RESOLUTION 93-20795 RESOLUTION NO. 93-20795
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA AUTHORIZING AND DIRECTING THE
MAYOR AND CITY CLERK TO EXECUTE AN AMENDMENT TO LEASE
AGREEMENT BETWEEN THE CITY AND DINER GROUP, INC. (THE
GRILLE RESTAURANT) , FOR THE PURPOSE OF SETTING ASIDE THE
DEFAULT DATED FEBRUARY 9, 1993 AND EFFECTIVE ON OR ABOUT
MARCH 9, 1993, AND FURTHER PROVIDING FOR CERTAIN TERMS
AND CONDITIONS PURSUANT TO THE SETTING ASIDE OF SAID
DEFAULT
WHEREAS, the City and Diner Group, Inc. (Lessee) entered into
a Lease Agreement, dated September 22 , 1989, for the lease of
certain real property located in the north wing of the first floor
of Old City Hall, 1130 Washington Avenue, Miami Beach, Florida,
said premises housing The Grille Restaurant; and
WHEREAS, on February 9, 19 9 3 ,the City sent a Notice of Default
advising Lessee that it was in default of said Lease Agreement,
based upon Lessee ' s continued failure to maintain the restaurant on
the premises open as required by its Lease; and
WHEREAS, the City deemed said default effective on or about
March 9, 1993 ; and
WHEREAS, pursuant to subsequent negotiations between the
parties in an attempt to set aside Lessee' s default, the parties
have agreed to the terms and conditions stipulated in the attached
Amendment to Lease Agreement.
NOW THEREFORE, BE IT RESOLVED by the Mayor and City Commission
of City of Miami Beach, Florida:
The Mayor and City Commission of the City of Miami Beach
hereby authorize the Mayor and City Clerk to execute the attached
Amendment to Lease Agreement between the City and Diner Group, Inc.
(The Grille Restaurant) for the purpose of setting aside Diner
Group, Inc. ' s default dated Februar 9 , 1993 and effective on or
about March 9, 1993 .
Passed and adopted this 5t - . of May , 1:93 .
I
Mayor
ATTEST:
FORM APPOVED
City Clerk LEG .LPT.
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By LiLia
Date c3
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OFFICE OF THE CITY ATTORNEY
644 14 efigatue wharea
F L O R i D A
46-14N
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LAURENCE FEINGOLDINCOR RATED
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CITY ATTORNEY �.��H
,•, 9' "�'�°'�y- MIAMI BEACH, FLORIDA 33119-2032
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TELEPHONE(305)673-7470
TELECOPY (305)673-7002
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COMMISSION MEMORANDUM NO: --77
DATE: MAY 5, 1993
TO: MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COMMISSIO
CITY MANAGER ROGER M. CARLT N
FROM: LAURENCE FEINGOLD
CITY ATTORNEY
SUBJECT: CITY ATTORNEY COMMISSION MEMORANDUM NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AN AMENDMENT TO THE
LEASE AGREEMENT WITH DINER GROUP, INC. , (GRILLE
RESTAURANT) .
As explained at previous Commission Meetings, it is the
position of the City of Miami Beach that Diner Group, Inc. , (Grille
Restaurant) is in default of their Lease Agreement with the City
not by virtue of non-payment of rent but by remaining closed when
the subject Lease requires that said restaurant remain open when
paragraph 16B of the subject Lease required that the restaurant be
open for operations a minimum of six (6) days a week.
There is no doubt that a default exists in this regard
notwithstanding the protest of the Lessee that the City has acted
unfairly. The open issue is whether this default constitutes a
"technical default" thereby causing a Court to invoke the doctrine
that the law abhors a forfeiture. In other words, the Courts have
a reluctance to terminate a contract based upon a default of a
technical nature, particularly when other remedies are available.
At the very least the position of the Diner Group, Inc. ,
(Grille Restaurant) creates a "cloud on title" thereby delaying
this City' s entry into an alternative lease agreement with other
parties until a judicial determination of this matter is had. The
judicial proceedings to terminate the Lease could conceivably
prevent the City from obtaining good and marketable title for at
least a year.
Under these circumstances the Administration recommends
entering into the attached Amendment to Lease Agreement with the
Diner Group, Inc. , (Grille Restaurant) . The benefits obtained from
the attached Agreement include:
1. Payment of all past due rentals.
2 . Payment of estimated Resort Tax lost
because of the closure of the restaurant in
the amount of $10, 000.
3 . Commencement of payment in the amount of
$3 , 100. per month base rent which is a $600 .
increase over the prior monthly rental .
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1700 CONVENTION CENTER DRIVE- FOURTH FLOOR - MIAMI BEACH, FLORIDA 33139
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Amendment to the Lease Agreement with
Diner Group, Inc. (Grille Restaurant)
May 5, 1993
Page 2
4 . (CPI) Consumer Price Index increase from
2% to 4% for each lease year.
5. Imposition of a common area maintenance
additional monthly rent of $1. 34 per square foot.
6. The imposition of an immediate source of
income to the City.
7 . Clear provisions that all defaults herein are
material, justifying termination of the Lease
Agreement and turning over possession of the
subject premises to the City upon three (3) days
notice.
LF:scf:memos\dinergr.cm
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AMENDMENT TO LEASE AGREEMENT
This Amenpent to Lease Agreement, made and entered into this z.44.d;
9day of l , x-19 9 3 , by and between the City of Miami Beach, a
municipal corporation (hereinafter referred to as "City") , and
Diner Group, Inc. , a Delaware Corporation, (hereinafter referred to
as "Lessee") :
WITNESSETH
WHEREAS, the City and Lessee entered into a Lease Agreement
(hereinafter referred to as "Agreement") , dated September 22 , 1989
for the lease of certain real property located in the north wing of
the first floor of Old City Hall, including the adjacent patio
area, 1130 Washington Avenue, Miami Beach, Florida (hereinafter
referred to as the "Premises") ; and
WHEREAS, on February 9 , 1993 , the City sent a Notice of Default to
Lessee, said letter attached hereto as Exhibit A, advising Lessee
that it was in default of Paragraph 16 (b) of the Lease Agreement,
based upon Lessee' s continued failure to maintain its restaurant on
the Premises open as required and stated by that clause; and
WHEREAS, Lessee was given thirty (30) days from receipt of the
City' s letter of February 9 , 1993 in which to correct the default;
and
WHEREAS, to date, although Lessee has not corrected the aforestated
default within the thirty (30) day cure period provided in the
Lease Agreement and re-stated in City' s Notice of Default but has
been involved in settlement negotiation with the City in an effort
to amicably settle and set aside same with the City; and
WHEREAS, pursuant to such negotiations, the parties herein now wish
to amend the Lease Agreement, subject to the terms and conditions
set forth below, for the purpose of setting aside Lessee ' s default
dated February 9 , 1993 (Exhibit A) and effective on or about March
9 , 1993 .
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as
follows:
1. Pursuant to Paragraph 10 (a) of the Lease Agreement, Lessee
shall, upon execution of this Amendment, commence paying the sum of
Three Thousand One Hundred ($3 , 100) Dollars per month as the
"Minimum Monthly Rent" for the Premises.
2 . Pursuant to Paragraph 10 (a) of the Lease Agreement, any
"Minimum Monthly Rent" increases, as determined by increases in the
Consumer Price Index (CPI) for any lease year, shall hereinafter be
capped at a four (4%) percent increase for any lease year. The
date this document is executed will be the new date from which the
annual CPI increase will be determined and such new rent as stated
in Paragraph One, will be the Base Rent.
3 . Paragraph 10 of the Lease Agreement is amended to include the
following subsection:
" (f. ) Additional Rent:
In addition to the Minimum Monthly Rent, Lessee shall
also pay to Lessor additional rent in the amount of $1. 34
per square foot for space leased per year, excluding
Lessee' s patio area, or $256. 33 per month, as Lessee's
proportionate share of "Operating Expenses. "
"Operating Expenses" shall mean the total cost and
expenses incurred in operating, repairing, maintaining
and replacing the common facilities (hereinafter defined)
actually used or available for use by the Lessee and its
employees, agents, servants, customers and invitees, but
specifically including, and without limitation, the cost
for janitorial service, elevator repair maintenance,
temperature control and fire alarm repair maintenance.
"Common facilities" shall mean all areas, space,
equipment and special services provided by the Lessor for
the common or joint use and benefit of the occupants of
Old City Hall, their employees, agents, servants,
customers and other invitees. "
The aforesaid provision is to be included for every other lease for
Old City Hall, with the exception of the current lease in favor of
Frankel and Associates.
Notwithstanding anything to the contrary, the Additional Rent set
forth above will be capped at an annual increase of no more than 8%
per year.
Lessee shall commence paying the aforestated Additional Rent,
concurrent with its first rental payment, in the new amount as
specified in Paragraph 1 herein, following its execution of this
Agreement.
4 . Concurrent with Lessee' s execution of this Amendment, Lessee
agrees to pay all past due rental amounts for the month of January,
February, March, and April, in the total amount of $11, 348 . 72 ,
including sales tax, late payment penalties, and related interest
charges calculated at 12% per annum.
5. Lessee also agrees to pay the sum of $10, 000, representing the
City' s estimate in furtherance of settlement of resort taxes that
would have been paid had the restaurant on the Premises not closed.
Lessee agrees with City as to the aforestated sum, and understands
that this figure is only an estimate based upon the resort taxes
paid during the same period of the previously leased year , and
adjusted up or down based upon the percentage increase or decrease
of other similar types of restaurants within the area around the
Premises and experienced over the period in question, as compared
to the same period of the prior year.
6. Lessee agrees to utilize its best efforts to reopen a
restaurant located on the Premises as soon as possible but in no
event later than ninety (9 0) days from execution of this Agreement
(The Renovation Period) , for the purpose of serving dinner and an
additional fifteen (15) days there from, for the purpose of serving
lunch. A breach of this provision as to maximum number of days
shall be considered a material breach of this Agreement.
7 . During the Renovation Period, Lessee will begin work on the
Premises making the repairs and renovations necessary for the
reopening of the restaurant. Work to be done during that period
shall be set forth on a separate schedule to be delivered to the
City within ten (10) days from the execution of this Amendment.
8 . During the Renovation Period, Lessee shall continue to pay all
Rents (including Minimum and Additional Rent and Sales Tax thereon)
as same would have been due during that period if the restaurant
were open.
9 . Lessee herein acknowledges that, prior to the issuance of the
Notice of Default dated February 9, 1993 (Exhibit A) Lessee was in
the process of negotiating a sub-lease for the Premises with the
City on behalf of the entity known as "China Grille Sobe, Inc. " (as
sub-lessee) . Subsequent to the City's default of the Lease
Agreement herein, China Grille Sobe, Inc. has contacted the City
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Administration and notified it that it may maintain an action
against Lessee relating to its proposed sublease negotiations. To
that end, concurrent with its execution of this Amendment to Lease
Agreement, Lessee shall execute a separate agreement, satisfactory
to the City, and therein indemnifying and holding the City of Miami
Beach, and its employees, agenda, guests, and invitees, harmless
from any and all claims (whether groundless or otherwise) brought
by China Grille Sobe, Inc.
10. Lessee agrees not to sublet or assign the premises, pursuant
to Paragraph 27 of the Lease Agreement, for one (1) year from the
date of execution of this Amendment.
11. The parties declare that all of the terms and conditions as
set forth herein are material terms and conditions and any breach
thereof shall be considered a material default not a technical
default.
12 . The parties hereby ratify and confirm all other terms and
conditions of the Lease Agreement which remain unchanged.
IN WITNESS WHEREOF, the parties hereto have cause these
presents to be signed by the respective duly authorized officers,
and the respective corporate seals to be affixed this `Z d2 day
of May, 1993 .
LESSOR: CITY OF ►- AMI BEACH
O9
By:
Mayor
i
Attest: : E• 1006,..
WV City Clerk
LESSEE: DINER GROUP, INC.
By: i
� ��-- President
Type Name
FORM APPROVED
and Title: 4141
LEGA i PT
A/
Attest: if r
By 40/ Secretary
Date 5/•3-- /C1
(CORPORATE SEAL)
RJA:jm
a:rja\grille.amd
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ORIGINAL
RESOLUTION NO. 93-20795
Authorizing and directing the Mayor and
City Clerk to execute an amendment to
lease agreement between the City and
Diner Group, In. (The Grille Restaurant) ,
for the purpose of setting aside the
default dated February 9, 1993 and
1110,
effective on or about March 9, 1993, and
further providing for certain terms and
conditions pursuant to the setiing aside
of said default.
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