenant), based upon the same terms, for a
period of two (2) years, with one (1) renewal option for an additional four (4) years and three
hundred and sixty-four (364) days; and
WHEREAS, the Administration recommends that the Mayor and City Commission
approve the proposed lease with Tenant, substantially in the form attached as Exhibit "A" to this
Resolution.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission
hereby accept the recommendation of the Finance and Citywide Projects Commission Committee,
following a duly advertised public hearing, and waive, by 5/7th vote, the competitive bidding
requirement, finding such waiver to be in the best interest of the City, and approve and authorize
the Mayor and City Clerk to execute a lease agreement between the City and Florida Food District
Inc. (Tenant), substantially in the form attached to this Resolution, involving the use of
approximately 2,216 square feet of City-owned unimproved land, located at 22 Washington
Avenue, Miami Beach, Florida, currently used as an outdoor seating area; said lease having an
initial term of two (2) years, with one (1) renewal term of four (4) years and 364 days, at the City's
option, and to run concurrent with the Tenant's lease/use of an adjacent existing restaurant located
at 816 Commerce Street, Miami Beach, Florida.a.
PASSED and ADOPTED this 9 day of 710/49slkr 2016.
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 1st day of November, 2016, by and between the CITY
OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred to as "City"), and
FLORIDA FOOD DISTRICT INC., a Florida for profit corporation, (hereinafter referred to as
"Tenant").
1. Demised Premises.
The City, in consideration of the rentals hereinafter resew 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 two'h nu dred sixteen (2, 12 6)square feet of land
with any existing improvements'\Such Demised Premises are specified in
Exhibit A, which is hereby made a part of this Lease Agreement ‘(the Lease or
the Agreement). \\\// \ �J
Tenant is leasing the Demised Pr' emises concurrently with 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").
2. Term. \\\
2.1 Tenant shall be entitled to have and to hold the Demised Premises for an initial term of
two (2) years commencing retroactively on the 1st day of November, 2016
(Commencement D�at)� and ending on the 31st day of October, 2018.
2.2 The City,i�ity, at it sole\diiscretio°n am; gr nt Tenant an option to renew Agreement for one
additionatNt rm\of four (4) years an\364�days. In the event Tenant wishes to request
Csaid renewal option, Tenant shall communicate said request, in writing, to the City no
earlier than 180\day\and\at least 120 days prior to the end of the initial term,
3. Rent. \\\
3.1 Base Rent:
Base Rent for the Demised Premises during the initial term shall begin to accrue as of the
Commencement bate; based upon the total leasable space of 2,216 square feet as follows:
The Base Rent for Demised Premises shall be as follows:
3.1.1. Base Rent per Total Monthly
Year Rent Square Foot Annual Rent
Commencement Rent Payment
Year November 1, 2016 $21.85 $48,429.66 $4,035.81
Year November 1, 2017 $22.51 $49,882.55 $4,156.88
EXHIBIT
1
3.1.2. Base Rent shall be due and payable on the first day of each month throughout
the Term of this Agreement, along with applicable sales tax.
3.1.3. 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 ("Renewal Rent"). The
Renewal Rent may be based upon a percentage of gross receipts or may
continue to be assessed as a fixed annual rent, based upon the fair market rent
at the time, to be escalated annually by 3%;/However, at no time will the Base
Rent during the renewal term be less than"ihe/rent for the previous lease year
plus the 3% escalation.
3.2 Late Payment.
It is expressly agreed and understood r 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 TenantAny failure on Landlord' behalf to enforce this
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Section shall not constitute,a waiver of this provisn with respect to future accruals of
past due rent. In addition, there will be \late charge of $50.00 for any payments
submitted after the due date.
3.3 Sales and Use Tax.
It is also understood,that Tenant shall also and forward to the City any and all
additional sums-for 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 Ix. \
3.4 Location for-Paym nts.
All rents or�other paymentsreunder shall be paid to the City of Miami Beach at
the following address: ��
\ \ City of Miami Beach
\ Finance Department
c/o Reven Supervisor
1700 Convention ue 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 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
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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.
5. INSPECTION AND AUDIT.
Tenant shall maintain its financial records pertaining to its operation pursuant to this
Agreement and including the Restaurant 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
e S
principal office, currently located at 816 Commerctreet, 'Miami Beach, Florida, 33139 or, if
moved to another location, all such records shall Joe 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%view said records:\
6. TAXES, ASSESSMENTS, AND UTILITIES.
6.1 Tenant agrees to and shall pay before delinquency all taxes (includn but not limited to
Resort Taxes) and assessments of any kind assessed or levied upon Tenant by reason
of this Agreement or bye reason of the business/r 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 a\\es imposed`by law for licenses or permits for any
business,activities;, or operation\of Tenant"upon�the\Demised Premises and/or the
adjoining\ground level\restaurant at 81 6/Commerce,Street, and shall maintain same
current and\i`good standing throughout the Term of this Agreement.
6.2 Utilities.
The-City shall not be responsible forp_roviding electrical or water service, or any and all
other utilities to'and/or for, and/or in-c�ection with, the Demised Premises.
Requests forinstallation \lectrical water and for any and all other utilities shall be
submitted in writing;o 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 IfAd.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.
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7. Security Deposit.
7.1 On or prior to the Commencement Date, Tenant shall pay the City a Security Deposit,
in the sum of twelve thousand four hundred and seventy dollars and 64/100
($12,470.64). 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 with respect to 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 sdefault, including any damages or
deficiency in the re-letting of the DemisedPreses, whether such damages or
deficiency may accrue or after summary proc-eeding\\her 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 o/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 \\ ,De osit in a segregated account and the
� �tY P� �
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 fi\caleofheDemised Premises, as delineated in this
Agreement,/the City\shall have\he right tom transfer, the Security Deposit to the
purchaser for the-benefit of the Tenant and theity,shali'be considered by the Tenant
free from all<liability for the return\of`such"ecurity�D,eposit, and the Tenant agrees to
look to theew 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
transferor assignment made of'the Security Deposit to any new owner/landlord.
It is expre\und\t od tha of a warrant and the lawful re-entry to the
/It
Premises by`the\City for anyjdefault on the part of the Tenant, prior to the
expiration of theNterm 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 s be retained and remain the possession of the City.
7.5 Tenant shall
II rovide an Unconditional Guaranty by the principal of FLORIDA FOOD
shall\provide I Y Y P P
DISTRICT�Pfiilippe Carteau, for the entire Term of this Lease including any Renewal
Terms, equal`to the last six (6) months' of Base Rent, in the amount of $24,941.28, a
copy of which iattached 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 café to serve
the patrons and guests of Tenant's adjoining Restaurant at 816 commerce Street. The
outdoor café 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.
4
Notwithstanding the preceding hours of operation, the outdoor café 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/tenant 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. Additionally, Tenant's operation
will not interfere with pedestrian traffic.
The number of seating on the Demised Prerises shall not exceed 65 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 fthe Demised Premises and all food
served shall be prepared within the interior kitchen of the Tenant's restaurant and only
when the interior kitchen is operational. Any and all alcoholicoeverages served at the
outdoor café shall be serviced by�Tenant's restaurant. All\ables and chairs will be
removed and stored each night at close of business. Any exception to this requirement
shall be at the sole and absolute discretion•of the CiirManager or•hii designee. Tenant
shall further maintain theeDemised Premises\and abide by the conditions set forth in
Exhibit "B" of the Lease. .\ \ \,.../
8.3 Tenant hereby warrants and er presents that FLORIDA FOOD DISTRICT INC. is the
owner of the Restaurant at 816 C Str
ommerc� eet 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, n\wring, pi/or-t such change taking place. Change of
ownership for purposesphereof shall include, without limitation, a sale, exchange,
assignment, transfer or other disposition by Tenant of all or a portion of Tenant's
interest in theresta�nt, whether by operation of law or otherwise.
\\
8.4 Tenant pees not\to <place any television, speakers, or any other device used to
amplify sound, on or around De
the mised Premises. Tenant further agrees to not attach
\any televisions, speakers,orany other device used to amplify sound, to the exterior of
the Restaurant building at 81.6 Commerce Street. Furthermore, Tenant shall in no
manner use the Demised Premises, or Tenant's restaurant at 816 Commerce Street,
assannoutdoor entertainment or open air entertainment establishment, and hereby
acknowledges that suck uses are prohibited (whether as main or accessory uses).
8.5 Tenant\e\thatany)(i) valet parking and/or a taxi cab stand; (ii) Take-out service;
and (iii) any�Sidewalk Café 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. Furthermore, any and all deliveries to
the restaurant shall be limited to the alley located on the south side of 816 Commerce
Street.
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8.6 Tenant shall be permitted to apply to the City of Miami Beach for one (1) special event
permit for the sole and express purpose of hosting an opening event for the restaurant.
At no time thereafter, throughout the remaining term of the Lease, shall the Tenant be
permitted to submit an application for a special event to be held on 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 Agreement only for the uses contemplated herein, and for no
other purpose or use whatsoever. Tenant wil/notmake 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 thel?emised Premises for any illegal
purpose, or commit a nuisance on the Demised PremisesNn the event that the Tenant
uses the Demised Premises for any"urpose not expressly permitted herein, then the
City may declare this Agreement in default pursuant to Section , or without notice to
Tenant, restrain such improper use by injunction or other legal action.
8.8 Notwithstanding an thin � to the c\t\ \\
g y � g �ry,,contained herein, in the event of a
breach by Tenant of any conditions in this Section 8, the City Manager, in his
sole determination and jud'gment,shall have the right to automatically terminate
this Lease, without any liabilitylo the City; said\termination effective upon three
(3) days written notice to Tenant.By xecuting the�Lease, Tenant hereby agrees
to this condition and furtheroluntar9y and.knowingly waives and releases any
and all rights-now or hereinaftfter conferred upon�Tenant pursuant to Florida
Statutes(ncluding,without limitation,/the procedures set forth in Chapter 83,
Florida Statutes' for removal in nonsidential tenancies; the Miami-Dade; and
the Miami Beach Cod re
Code �(r_espectively);\to the extent this and applicable law(s)
would-have the\effect of_I limiting or modifying the City's rights to terminate this
Lease-pursuant to this Subsection.
9. Im rbvements. �
I?
9.1 \A∎ny improvements \n t e\h 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\fo\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 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
properly permitted and done in compliance with all applicable Municipal, County, State
and Federal regulatory requirements, and shall be accomplished through the use of
6
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
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\dee�d by the City at its sole
discretion, which if not immediately addressed could cause pjoperty damage, loss of
life or limb, or other injury to persons. Nothing herein shall implyany duty on the part of
the City to do any work that under any provisions ()phis 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 pers\lIly,p it resent to perm entry onto the Demised Premises
at any time, for any reason\andany entry thereon shall be necessary or permissible,
the City, or its agents, may enter thoDemised Premises, including, without limitation,
forcibly entering the Demised\Premise without rendg the City or such agents
liable therefore.-----
11. Tenant's Insurance Requirements.
11.1 Before begirining\an9work and throughout the term of the Agreement (including
renewal periods), Tenant shall;at its sole"'cost and expense, comply with all insurance
requirements of the City It sag er edby�th'e parties that Tenant shall not occupy the
Demised Premises until proof of th'e.following insurance coverage have been reviewed
\and approved\bythe City'�Risk Manager. All insurance policies required below shall
bey issued by companies\authorized to do business under the laws of the State of
Florida. Provider shall indicate hat insurance coverage has been obtained which meets
the requirements as outlined below by submitting original certificates of insurance to
the City' Risk Manager and Asset Manager respectively:
11.2 Worker's Compensation for all employees of the provider as required by Florida Statute
� P 4 Y
440 and Emplooyee�s Liability coverage in accordance with the Florida Statutory
requirements.
11.3 Commercial General Liability on a comprehensive basis in an amount not less than
$1,000,000 combined single limit per occurrence, for bodily injury and property
damage. City of Miami Beach must be shown as an additional insured with respect to
this coverage.
11.4 Additionally Tenant will be insured for the following coverage:
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11.4.1. Intentionally Omitted
11.5 Intentionally Omitted
11.6 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
Agreement).
11.7 Intentionally Omitted
11.8 The insurance coverage re uired shnclude those classifications as listed in
9 q ,
standard liability insurance manuals, which most nearly reflect the operations of the
provider.
11.9 Any insurance coverage required above must,incl ude a waiver of subrogation in favor
of the City.
11.10 The company must be rated rip than "B+" as to,management, and no less than
"Class VII" as to financial strength, byhe l test editi o of Best's Insurance Guide,
published by,A.M-Best Company�Oldwicc, New.Jersey,orits equivalent, subject to the
approval of/the City,f\sk Management Division���
CERTIFICATE HOLDER MUST READ:
CIT,Y OF MIAMI BEACH
1'700 CONVENTION CENTER DRIVE
3rd FLOOR — OFFICE OF REAL ESTATE
\MIAMI BEACH, FL 33139
11.11 Compliance with the foregoingrequirements shall not relieve the vendor of his liability
and\obligation underth�is section or under any other section of this Agreement.
11.12 City r\rues the right to impose additional reasonable insurance requirements as the
City may deem\necessary or in accordance with common practice.
11.13 The policies ofinsurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days written notice to City and then
subject to the prior written approval of the City's Risk Manager. Should Tenant fail to
obtain, maintain or renew the policies of insurance referred to above, in the required
amounts, the City may, at its sole discretion, obtain such insurance, and any sums
expended by City in obtaining said insurance, shall be repaid by TENANT to City, plus
ten percent (10%) of the amount of premiums paid to compensate City for its
administrative costs. If Tenant does not repay City's expenditures within fifteen (15)
8
days of demand, the total sum owed shall accrue interest at the rate of twelve percent
(12%) until paid, and such failure shall be deemed an event of default hereunder.
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 app(ova,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(he/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 authorizeth-Such cons shall ent sh not be construed as a waiver of the
duty of the Tenant or the legal, presentative�o assigns of the Tenant, to obtain from
the City consent to any othere
r or subsequent assignment, or as modifying or limiting the
rights of the City under the foregoi gNcovenants of the Tenant not to assign without
such consent!—� ���
12.3 Any violation the pro sions 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_bei g theintention 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 allassignees, sub-tenants or under-tenants or occupants. If the Agreement be
assigne, the City may and
is hereby\mpowered 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 lie Citin\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 9f the assignee, under-tenant or occupant as tenant, or a release of
the Tenantfrorn 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.
9
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 restorationso/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 sure 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.
\\ / \\
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 howeve�that any plans\or such improvements shall be
first submitted to the City Manager for his prior\received written approval, which
approval, if granted-at all, shall beat the CityManager's sole and absolute discretion.
Additionally, arny-and all\appro ed\i p overnen s 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 nd/or expiration upOn\ Agreement, all personal property and non-
permanent trade tures may be�movedby the Tenant from the Demised Premises,
provided that they\can be (and are)\removed without damage to the Demised
Premise�T,ena t will,permit no liens)attach to the Demised Premises arising from,
\connected with, or related to the design and construction of any improvements.
Moreover, suci\ onstructio�shall be accomplished through the use of licensed,
reputable contractorsswho 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 Regulations.
The Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules,
orders, regulations, and/cequirements 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.
10
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 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'taki g.
16.2 Except as hereunder provided, Tenant shall not bentitled to participate in the
proceeds of any award made to the City in any such Eminent Domain proceeding,
excepting, however, the Tenant st%all have the right to clam and recover from the
condemning authority, but not from the\City., such/compensation\as may be separately
awarded or recoverable,by.renant in Tenants or right on accouaof any and all
damage to Tenant's business by reasons of'the condemnation and for or on account of
any cost or loss which Tenarit'might.incur in removing Tenant's furniture and fixtures.
17. Default.
17.1 Default by Tenat>-
At the Citys option; any of the following Il,cons\ titytte an Event of Default under this
Agreement: \
17.1.1. Rent, r any installment thereof is\not paid promptly when and where due within
--fifteen (15) days of_due date and\iffTenant shall not cure such failure within five
7.- -(5) days after receipt of written.noticefrom the City specifying such default;
e 1.7.1>2. An Y thpayment P provided for under this Agreement is not paid promptly when
and where due; \\
17.1.3. Demised Premises shall be deserted, abandoned, or vacated;
I
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 or the 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;
11
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 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 byany 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 provisionf Subsection 8.8 here n, which shall result in
an automatic termination of the Lease, as provided in said subsection.
18. Rights on Default. /
\\\<\ \.)
18.1 Rights 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 ollowing,addition to and not in limitation of any other
remedy pyre miffed by law or�by this Agreeme t;��
18.1.2. Terminate' this�Agreemenin`whih 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 o ar,garagen 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/rerrmainder of the term of this Agreement to be due and payable
immediately yin 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 receivership.
12
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-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.
18.1.5. Take possession of any personal prroperty 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 betw\r\ parties hereto that
any installments of rent accruing\under%he provisions of this\ greement which
shall not be paid when due shall bear interest at the maximum legal rate of
interest per annum then-prevailing in'Forida from the date when the same was
payable by the terms tiereof,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\ut ru e�ccruals of`p"st due rent. No interest will be
charged f r payments made within, thgrace period, such grace period to be
defined as-within five (5)"days of4he7due date. In'addition, there will be a late
charge/of fifty$50.00 ) dollars for any payments submitted after the grace
period 1
18.1..7 —If Tenanlshall-default making any\payment of monies to any person or for any
-purpose as nay'be required hereunder, the City may pay such expense but the
Cit iNshall 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`r`ent, 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 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
13
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, shall have the right to terminate this
Agreement (and all of its obligations/hereunder by givin\notice of such election to the
City, whereupon this Agreement shall terminate as of the date of,u h notice).
19. Indemnity Against Costs and Charges.
19.1 Tenant shall be liable to--the City for all costs" and charges, ex en es, reasonable
Y � 9 P ,
attorney's fees, and damages which maybe incurred or sustained by the City, by
reason of the Tenant's breach 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 offenant's property situated thereon
to the same/ex"tnt-and on th\ame conditions as deli quent 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, ni
hereunder,
ut7notlimited�to, court costs and reasonable attorney's fees,
whether suit be\brought or not and,iifsuit be brought, then Tenant shall be liable for
\expenses incurred at both the trial and appellate levels.
20. Indemnification tion A ainstClaims\
9
20.1 Teilaritshall indemnify\and save the City harmless from and against any and all claims
or causes s)f 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\uponfanyparking 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 or sub-tenant of the Tenant;
14
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,,o an"employee, guest, or invitee of the
Tenant.
21. Signs and Advertising. \
Without the prior written consent of the City, at the City's sole 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/ignage shall comfy with signage
standards established by the City and comply with all applicable building codes, and any
other Municipal, County, State andrFederal laws. \
22. Damage to the Demised Premises and/or Re rant at 816 Commerce Street.
22.1 If the Demised-Premises and/Or restaurant at'81.6 Commerce Street shall be damaged
by the elements-or other casualty not due to Tenants negligence, or by fire, but are not
thereby Eendered untenantable,`a 'detemined�bythe City, in whole or in part
(hereinafter�eferred toasi "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
occurrence,the Demised Premises and/or restaurant at 816 Commerce Street shall be
un�nantable as determ-ine,6y the City, only in part, Tenant shall as soon as
\p\ssible 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 X50% but less than 100% untenantable, as determined by the City,
Tenant"shall\promptly) obtain a good faith estimate, from a licensed contractor
acceptableto the/City, of the time required to render the Demised Premises and/or
restaurant att816 Commerce Street tenantable. If such time exceeds sixty (60) days,
the City and/o�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
15
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 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 Agreement.
2 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 perform\nc/o any of the con'dib ons, covenants,
terms or provisions of this-Agreement, or\to exercise any option heron 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.\ \
24.2 A waiver of any ter•m.expressed herein shall notbe implied by any neglect of the City to
declare a/forffeiture�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 thar;the one specified in such waiver and that one only for the time and in the
manner
ecspi ecifan stated)
24.3/ he-r tNofY sum
a'b Y Tenant to the City after breach of any condition,
c\
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 partyishall be in writing, notify the other:
CITY: 'City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
16
With copies to: Asset Manager
Office of Real Estate
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: FLORIDA FOOD DISTRICT INC.
816 Commerce Street
Miami Beach, Florida 33139
Attn: Sphien Bennaceur
With copies to: N.A.
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\upn the City and\Tnant and their respective successors
and assigns, except as may be otherwise.expressly provided in this Agreement.
27. Provisions Severable: >\
If any term or provision of\this Agreement/or the application thereof to any person or
circumstance shall; to any\extent, bed nva d/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_i`lid 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 \ v
28. Captions. \
The"�ptions contained herein are for the convenience and reference only and shall not be
deemed\apart of this Agreement o�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"he e n, the/singular number shall include the plural and the plural shall
include the singular, ache 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.
17
31. Limitation of Liability.
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 or non-performance of any otiligat ons 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 placedtupon City,�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 lienslaims and encumbrances and rights of others or broom-
clean, together with all structural changes, alterati°ons, additions, and improvements which
may have been/made-upon�he Demised %remises., in-,good order, condition and repair,
reasonable wear and tear excepted, subject, howeverto 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 emoved 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, bnottsurrendered at the end of the term as provided in this Section, the
Teriant shall make goodthe 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 faras 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 essencein 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.
18
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.
35. 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(an.d\n"polystyrene food service articles
can be provided to sidewalk café patrons. (\/
wExpanded polystyrene is a petroleum byproduct commonly knon as Styrofoam. Expanded
polystyrene is more particularly definedCas ,blown polystyrene and expanded and extruded
foams that are thermoplastic petrochemical materials utilizing a\stjrrene monomer and
processed by any number of techniques including, but of limited�to�f\ion 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�onsist of expanded polystyrene.
Tenant agrees not o sell;ue, provide 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 shallNnot\apply to expanded polystyrene food service
articles-used-for prepackaged fooddtthat have\been filled and sealed prior to receipt by the
Tenant or-its-vendors. \
�Adi ionall y, Te\a t\ag Yee\s to\co m I y (and ensure compliance by its vendors) with Section
46-92\('c) of the CitCode, whicl\states that it is unlawful for any person to carry any
expanded polystyrene product onto\any beach or into any park within the City or for any
businesto provide plastic straws with the service or delivery of any beverage to patrons on
the beach.
19
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
, 2013.
ATTEST: CITY:
CITY OF MIAMI BEACH, FLORIDA
BY:
Philip Levine, Mayor
(Print Name) Dated:
(Print Name)
Raf
' f lLGranado, CITY CLERK
(Print Name) Dated:
i
_ -
(Print Name)
ATTEST: TENAVT:
FLORIDA FOOD DISTRICT INC..
BY:
(Print Name) (Print Name/Position)
(Print Name) (Print Name/Position)
Dated:
T:\AGENDA\2016\November\TCED\22 Washington\FLORIDA FOOD DISTRICT, INC. Lease draft, Commission 10-16-2016(2).docx
20
EXHIBIT A
Description of Demised Premises
/2
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/Northiby 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 lineihat'is a perpendicular distance of 100 feet westerly
and parallel to the East R/W line of Washington\Avenue.
\ ._\'' Z>
y o
49 i
0 0
m'A n C 5 4QtET
116 0 ? I (?t) ;..'f i
I ...,\ o o IS l • �� /2 �� �0 9 8 / G 5 i 4 .3 0 1 1 r4 eg
t Iii 1 - �r + f
L._21 - - - 0 Li
_ - D/SCAYNE, c -k_ •-
I' n _
• �o' 30' tl� i'8` ,
$ 3
I ° a ci ,� '
c
Ili,. y/81 t4; 2D" Z/ 72 23 24 ZS re 2Y ?� 29 :, a.,,
i _I cfis
N4 w j� ny rnr� M I I
• 111.771 lL
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EXHIBIT B
Additional Requirements
The Demised Premises shall be maintained in a clean, neat and orderly appearance at all times by
the Tenant. The area of the sidewalk, curb and gutter immediately adjacent to the Demised
Premises shall be cleared of all debris during hours of operation, and again at the close of each
business day, or as may otherwise be determined by the City,Manger.
The Tenant shall be responsible for cleaning the floor surface/on which the outdoor seating is
located at the close of each business day. In addition, the fool llowing conditions shall apply:
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a. Tables, chairs, umbrellas and any other ou <ctdoor cafe furniture shall be maintained in a
clean, attractive, and orderly appearance and shall be maintained and kept in good
repair at all times;
b. All outdoor furniture shall be of high ual�. design, materials, so as to
9 q -tY,\ g workmanship
ensure the safety and convenience of the.public;
c. Tenant must obtain a rovals�from the Plannin 'Deartment and the City Administration
Pp t �Planning/Department tY
in the design and layout of the outdoor cafe pavers, tables, chairs and umbrellas. Only
the outdoor cafe furniture specifically-shown on theeapproved site plan shall be allowed
in the Demised Area; \\\\ \\
d. All tables, chairs,-umbrellas, and any other outdoor furniture shall be readily removable,
and shall notbe physically attached, chained, orin any other manner affixed to any
public structure(treet\furniture, signage, and/or oth�public fixture, or to a curb and/or
public right-of-way; \ \ \
e. The stacking or piling up/of chais shall\e�prohibited on the Demised Premises;
f. At,close-of busines�all tables, chairs and any other outdoor furniture shall be removed
froth Demised�Premises andstore�n\anon-visible location from the public right-of-
way. Any exception to\this\requirement shall be at the sole and absolute discretion of the
City Manager andor his/her designee'-/
g. N�storage of dishe\\..verrw ra e, bussing stations or other similar restaurant equipment
shall\be allowed in the Demised Area, or in any other portion of the public right-of-way,
or outside the structur`al�confines of the building in which the restaurant is located, during
non-business hours;
h. There shalle,no live/entertainment or speakers placed in the Demised Area;
i. Only one menu board shall be permitted to be displayed on the Demised Premises, the
location of which shall be set back next to the main entrance door of the enclosed area
of the restaurant;\_,/
j. No food preparation, food storage, refrigeration apparatus or equipment, or fire
apparatus or equipment, shall be allowed on the Demised Premises;
k. No food displays shall be permitted on Demised Premises. No advertising signs or
business identification signs shall be permitted, except that the restaurant name and/or
its logo may be permitted on umbrellas but such logos and/or lettering may not exceed
six inches in height;
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I. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant
fertilizers which contain material that can stain the sidewalks shall not be allowed;
m. 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, whichever occurs first, the
Tenant shall, within no more than four hours of same, remove and place indoors all
tables, chairs 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 division. The City Manager may remove, relocate, and/or store any
outdoor furniture found on the Demised Premises thatThas 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.
(THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK)
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EXHIBIT C
UNCONDITIONAL GUARANTY
THIS UNCONDITIONAL GUARANTY (the "Guaranty") is made as of this day of
, 2015, by Philippe Carteau, individually (the "Guarantor"), in favor of THE CITY OF
MIAMI BEACH, a public body corporate and politic (the "City"), and is executed pursuant to that
certain Lease Agreement, dated , 2016 (the "Lease"), between the City
and FLORIDA FOOD DISTRICT INC. (the "Tenant") , involy ngunimproved city-owned land as
defined in the Lease as the Demised Premises, having a physical address of 22 Washington
Avenue, Miami Beach, Florida 33139 (the "Demised Premises"). ll capitalized terms not
otherwise defined herein shall have the meanings ascribed
�to„them in the Lease.
FOR VALUE RECEIVED, the receiO t w/hereof is hereby acknowledged, in
P, \ Y 9 ,
consideration of, and as an inducement to the/ity%s entering into\the Lease with Tenant, the
undersigned Guarantor, in consideration o0he/benefits to flow to the Tenant and to the
undersigned as stockholder, officer, and/or director of said Tenant, do\hereby irrevocably and
unconditionally guarantee to the City the full and faithful performance of\al�of the obligations,
duties and liabilities of the Tenant under that certain easefor the Demised Premises, equal to the
last six months of Rent (as defined(n the Lease) for the entire term of the Lease, including the
renewal term, which, if granted at all"shall beatth City's sole discretion (the "Guaranty Term").
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This Guaranty is a guarantee ent'and not o ollectabilit is not in any way
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conditional or contingent—and.�constitutes a valid obligation of Guarantor, and shall not be
terminated, affected or/impaired by reason of the assertion by-the City'against Tenant of any of the
0y / \ \ \ / / \ �..
rights and remediescreserved t�the\City pursuant to/the prow\ions of the Lease. The validity of
this Guaranty shall not bey terminated, affected\or impaired by reason of any action which the City
may take or fail to take against Tenant or by reasonnof any waiver of or failure to enforce any of the
rights or remedies reserved�to/the Cit'yHinthe 'Lease or for any other cause or circumstance
whatsoever, including-but not\l mited to any sublettingof the Leased Premises, assignment of the
Lease or waiver of any,breach by the Tenant
< \\ \�
This liability of Guarantor hereunder shall be primary and independent of the obligations of
Tenant, and\the City may proceed against Guarantor without commencing any action against
Tenant. The C*shall not be required to make any demand upon or pursue and exhaust any of its
rights or remedies against Tenant, before, simultaneously with, or after enforcing its rights or
remedies against Guarantor under this Guaranty; and Guarantor agrees that the City may enforce
any or all of its remedies hereunder at such time or times or in such manner as it shall deem
appropriate.
This Guaranty shall remain and continue in full force and effect during the Guaranty Term,
notwithstanding any modification, amendment, renewal or extension of the Lease or any provision
thereof and notwithstanding any assignment of interest therein.
The Guarantor consents to all of the terms and provisions of the Lease, as the same may be
from time to time hereafter amended, and expressly waive (i) any and all notices of proof of non-
payment, non-performance or non-observance by Tenant of any covenant or provision of the
Lease, (ii) any and all demands, notices, rights or remedies of any kind which may be required to
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be given or which may inure to the benefit of Guarantor under applicable law, and (iii) any and all
notices of default or events of default hereunder or under the Lease.
The City and Guarantor agree that in any action or proceeding brought by either the City or
Guarantor against the other on any matters whatsoever arising out of, under, or by virtue of this
Guaranty ("Legal Proceeding"), the City and Guarantor shall and do hereby waive trial by jury. In
addition, the venue, in connection with any such Legal Proceeding, shall be in Miami-Dade County,
Florida. Should it become necessary to enforce the terms and conditions of this Guaranty, the
prevailing party shall be entitled to collect court costs and attorney's fees in connection with said
prosecution, including any appeals resulting from said LegaProceeding.
Following the expiration of the Guaranty Term, upon written request by Tenant, the original
of this Guaranty shall be marked as "cancelled" ancLreturned toarantors.. This Guaranty shall
inure to the benefit of Landlord, its heirs, executors,successors`annd assigns and shall bind the
heirs, executors, successors and assigns of Guarantors.
c \EXECUTED as of the day and year first above written, to be effective as of the date of the
Lease.
GUARANTOR:
,\\
\Philippe Carteau \\_)
'(: )/ / �.
V / \
STATE OF FLORIDA )
\ -� )ss:
MIAMI--DDADE COUNTY )
The foregoing instrumentwas acknowledged before me this day of , 2015
by \ \ \ \ \ \ . personally known to me or produced
a valid \ \ driver's'license`as identification.
) \ U
Notary Public, State of Florida
/
Print Name:
My commission expires:
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