2008-26968 ResoRESOLUTION NO. 2008-26968
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
COLONY THEATRE CAFE, INC. (D/B/A
SEGAFREDO'S), AS THE RECOMMENDED
PROPOSER PURSUANT TO REQUEST FOR
PROPOSALS (RFP) N0.19-07/08, FOR USE OF THE
FACILITY KNOWN AS THE COLONY THEATRE
CAFE, LOCATED AT 1040 LINCOLN ROAD, SAID
LEASE HAVING AN INITIAL TERM OF THREE (3)
YEARS, COMMENCING RETROACTIVELY ON
NOVEMBER 1, 2008, AND ENDING ON OCTOBER
31, 2011, WITH TWO (2) ADDITIONAL THREE (3)
YEAR RENEWAL TERMS; FURTHER SETTING A
PUBLIC HEARING ON JANUARY 28, 2009, FOR THE
SECOND READING (AND FINAL APPROVAL) OF
THE LEASE AGREEMENT
WHEREAS, on February 13, 2008, the Mayor and City Commission
approved the issuance of Request for Proposals (RFP) No. 19-07/08 for use of the
City-owned facility known as the Colony Theater Cafe; and
WHEREAS, RFP No. 19-07/08 was issued on February 14, 2008, with an
opening date of April 18, 2008; and
WHEREAS, on July 16, 2008, the Mayor and City Commission adopted
Resolution No. 2008-26858, authorizing the Administration to enter into negotiations
with Colony Theatre Cafe, Inc., d/b/a Segafredo, for lease of the City-owned facility
known as the Colony Theatre Cafe; and
WHEREAS, the Administration has negotiated the attached ,Lease
Agreement with Colony Theater Cafe, Inc., (d/b/a Segafredo) for an initial term of
three (3) years, commencing retroactively on November 1, 2008, and ending on
October 31, 2011, with two (2) additional three (3) year renewal terms; and
WHEREAS, the leased premises encompass the first (1St) floor
restaurant/cafe space, a lobby concession area, and a dumpster/storage area,
totaling 1,371 square feet, for which the Administration has negotiated a monthly
base of rent of sixteen thousand six hundred eight dollars and fifty cents
($16,680.50) (which equals a minimum of two hundred thousand one hundred and
sixty six dollars ($200,166.00) per year), or 6.5% of annual gross receipts,
whichever is greater; and
WHEREAS, Section 82-39 of the Miami Beach City Code, governing the
sale/lease of public property requires an advertised public bidding, an independent
appraisal of the fair market or rental value of the property and a Planning
Department analysis and two (2) readings of the proposed Lease, with the second
(and final) reading followed by an advertised public hearing to obtain citizen input;
and
WHEREAS, the Administration would hereby recommend that the Mayor
and City Commission approve the attached Lease Agreement on first reading, and
hereby set the public hearing for second reading and final approval of the
Agreement.
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, the attached Lease Agreement
between the City and Colony Theater Cafe, Inc. (d/b/a Segafredo's), as the
recommended proposer pursuant to Request For Proposals (RFP) No. 19-07/08, for
use of the facility known as the Colony Theatre Cafe, located at 1040 Lincoln Road,
said Lease having an initial term of three (3) years, commencing on November 1,
2008, and ending on October 31, 2011, with two (2) additional three (3) year
renewal terms, further setting a public hearing on January 28, 2009, for the second
reading (and final approval) of the Lease Agreement.
PASSED and ADOPTED this 10th day of December, 2008.
ATTEST:
~~ y 1
Robert Parcher, CITY CLERK
atti Herrera Bower, MAYOR
JMG\TH\ACV\rlr
APPROVED AS TO
FORM & LANGUAGE
T.•1AGENDA120081December 101RegularlColony Theatre Cafe 1stReading.RES.do~ FOR EXECUTION
~ !z/S ~08
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City Attome Date
COMMISSION ITEM SUMMARY
Condensed Title:
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 Colony Theatre Cafe, Inc. (D/B/A Segafredo's), for use of the facility known as the Colony Theatre Cafe,
located at 1040 Lincoln Road, for an initial term of three (3) years, with two (2) additional three (3) year renewal terms.
Ke Intended Outcome Su orted:
To Ensure Well-Maintained Facilities and Increase Community Rating of Cultural Activities
Supporting Data (Surveys, Environmental Scan, etc.): 60% of businesses and 66% of residents of say there are the right number
of cultural activities. Residents and businesses are aligned in their preference for the types of cultural activities they'd like to see,
with live music/concerts clean the most referred.
Issue•
Shall the City Commission Accept the City Manager's Recommendation?
Item Summa /Recommendation:
FIRST READING
On February 13, 2008, the Mayor and City Commission approved the issuance of Request for Proposals (RFP) No. 19-07/08
for use 'of the City-owned facility known as the Colony Theatre Cafe, encompassing 1371 sq ft. Subsequently, RFP No. 19-
07/08 was issued on February 14, 2008, with an opening date of April 18, 2008.
On July 16, 2008, the Mayor and City Commission adopted Resolution No. 2008-26858, accepting the recommendation of the
City Manager and authorizing the Administration to enter into negotiations with the Colony Theater Cafe, Inc (D/B/A
Segafredo's) for the attached Lease Agreement, with an initial term of three (3) years commencing on November 1, 2008, and
ending on October 31, 2011, with two (2) additional three (3) year renewal terms.
Tenant shall furnish the City with the base rent and/or percentage of gross (whichever is higher) as well as an Irrevocable
Letter of Credit in lieu of a Security Deposit, as agreed to by the City. Rent terms are pursuant to the information gathered per
a property appraisal as required by City Charter, Article II Sale or Lease of Public Property, as well as past performance by
the Tenant at the site over the past five years. The Base Rent amount will be increased annually by the Consumer Price Index
(CPI), throughout the term of the Lease.
The Cafe currently holds an active Sidewalk Cafe permit which is nontransferable and is authorized for forty eight (48) tables
and one hundred eighty three (183) seats. The Sidewalk Cafe permit is not part of the leased premises.
The administration has negotiated a base of rent of $146.00 per square foot (minimum of $200,166 a year), or 6.5% of gross
- whichever is greater. This represents a 46% improvement in minimum base rent as proposed by Colony Cafe, and 389%
better than the current base rent amount. Previous to renovations, the premises encompassed 1,554 square feet, with the
highest fee paid to the City based on aper-performance formula, equivalent to $4,848.71 per month or $37.44 psf. Based on
reported 2007 gross receipts of $4,524,997, the proposed 6.5% would realize a total payment of $294,123, or the equivalent
of $214 per square foot. The Base Rent amount will be increased annually by the Consumer Price Index (CPI), throughout the
term of the Lease.
Section 82-39 of the Miami Beach City Code governing the sale/lease of public property, as amended, an advertised public
bidding, an independent appraisal of the fair market or rental value of the property, and a Planning Department analysis to be
provided as part of the second reading, as well as two (2) readings of the proposed lease, with the second (and final) reading
followed by an advertised public hearing to obtain citizen input.
Advisory Board Recommendation:
Financial Information:
Source of Funds: Amount Account
1 N/A
Ci Clerk's Office Le islative Trackin
Ana Cecilia Velasco, Asset Manager x 6727
Sign-Offs•
Depart e D rector As 'sta t 'ty Ma ager 'ty Manager
AP ACV HF p( JMG
T:WGENDA\2008\Dec~i er 10\Regular\Colony Theatre Cafe_1stR~ding.Sl7M.doc / J / )
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~ 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: December 10, 2008
SUBJECT: 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 COLONY THEATER
CAFE, INC. (D/B/A SEGAFREDO'S), PURSUANT TO REQUEST FOR
PROPOSALS (RFP) N0.19-07/08, FOR USE OF THE FACILITY KNOWN
AS THE COLONY THEATRE CAFE, LOCATED AT 1040 LINCOLN ROAD,
SAID LEASE HAVING AN INITIAL TERM OF THREE (3) YEARS,
COMMENCING RETROACTIVELY ON NOVEMBER 1, 2008, AND ENDING
ON OCTOBER 31, 2011, WITH TWO (2) ADDITIONAL THREE (3) YEAR
RENEWAL TERMS; FURTHER SETTING A PUBLIC HEARING ON
JANUARY 28, 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 and increase community rating of cultural activities.
ANALYSIS
On February 13, 2008, the Mayor and City Commission approved the issuance of Request
for Proposals (RFP) No. 19-07/08 for use of the City-owned facility known as the Colony
Theatre Cafe. Subsequently, RFP No. 19-07/08 was issued on February 14, 2008, with an
opening date of April 18, 2008.
On July 16, 2008, the Mayor and City Commission adopted Resolution No. 2008-26858,
accepting the recommendation of the City Manager and authorizing the Administration to
enter into negotiations with Colony Theater Cafe, Inc., d/b/a Segafredo for lease of the City-
owned facility known as the Colony Theatre Cafe. The Administration has negotiated the
attached Lease Agreement for an initial term of three (3) years, commencing on November
1, 2008 and ending on October 31, 2011, with two (2) additional three (3) year renewal
terms.
The Colony Theatre closed for renovations in July 2002, and did not reopen until January
2006. Due to the renovations of the theatre, the actual leased premises changed physically.
The total area of the premises which will be subject to lease is one thousand three hundred
seventy one (1,371) square feet, subject to BOMA survey for justification. This includes a
total of four separate areas as follows; First Floor Bar and Storage Area space
Commission Memorandum
Colony Theatre Cafe
December 10, 2008
Page 2 of 3
encompassing seven hundred sixty nine (769) sq ft, Lobby Concession and Storage Area
space encompassing two hundred ninety six (296) sq ft; and Garbage Dumpster/External
Storage space encompassing three hundred and six (306) sq ft. The air conditioned
garbage dumpster/external storage enclosure is being constructed to provide the required
dumpster for a restaurant.
The Cafe currently holds an active Sidewalk Cafe permit which is nontransferable and is
authorized for forty eight (48) tables and one hundred eighty three (183) seats. The
Sidewalk Cafe permit is not part of the leased premises.
According to the 2007 4th Quarter Retail Report by Cushman & Wakefield, landlords on
South Beach's Lincoln Road began 2007 with "asking rents" in the $80 per square foot (psf)
to $110 psf range only, to close the year in the $100 psf to $140 psf range for retail space.
Security Deposit:
Upon execution of the Agreement, the Tenant shall furnish the City with an Irrevocable Letter
of Credit in lieu of a Security Deposit, as agreed to by the City. The guaranty (equal to three
months base/minimum rent) will serve to secure the successful proposer's performance in
accordance with the provisions of the Agreement. In the event the successful proposer fails
to perform in accordance with agreement provisions, the City will present the letter of credit
to the issuing bank for payment, as well as pursue any and all other legal remedies provided
for in the agreement, or as may be provided by applicable law.
Rent and Tenant Improvements:
The City has exercised its right to negotiate the rent terms and rent increase terms pursuant
to the information gathered per the property appraisal as required by City Charter, Article II
Sale or Lease of Public Property, as well as past performance by the Tenant at the site over
the past five years.
The administration has negotiated a base of rent of $146.00 a square foot (minimum of
$200,166 a year), or 6.5% of gross -whichever is greater. This represents a 46%
improvement in minimum base rent as proposed by Colony Cafe, and 389% better than the
current base rent amount. Previous to renovations, the premises encompassed 1,554
square feet, with the highest fee paid to the City based on aper-performance formula
equivalent to $4,848.71 per month or $37.44 psf. The chart below summarizes the terms.
Rent Per Square Foot Base Rent Percentage of Gross
Current $37.44
Proposed $100.00 4%
Negotiated $146.00 6.50%
" Based upon pertormances not PSF per lease agreement
Based on reported 2007 gross receipts of $4,524,997, the 6.5% would realize a total
payment of $294,123, or the equivalent of $214 per square foot. The Base Rent amount will
be increased annually by the Consumer Price Index (CPI), throughout the term of the Lease.
Section 82-39 of the Miami Beach City Code, governing the sale/lease of public property
requires an advertised public bidding, an independent appraisal of the fair market or rental
value of the property, which have been completed, and two (2) readings of the proposed
lease, with the second (and final) reading followed by an advertised public hearing to obtain
Commission Memorandum
Colony Theatre Cafe
December 1 D, 2008
Page 3 of 3
citizen input and a Planning Department analysis, to be provided as part of the second
reading.
CONCLUSION
The Administration recommends that the Mayor and City Commission hereby approve, on
first reading, a Lease Agreement (to follow) between the City and Colony Theater Cafe, Inc.
(d/b/a Segafredo's), pursuant to Request For Proposals (RFP) No. 19-07/08, for use of the
facility known as the Colony Theatre Cafe, located at 1040 Lincoln Road, said Lease having
an initial term of three (3) years, commencing on November 1, 2008, and ending on October
31, 2011, with two (2) additional three (3) year renewal terms; further setting a public hearing
on January 28, 2009 for the second reading (and final approval) of the Lease Agreement.
JMG/HF/AP/ACV
T:IAGENDA120081December 101RegularlColony Theatre Cafe 1stReading.MEM.doc
LEASE AGREEMENT
THIS LEASE AGREEMENT, (also referred to as the Lease or Agreement), made
this day of , 2008, by and between the CITY OF MIAMI BEACH, a
Florida municipal corporation (hereinafter referred to as "City" or "Landlord"),.and COLONY
THEATER CAFE, Inc. (d/b/a SEGAFREDO), a Florida corporation (hereinafter referred to
as "Tenant").
Demised Premises.
1.1 Landlord, 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 Landlord, those certain premises, located
in and adjacent to the Colony Theatre, 1040 Lincoln Road, Miami Beach,
Florida, 33139, and more fully described as follows:
Approximately 1,371 square feet delineated as follows:
(a) 769 sq ft of restaurant/cafe space (the Restaurant Space);
(b) 296 sq ft in the Colony Theatre lobby for use as a food and
beverage concession and storage area (the Concession
Area); and
(c) 306 sq ft adjacent to the Colony Theatre building for
dumpster/storage area (the Dumpster/Storage Area).
Collectively, the areas identified in subsections (a)-(c) above shall be referred
to as the Demised Premises. "The Demised Premises" are further
delineated in Exhibit 1, attached and incorporated hereto.
1.2 The Restaurant Space also operates a sidewalk cafe, under a Sidewalk Cafe
Permit issued pursuant to and in accordance with Sections 82-366 through
82-385 of the City of Miami Beach Code. The sidewalk cafe area is not part
of the Demised Premises.
2. Term.
2.1 Initial Term.
The Tenant shall be entitled to have and to hold the Demised Premises for a
term of three (3) years, commencing retroactively on the 1st day of
November 2008 (Commencement Date), and ending on the 31 day of
October , 2011.
2.2 Renewal Term.
(i) Provided Tenant is in good standing and free from default(s) hereunder,
and (ii) upon written notice from Tenant, which notice shall be submitted to
the City Manager no earlier than one hundred and eighty (180) days, but in
any case no later than thirty (30) days, prior to the expiration of the initial
term (or any renewal term, as the case maybe), this Lease may be extended
for two (2) additional three (3) year renewal terms. Any extensions shall be
memorialized in writing and signed by the parties hereto (with the City hereby
designating the City Manager as the individual authorized to execute such
extension on its behalf).
2.3 Liquor License
As of the Commencement Date, the Tenant shall obtain and maintain active
and current a liquor license (issued to the Colony Theater Cafe, Inc. and
designated for Retail Beverage) for the Restaurant Space and Concession.
Upon termination or non-renewal of this Lease, the Liquor License shall
remain the property of the Tenant, and any and all liabilities relating to such
liquor license shall be the responsibility of the Tenant.
3. Rent.
3.1 Base Rent:
Base Rent for the Demised Premises shall begin to accrue as of November
1, 2008 (the Commencement Date), and shall be based upon the total
leasable space of 1,371 square feet.
3.1.1 During the initial term of this Lease, Base Rent for the Demised
Premises shall be one hundred forty six dollars ($146.00) per
square foot, or a total annual Base Rent of two hundred thousand
one hundred sixty six dollars and no/100 ($200,166.00); payable
in monthly installments of sixteen thousand six hundred eighty
dollars and 50/100 ($16,680.50).
3.1.2 Base Rent shall be due and payable on the first day of each
month throughout the Term of this Agreement.
3.1.3 The Base Rent shall be increased annually, on the anniversary of
the Commencement Date of the Lease, by the Consumer Price
Index (CPI). CPI shall mean that consumer price index established
by the Bureau of Labor Statistics of the United States Department
of Labor which is entitled "Consumer Price Index for All Urban
Consumers, United States City Average, all items" or in the event
said Index is no longer provided by said Bureau of Labor
Statistics, the index furnished by said Bureau or other agency
which is most accurately and completely replaces and is the
equivalent of the above-referenced Index.
The Base Period shall be the Index for the calendar month of July
priorto the Commencement Date month of rent in Section 2.1 (the
Base Period Index). The Base Period Index shall be compared
2
with the Index for the same calendar month for each subsequent
year (comparison month) for the initial term.
Notwithstanding the foregoing, during the initial term the monthly
Base Rent shall not be increased by more than three percent (3%)
from the Base Rent payable for the immediately prior year.
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 the exercise of any renewal term. Any re-
negotiated Base Rent increase for a renewal term shall not
exceed a maximum of the average of the immediately preceding
three years CPI increase. Subsequent Base Rent increases for
the second and third years of any renewal term shall be in
accordance with Section 3.1.3 above
3.2 Additional Rent:
In addition to the monthly Base Rent (asset faith in Section 3.1) Tenant shall
also pay to Landlord throughout the Term, Additional Rent as provided
below:
3.2.1 flntentionally Omittedl
Intentionally Omitted.
3.2.3 Property Taxes:
The Property Tax Payment (as defined in Section 11.4 hereof)
shall be payable by Tenant, in accordance with Section 11 hereof.
The Property Tax Payment for Property Tax Year 2008 is
estimated at zero dollars ($0.00). Notwithstanding the preceding
sentence, the City makes no warranty or representation, whether
express or implied, that the Colony Theatre building, the Land,
and/or the Demised Premises will not be subject to ad valorem (or
other) taxes in subsequent years.
3.3 Sales Tax:
Concurrent with payment of the monthly installment of Base Rent, Tenant
shall also include any and all additional sums for all applicable sales and use
tax, as now or hereafter prescribed by State, Federal or local law.
3.4 Percentage of Gross (PG) vs. Base Rent
3.4.1 In addition to minimum monthly Base Rent, Tenant shall also pay
Landlord, at the end of each Lease year and on or before December
31st of each such year, a percentage of gross in the amount of six
and one half percent (6.5%) of the Tenant's gross receipts (PG) for
such Lease year, less the total annual Base Rent amount (for such
3
Lease year) if the PG for that year exceeds the Base Rent.
The additional amount, if any, equal to the difference between PG for
such Lease year and the annual Base Rent for such Lease year, shall
be payable in full concurrent with the delivery to the City of the Annual
Statement of Gross Receipts (required pursuant to Section 6 of this
Agreement), or no later than December 31St of each Lease year
during the Term.
3.4.2. The term "gross receipts" is understood to mean all income received
by the Tenant from all sales made by Tenant of food, beverages and
merchandise, in, on or from the Demised Premises (less returns and
refunds) excluding amounts of any Federal, State, or City sales tax, or
other tax, governmental imposition, assessment, charge or expense
of any kind, collected by the Tenant from customers and required by
law to be remitted to the taxing or other governmental authority.
Notwithstanding the foregoing, "gross receipts" shall also not
include any of the following:
1. gratuities to employees paid by Tenant's patrons or
customers (even if included in the check to the patron or customer);
2. food and beverages served to employees of Tenant at no
cost;
3. food and beverages provided by way of promotions or
promo checks; or
4. a walkout (i.e. a meal served but not paid for).
3.5 Tenant agrees to pay the Base Rent, Additional Rent, and any other sum
due under this Lease at the time and in the manner aforesaid, and should
said rents and/or other amounts herein provided at any time remain due and
unpaid for a period of fifteen (15) days after the same shall become due, the
Landlord may exercise any or all options available to it hereunder, which
options may be exercised concurrently or separately, or the Landlord may
pursue any other remedies enforced by law.
3.6 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 Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
4
4. Tenant Responsibilities for Utilities and Services.
Tenant is solely responsible for, and shall promptly pay when due, all charges
(including, without limitation, all hook-up fees) and impact fees for utility services for
the Demised Premises (including without limitation, cable, gas, telephone, janitorial,
garbage removal and any other utility services provided to the Demised Premises);
provided however, that Tenant shall pay 50% of the water consumption of the
Colony Theatre building on a monthly basis, as invoiced by the City.
In addition to other rights and remedies hereinafter reserved to the City, upon the
failure of Tenant to pay for any utility services when due, the City may elect, at its
sole option, to pay same, whereby Tenant agrees to promptly reimburse the City
upon demand. In no event, however, shall the City be liable, whether to Tenant
and/or third parties, for an interruption or failure in the supply of any utilities or
services to the Demised Premises.
5. 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.
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.
6. Inspection and Audit /Annual Statement of Gross Receipts.
Tenant shall maintain its financial records pertaining to its operations for a period of
three (3) years after the conclusion of any Lease year and such records shall be
open and available to the City Manager or his designee, as deemed necessary by
the City Manager. Tenant shall maintain all such records at its principal office,
currently located at 1641 Jefferson Avenue, Third Floor, Miami Beach, Florida,
33139, or, if moved to another location, all such records shall be relocated, at
Tenant's expense, to a location in Miami Beach, within ten (10) days' written notice
from the City Manager.
The City Manager or his designee shall be entitled to audit Tenant's records
pertaining to its operations as often as it deems reasonably necessary throughout
the Term of this Agreement. 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. These audits are in addition to periodic audits by the City of Resort Tax
5
collections and payments, which are performed separately. Nothing contained
within this Section or in this Agreement 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
December 31St of each year, an Annual Statement of Gross Receipts, in a form
consistent with generally accepted accounting principles. Additionally, such
Statement shall be accompanied by a report from an independent CPA firm.
7. Parking.
Intentionally Omitted.
8. Security.
8.1 Concurrent with its execution of this Lease, Tenant shall provide an
Irrevocable Letter of Credit, in the amount of $50,187.51, guaranteeing
Tenant's faithful performance of the terms and conditions of this Agreement.
The form of the Irrevocable Letter of Credit shall be as required and
approved by the City Manager or his designee. Tenant shall be required to
maintain said Irrevocable Letter of Credit (as approved by City Manager or
his designee) in full force and effect throughout the Term. 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 and other amounts due hereunder, the Landlord may use, apply or
retain the whole or any part. of the Irrevocable Letter of Credit for the
payment of such rentals and/orother amounts in default, or any other sum
which the Landlord may expend or be required to expend by reason of the
Tenant's default, including any damages ordeficiency in the re-letting of all
or any portion of the Demised Premises, whether such damages or
deficiency may accrue or after summary proceedings or other re-entry by
Landlord.
8.2 In the event that the Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Agreement, the
Irrevocable Letter of Credit shall be returned to the Tenant, upon the
expiration of this Agreement and peaceful surrender of the Demised
Premises.
9. Use and Possession of Demised Premises.
9.1 The Demised Premises shall be used by the Tenant solely as follows:
(a) the Restaurant Space shall be open to the public daily with
minimum hours of operation being from Sunday through
Thursday from 11:00 a.m. to 2:00 a.m., and Friday through
Saturday, from11:00 a.m. to 3:00 a.m. Upon request of
6
renters of the Colony Theatre (Renters), the Restaurant will
provide green room catering within the menu items identified
or a catering menu provided by Tenant; and
(b) the Concession Area will provide food and beverage sales
and service exclusively to Colony Theatre patrons. Tenant
shall have the exclusive right to provide food and beverage
sales and service to Colony Theatre patrons inside the
Theatre; provided, however, that should a Renter have a
sponsor which commercially produces a particular food or
beverage, such food or beverage will be permitted to be
distributed, and/or served, on a complimentary basis, in the
lobby or the adjacent area at the entrance to the main
Theatre. The Concession Area shall only be open and
operate on days of performances or events in the Colony
Theatre, beginning one hour prior to advertised curtain time,
and closing one half hour after end of performance.
Notwithstanding the above, Tenant shall also have the right to
open and operate the Concession Area, and provide food and
beverage service far parties or gatherings originating from the
Restaurant Space, so long as Tenant does not do so more
than five (5) times per Lease year; and
(c) the Dumpster/Storage Area is solely for use by the Tenant to
support operations of the Restaurant Area and Concession
Area and is available as needed by the Tenant.
The uses, and days and hours of operation set forth above, shall not
otherwise be modified without prior written approval of the City Manager
which shall not be unreasonably withheld. Nothing herein contained shall be
construed to authorize hours contrary to the laws governing such operations.
9.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant only for the purposes set forth in this Lease, and for no other
purposes or uses whatsoever. Tenant will not make or permit any use of the
Demised Premises that, directly or indirectly, is forbidden by 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
purposes not expressly permitted herein, then the Landlord may declare this
Agreement in default and/or, without notice to Tenant, restrain such improper
use by injunction or other legal action.
9.3 The Concession Area shall not be used for storage of sidewalk cafe
furniture, but may be used for dry storage All cafe /restaurant materials
must be stored in the Restaurant Space, behind the bar, or in the
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Dumpster/Storage Area.
9.3.1 Renters shall not be permitted to utilize any portion of the Concession
Area. Renters may only utilize the lobby or the adjacent area at the
entrance to the main Theatre (as permitted by the Theatre Manager).
9.3.2 The Tenant must serve any liquor, including complimentary liquorthat
is provided by Renters to patrons. The Tenant has the right to be paid
a corkage fee (which shall be determined by Tenant according to
industry standards, and also approved by the City Manager).
9.3.3 Notwithstanding anything in this Lease to the contrary, in no event
shall Tenant be liable for any damage or injury caused by any
Renters.
9.4 At all times during the Term, Tenant must maintain the Liquor License
referenced in Section 2.3 in good standing and in full force and effect.
9.5 The parties acknowledge and agree that the Restaurant Space and
Concession Area are intended to and shall be operated, maintained and
repaired in a first class manner and otherwise consistent with the standard of
the historic design of the building. The operations shall be of a level of
quality equal to or greater than the Industry Standard for a first class
restaurant. All food and beverages dispensed by Tenant shall be of high
quality, and prepared and presented in a professional manner. No imitation,
adulterated or misbranded article or items shall be sold or kept for sale and
all food and beverages shall be stared and handled by Tenant in a manner
consistent with standards of sanitation, preservation and purity.
9.6 From one hour prior to advertise curtain time, through one half hour after the
end of a performance or event in the Theatre, the sound system in the
Restaurant Space must be at an ambient level.
9.7 When a performance is in session, Restaurant Space patrons and
employees must use the Restaurant Space restroom; however, at all other
times, patrons may have use of the Colony Theatre restrooms.
10. Improvements.
10.1 Tenant accepts the Demised Premises in their present "AS IS" condition
and may construct or cause to be constructed, such interior and 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.
8
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.
10.2 Notwithstanding Subsection 10.1, upon termination and/or expiration of this
Agreement, and at the City Manager's sole option and discretion, any or all
alterations or additions made by Tenant to or in the Demised Premises shall,
upon written demand by the City Manager, be promptly removed by Tenant,
at its cost and expense, and Tenant further hereby agrees, in such event, to
restore the Demised Premises to their original condition prior to the
Commencement Date of this Agreement.
10.3 The City Manager's approval shall not be required as to improvements
(which term, for purposes of this Subsection 10.3 only, shall also include
improvements as necessary for Tenant's maintenance and repair of the
Demised Premises) which do not exceed One Thousand ($1,000.00) Dollars,
provided that the work is not structural, and provided that it is permitted by
applicable law.
11. Landlord's Right of-Entry.
11.1 The Gity Manager, or his 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 Landlord may
consider necessary, and for the purpose of preventing fire, theft or
vandalism. However, Landlord agrees that, whenever possible, the City
Manager shall provide reasonable notice (whether written or verbal) to
Tenant, unless the need to enter the Demised Premises is deemed an
emergency by the City Manager, in his 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 or obligation on
the part of the Landlord to do any work that under any provisions of this
Agreement the Tenant may be required to perform, and the performance
thereof by the Landlord shall not constitute a waiver of the Tenant's default.
11.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at any time, for any reason, and any entry thereon
shall be necessary or permissible, the City Manager, or his authorized
9
agents, may enter the Demised Premises by master key, or may forcibly
enter the Demised Premises without rendering the Landlord or such agents
liable therefore.
11.3 Tenant shall furnish the City Manager with duplicate keys to all locks
including exterior and interior doors upon the Commencement Date of this
Agreement. Tenant shall not change the locks to the Demised Premises
without the prior written consent of the City Manager, not to be unreasonably
withheld, and in the event such consent is given, Tenant shall furnish the City
Manager with duplicate keys to said locks in advance of their installation.
12. Tenant's Insurance.
12.1 The Tenant shall, at its sole cost and expense, comply with all insurance
requirements of the Landlord. 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:
12.1.1 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 additional insured
parties on this policy, subject to adjustment for inflation.
12.1.2 Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
12.1.3 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 this Agreement) and all leasehold
improvements installed in the Demised Premises by or on behalf of
Tenant, subject to adjustment for inflation.
12.1.4 Any otherform of insurance which Landlord may reasonably, require
from time to time.
All policies referred to above shall: (i) be taken out with insurers
licensed to do business in Florida and reasonably acceptable to
Landlord; (ii) be in a form reasonably satisfactory to Landlord; (iii) be
non-contributing with, and shall apply only as primary and not as
excess to any other insurance available to Landlord (if any).
Certificates of insurance on Landlord's standard form, or copies of
such insurance policies certified by an authorized officer of Tenant's
insurer as being complete and current, shall be delivered to
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Landlord at Commencement Date. If Tenant fails to take out or to
keep in force any insurance referred to in this Section 12, or should
any such insurance not be approved by Landlord, and Tenant does
not commence and continue to diligently cure such default within
two (2) business days after written notice by Landlord to Tenant
specifying the nature of such default, then Landlord has the right,
without assuming any obligation in connection therewith, to effect
such insurance at the sole cost of Tenant and all outlays by
Landlord shall be paid by Tenant to Landlord as Additional Rent
without prejudice to any other rights or remedies of Landlord under
this Lease.
Tenant shall not keep or use in the Premises any article
which may be prohibited by any fire or casualty insurance policy in
force from time to time covering the Premises.
12.1.5 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.
13. Property Taxes and Assessments.
For the purposes-of this Section and other provisions of this Agreement:
13.1 The term "Property Taxes" shall mean (i) the real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the tax lot
on which the building is constructed and (ii) any expenses incurred by
Landlord in obtaining a reduction of any such taxes or assessments.
13.2 The term "Property Tax Year" shall mean the period of twelve (12) calendar
months, beginning on January 1St of each year.
13.3 The term "Tenant's Proportionate Share" shall mean the ratio that the total
square footage of the Demised Premises within the Colony Theatre building,
not to include the adjacent Dumpster/Storage Area (1065 square feet), bears
to the square footage of the space (18,822 square feet) in the entire building.
13.4 Tenant shall pay, as Additional Rent (pursuant to Section 3.2.2), for such
Property Tax Year an amount ("Property Tax Payment") equal to Tenant's
Proportionate Share of the Property Taxes, if any, for such Property Tax
Year. If a Property Tax Year ends after the expiration or termination of the
Term of this Agreement, the Property Tax Payment therefore shall be
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prorated to correspond to that portion of such Property Tax Year occurring
within the Term of this Agreement. The Property Tax Payment shall be
payable by Tenant along with the rent on the first day of each month in
accordance with the provisions of Section 3.3.2. The monthly Property Tax
Payment shall be equivalent to 1 /12th of the estimated yearly taxes, based on
the previous year's actual taxes. A copy of the tax bill(s) or other evidence of
such taxes issued by the taxing authorities, together with Landlord's
computation of the Property Tax Payment, will be made available to Tenant
once received from the taxing authorities, if requested by Tenant. Tenant
shall pay any difference in the amount between the estimated Property
Taxes and the actual Property Taxes to Landlord immediately upon receipt of
request for said payment from the Landlord.
14. Assignment and Subletting.
Tenant shall not have the right to sublet the Demised Premises, in whole or in part.
Tenant shall not have the right to assign the Demised. Premises, in whole or in part,
without the prior written consent of the City, through its Mayor and City Commission,
and which consent, if given at all, shall be at the sole discretion of the City
Commission.
15. Maintenance and Repair.
15.1 Tenant shall maintain the Demised Premises and the fixtures and
appurtenances therein, at its sole cost and expense, to the satisfaction of the
Landlord, in good and sanitary order, proper working condition and repair,
and consistent with the operation of a first-class quality restaurant in the
Miami Dade County area. Tenant. shall make all repairs thereto as and when
needed to preserve fixtures and appurtenances in good working order and
condition. Landlord shall be responsible forthe maintenance of the roof, the
exterior of the building, the structural, electrical and plumbing (other than
plumbing surrounding any sink within the Demised Premises), and the chilled
water supply system. Tenant shall also be responsible for all interior walls,
and the interior and exterior of all windows and doors, as well as immediate
replacement of any and all plate glass or other glass in the Demised
Premises which may become broken (using glass of the same or better
quality) at its sole cost and expense.
15.2 All damage or injury of any kind to the Demised Premises and/or to its
fixtures, glass, appurtenances, and equipment, except damage caused by
the willful misconduct or gross negligence of the Landlord, 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 Manager.
15.3 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.
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15.4 If Tenant fails to make such repairs or restorations or replacements, the
same maybe made by the Landlord, at the expense of Tenant, and all sums
spent and expenses incurred by Landlord shall be collectable as Additional
Rent and shall be paid by Tenant within ten (10) days after rendition of a bill
or statement thereof.
15.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or
improvements made by Tenant to the Demised Premises comply with all
applicable building codes and life safety codes of governmental authorities
having jurisdiction.
15.6 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION.
16. Governmental Regulations.
The Tenant covenants and agrees to fulfill and comply with all statutes, ordinances,
rules, orders, regulations, and requirements of any and all governmental bodies,
including but not limited to Federal, State, Miami-Dade County, and City
governments, and any and all of their departments and bureaus applicable to the
Demised Premises and shall also comply with and fulfill all rules, orders, and
regulations for the prevention of fire, all at Tenant's own cost and expense. The
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 Landlord from all liability arising from each incident
of non-comp)iance.
17. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Leased premises or improvements for any labor or materials to Tenant or
claimed to have been furnished to Tenant's agents, contractors, orsub-tenants, in
connection with work of any character performed or claimed to have performed on
said premises, or improvements by or at the direction or sufferance of the Tenant,
provided however, Tenant shall have the right to contest the validity or amount of
any such lien or claimed lien. In the event of such contest, Tenant shall give the
Landlord. reasonable security as may be demanded by Landlord to insure payment
thereof and prevent sale, foreclosure, orforfeiture of the premises or improvements
by reasons of such non-payment. Such security need not exceed one and one half
(1-1/2) times the amount of such lien or such claim of lien. Such security shall be
posted by Tenant within ten (10) days of written notice from Landlord, or Tenant
may "bond off' the lien according to statutory procedures. Tenant will immediately
pay any judgment rendered with all proper cost and charges and shall have such
lien released or judgment satisfied at Tenant's own expense. Tenant shall not have
the right to pledge the Demised Premises and/or leasehold interest thereon as
13
security or collateral for any loan, mortgage, lien, and/or other indenture which
would affect the Demised Premises, and/orthe Colony Theatre building, and/orthe
Land.
18. Enforcement.
Intentionally Omitted.
19. Condemnation.
19.1 If at any time during the Term of, all or any material part or portion of the
building in which the Demised Premises are located, is 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 taking.
19.2 Except as hereunder provided, Tenant shall not be entitled to participate in
the proceeds of any award made to the Landlord 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 Landlord,
such compensation as maybe 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.
20. Default.
20.1 Default by Tenant:
At the Landlord's option, any of the following shall constitute an Event of
Default under this Agreement:
20.1.1 The Base Rent, Additional 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 Landlord specifying such
default;
20.1.2 Any other payment provided for under this Agreement is not paid
promptly when and where due and if Tenant shall not cure such
failure within five (5) days after receipt of written notice from
Landlord specifying such default;
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20.1.3 The Demised Premises shall be deserted, abandoned, or vacated;
20.1.4 The 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 Landlord specifying any such default;
or such longer period of time acceptable to Landlord, at its sole
discretion;
20.1.5 Receipt of notice of violation (including, without limitation, a
violation issued pursuant to Tenant's Sidewalk Cafe Permit) 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;
20.1.6 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;
20.1.7 Tenant shall become insolvent;
20.1.$ Tenant shall make an assignment for benefit of creditors;
20.1.9 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter;
20.1.10 The leasehold interest is levied on under execution; or
20.1.11 Tenant shall fail to take out or to keep in force any insurance
referred to in Section 12 of the Agreement .
21. Rights on Default.
21.1 Rights on Default:
In the event of any default by Tenant as provided herein, Landlord 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;
21.1.1 Terminate this Agreement, in which event Tenant shall
immediately surrender the Demised Premises to Landlord, but if
Tenant shall fail to do so Landlord may, without further notice, and
without prejudice to any other remedy Landlord may have for
possession or arrearages in rent or damages for breach of
15
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 Landlord for all loss and
damage which Landlord may suffer by reasons of such Agreement
termination, whether through inability to re-let the Demised
Premises, or through decrease in rent, or otherwise.
21.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
Term 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 Landlord, 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.
21.1.3 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 Landlord deems, in its sole discretion,
desirable, and to receive the rents therefore, and Tenant shall pay
Landlord 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 Landlord; and for-the purpose of re-letting, Landlord 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 Landlord any deficiency as
aforesaid.
21.1.4 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.
21.1.5 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
16
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 $50.00 for any payments submitted after the grace
period.
21.1.6 Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder,
Landlord may pay such expense but Landlord shall not be
obligated to do so. Tenant upon Landlord's paying such expense
shall be obligated to forthwith reimburse Landlord for the amount
thereof. All sums of money payable by Tenant to Landlord
hereunder shall be deemed as rent for use of the Demised
Premises and collectable. by Landlord from Tenant as rent, and
shall be due from Tenant to Landlord on the first day of the month
following the payment of the expense by Landlord.
21.1.7 Rights of the Landlord under this Agreement shall be cumulative
but not restrictive to those given by law and failure on the part of
the Landlord to exercise promptly any rights given hereunder shall
not operate to waive or to forfeit any of the said rights.
21.2. Default by Landlord:
The failure of Landlord to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed by Landlord and
the continuance of such failure-for a period of thirty (30) days after notice
thereof in writing. from Tenant to Landlord (which notice shall specify the
respects in which Tenant contends that Landlord failed to perform any such
covenant, conditions and agreements) shall constitute a default by Landlord,
unless such default is one which cannot be cured within thirty (30) days
because of circumstances beyond Landlord's control, and Landlord 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 Landlord fails to perform within the initial 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 Landlord.
21.3 Tenant's Rights on Default:
If an event of Landlord's default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right and option to terminate this Lease and
all of its obligations hereunder by giving written notice of such election to
Landlord, and shall further have the right to pursue any actions at law or suits
in equity to obtain damages resulting from Landlord's default.
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Notwithstanding anything in this Section 21.3 or the Agreement, in the event
of a default by Landlord, Tenant hereby agrees and acknowledges that in no
event shall Landlord be liable for any incidental, indirect, special or
consequential damages, including without limitation loss of revenue and lost
profits , of Tenant which may be alleged as a result of Landlord's default.
21.4 INTENTIONALLY OMITTED.
22. Indemnity Against Costs and Charges.
22.1 The Tenant shall be liable to the Landlord for all costs and charges,
expenses, reasonable attorney's fees, and damages which may be incurred
or sustained by the Landlord, by reason of the Tenant's breach of any of the
provisions of this Agreement. Any sums due the Landlord 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.
22.2 If Tenant shall at any time be in default hereunder, and if Landlord shall
deem it necessary to engage an attorney to enforce Landlord's rights and
Tenant's obligations hereunder, the Tenant will reimburse the Landlord for
the reasonable expenses incurred thereby, including, but not limited to, court
costs and 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.
23. Indemnification Against Claims.
23.1 The Tenant shall indemnify and save the Landlord 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,
occasioned in whole or in part by any of the following:
23.1.1 An act or omission on the part of the Tenants, or any employee,
agent, invitee, or guest, assignee or sub-tenant of the Tenant;
23.1.2 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 Tenant, or any employee, agent, invitee, or guest,
assignee orsub-tenant or the Tenant, but not to include trespassers
upon the Demised Premises;
23.1.3 Any breach, violation, ornon-performance of any undertaking of the
Tenant under this Agreement;
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23.1.4 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 this Agreement.
23.2 Tenant agrees to pay all damages to the Demised Premises or otherfacilities
used in connection therewith, caused by the Tenant or any employee, guest, or
invitee of the Tenant.
23.4 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action by
Landlord or Tenant, as applicable, Landlord or Tenant, as applicable, shall
not be liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to strikes, riots, acts of
God, shortages of labor or materials, war, or governmental laws, regulations,
or restrictions in the nature of a prohibition or moratorium, or any bona fide
delay beyond the reasonable control of Landlord or Tenant, as applicable.
The foregoing shall not apply to any payments of money due under this
Lease.
24. Signs and Advertising.
Without the prior written consent of Landlord, 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 with the exception of current signage as approved by
the City Manager during prior tenancy. All signage shall comply with signage
standards established by landlord and comply with all applicable building codes,
and any other Municipal, County, State and Federal laws.
25. Damage to the Demised Aremises.
25.1 If the Demised Premises shall be damaged by the elements, fire, or other
casualty not due,. to Tenant's negligence (hereinafter referred to as "such
occurrence), but are not thereby rendered untenantable, in whole or in part,
as determined by the City Manager, in his sole reasonable judgment and
discretion, and such damage is covered by Landlord's self-insurance,
Landlord, shall, as soon as possible after such occurrence, utilize the
insurance proceeds (if any) to cause such damage to be repaired, and the
rent shall not be abated. If by reason of such occurrence, the Demised
Premises shall be rendered untenantable, but only in part, as determined by
the City Manager in his sole reasonable judgment and discretion, and such
damage is covered by Landlord's self-insurance, Landlord shall as soon as
possible utilize the insurance proceeds (if any) to cause the damage to be
repaired, and the rent meanwhile shall be abated proportionately as to the
portion of the Demised Premises rendered untenantable; provided however,
if the Demised Premises, are by reason of such occurrence, rendered more
than 50% but less than 100% untenantable, as determined by the City
Manager, in his sole reasonable judgment and discretion, Landlord shall
promptly obtain a good faith estimate of the time required to render the
19
Demised Premises tenantable. If such time exceeds sixty (60) days, the
Tenant shall have the option of canceling this Agreement, which option shall
be exercised by Tenant in writing within ten (10) days of receipt of notice of
same from Landlord, and the rent shall be adjusted accordingly.
25.2 If the Demised Premises shall be rendered wholly untenantable by reason of
such occurrence, and such damage is covered by Landlord's self-insurance,
the Landlord shall utilize the insurance proceeds (if any) to cause such
damage to be repaired, and the rent meanwhile shall be abated in whole;
provided, however, that either the City Manager. or Tenant shall have the
right, to be exercised by notice in writing delivered to the other party within
sixty (60) days from and after such occurrence, to elect to terminate the
Lease and, in that event, then this Agreement and the tenancy hereby
created shall cease as of the date of said notice, and the rent shall be
adjusted accordingly as of such date.
26. Quiet Enioyment.
The 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.
27. Waiver.
27.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of Landlord 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
effect.
27.2 A waiver of any term expressed herein shall not be implied by any neglect of
Landlord 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.
27.3 The receipt of any sum paid by Tenant to Landlord 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 Landlord.
28. 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:
20
LANDLORD: 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: Colony Theater Cafe, Inc. d/b/a Segafredo
1040 Lincoln Road
Miami Beach, Florida 33139
Attn: Graziano Sbroggio
With copies to: Beatriz M. Capote, Esq.
Capote &Capote, P.A.
799 Brickell Plaza, Suite 700
Miami, Florida 33131
All notices shall be hand delivered and a receipt requested, or by certified mail with
return receipt requested, and shall be effective upon receipt.
29. 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
Landlord and Tenant and their respective successors and assigns, except as may
be otherwise expressly provided in this Agreement.
30. 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.
31. 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.
21
32. 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.
33. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of
the State of Florida.
34. Limitation of Liability.
The Landlord desires to enter into this Agreement only if in so doing the Landlord
can place a limit on Landlord's liability for any cause of action for money damages
due to an alleged breach by the Landlord of this Agreement, so that its liability for
any such breach never exceeds the sum of fifty thousand dollars and 00/100
($50,000.00). Tenant hereby expresses its willingness to enterinto this Agreement
with the Tenant's recovery from the Landlord for any damage action for breach of
contract to be limited to a maximum amount of $50,000.00. Accordingly, and
notwithstanding any other term or condition of this Agreement, Tenant hereby
agrees that the Landlord shall not be liable to Tenant for damage in an amount in
excess of $50,000.00 for any action or claim for breach of contract arising out of the
performance ornon-performance of any obligations imposed upon the Landlord 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 Landlord's liability
as set forth in Florida Statutes, Section 768.28.
35. Surrender of the Demised Premises.
The 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 Landlord the Demised Premises, together with any and all equipment,
fixtures, furnishings, .appliances or other tangible personal property, if any, located
at or orr 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 alf liens, claims and encumbrances and rights of others
or broom-clean, together with all structural changes, alterations, additions, and
improvements which may have been made upon the Demised Premises, in good
order, condition and repair, reasonable wear and tear excepted, subject, however,
to the subsequent provisions of this Section. 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 Landlord, be deemed abandoned by the Tenant, and either may be retained by
the Landlord as its property or may be removed and disposed of at the sole cost of
the Tenant in such manner as the Landlord 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 Landlord all damages which the
Landlord shall suffer by reason thereof, and shall indemnify and hold harmless the
Landlord 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
22
Premises as and when herein required.
36. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
37. 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.
38. Radon Notice. As required by Section 404.056 of Florida Statutes the following
warning is given:
RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in suffloient
quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may
be obtained from your county public health unit.
LANDLORD AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
THAT THE LANDLORD AND TENANT MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF
OR RELATED TO THIS AGREEMENT.
23
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 , 2008.
ATTEST:
LANDLORD:
CITY OF MIAMI BEACH, FLORIDA
Robert Parcher, CITY CLERK
ATTEST:
SECRETARY
(Print Name)
CORPORATE SEAL
(affix here)
BY:
Matti Herrera Bower, MAYOR
TENANT:
Colony Theater Cafe,. Inc. d/b/a Segafredo
BY:
T:\AGENDA\2008\December 101Regular\Colony Theatre Cafe 2008 Lease.doc
Graziano Sbroggio, PRESIDENT
(Print Name)
24
APPROVED AS TO
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27