2013-28344 Reso I
RESOLUTION NO. 2013-28344
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE PERTAINING TO THE
EARLY TERMINATION OF AN EXISTING RETAIL LEASE AGREEMENT
BETWEEN THE CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A
PERMIT DOCTOR; APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE: 1) A NEW LEASE AGREEMENT BETWEEN THE CITY
AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A PERMIT DOCTOR, FOR
AN INITIAL TERM OF THREE (3) YEARS, WITH TWO (2) RENEWAL OPTIONS
FOR TWO (2) YEARS EACH, INVOLVING THE USE OF APPROXIMATELY 1,269
SQUARE FEET OF CITY-OWNED PROPERTY LOCATED AT 1701 MERIDIAN
AVENUE, UNIT 4 (A/K/A 775 17TH STREET), MIAMI BEACH, FLORIDA (THE
"LEASED PREMISES"); AND 2) A REVOCABLE CONCESSION AGREEMENT
BETWEEN THE CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A
PERMIT DOCTOR, ALLOWING FOR AN OUTDOOR SEATING AREA,
ADJACENT TO THE LEASED PREMISES; AND FURTHER WAIVING, BY 5/7THS
VOTE, THE COMPETITIVE BIDDING REQUIREMENT FOR THE
AFOREMENTIONED LEASE AND CONCESSION AGREEMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE PUBLIC.
WHEREAS, on May 13, 2009, the Mayor and City Commission passed Resolution No. 2009-
27071, approving a Consent to Assignment and Assumption of Lease Agreement whereby the
Dade County Federal Credit Union assigned its lease to Damian J. Gallo & Associates, Inc. d/b/a
Permit Doctor ("Tenant") for the use of approximately 1,269 square feet of ground floor retail space
in the City-owned building located at 1701 Meridian Avenue; and
WHEREAS, the Lease automatically renewed on February 1, 2011, and expires on January 30,
2016, with no additional renewal options; and
WHEREAS, as stated in Section 7.1 of the Lease Agreement, the Leased Premises shall be
used by Tenant solely for the purpose(s) of providing building plan and permit processing services,
and
WHEREAS, the Tenant has requested permission from the City to expand the use of the
Leased Premises to include a cafe, to be separated by partition walls from the space within which
Tenant will continue to operate its plan/permit processing services office (d/b/a Permit Doctor); and
WHEREAS, the Tenant further requested to use the outdoor walkway, immediately outside and
to the east of the Leased Premises (perpendicular to the 17th Street sidewalk), consisting of 507
square feet, as an outdoor seating area, containing seven (7) tables, five (5) umbrellas, and twenty
six (26) chairs; and
WHEREAS, the Tenant is currently paying a market rental rate of $36.64 per square foot, on a
triple net basis; and
WHEREAS, the additional use and outdoor seating area was discussed at the July 25, 2013
Finance and Citywide Projects Committee meeting, and the Committee recommended in favor of
allowing the Tenant to use the Leased Premises for the dual purpose of the plan/permit processing
services office (d/b/a Permit Doctor) as well as a cafe, subject to regulatory approvals at every
level; and
WHEREAS, the Committee recommended terminating the existing Lease Agreement and
executing a new Lease Agreement, containing separate rent structures, for the office portion (d/b/a
Permit Doctor) of the Leased Premises and the cafe portion of the Leased Premises; and
WHEREAS, the Committee recommended Tenant shall continue to pay its existing market rate
of $36.64 PSF on a NNN basis (with three percent (3%) annual increases), plus $12.33 PSF for
operating expenses, for the office portion (Permit Doctor) of the Leased Premises; and
WHEREAS, the Committee recommended Tenant shall pay fifteen percent (15%) of gross
sales with a minimum guarantee of $39,225 annually (payable in monthly installments at the
beginning of each month), with three percent (3% annual increases), for the cafe portion of the
Leased Premises; and
WHEREAS, the Committee further recommended in favor of allowing the use of the outdoor
seating area, at a rate of$20.00 per square foot, under a separate Concession Agreement, subject
to the City having the right to revoke said agreement.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA hereby accept the recommendation of
the Finance and Citywide Projects Committee pertaining to the early termination of an existing
retail lease agreement between the City and Damian J. Gallo & Associates, Inc. d/b/a Permit
Doctor, approving and authorizing the Mayor and City Clerk to execute: 1) a new lease agreement
between the City and Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor, for an initial term of
three (3) years, with two (2) renewal options for two (2) years each, involving the use of City-owned
property located at 1701 Meridian Avenue, Unit 4 (a/k/a 775 17th Street), Miami Beach, Florida (the
"Leased Premises"); and 2) a revocable Concession Agreement between the City and Damian J.
Gallo & Associates, Inc. d/b/a Permit Doctor, allowing for an outdoor seating area, adjacent to the
leased Premises; and further waiving, by 5/7ths vote, the competitive bidding requirement for the
aforementioned Lease and Concession Agreement, finding such waiver to be in the best interest of
the public.
PASSED and ADOPTED this rN day of -�e 04t' 2013.
ATTEST:
Rafaef Granado, CITY CLER ill errera B ower, MAYOR
:INCORP
ORATED.
T:WGENDA\2013\September 11\Damian Ga •''J•.•�aii�0fZE, .docx
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FORM &LANGUAGE
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COMMISSION ITEM SUMMARY
Condensed Title:
Resolution Accepting The Recommendation Of The Finance And Citywide Projects Committee To Execute: 1)
A New Lease Agreement For 1,269 Square Feet And 2)A Revocable Concession Agreement For An Outdoor
Seating Area; Between The City And Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor; Located At
1701 Meridian Avenue, Unit 4 a/k/a 775 17th Street
Key Intended Outcome Supported:
Increase resident satisfaction with the level of services and facilities.
Supporting Data(Surveys, Environmental Scan, etc.):
Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the best places to do business and
61%of the same group would recommend Miami Beach as a place to do business.
Item Summa /Recommendation:
On May 13, 2009, the Mayor and City Commission passed Resolution No. 2009-27071, approving a Consent
to Assignment and Assumption of Lease Agreement whereby the Dade County Federal Credit Union assigned
its lease to Damian J. Gallo &Associates, Inc. d/b/a Permit Doctor("Tenant") and certain terms and conditions
of the Lease Agreement were modified. The lease automatically renewed on February 1, 2011 and expires on
January 30, 2016, with no additional renewal options.
Pursuant to the Lease, the Demised Premises shall be used by Tenant solely for the purpose(s) of providing
building plan and permit processing services. The Tenant has requested permission to expand the use of the
Demised Premises to include a cafe in a portion of space, to be separated by partition walls from the space
which Tenant will continue to operate its plan and permit processing services. The Tenant further requested
to use the outdoor walkway, immediately outside and to the east of the Premises, as an outdoor seating area.
From a Landlord/Proprietary perspective, the tenant mix at 1701 Meridian Avenue is more conducive to a caf6
than to a plans/permitting processor's office. The use of the outdoor area in the City Hall complex is new but
is comparable to other outdoor concession/lease agreements with the City such as Smith & Wollensky,
Syanna and Cinematheque.
At its July 25, 2013 meeting, the Finance and Citywide Projects Committee recommended in favor of allowing
the Tenant to use the Demised Premises for the dual purpose of plan/permit processing services (d/b/a Permit
Doctor) as well as a caf6, subject to regulatory approvals at every level. Furthermore, the Committee was in
favor of allowing the use of the outdoor seating area, under a separate Concession Agreement, subject to the
City having the right to revoke said agreement.
Advisory Board Recommendation:
Finance &Citywide Projects Committee: July 25, 2013
Financial Information:
Source of Amount Account
Funds: 1 n/a
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Max Sklar, ext. 6116
Sign-Offs:
De artm to Assistant Ci na er City M a r
MA KGB JLM
JLM/KGB/MASHM M
T:\AGENDA\2013\September 11\Damian I Gallo Lease Amendment SUM(8-21-13).docx
MIAMIBEACH AGENDA ITEM AIN
DATE f:ZL-
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 Cit Commission
FROM: Jimmy Morales, City Manager
DATE: September 11, 2013 PUBLIC HEARING
SUBJEC T A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE PERTAINING TO THE
EARLY TERMINATION OF AN EXISTING RETAIL LEASE AGREEMENT
BETWEEN THE CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A
PERMIT DOCTOR; APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE: 1) A NEW LEASE AGREEMENT BETWEEN THE CITY
AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A PERMIT DOCTOR,
FOR AN INITIAL TERM OF THREE (3) YEARS, WITH TWO (2) RENEWAL
OPTIONS FOR TWO (2) YEARS EACH, INVOLVING THE USE OF
APPROXIMATELY 1,269 SQUARE FEET OF CITY-OWNED PROPERTY
LOCATED AT 1701 MERIDIAN AVENUE, UNIT 4 (A/K/A 775 17TH STREET),
MIAMI BEACH, FLORIDA (THE "LEASED PREMISES"); AND 2) A
REVOCABLE CONCESSION AGREEMENT BETWEEN THE CITY AND
DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A PERMIT DOCTOR,
ALLOWING FOR AN OUTDOOR SEATING AREA, ADJACENT TO THE
LEASED PREMISES; AND FURTHER WAIVING BY 5/7THS VOTE, THE
COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN
THE BEST INTEREST OF THE PUBLIC
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
BACKGROUND
On July 30, 2003, the Mayor and City Commission passed Resolution No. 2003-25298 approving a
Lease Agreement between the City and the Miami Beach Federal Credit Union for the use of
approximately 1,350 square feet of City-owned property, located at 1701 Meridian Avenue, Unit 4
(a/k/a 775 171`' Street), Miami Beach, Florida for use as a federal credit union.
On January 11, 2006, the Mayor and City Commission passed Resolution No. 2006-26087 approving
a Consent to Assignment and First Amendment to Lease Agreement whereby the Miami Beach
Federal Credit Union assigned its lease to the Dade County Federal Credit Union and certain terms
and conditions of the Lease Agreement were modified, including amending the Term to commence
on February 1, 2006 and expire on January 31, 2011, with one automatic extension option for a
period of four(4) years and 364 days.
On May 13, 2009, the Mayor and City Commission passed Resolution No. 2009-27071, approving a
Consent to Assignment and Assumption of Lease Agreement whereby the Dade County Federal
Credit Union assigned its lease to Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor ("Tenant")
and certain terms and conditions of the Lease Agreement were modified, including correcting the
Commission Memorandum
Damian J. Gallo&Associates, Inc. d/b/a Permit Doctor-New Lease Agreement& Concession Agreement
September 11, 2013
Page 2 of 5
square footage of the Leased Premises which is 1,269 square feet of ground floor retail space (not
1,350 square feet). The lease automatically renewed on February 1, 2011 and expires on January
30, 2016, with no additional renewal options.
As stated in Section 7.1 of the existing Lease Agreement, the Leased Premises shall be used by
Tenant solely for the purpose(s) of providing building plan and permit processing services. The
Tenant has requested permission from the City to expand the use of the Leased Premises to include
a cafe in approximately the eastern 2/3 portion of space, to be separated by partition walls from the
space which Tenant will continue to operate for its plan and permit processing services (d/b/a Permit
Doctor). Furthermore, Tenant has requested to use the outdoor walkway, immediately outside and to
the east of the Premises (perpendicular to the 17th Street sidewalk), as an outdoor seating area,
containing seven tables, twenty six chairs and five umbrellas, including consideration for patrons
requiring ADA accessibility. A plan of the proposed Permit Doctor / cafes ace and the outdoor
seating area is attached hereto and marked "Attachment 1". Three (3) photographs of the adjacent
outdoor space are also attached for your review and consideration and marked "Attachment 2." The
Permit Doctor space and the cafe would each have their own entrances as well as exterior signage.
On January 24, 2013, the Finance and Citywide Projects Committee ("F&CPC") discussed Tenant's
request and suggested the Administration prepare two (2) separate agreements for Tenant's
requested uses. The F&CPC recommended allowing Tenant, subject to regulatory approvals, to use
the Leased Premises as requested for the dual purpose and additionally negotiate to use the outside
space.
The City Commission considered this matter at the March 13, 2013 regularly scheduled City
Commission meeting. The item was discussed extensively and ultimately the resolution was rejected
because the Commission expressed a concern with amending the existing lease, as well as other
terms. Tenant worked with staff to address the Commission's concerns and bring the item back to
the F&CPC.
On July 25, 2013, the F&CPC again discussed Tenant's request and suggested the Administration
prepare a new Lease Agreement, allowing Tenant, subject to regulatory approvals, to use the Leased
Premises as requested for the dual purpose. Additionally, the F&CPC recommended allowing Tenant
to use the outside seating area under a separate revocable Concession Agreement.
ANALYSIS
The proposed cafe would cater to pedestrians along 17th Street, City Hall employees and clients, as
well as visitors to the convention center during special events. From a Landlord/Proprietary
perspective, the tenant mix at 1701 Meridian Avenue is more conducive to a cafe than to a
plans/permitting processor's office. The current waxing salon, massage franchise, and hair-drying
salon all better function with an ancillary cafe/snack shop than with the current office use.
At this time, in accordance with the recommendation of the F&CPC, Tenant is proposing to cancel the
existing Lease in exchange for a new Lease Agreement, in substantial form as attached hereto and
marked "Attachment 3", and a new Concession Agreement, in substantial form as attached hereto
and marked "Attachment 4", each for an initial term of three (3) years with two (2) additional two (2)
year renewal options. The attached DRAFT Lease and Concession Agreements are subject to Legal
and Regulatory approvals as well as final approval by the Tenant.
The Leased Premises contain a total of 1,269 square feet. The proposed portion of the Leased
Premises which will remain as an office for plans processing services is 468 square feet and the
proposed portion which will be used as a cafe is 801 square feet.
Commission Memorandum
Damian J. Gallo&Associates, Inc. d/b/a Permit Doctor—New Lease Agreement&Concession Agreement
September 11, 2013
Page 3 of 5
Under the current Lease, Tenant is paying an annual rate of$36.64 per square foot, on a NNN basis.
Additionally, Tenant pays $12.33 PSF for operating expenses which consist of $7.43 PSF for real
estate taxes, $4.00 PSF for maintenance expenses and $0.90 PSF for insurance. Uni-K Wax is
currently paying $30.93 PSF on a NNN basis, plus $12.33 PSF for operating expenses. Massage
Envy is currently paying $27.60 PSF on a NNN basis, plus $12.33 PSF for operating expenses.
South Florida Salon is currently $52.53 PSF on a Gross basis. A Rent Detail for all four retail tenants
at 1701 Meridian Avenue is attached hereto and marked "Attachment 5".
Permit Doctor Space
If the Tenant's proposal to cancel the current Lease and enter into new agreements is accepted, staff
proposes Tenant shall continue to pay its existing market rate of $36.64 PSF on a NNN basis (with
three percent (3%) annual increases), plus $12.33 PSF for operating expenses, for the office portion
(Permit Doctor) of the Leased Premises.
Cafe Space
For the cafe portion of the Leased Premises, staff recommends Tenant's rent shall be increased.
According to market research, comparable rents for available retail space on 17th Street range from a
low of $47 to a high of $75 per square foot, on a NNN basis, with an average of $60 per square foot
as follows:
Address: Sq.Ft Rent/sq.ft. Annual Rent Type Term Use
100017th Street 7,000 $ 75.00 $ 525,000 NNN 60 mos Retail
100017th Street 6,600 $ 50.00 $ 330,000 NNN 60 mos Retail
100017th Street 6,700 $ 60.00 $ 402,000 NNN 60 mos Retail
723 Lincoln Lane 2,900 $ 47.00 $ 136,300 NNN 12 mos Retail
Total 23,200 $ 60.06 $ 1,393,300
The three comparable spaces at the high end of the range ($50-$75 PSF) are in a new, Class A
project with an expected completion in the 3rd quarter of 2013. The rental rate of$47 PSF for the 723
Lincoln Lane property includes use of the outdoor seating area which consists of approximately 361
SF.
Tenant has projected annual gross sales in the amount of $218,400. Staff considers this to be a
conservative estimate as this amount is based upon typical weekly sales of$4,200 and does not take
into consideration revenue from special events.
Staff recommends Tenant's rent for the cafe space shall be increased in accordance with one of the
following options:
1. Tenant's base rent of $36.64 PSF, on a NNN basis, shall be increased to $45.00 PSF on a
NNN basis, with three percent (3%) annual increases. Tenant would continue to pay
operating expenses (currently $12.33 PSF); or
2. Tenant shall pay fifteen percent (15%) of gross sales with a Minimum Guarantee of $39,225
annually (payable in monthly installments at the beginning of each month), with three percent
(3% annual increases). The Minimum Guarantee is equal to Tenant's current rental rate
calculated based upon the 801 SF cafe space ($36.64+$12.33=48.97 times 801 SF=$391225).
The percentage rent structure provides greater revenue to the City than Tenant's current rate,
in the event the cafe operation is successful, as expected.
Commission Memorandum
Damian J. Gallo&Associates, Inc. d/b/a Permit Doctor—New Lease Agreement&Concession Agreement
September 11, 2013
Page 4 of 5
Additionally, Tenant shall be required to pay additional rent for the use of the outdoor seating area as
contained below.
Outdoor Seating Area
The outdoor seating area consists of approximately 507 square feet outside and immediately east of
the Leased Premises.
There is no precedent for the use of an outdoor seating area in the City Hall complex; however, the
use of the outdoor area is comparable to other outdoor concession/lease agreements with the City.
The revenue to the City for said agreements, on a per square foot basis, is provided below:
Annual Annual Gross Revenue
Concessionaire/ Gross % Base Amount Square To City
Tenant Address Revenue To Ci Rent To Ci Feet Per Sq.Ft.
Smith&Wollenslry 1 Washington Ave. $3,133,119 10% N/A $313,312 581 $539.26
Syanna 816 Commerce St. N/A N/A $66,480 $66,480 2,216 $30.00
Cinematheque 1130 Washington Ave. N/A 15% N/A $7,000 671 $10.43
It should be noted that the outdoor concession areas for Syanna and Cinematheque were both
unsuccessful and ultimately ceased operations.
In determining a fair market rate for use of the outdoor concession, Staff took the average per square
foot rate from Syanna and Cinematheque, which was approximately $20.00 per square foot. Smith
and Wollensky was not considered to be comparable to the operation proposed by Permit Doctor. As
such, staff recommends Tenant shall pay $20.00 per square foot, or $10,140 annually, on a gross
basis, and would be subject to three percent (3%) annual increases on the anniversary of the lease
commencement date.
CONCLUSION AND RECOMMENDATION
At the July 25, 2015 Finance and Citywide Projects Committee meeting, the Administration proposed
the terms set forth above and asked for a recommendation.
The F&CPC recommended cancelling the existing Lease in exchange for a new Lease Agreement,
allowing for both the office use (Permit Doctor) and the cafe use, and a new revocable Concession
Agreement for the outdoor seating area, each for an initial term of three (3) years with two (2)
additional two (2) year renewal options.
For the office portion (Permit Doctor) of the Leased Premises, the F&CPC agreed with the
Administration's recommendation that Tenant shall continue to pay its existing market rate of $36.64
PSF on a NNN basis (with three percent (3%) annual increases), plus $12.33 PSF for operating
expenses.
For the cafe portion of the Leased Premises, the F&CPC recommended that Tenant shall pay fifteen
percent (15%) of gross sales with a Minimum Guarantee of $39,225 annually (payable in monthly
installments at the beginning of each month), with three percent (3% annual increases). The
Minimum Guarantee is equal to Tenant's current rental rate calculated based upon the 801 SF cafe
space ($36.64+$12.33=48.97 times 801 SF=$39,225).
Commission Memorandum
Damian J. Gallo&Associates, Inc. d/b/a Permit Doctor—New Lease Agreement&Concession Agreement
September 11, 2013
Page 5 of 5
For the outdoor seating area, the F&CPC agreed with the Administration's recommendation that
Tenant shall pay $20.00 per square foot, or$10,140 annually, on a gross basis, and would be subject
to three percent (3%) annual increases on the anniversary of the lease commencement date.
The Administration recommends that the Mayor and City Commission accept the recommendation of
the F&CPC.
Attach ents
VV
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T.-I4GENDA120131September 111Damian J Gallo Lease Amendment MEM(8-21-13).docx
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Attachment 3
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this day of , 2013(Lease,
Lease Agreement), by and between the CITY OF MIAMI BEACH, a Florida municipal
corporation, (hereinafter referred to as "City" or "Landlord"), and DAMIAN J. GALLO &
ASSOCIATES, INC., a Florida corporation, (hereinafter referred1 jb as "Tenant").
1. Demised Premises.
The City, in consideration of the rentals hereina�resew to be paid and of the
covenants, conditions and agreements to be,Opt and perfdr ned by the Tenant,
hereby leases, lets and demises to the Tent�and Tenant hereby,leases and hires
from the City, those certain premises (the! emised Premises")]..ted in the City-
owned building at 1701 Meridian Ag ue, Miami Beach, Flo ri ,,33139 (the
"Building"), and more fully described as follows:
1,269 square feet located on the roue door of the Building, and as
more specifically delineated in "Exhibr r:;-I,," (Demised Premises),
attached hereto and incorporated herein. ,Also known as: Unit 4
(a.k.a. 775 17t" Street).
68 squae. eet of the',.western portion of Demised Premises
shall be use! by Ten a"nt as a permit processing office (the
" 7ffice Space")
801; sq re feet,,,of the eastern portion of the Demised
Prey-i shall be usedby Tenant solely for the purpose(s) of
o eratin a cafe (the "Cafe Space")
2. 'Term.
2.1 ,Tenant shall.:Ibe entitled to have and to hold the Demised Premises for an
injal term a ree (3) years, commencing on the 1st day of October, 2013
(tom:"Corencement Date"), and ending on the 30th day of September,
2016R r,,, purposes of this Lease Agreement, and including, without
limitation, Subsection 2.2 herein, a "contract year" shall be defined as that
certain period commencing on the 1 St day of October, and ending on the 30th
day of September.
2.2 Provided Tenant is in good standing and free from default(s) under Section
18 hereof, and upon written notice from Tenant, which notice shall be
submitted to the City Manager no earlier than one hundred twenty (120)
days, but in any case no later than sixty (60) days prior to the expiration of
the initial term, this Lease may be extended for two(2)additional two(2)year
renewal terms. Any extension, if approved, shall be memorialized in writing
I
and signed by the parties hereto (with the City hereby designating the City
Manager as the individual authorized to execute such extensions on its
behalf).
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Lease Agreement (upon expiration of the initial term or
any renewal term), the City Manager shall notify Tenant of same in writing,
which notice shall be provided to Tenant within fift 11 n (15) business days of
the City Manager's receipt of Tenant's written pl
"z.
f .
2.3 Notwithstanding anything in this subsection,or any other term or condition in
this Lease Agreement, the City reserves the right, through its City Manager,
to terminate this Lease Agreement ctive any time after July 1, 20141
without cause and without liability t `X ,"'pity, upon providing Tenant with 180
days prior written notice.
3. Rent.
3.1 Base Rent:
Tenant's payment of defined in' is Section 3, shall commence on
October 1, 2013 (the"Fr t nceme " to") and, thereafter, on each
first day of subsequent " ths.
r
3.1.1 D. j, 'rst Co ear, ase Rent for the Demised
ises shy be Fo ix Thousand Four Hundred Ninety Six and
" /100 D0118", 46 49 per year, payable in month) installments
a,_ ($ B) P Y , p Y Y
hree TbDmWQd Ei ht Z undred Seventy Four and 68/100 Dollars
4x
e Rent amount pursuant to this Section 3.1 shall be
grease" 7�nually throughout the Term, including any renewal terms,
co nci , the anniversary of the Commencement Date of the
Lea " ;�`and e' ch anniversary Commencement Date thereafter, in
increments of three (3%) percent per year.
7•
3.2 n nt:
In a+' n to the Base Rent, as set forth in Section 3.1, Tenant shall also
pay the following Additional Rent as provided below:
3.2.1 Operating Expenses:
During the first Contract Year, the Operating Expenses for the
Demised Premises shall be Five Thousand Seventy Six and 00/100
Dollars ($5,076.00) per year, payable in monthly installments of Four
Hundred Twenty Three and 00/100 Dollars ($423.00), for its
proportionate share of "Operating Expenses" which are defined as
follows:
2
i
"Operating Expenses" shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the Common
Facilities (as hereinafter defined) and shall include, without limitation,
water service to the Building, sewer service to the Building, trash
removal from the Building, costs incurred for gardening and
landscaping, repairing and maintaining elevator(s), painting,janitorial
services (except for areas within the Demised Premises), lighting,
cleaning, striping, policing, removing garbage and other refuse and
trash, removing ice and snow, repairing pnd maintaining sprinkler
,:,a,.;
systems, water pipes, air-conditioning, ,; ms, temperature control
� J J i.7'
systems, and security systems, fire ; ,air and maintenance and
other equipment in the common a anc' J F.,exterior and structural
portions of the Building, p g and r ng, patching and
maintaining the parking areas,ld walkways, a eaning adjacent
areas, management fees xi ' the City's employ' p expenses to
employees furnishing rrenderingny services ? e common
3 JT.,. J J l•
areas, together with an itional., inistration ch a equal to
fifteen percent (15%) of al��� �,1, � �enses included in the annual
common area nses, provi''`y
, y the City for the common or joint
use and/or be .z ;. rfhe occupa of the Building, their employees,
agents, servants,'r " and oth_ >�'�vitees.
"Co on Faciliti s II Building areas, spaces,
e erg as well a n servicr' p'available for use by or for the
it of T nt and' f s employees, agents, servants, volunteers,
stomers, ' ,J sts and` ., nvitees.
+ nds that the costs incurred for Operating
J.p f`lls i
Expe`„ . may inch '' or decrease and, as such, Tenants� pro-rata
X ;,are erating Expenses shall increase or decrease accordingly.
.2 Pro?` r T
The }perty x Payment shall be payable by Tenant, in accordance
with tion 11 herein. The Property Tax Payment for the first
r
Con Year shall be estimated based upon the 2012 Property Tax
Pa nt, in the total sum of Nine Thousand Four Hundred Twenty
'. o Dollars and 21/100 ($9,422.21), payable in monthly installments
of Seven Hundred Eighty Five and 18/100 Dollars ($785.18).
3.2.3 Insurance:
The Additional Rent shall also include Tenant's pro-rata share toward
estimated insurance costs, determined by the City in its sole
discretion an judgment, to be sufficient to self-insure the Demised
Premises (Landlord Insurance). Tenant's pro-rata share of the
Landlord Insurance cost for the first Contract Year shall be One
Thousand One Hundred Forty Two Dollars and 16/100 ($1,142.16),
payable in monthly installments of Ninety Five and 18/100 Dollars
3
($95.18). The Landlord Insurance cost may be adjusted periodically,
in the city's sole discretion, during each anniversary of the
Commencejment Date. This insurance coverage is in addition to the
insurance required pursuant to Section 10, which shall be obtained at
Tenant's sole expense and responsibility.
3.3 Percentage of Gross Derived From Cafe Space ("PGCS"):
During the Term of this Lease Agreement, in the ev t that the amount equal
to fifteen percent (15%) of Tenant's annual gro., „ eipts derived from the
use of the Cafe Space (PGCS) exceeds the t rl ase Rent and Additional
Rent provided in Subsections 3.1 (as i xd annually pursuant to
Subsection 3.1.2) and 3.2 above which ' "` po to to the Cafe Space
(the "Cafe Space Proportionate Rent" en Tenanf`' also pay to the City
within thirty (30) days of the anniv, P. of this Agre"' t, the difference
between the amount of the PGA
``� `� the Cafe Space .r r.` rtionate Rent,
each year during the Term of rgreemen ;,including an wal terms.
The Cafe Space Proportionate is her tipulated as th ercentage
i
which the square footage of the f; which is 801 square feet (as
contained in Section this Lease Xr' ment), bears to the total square
li; t
footage of the Demis'' 'C' , whic' `r ,269 square feet (as contained
in Section 1 of this Le ent). " dingly, for purposes of this
Subsection 3.3, the Cad ,,,pace ions ent is 63.12% of the total
Base Rent d Addition a nt u sections 3.1 (as increased
annually 60—o Subs 1.2) ar `2 above
p,
, 11 � , 11 i<:� I
The:r gross r ipts is erstood to mean all income collected or
rrx
accru derive �` nant u r the privileges granted by this Lease
Agreem a any Federal, State, or City sales tax, or
tax, g mental imps 11 n, assessment, charge or expense of any
�f 4 y i„ '.�� 3C.
in ecte Tenant from customers and required by law to be remitted
�z�3i'`;",,. l;�t tai+.
to the f or, governmental authority.
'i
Mai ance d Examination of Records.
Tena M shall maintain current, accurate, and complete financial
reco I on an accrual basis of accounting related to its operations
. 1
pu- . .; t to this Lease Agreement. Systems and procedures used to
tarn these records shall include a system of internal controls and
accounting records shall be maintained in accordance with
generally accepted accounting principles and shall be open to
inspection and audit, but not photocopying, by the City Manager or his
designee upon reasonable prior request and during normal business
hours. Such records and accounts shall include a breakdown of gross
receipts, expenses, and profit and loss statements, and such records
shall be maintained as would be required by an independent CPA in
order to audit a statement of annual gross receipts and profit and loss
statement pursuant to generally accepted accounting principles.
4
3.3.2 Inspection and Audit for Cafe Space.
Tenant shall maintain its financial records pertaining to its operations
for a period of three (3)years after the conclusion of any contract year
and such records shall be open and available to the City Manager or
his/her designee, as deemed necessary by them. Tenant shall
maintain all such records at its principal office, currently located at
1701 Meridian Avenue, Unit 4, Miami Beach, Florida 33139, or, if
moved to another location, all such recor shall be relocated, at
Tenant's expense, to a location in Miami , within ten (10) days'
written notice from the City.
The City Manager or his/her d X ee be entitled to audit
Tenant's records pertaining t `operatio ' s often as the City
deems reasonably necess. "roughout the ' of this Lease
Agreement, and three es within the threz ) year period
following termination of ease Agrment, (regar ss of whether
3
such termination results the n Np ' expiration of the term or for
any other reason). The Cit esponsible for paying all costs
associated wit ch audits, un the audit(s) reveals a deficiency
of five (5%) pe P `°r.r more in TI is statement of gross receipts
for any year or y" s`audid, in whch gase Tenant shall pay to the
City, within thirt 0) d he it being deemed final (as
P
specify elow), t ost <� � nd`a sum equal to the amount
o '� ncy rev the au" i; plus interest. The audit shall
,,.,.,.
e dee `" final unf f Tenant has received the audit and has had a
asonable � � ortunity view the audit and discuss the audit with
City. dits a addition to periodic audits by the City of
d payments, which are performed
sepa'y Nothin wined within this Section shall preclude the
;j,ty's'' rights for Resort Tax collection purposes.
Te t shalt, bmit at the end of each contract year, an annual
stat "ent of y ross receipts, in a form consistent with generally
accep d accounting principles. Additionally, such statement shall be
acc , ' nied by a report from an independent CPA firm which shall
pe►��i certain agreed upon procedures, as described in the attached
ibit 6.
It is Tenant's intent to stay informed of comments and suggestions by
the City regarding Tenant's performance under this Lease Agreement.
Within thirty(30) days after the end of each contract year, Tenant and
the City Manager or his/her designee may meet to review Tenant's
performance under this Lease Agreement for the previous contract
year. At the meeting, Tenant and City may discuss quality,
operational, maintenance and any other issues regarding Tenant's
performance under this Lease Agreement.
5
3.4 Sales Taxes.
Concurrent with the payment of the Base Rent and Additional Rent as
provide herein, Tenant shall also pay any and all sums for all applicable
tax(es), including without limitation, sales and use taxes and Property Taxes,
imposed, levied or assessed against the Demised Premises, or any other
charge or payment required by any governmental authority having jurisdiction
there over, even though the taxing statute or ordinance may purport to
impose such tax against the City.
3.5 Enforcement.
Tenant agrees to pay the Base Rent, dal Rent, and any other
amounts as may be due and payable by Tenant this Agreement, at the
time and in the manner provided her and should " rents and/or other
additional amounts due herein pro y ; at any time re Z due and unpaid
` .
for a period of fifteen (15) days "the same shall be"JO, due, the City
may exercise any or all options. ilable to it hereunder, w ` ` ptions may
be exercised concurrently or se` tely, z City may pur` any other
remedies enforced by law.
4. Location for Payments.
All rents or other payments d e r shall id to the City at the following
address:
City o .z each
Reven ' ' anager
3
'Pf
1700 Convention C'" er Drive, 3rd Floor
each, F Aida 33139
or. ` 'r`` her s as the y, from time to time, designate in writing.
5. rkin .
nant may req , at t's cost, from the City's Parking Department, the use
more than f pa ing spaces, if available, within the Municipal Parking
Gat ge. Rates for r ;'d spaces are subject to change, and are currently Seventy
($70.09 f ollars p onth, plus applicable sales and use tax per space.
6. Securit DX Guaranty.
6.1 Upon execution of this Agreement Tenant shall furnish the City with a Security
Deposit, in the amount of Ten Thousand Three Hundred Fifty Six and 08/100
Dollars ($10,356.08). Said Security Deposit shall serve to secure Tenant's
performance in accordance with the provisions of this Agreement. In the event
Tenant fails to perform in accordance with said provisions, the City may retain said
Security Deposit, as well as pursue any and all other legal remedies provided
herein, or as may be provided by applicable law.
6
i
The parties agree and acknowledge that the foregoing condition is intended to be a
condition subsequent to the City's approval of this Agreement. Accordingly, in the
event that Tenant does not satisfy the aforestated, then the City Manager or his
designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to
him for breach of contract.
7. Use and Possession of Demised Premises.
7.1 Office Space:
Approximately 468 square feet of the western porti,z ` Demised Premises shall
be used by the Tenant solely for the purpos y. r f p iding building plan and
permit processing services (i.e. certificates of ` mpletion, certificates of occupancy,
violation remediation, plan review, processing and expediting services, inspection
management, special and 40 year inspections, fire and building compliance, permit
administration, occupancy load calcuk`' ns, special dent permitting,and recording
services).
Tenant's uses and/or servic ' ,rovided up .r Demised Premises may require
Tenant to interact, from tiY' e, with ;of Miami Beach officials and
employees, acting in their r la acity ,,, .,,w: „ ithstanding the preceding,
Tenant hereby represents and:j ran a City t shall in no way, whether
express or implied the impr 'on Ter}ant is irt'any way acting as an agent
and/or represe tve'. the City o Miami Bea` `, nor that, by virtue of this
Agreement, nt derive ,any spec�l benefit and/or consideration from the City
(acting in i„`w gulatory y }racity) wlregard to Tenant's provision of plan and
permit pros servi tQ. hird pa . Any violation of this Subsection 7.1 by
Tenant shall r, tic default under this Agreement and,
no �ding her prow 'et forth herein, shall entitle the City to
zati� r rr `�`” rm'" this Agreement, without further notice to Tenant, and
hout liabilit he
Space:
Approximately 801 � r, are feet of the eastern portion of the Demised Premises shall
be used by Tenan ely for the purpose(s) of operating a cafe. Tenant shall cook,
prepare, or ca be prepared, for sale within the Demised Premises, such
cooked, prep j% and/or prepackaged foods, and such non-alcoholic beverages
as those set fch in "Exhibit 7.1" (Menu), attached hereto and incorporated herein.
7.2 The Demised Premises shall be open for operation a minimum of five (5) days a
week, with normal hours of operation being as follows:
Office Space: Monday - Friday: 7:00 AM to 5:00 PM
Cafe Space: Monday - Friday: 7:00 AM to 9:00 PM
Nothing herein contained shall be construed to authorize hours contrary to the laws
governing such operations.
7
i
7.3 It is understood and agreed that the Demised Premises shall be used by the Tenant
during the Term of this Agreement only for the above purpose(s)/use(s), and for no
other purpose(s) and/or use(s)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(nor permit)waste on the Demised Premises; nor permit the use of
the Demised Premises for any illegal purposes; nor co mit a nuisance on the
Demised Premises. In the event that the Tenant uses;., emised Premises (or
otherwise allows the Demised Premises to be u for any purpose(s) not
expressly permitted herein, or permits and/or a„ any prohibited use(s) as
provided herein, then the City may declare thi ee 1:;in default pursuant to
Section 18 or, without notice to Tenant, rests such imps se by injunction or
other legal action. x`x
8. Improvements.
8.1 Tenant accepts the Demised Pre eir present "AS IS" condition
and may construct o use to be c ucted, such interior and exterior
improvements and mYY:.' ce to the Demised Premises, as reasonably
necessary for it to car' n Omitted use ), as set forth in Section 7;
provided, however, tha y p suc rovements shall be first
submitted t ity Man r fo tte consent, which consent, if
ranted ' x. be at t ° z `°' ana 'Ysole and absolute discretion.
Additi z any 'k all approved improvements shall be made at Tenant's
sole ``�r`1 ense and �'ponsibility�,All permanent (fixed) improvements to the
Demri . ;:Premi all remai a property of the City upon termination
and/or I. ` . Upon termination and/or expiration of
is
Agree" '. all personaperty and non-permanent trade fixtures may
be removed+ e Tenant from the Demised Premises, provided that they
can be are oved without damage to the Demised Premises. Tenant
will perm r., o liex 3 o attach to the Demised Premises arising from,
connected h, or "'related to the design and construction of any
provemen ,Moreover, such construction shall be accomplished through
e use of ` sed, reputable contractors who are acceptable to the City.
n r? permits and or licenses required for the installation of
imp is shall be the sole cost and responsibility of Tenant.
8.2 Notwithstanding Subsection 8.1, upon termination and/or expiration of this
Agreement, and at City'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
expense and responsibility, 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.
8
8.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 8.3 only, shall also include improvements as necessary for
Tenant's maintenance and repair of the Demised Premises) which do not
exceed Five Hundred ($500.00) Dollars, provided that the work is not
structural, and provided that it is permitted by applicable law.
8.4 Tenant Improvements.
Tenant agrees to make certain improvements (t... -enant Improvements")
to the Demised Premises (valued by the p at approximately Eighty
Thousand Dollars and 00/100 ($80,000.0v, lineated in "Exhibit 8.4"
(Tenant Improvements), attached here d orporated herein. The
Tenant Improvements shall be made in accordance with the following
timeline:
• Tenant shall obtain '" ilding permit no latNth� ane hundred
eighty (180) days the ;,ommencement Date of this
Agreement;
• Tenant shah, mm., ce making°the Tenant Improvements no later
than forty fiv . 5)"r;, m the da the building permit is issued
(the "Building mit d .
1F
•
prove all be c leted, and Tenant shall obtain
>I .
final ap al by the City's Building Department for said Tenant
f
Improve nts, no later than one hundred eighty (180) days from
the B rmit Date.
e to ' y with the ti',` ' e and complete the Tenant Improvements
wit 'I the ti' eriod specified shall constitute an event of default
hereund
8.4.1 Ten hall p ovide the City with proof that the contractor engaged
for th. onstruction of the Tenant Improvements has obtained the
req y' insurance coverages, as set forth on the attached "Exhibit
8 Contractor's Insurance Requirements), listing Tenant and the
as an additional insured thereunder.
9. City's Right of Entry.
9.1 The City Manager, and/or his authorized representatives, 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. The City agrees that, whenever reasonably possible, it shall use
reasonable efforts to provide notice (whether written or verbal), unless the
9
I
need to enter the Demised Premises is an emergency, as deemed 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 on the part of the City to do any work that
under any provisions of this Agreement the Tenant may be required to
perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
9.2 If the Tenant shall not be personally present toopen 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, and/or his authorized
representatives, may enter the Demise t mises by master key, or may
forcibly enter the Demised Premise it out rend'`; the City or such
agents liable therefore.
9.3 Tenant shall furnish the City wi plicate keys to all locks incli ding exterior
and interior doors prior to (but n" x f" r than. .z he Commencement Date of
this Agreement. Tenant shall not c f ocks to the Demised Premises
without the prior writt onsent of thX x Manager, and in the event such
consent is given, Tee IIII furnish t?." "ity with duplicate keys to said
r 1>l i lz.
locks in advance of the's
10. Tenant's Insuranc
10.1 Tenanr `tl, at its a experts±and responsibility, comply with all insurance
regL#g ents of t ity. It is' reed by the parties that Tenant shall not
occu a De semis ntil proof of the following insurance
coverag approved by the City's Risk Manager:
ompre sive General Liability, in the minimum amount of One
n ( .0,000) Dollars (subject to adjustment for inflation) per
oc pence"'' odily injury and property damage. The City of Miami
Bea ust b named as an additional insured on this policy.
10.1. Wor Compensation and Employers Liability coverage in
ac. "' .nce with Florida statutory requirements.
10.1.3 -Risk property and casualty insurance, written at a minimum of
p p Y Y
eighty 80% percent of replacement cost value and with replacement
g Y ) p re p
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).
10
10.1.4 Business interruption insurance sufficient to insure Tenant for no less
than one (1)full year of loss of business, with the City named thereon
as loss payee to the extent permitted by applicable law.
10.1.5 Any other form of insurance which Tenant or the City, acting
reasonably, requires form time to time, in amounts, and for risks
against which a prudent tenant would insure : ut in any event not less
than that carried by comparable restaurai t� retail establishments in
Miami-Dade County area.
10.1.6 Waiver of Subrogation.
The City and Tenant each hereby aives o behalf of itself and its
insurers (none of which shaltever be assigned any such claim or be
z
entitled thereto due to sub „ tion or otherwise) any and all rights of
recovery, claim, actionT*r cause of action, against the other, its
agents, officers, or employees, for any loss or damage that may occur
to the Demised Premises,` car any improvements thereto or any
improvements. , eto, or any personal property of such party therein,
by reason of fry t elements, or any other causes which are, or
could or should w i suarel,against under the terms of the standard
fire and extende e over ef �' uran ����� licies referred to in this
Lea ¢ r ardless he su nice is actually maintained
a i'' ' a r, . s of ,. t use or Ton in of the damage involved,
rz : 9 9
'nc#uding n ence ;e other party hereto, its agents, officers, or
ployees.11 e City ,d Tenant shall each obtain from their
ectivrr Viers, u ,.,all policies of fire, theft, public liability,
r' ' other insurance maintained by either of
th time du* a term hereof insuring or covering the Retail
ace #any portion thereof or operations therein, a waiver of all
0 ,rogation which the insurer of one party might have
a, t the'' party, and the City and Tenant shall each indemnify,
de fe and M d harmless the other against any loss or expense,
inclu reasonable attorneys'fees (appellate or otherwise) resulting
from failure to obtain such waiver.
10.2 Pro', '.se coverages must be provided by submitting original certificates
of insuance to the City's Risk Manager and Asset Manager respectively. All
policies must provide thirty(30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager (to be submitted to the addresses
set forth in Section 27 hereof). 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.
11
11. Property Taxes and Assessments.
For the purposes of this Section and other provisions of this Agreement:
11.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the
Demised Premises, and (ii) any expenses incurred by the City in obtaining a
reduction of any such taxes or assessments.
11.2 The term "Property Tax Year" shall mean the pe, t of twelve (12) calendar
months, beginning on January 1 St of each ye„
11.3 Tenant shall pay, as Additional Rent p t t bsection 3.2, for such
Property Tax Year an amount ("Prop 07 T x Payment") equal to Tenant's
pro-rata share of Property Taxes (ky for such Pro Tax Year; said
pro-rata share to be determined by"""the City based up ratio of the
Demised Premises to the tax lot. If a Property Tax Year s after the
expiration or termination of the terry I of this Agreement, the`Toperty Tax
Payment therefore shall be prorat'` ,,to carrespond to that portion of such
Property Tax Year oc ,,ring within the term of this Agreement. The Property
Tax Payment shall b �, e b Tenant immediate) upon receipt of notice
Y � Y Y
from the City. A copy of � t`'`'�b#ks) or other eYidence of such taxes issued
(, 1, 3Z7..
by the taxing authorities, etherwith the Cit , mputation of the Property
Tax Payme >; W be mad '.. ail to ce received from the taxing
authoriti ted by .x , '. Tenn"I'V'A hall pay any difference in the
amou efinreen � � stimaf yyroperty taxes and the actual property taxes
to th3 I immedi x My, upon ' of request for said payment from the
City.
4 7,
12. A and inq.
an Rj ha right to assign or sublet the Demised Premises, in whole
part, wit� he written consent of the City Manager, which consent, if
nted at all s. r f e at R, City Manager's sole and absolute discretion. Such
:teen consent is a maer of right and the City is not obligated to give such
9 Y 9 9
consent. If granted provided herein, the making of any assignment or sublease
will not release Te �`t from any of its obligations under this Agreement.
13. O eratioIn `hance and Repair.
13.1 Tenant shall be solely responsible for the operation, maintenance and
repair of the Demised Premises. Tenant shall, at its sole expense and
responsibility, maintain the Demised Premises, and all fixtures and
appurtenances therein, and shall make all repairs thereto, as and when
needed, to preserve them in good working order and condition. Tenant shall
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.
12
The City shall be responsible for the maintenance of the roof, the exterior of
the Building, the structural electrical and plumbing (other than plumbing
surrounding any sink(s) and/or toilet(s), including such sink(s) and toilet(s)
fixture(s), within the Demised Premises), the common areas and the chilled
water supply system. The City shall maintain and/or repair those items that it
is responsible for, so as to keep same in proper working condition.
If the City provides a separate air-conditioning unit for the Demised
Premises, Tenant agrees and understands that Tenant shall be solely
responsible for the maintenance, repair and replacement of the
heating/ventilation/air-conditioning (HVAC)a anent servicing the Demised
Premises, at Tenant's sole expense.
Tenant further agrees and understan, at, if the rovides a separate
HVAC unit for the Demised Prem' he City, at its sole discretion, may
require that Tenant obtain, at a;y,` e during the Term of this Agreement,
and continuously maintain in g ;J?7 'tanding, atTenant's expense,throughout
the Term of this Agreement, a m nanc z repair contract, approved by
the City, a service company roved in writing b the City,
Y, P Y p pp 9 Y Y,
providing for the prev tive mainten and repair of all HVAC equipment
servicing the Demise '` ises. In the event that the City notifies Tenant
that it will require Te" to.. tract f�` id maintenance and repair
q .
services, Tenant shall p e to in , within ten (10) business
days, the nx and tel on 'f f service company(ies)for the
City's re,. z pprova1: '`ant sha 'i-ovide a copy of a current,
; � ,;
enfor a and futl�r executed maintenance and repair contract, no later
tha `' (10) busin days aftcJ-eceipt of the City's approval of the service
corn as pr nant's' pliance with this provision.
13.2 damag jury of an" to the Demised Premises, and including
withou Anita is fixtures, glass, appurtenances, and equipment (if any),
or to t uildi" ures, glass, appurtenances, and equipment, if any,
except d e ca by the gross negligence and/or willful misconduct of
the City, s ' be t. sole obligation of Tenant, and shall be repaired,
estored or 7laced promptly by Tenant, at its sole expense and to the
tisfaction he City.
13.3 All o resaid repairs, restorations and replacements shall be in quality
and cl xx equal to or better than the original work or installations and shall
be done in good and workmanlike manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the City, at the expense of Tenant, and all sums
spent and expenses incurred by the City shall be collectable by the City and
shall be paid by Tenant within three (3) days after submittal of a bill or
statement therefore.
13
13.5 It shall be Tenant's sole obligation and responsibility 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.
13.6 Tenant Responsibilities for Utilities(not included within Operating Expenses).
Tenant is solely responsible for, and shall promptly pay when due all charges
for electricity, gas, cable, telephone, internet, jani rial garage service and
any other utility se ry ice provided to the Demised,,P ises including, without
limitation, all hook-up fees and impact fees, included as an Operating
Expense (pursuant to Subsection 3.2.1).
In addition to other rights and remedies hereinafter r ed to the City, upon
z:
the failure of Tenant to pay for such utility services ((a 't", ntemplated in this
Subsection 13.6) when due, the Ctty`may elect, at its sole discretion, to pay
same, whereby Tenant agrees= omptly rei burse the Citon demand.
In no event, however, shall the Ci , whether to Tenant or to third
parties, for an interru or failure in t lr upply of any utilities or services to
;I
the Demised Premis
13.7 TENANT HEREBY A'x OS AGREES THAT THE
DEMISED l ISES A Ell ASED I HEIR PRESENT "AS IS"
CONDIT
14. Governme:� a ulation
Tenant cov is ands, .z o fulfi d comply with all statutes, ordinances,
o nts of an
rules, rders, y and all g overnmental bodies,egy
�nclu , " t no3 ted to Fete , State, Miami-Dade County, and City
ernmed a nd all of their departments and bureaus applicable to the
mised Pre' Is, aY all also comply with and fulfill all rules, orders, and
ulations forth `j` even f fire, all at Tenant's own expense and responsibility.
nt shall pay a st, expenses, claims, fines, penalties, and damages that may
be 'Z posed becau f the failure of Tenant to comply with this Section, and shall
indem Wand h armless the City from all liability arising from each non-
complia
15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements for any labor or materials to Tenant
or claimed to have been furnished to Tenant's agents, contractors, or sub-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 City reasonable security as may be demanded by the City to insure
payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or
14
improvements by reasons of such non-payment. Such security need not exceed one
and one half(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 the City, or
Tenant may "bond off" the lien according to statutory procedures. Tenant will
immediately pay any judgment rendered with all proper costs and charges and shall
have such lien released or judgment satisfied at Tenant's own expense.
16. Intentionally Omitted.
17. Condemnation.
17.1 If at any time during the Term of this Agr nt eluding any renewal term
hereunder) all or any part or portion bf re Demised Premises is taken,
appropriated, or condemned by re, on of Eminent Domain proceedings,
then this Agreement shall be ter,; ted as of the date of such taking, and
shall thereafter be completely '? nd void, and neither of the parties hereto
r
shall thereafter have any rigs against the other by reason of this
Agreement or anything contained t,, 'fit, except that any rent prepaid
beyond the date of s , taking shall torated to such date, and Tenant
shall a r''
p y any and all �i 1,ditional re itility charges, and/or other costs
for which it is liable un 't of this ment, up to the date of such
taking.
17.2 Except a r provi pant sh riot be entitled to participate in
the pr s of a award e to the City in any such Eminent Domain
r 1.=
pro `` ing, excep ng, howe `° Tenant shall have the right to claim and
reco 7 from t emnin' ,, uthority, but not from the City, such
en
com s` ;�.I ,�'.� z;
p ately awarded or recoverable by Tenant in
,Pt's o ,; pjz 'ht on acco '„.Vj any and all damage to Tenant's business
Y ons o I condemnation and for or on account of any cost or loss
which T nt m` incur in removing Tenant's furniture and fixtures.
18. ult.
I�
18.1 efault b ' ' nt:
t�,
!�. ...'. Ci s '�� ption, any of the following shall constitute an Event of Default
un greement:
18.1.1 The Base Rent, Additional Rent, or any other amounts as may be due
and payable by Tenant under this Agreement, or any installment
thereof, is not paid promptly when and where due, and Tenant shall
not have cured such failure within five (5) days after receipt of written
notice from the City specifying such default;
18.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
15
18.1.3 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 the City specifying any such default; or such longer period
of time acceptable to the City, at its sole discretion;
18.1.4 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a law, code, regulat' . , ordinance or the like,
which remains uncured for a period ofx 1 y (30) days from its
issuance, or such longer period of ti ' may be acceptable and
approved in writing by the City Man '' his sole discretion;
18.1.5 Any petition is filed by or againstptlant and y section or chapter
of the Bankruptcy Act, as amended, which remai ending for more
than sixty (60) days, or any other proceedings zY` or hereafter
authorized by the laws;; he United s tates or of a state for the
purpose of discharging o ndin time for payment of debts;
18.1.6 Tenant shall become insolven
18.1.7 Tenant shall m a nment nefit of creditors;
18.1.8 A re is a pp d `t by n Y court and shall not be
.. _
di, in thi ` ' ays thereafter; or
18.1.9 r, he leaseh interest i vied on under execution.
19. Rights on Defy
i
19.1 i ' De
In the , ''`` of efault by Tenant as provided herein, City shall have the
option to" ,ny, o following, in addition to and not in limitation of, any
other reme ermi ed by law or by this Agreement;
19.1. Ter 'e this Agreement, in which event Tenant shall immediately
surr er the Demised Premises to the City, but if Tenant shall fail to
o so the City may, without further notice, and without prejudice to
any other remedy the City may have for possession or arrearages in
rent or damages for breach of contract, enter upon the Demised
Premises and expel or remove Tenant and its 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
Agreement termination, whether through inability to re-let the Demised
Premises, or otherwise.
16
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
term of this Agreement to be due and payable immediately, in which
event Tenant agrees to pay the same at once, together with all rents
therefore due, at the address of the City, as provided in the Notices
section of this Agreement; provided, however, that such payment
shall not constitute a penalty, forfeiture, or liquidated damage, but
shall merely constitute payment in adva ge of the rents for the
a
p Y
remainder of said term and such z shall be considered,
construed and taken to be a debt-"'O.'O. viable in bankruptcy or
receivership.
19.1.3 Enter the Demised Premises„ a agen h.Tenant, by force if
necessary, without being lia to prosecute or any claim for
damages therefore; remove Tenant's property theme ;om; and re-let
h 11.
the Demised Premises, or portions thereof, for such s and upon
such conditions which the City deems, in its sole discretir desirable,
and to receive the rents therefore, and Tenant shall pay the City any
deficiency that arise by reason of such re-letting, on demand at
any time and to time at� office of the City; and for the
y
purpose of re-l' g,z yy ty maj ;make any repairs, changes,
Ij�„zy,
alterations or ad ns in ' id D ed Premises that may be
nec or conv ` ent r,, , all co s and expenses therefore
fr ulting s letting,"and (iii) Tenant shall pay the City
,z deficieY ,as afo 1: id.
19.1.4 a possessiof of any onal property owned by Tenant on said
J:rem �, d, the same at public or private sale, and
a e to the `a t of rent due, holding Tenant liable for the
PP p Y g
fici '° if any.
.1.5 It ` press ,-greed and understood by and between the parties
her , hat a installments of rent accruing under the provisions of
this A ement which shall not be paid when due shall be subject to a
late 3t ge of Fifty and 00/100 ($50.00), plus interest at the rate of
ei r,.n (18%) percent per annum, or the maximum amount
.x i1,73.:V,
able under Florida law, whichever is lesser, from the due date of
a�yment until such time as payment is actually received by the City.
Any failure on the City's behalf to enforce this Section shall not
constitute a waiver of this provision with respect to future accruals of
past due rent.
19.1.6 If Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
may pay such expense but the City shall not be obligated to do so.
Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof.All sums of money
17
payable by Tenant to the City hereunder shall be deemed as rent for
use of the Demised Premises and collectable by the City from Tenant
as rent, and shall be due from Tenant to the City on the first day of
the month following the payment of the expense by the City.
19.1.7 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 hereu er shall not operate to
waive or to forfeit any of the said rights.
19.2 Default by City:
The failure of the City to perform any a ants, conditions and
agreements of this Agreement which q e perfo ` by the City and the
continuance of such failure for a peji thirty(30) day s` er notice thereof
in writing from Tenant to the City1 .zr 'ch notice shall spe"� j' the respects in
which Tenant contends that t�`` Ii ty failed tQ,.,perform any such covenant,
conditions and agreements) sh ,pnstitut default by the City, unless
such default is one which cannot b ;within thirty (30) days because of
circumstances beyon e City's con' V end the City within such thirty (30)
day period shall have ,need and f after shall continue diligently to
prosecute all actions n s cure su ` efaults.
However, in the? vent the Ci...y,fa' w in the initial thirty(30) day
�
t' .�`h Ply
period p,, ed"� ove, and„ �rfailure erform prevents Tenant from
opera ".''" s business in a cu ` mary manner and causes an undue hardship
fort'`` nt, then s 'failure to.perform (regardless of circumstances beyond
its co as ind above, II constitute a default by the City.
19.3 is Rallwon Defau
'
Mt City's default shall occur, Tenant, to the fullest extent
permitted<<_y la shall have the right to pursue any and all remedies
availabler aw equity, including the right to sue for and collect
damages, ding asonable attorney fees and costs, to terminate this
greement; „` vided however, that Tenant expressly acknowledges and
fees that recovery by Tenant shall be limited to the amount set forth in
r' 3
n '` this Agreement.
20. Indemnity Against Costs and Charges.
20.1 Tenant shall be liable to the City for all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of Tenant's breach of any of the provisions
of this Agreement. Any sums due the City under the provisions of this item
shall constitute a lien against the interest of the Tenant and the Demised
Premises and all of Tenant's property situated thereon to the same extent
and on the same conditions as delinquent rent would constitute a lien on said
premises and property.
18
20.2 If Tenant shall at any time be in default hereunder, and if the City shall deem
it necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, Tenant will reimburse the City for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
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.
21. Indemnification Against Claims.
21.1 Tenant shall indemnify and save the City les and against any and
all claims or causes of action (wheth, ` oundles "otherwise) by or on
behalf of any person, firm, or corporation, for personal;.injury or property
damage occurring upon the Demised Premises or upon any other land or
other facility or appurtenansed in connection with the Demised
Premises, occasioned in whole o1; part any of the following:
z.
I
21.1.1 An act or omissp, on the pa enant, or any employee, agent,
contractor, inv pst, assign ub-tenant or subcontractor of
Tenant;
21.1.2 Any, e, negle or ., o he Demised Premises by
Ter ax empl Y e,agent, contractor, invitee, guest, assignee,
tenant`s ubcontractor of Tenant;
21.1.3 brea ation, on-performance of any undertaking of
l:t;
,xyth1, growing out of the use or occupancy of the Demised
ises bvTenant or anyone holding or claiming to hold through or
un his ment.
21.2 Tenant agre Ijo pay all damages to the Demised Premises and/or other
,cilities us connection therewith, caused by Tenant or any employee,
a'g ;n coy tor, guest, or invitee of Tenant.
Ip
22. Signs and A rtising.
Without the prior written consent of the City Manager, which consent, if given at all,
shall be at the City Manager's sole and absolute discretion, Tenant shall not permit
the painting and display of any signs, plaques, lettering or advertising material of
any kind on or near the Demised Premises. All additional signage shall comply with
signage standards established by the City and comply with all applicable building
codes, and any other municipal, County, State and Federal laws.
23. Effect of Conveyance.
The term "City" and/or"Landlord" as used in the Agreement means only the owner
19
for the time being of the land and building containing the Demised Premises, so that
in the event of any sale of said land and building, or in the event of a lease of said
building, the City shall be and hereby is entirely freed and relieved of all covenants
and obligations of the City hereunder, and it shall be deemed and construed without
further agreement between the parties, or between the parties and the purchaser at
such sale, or the lease of this building, that the purchaser or Tenant has assumed
and agreed to carry out all covenants and obligations of the City hereunder.
24. Damage to the Demised Premises.
24.1 If the Demised Premises shall be damaged;, ements or other casualty
not due to Tenant's negligence, or by fif� Y- ut -.;.not thereby rendered
untenantable, as determined by the City Manager,- his sole discretion, in
whole or in part, and such damage ' vered by the City's insurance, if any,
(hereinafter referred to as "suc '`urrence"), the City, h' II, as soon as
l.. yr.
possible after such occurrence.,., ize the ins W11 nce proceed Ito.cause such
damage to be repaired and the < t (Bash:,. t and Additional Rent) shall
not be abated. If by reason of such o nce, the Demised Premises shall
be rendered untenan le, as deter r by the City Manager, in his sole
discretion, only in pa y}shall as spas possible utilize the insurance
proceeds to cause the be repair`s`"' ` nd the Rent meanwhile shall
be abated proportionaY as to
f the Demised Premises
rendered u table; p' ' e ,h t the City shall promptly obtain
r
r 3� t'.'.. 7 y.r r
a good f e of the ,required ender the Demised Premises
� .� 3X I 1�j� �
tenantabt and if time eds sixty (60) days, either party shall have
the option of canc " g this Ag ment.
24.2 If the D j dered wholly untenantable by reason of
r` ..4ccuR 3 ;+e;the City', gave the option, but not the obligation, in its
j3
so e� etion, to utilize the insurance proceeds to cause such damage to be
repair e '; d th' nt meanwhile shall be abated. However, the City shall
have the ri, #, to b rcised by notice in writing delivered to Tenant within
sixty (60) d from d after said occurrence, to elect not to reconstruct the
estroyed D ised Premises, and in such event, this Agreement and the
ancy he created shall cease as of the date of said occurrence, the
F
brit to be 'djusted as of such date. If the Demised Premises shall be
rendered wholly untenantable, Tenant shall have the right, to be exercised by
notice in writing, delivered to the City within thirty (30) days from and after
said occurrence, to elect to terminate this Agreement, the Rent to be
adjusted accordingly.
Notwithstanding any clause contained in this Section 24, if the damage is not
covered by the City's insurance, then the City shall have no obligation to
repair the damage, but the City shall advise Tenant in writing within thirty(30)
days of the occurrence giving rise to the damage and of its decision not to
repair, and the Tenant may, at any time thereafter, elect to terminate this
Agreement, and the Rent shall be adjusted accordingly.
20
I
25. 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.
26. Waiver.
26.1 It is mutually covenanted and agreed by and betwe the parties hereto that
the failure of the City to insist upon the strict'l rmance of any of the
conditions, covenants, terms or provisions of greement, or to exercise
r
any option herein conferred, will not be con K or construed as a waiver
or relinquishment for the future of any ,y con Lions, covenants, terms,
provisions or options but the same sh oitinue and remain in full force and
effect.
26.2 A waiver of any term expressed rein shall not be implied ; neglect of
the City to declare a forfeiture orb unt oz violation of su eerm if such
violation b continued or re eate ` `�`�
y p �ently and any express waiver
shall not affect any teen other than the`Y'Y specified in such waiver and that
one only for the time '` e manner ifically stated.
26.3 The receipt of any su id b It to e, City after breach of any
condition, c nt, term' rov' 3 „ ontained shall not be deemed
a waiver . each, bar 1'be tak onsidered and construed as
payment for use rd occup n, and not as Rent, unless such breach be
expr ly waived i riting by City.
27. Notices.
�v
Th J es fo btices requ nder this Agreement shall be as follows, or
o tnl dre $ either party shall be in writing, notify the other:
LANDLO City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
f
1
Wit Director
Office of Real Estate
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Damian J. Gallo, President
Damian J. Gallo & Associates, Inc.
1701 Meridian Avenue, Unit 4
Miami Beach, Florida 33139
21
All notices shall be hand delivered and a receipt requested, or by certified mail with
Return receipt requested, and shall be effective upon receipt.
28. Entire and BindinqAgreement.
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 an a binding upon the City
and Tenant and their respective successors and a,,,, except as may be
otherwise expressly provided in this Agreement.
29. Provisions Severable.
If any term or provision of this Agreement or plication reof to any person or
circumstance shall, to any extent, be invali, nenforceable, the remainder of this
Agreement, or the application of such t provision to persons oT circumstances
other than those as to which it is held k d or unen rceable, shall not be affected
thereby and each term and provisio his `ment shall be valid and be
enforced to the fullest extent permitted b
30. Captions.
The captions contained herei a ?fheponvenieh' and reference only and shall
not be deemed a part of this A p men ''' struec,:' in any manner limiting or
amplifying the ter d rovisi of n�o which the relate.
P Y
31. Number and ,x der.
Whenever,. herein, t ; ingular 60"' ber shall include the plural and the plural
shall includ' t1, singul the use ne gender shall include all genders.
l
32. Limitation of Liab
N. City d y to into this Agreement only if in so doing the City can place a
it on the ,Iiab ' 'or any cause of action for money damages due to an
eged breach f e Cit Ois Agreement, so that its liability for any such breach
exceeds thy' � m oYl"en Thousand ($10,000.00) Dollars. Tenant hereby
ex es its willin i ss to enter into this Agreement with Tenant's recovery from
the C'I for any d ' e action for breach of contract to be limited to a maximum
i i
amount of$ O,Q (.0. Accordingly, and notwithstanding any other term or condition
of this Agr " ; Tenant hereby agrees that the City shall not be liable to Tenant
for damage i amount in excess of$10,000.00 for any action or claim for breach
of contract arising out of the performance or non-performance of any obligations
imposed upon the City by this Agreement. Nothing contained in this Section or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation
placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
33. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the
City the Demised Premises, together with any and all equipment, fixtures,
22
furnishings, appliances or other personal property, if any, located at or on the
Demised Premises and used by Tenant in the maintenance, management or
operation of the Demised Premises, excluding any trade fixtures or personal
property, if any, which can be removed without material injury to the Demised
Premises, free of all liens, claims and encumbrances and rights of others or broom-
clean, together with all structural changes, alterations, additions, and improvements
which may have been made upon the Demised Premises, in good order, condition
and repair, reasonable wear and tear excepted, s ect, however, to the
subsequent provisions of this Section.Any property whi ' suant to the provisions
of this Section is removable by Tenant on or at the,.. ised Premises upon the
termination of this Agreement and is not so remoy, `` at the option of the City,
be deemed abandoned by Tenant, and either be`M 'ned by the City as its
property or may be removed and disposed o t Ye sole c' the Tenant in such
manner as the City may see fit. If the De ;I. Premises an ' rsonal property, if
any, be not surrendered at the end oft ,3 ` �e`rm as provided in this Section, Tenant
shall make good the City all damages)' h the City,$hall suffer by reason thereof,
and shall indemnify and hold harmles City, r inst all claims made by any
succeeding tenant or purchaser, so far as 1. `Z ''' is occasioned by the failure of
Tenant to surrender the Dernised Premises a` j d when herein required.
34. Time is of the Essence.
Time is of the essence in eve rtic arti ly where the obligation to
pay money is invo ,
35. Venue:
This Agree, t shall be med to have been made and shall be construed and
interpreted i ordan he laws ^ the State of Florida. This Agreement shall
�y
be enforceabl�'ir� i rids, and if legal action is necessary by
eithef�prty with re to the en ent of any and all the terms or conditions
e e v for the enforcement of same shall lie in Miami-Dade
ounty, Flori
Utz
r . AND TENA EREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RI ,TO TRIAL ;JURY IN ANY ACTION OR PROCEEDING THAT THE CITY
AND''"ENANT M EREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPEz+r O : MATTER ARISING OUT OF OR RELATED TO THIS
AGREEM
36. Radon is a naturally occurring radioactive gas that, when it is accumulated in a
building in sufficient 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.
37. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or use
of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
23
i
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any kind,
or any substance or thing prohibited in the standard policies of fire insurance
companies in the State of Florida. Any such substances or materials found within
the Demised Premises shall be immediately removed.
Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, rea nable attorney's fees,
incurred as a result of, arising from, or connected with acement by Tenant of
any "hazardous substance" or "petroleum products" in or upon the Demised
Premises as those terms are defined by applicay, ,. . Y ral and State Statute, or
any environmental rules and environmental re 3 `fions ulgated thereunder.
The provisions of this Section 37 shall survivee erminati earlier expiration of
this Agreement.
X.
REMAINDER OF PAGE INTE. NAL IrEFT BLANK
24
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
Print Name: era Bower, MAYOR
Print Name: ael Granado, Cl TY7- ERK
Attest: DAMIAN J. ALLO&A IATES, INC.
Da Mt ,'n J. Gallo, PRESIDENT
Print
n� atu porate
CORPORATE SEAL
(affix seal here)
..rint NamefR
T:\AGENDA\2013\September 11\Damian Gallo\Damian J Gallo Lease Agreement DRAFT(9-3-13).doc
25
EXHIBIT 1
Demised Premises
F.P.L.ROOM
ELECTRICAL ROOM �, •�
UNIT 4
STOR4GE
UNIT 3 ;
LIJ
cn
\\\1�. ~•- f 1 s
•� to CD
ti UNIT 2 z
Z
QO
z
w
o UNIT 1 �-
� EL
zz
COMMON �''• _
ELEMENTS
STAIRS _--
•'�g VTklIY ELE OR
CLOSET r• '+ ••.;.
AREA UNIT 1=1,326.78 S/F
AREA UNIT 2=1,802.89 S/F O®
AREA UNIT 3=1,290-59 S/F SCALE FEfr
AREA UNIT 4=1,268.87 S/F
SURVEYORS NOTE
DETAILS OF INTERIORS WALLS WERE BASED IN ORIGINAL DRAWINGS AND BEST INFORMATION OBTAIN FROM FIELD SURVEY
First Floor Plan
Prepared by. 1701 MERIDIAN BUILDING CONDOMINIUM
,174900 rncenla}}•++•�+�ne Page 4 of 9
✓Ella eay l�+idm 95499 0ale:•4/-1 718 0 0 7
,.e-rr3O0s 679-70A0 Exhibit"B"
26
EXHIBIT 7.1
Menu
Soups lighting Paninis Melting Pot
OUR SOUPS ARE MADE WITH THE FERESHES PANINIS ARE MADE WITH FRESH LOCAL BREADS FRESH GRILLED SANDWICH TO SATISFIED YOUR
INGRIDIENTS USING LOCAL FARMERS,ORGANIC BAKED DAILY AND VERYFAST SERVED TO YOU. TRADITIONS IN OUR CHOICE OF FRESH ORGANIC
BEANS 1 VEGETABLES AND FREE OF PESTESIDES. All include our Joe's avocado air fries BREADS AND CROISSANTS
French Riviera Beach caramelize 400 Chicken tenders and Tomato Ruben up1 8.00
OHM soup chutney 10.00 Lean Corn beef,barrel Kraut,Swiss,Russian
Neutral stock base,with Caramelize Vidalia Grilled chicken with adobo and lettuce and dressing.Pumpernickel bread
onions, tomato read served our french baguettes.sP � Vegetarian vegan Black moon 8.00
The oriental black bean soup 4.00 Cuban twist 11.00
grilled Portobello,zucchini,onions lettuce ;I
Black beans and a touch of Cuban seasoned. Serrano Ham,slow sous vide p t pork,fried tomato,romaine and chipotle dressing flat
Candy cream of tomato soup 00 pickles,French mustard,Swiss chesses bread
Slow roasted plum Tomato with Italian herbs. Chicken Poblano 10.00 Permitdoctor Chicken club 8.00
Twice Baked potato 4.00 Grilled chicken special spice sauce with What the Doctor order,chicken,berries,kale,
Po and low fat cheese in our whole wheet bread
romaine lettuce and tomatoes,Chihuahua
Baked potato with smoked cherry wood flavor. chesses Flat bread no oil dressing spuma
Italian de Parma 11.00 Una media Noche Croissant 10.00
Crispy prosciutto di Parma,provolone,sun. Sliced ham,roast pork,Swiss cheese,pickles,
Salads dried plum tomato,pesto lettuce,olives sweet Cuban bread
CRISPY DOUBLE WASH SALADS WITH ORGANIC Focaccia bread all sandwich served with air fries and Joe's
i
TOMATOES AND FRUITS BBQ pull pork Sous Vide 10,00 avocado fries
Chicken Floribbean style 6.00 Slow over night cooking pork with our south Coffee and more
Baby Romains,croutons,avocados Caesar. stout BBQ sauce sharp cheddar cheese. Our Cos to Rica,Honduras blends
South Beach Sunrise 6.00 You said Cooffe Cafe 3.00
Berries and Tomatoes mix lettuce French Low-Fat smoothies
dressing and sliced almonds. Our blend served with cane sugar
FRESH FRUITS AND VEGETABLES SMOOTHIES r Coffee frappe 4.00
Ocean Drive seafood salad 7.00 AND SUPER BUSTERS NOOS,INDULGENT TOO.
Baby shrimp,scallops tossed with romaine Sunshine Earl birds 500 Double fuel strength coffee,chilled,flavored
lettuce Thai dressing
Early with Ivanilla,hazelnuts,whipped cream l.
Raspberries,blue and bananas agave. Indulgent Chai Tea 3.00
NOS oxide energy 5.00 Vanilla,ginger,cinnamon,cloves and
Citrus Kombucha.Ginger,coconut,kale cardamom
Bahnana Mama 5.00
Avocado.Banana and pickled ginger
27
EXHIBIT 8.4
Tenant Improvements
ITT,
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28
EXHIBIT 8.4.1
CONTRACTOR'S INSURANCE REQUIREMENTS
Worker's compensation insurance covering all employees of the Contractors (as
required by the laws of the State of Florida) and employer's liability insurance of not less
than One Million Dollars ($ 1,000,000) per occurrence.
Comprehensive general liability insurance in an amou -not less than One Million
Dollars ($1,000,000) per occurrence and Two Millio„. ` bars ($2,000,000) annual
aggregate covering personal injury and property dama c erage shall include, but
not be limited to, the following:
i. Blanket contractual liability,' rance covering demnity or hold
harmless agreements.
ii. Protective liability insur= for the<< ration of the' independent
Contractors.
iii. XCU coverag ' losion, col a or damage to underground
1 -t.
property).
iv. Products and co., feted ns two (2) year extension
bey ,k ompletion` r
;r
I than Two
Com "nsive mobile � ran a in an amount of not less t a
a Hsu c
Million Dollars ($2;p; ,000) co ed single limit for bodily injury and property damage
covering all owned, non-own ;, y ,d vehi , trailers or semi-trailers, including any
machinery or a.paratu
3. is Risk I nce dard "All Risk"or equivalent coverage) in an amount not
7 I1'�
than the cost. oonst n, written on a completed value basis or a reporting
basis, for property ° ra otecting BGCM-D, City, and BGCM-D s General
Contractor, with a d tible of not more than Fifty Thousand Dollars ($50,000),
subject toadjustmen inflation (except as to flood and windstorm, with regard to
which the ctibla%z }II be a commercially reasonable amount).
4. Payment and ormance bond guaranteeing the performance of the general
contractor, for the value of the work to be performed.
29
Attachment 4
Damian J . Gallo &
Associates , Inc .
Concession
Agreement
i
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND
DAMIAN J. GALLO & ASSOCIATES, INC.
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN THE OUTDOOR SPACE ADJACENT TO 1701 MERIDIAN AVENUE, UNIT 4
THIS AGREEMENT made the day of , 2013, between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called
"City"), having its principal address at 1700 Conventi ,'Center Drive, Miami Beach,
Florida, 33139, and DAMIAN J. GALLO & ASSOC IA , INC., a Florida corporation,
having its principal place of business at 1701 Mend:::,Avenue, Unit 4, Miami Beach,
Florida, 33139 (hereinafter called "Concessionaires" .
WITS
WHEREAS, on September 11, 2013, the Morl .the City Cori� lssion adopted
Resolution No. 2013- approving k certain Lease Atement dated
2013(the"Le Bement')been the City and Damian J. Gallo&
pp y � , .und floor retail space in the City-
owned approximately building located at 1701 Medan Ague, Una,fix, Miami Beach, Florida (the
"Leased Premises"); arm
WHEREAS, the ase Agre ment is fa itial term,:,""f three (3) years, commencing
on October 1, 2013, ,ending n Septeo r 30, 2016, with two (2) additional renewal
terms for two ) years ,
h
Wk AS, the used Penises are as an office and as a cafe and include a
side dc ,.,that opens"`c ,to art + tdoor area immediately to the east of the Leased
Premises; but the Leased emise4o not include the outdoor space; and
WHEREAS m i a n J. G*o & Associates, Inc. has requested use of the outdoor
space, which is id ent to th eased Premises, to place seven (7)tables, twenty six(26)
chairs and five (5) reI ""'for the purpose of providing an outdoor seating area for
patrons of the cafe; and
WHEREAS, at the July 25, 2013 Finance and Citywide Projects Committee meeting,
the Committee recommended entering into a concession agreement with Damian J. Gallo
& Associates, Inc. for use of the outdoor space.
WHEREAS accordingly, the City and Concessionaire have negotiated the following
Y 9 9
Concession Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
2
i
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the right to maintain, manage and operate a food and beverage concession
within the Concession Area (as hereinafter defined), in accordance with the purpose(s)and
for the term(s) stated herein, and subject to all the terms and conditions herein contained.
SECTION 1. TERM.
1.1 This Agreement shall commence on the 1st day of October, 2013 (the
"Commencement Date"), and terminate on,, ;.,30t" day of September, 2016
(the "Term").
For purposes of this Agreement, a t tr4 'year" shall be defined as that
certain period commencing on th, 'day of 0_ ^er, and ending on the 30th
day of September.
Provided Concessionaire is m:0 od standing and free m default(s) under
Section 13 hereof, and upon v��n nodtp from Corviem, ionaire, which
notice shall be submitted to the City lager no earlier that one hundred
twenty (120) days,` it .: my case n'6 r than sixty (60) days prior to the
expiration of the initit his Agrees" t may be extended for two (2)
additional two (2) year newA terms. An , )tension, if approved, shall be
memorialized in writing ate;signed he parr ;hereto(with the City hereby
designt tt6 ity Manager as#�7taAdual authorized to execute such
exte l Ohs on its ehalf).
In the eve :that tt+e pity Manager determines, in his sole discretion, not to
or rein is enfi on expiration of the initial term or an
� 0 � + m P Y
rerier #erm), a City IIIer 'sfiall notify Concessionaire of same in
writing, vh notshall be pry Wided to Concessionaire within fifteen (15)
business d��t of tF ity Manager's receipt of Concessionaire's written
:notice.
It EIhe intent a# the parties hereto that, unless otherwise terminated
purst,.to the� ovisions of this Agreement, the Term of this Agreement is
intende ;;r.;u"„c"oncurrent with the term, including any extensions thereof, of
that certaih ease Agreement by and between the City of Miami Beach and
Damian J. Gallo & Associates, Inc., dated ,2013(hereinafter,
the "Lease Agreement").
If, at any time during the Term of this Agreement, the Lease Agreement is
terminated or otherwise ceases to be of any legal force and effect, for
whatever reason whatsoever, then this Concession Agreement shall
automatically terminate, and shall be null and void and of no further force
and effect.
The City shall each have the right to terminate this Agreement for any reason
whatsoever upon providing thirty (30) days written notice to the other party.
Notwithstanding anything to the contrary contained herein, in the event the
3
i
Lease Agreement is terminated for any reason whatsoever, this Agreement
shall also be terminated effective immediately.
SECTION 2. CONCESSION AREA.
The City hereby grants to Concessionaire the right, during the Term herein, to maintain,
manage and operate an outdoor seating area in the following Concession Area:
2.1 Concession Area:
507 square feet of outdoor space adjacent to and east of 1701 Meridian
Avenue, Unit 4, Miami Beach, Florida (a/k/a,.; 5 17th Street); which outdoor
space is further delineated in "Exhibit 2.1.'�,�#ate Concession Area"), attached
hereto and incorporated herein.
Concessionaire shall have the ##o place se n (7)tables, twenty six(26)
chairs and five (5) umbrellas wjt ' the Concessrc , ,rea, subject to approval
of a site plan by the City, anc# rpliance with applice ADA requirements.
The proposed site plan is als l neated in Exhibit 2'.J",', p material change
in the proposed site plan (or in ,ibit 2 hall be perrri ed without prior
written consent of the;,.City Manage " �.;:�; #esignee, which consent(if given
at all) shall be at the'. ,. nager's (6 *designee's) sole and reasonable
judgment and
discrettra
2.2 Concessionaire hereby arees arrd acknowledges that the Concession Area
shall
r „available all r e b +of the general public choosing to
enjoy ncessioi ire's food t everag�>�Services.
SECTION 3. USE(S).
3.1 �" Concessiarre ., be � d by the Concessionaire solely as an
,.,
` eatin ecea for t� , , r6hs and guests of the Leased Premises.
out°d` ., g
The ouftx cafe # all have minimum days and hours of operation from
Monday thr t h Frid y,,commencing on 9:00 AM, and ending no later than
PM. Anyhange it the hours of operation including, without limitation,
yrequest byncessionaire for an increase or decrease in same, shall be
s6t000 to the p'i ►r written approval of the City Manager (or his designee),
whict::: prov granted at all, shall be at the City Manager's (or his
designee° ,., option and discretion. Notwithstanding the preceding hours
of operati""o""*'n"'"""'."the Concession Area shall only be open when the Leased
Premises are open for business (and, conversely, shall be closed when the
Leased Premises is closed).
3.2 Concessionaire and the tenant of the Leased Premises shall at all times
throughout the Term of this Agreement be one and the same and cannot
exist independently of each other. Concessionaire acknowledges and agrees
that its use of the Concession Area shall be, and remain at all times
throughout the Term, an ancillary use to the Leased Premises.
The number of seating on the Concession Area shall be included in the
overall seating count of the Leased Premises. There shall be no bar counter
of any kind as part of the Concession Area and all food served shall be
4
i
prepared within the interior kitchen of the Leased Premises. There shall be
no alcoholic beverages permitted on the Concession Area. All tables 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 City Manager or his designee. Concessionaire shall further maintain the
Concession Area and abide by the conditions set forth in "Exhibit 3.2" (the
"Additional Requirements"), attached hereto and incorporated herein.
3.3 Concessionaire hereby warrants and represents that Concessionaire is the
owner of the restaurant at the Leased Pre„ ^t ses and shall, throughout the
Term of the Lease Agreement, rem ain.::�tee owner of said restaurant,
unless any change in ownership is app, by the City Manager, in writing,
prior to such change taking place. C� gb nership for purposes hereof
shall include, without limitation,,a gate, exchi , assignment, transfer or
other disposition by tenant afi or a port io n...rgr ;:tenant's interest in the
restaurant, whether by opera# t�of law or otherwise;
3.4 Concessionaire agrees not to pt, Any, kers, or any�: er device used
1,.
to amplify sound, on,: ..around the' Iron Area. Conde ionaire further
agrees to not attach ',4, levisions, makers, or any other device used to
amplify sound, to the e 'er of the 1�ased Premises. Furthermore,
Concessionaire shall .. no manner :; the Concession Area, or
Concessionaire's restaurant at remises, as an outdoor
entert ' ant
' , p � r er�t,0i�3ar�t establishment, and hereby
a � ��- open
ackntdges tlasuch uses: prohibitetvhether as main or accessory
uses)
3.5 essioftwil a� be ermittec to apply to the City of Miami Beach for
'one ecial nt perH the,'sole and express purpose of hosting an
opening-went fog a restaut2�nt. At no time thereafter, throughout the
remaining teen of thi�ase, shall the Concessionaire be permitted to submit
an application r a spal event to be held on the Concession Area.
3.6 It r%.,anderstood.. hd agreed that the Concession Area shall be used by the
Conc ionaire"""d uring the term of this Agreement only for the uses
contemj #a erein, and for no other purpose or use whatsoever.
..........
Concessionaire will not make or permit any use of the Concession Area that,
directly or indirectly, is forbidden by public law, ordinance or government
regulation, or that may be dangerous to life, limb or property. Concessionaire
may not commit waste on the Concession Area, use the Concession Area for
any illegal purpose, or commit a nuisance on the Concession Area. In the
event that the Concessionaire uses the Concession Area for any purpose not
expressly permitted herein, then the City may declare this Agreement in
default pursuant to Section 13, or without notice to Concessionaire, restrain
such improper use by injunction or other legal action.
3.7 Notwithstanding anything to the contrary contained herein, in the event
of a breach by Concessionaire of any conditions in this Section 3, the
5
I
City Manager, in his sole determination and judgment, shall have the
right to automatically terminate this Agreement,without any liability to
the City; said termination effective upon three(3) days written notice to
Concessionaire. By executing this Agreement, Concessionaire hereby
agrees to this condition, and further voluntarily and knowingly waives
and releases any and all rights now or hereinafter conferred upon
Concessionaire pursuant to Florida Statutes including, without
limitation, the procedures set forth in Chapter 83, Florida Statutes' for
removal in nonresidential tenancies; the;,Miami-Dade; and the Miami
Beach Code (respectively); to the extethis and applicable law(s)
would have the effect of limiting 9q," difying the City's rights to
terminate this Agreement pursuantIt Subsection.
3.8 Concessionaire shall obtain, ; :. sole expet and responsibility, any
business tax receipts requi b y the City f� .the proposed use(s)
contemplated herein.
SECTION 4. CONCESSION FEES.
4.1 Concession Fee.
In consideration of `' C grantin1, the rights provided in this
Agreement, the Conce (onairall pay to City a Concession Fee of
Ten Thgtdd Qne Hunded Forty. QO/10d liars($10,140.00), payable
in mo ���ins t l ents of jght # t�ncflr ., ay Five and 00/100 Dollars
($84 payabl'q,on the day of every:month of each contract year
during t# Term. Tie first payment shall be due on
"�Q ancessl
be AmQgt t ur nt to this Section 4.1 shall be increased
annual k�rougb #the Terrh�,Wv ""'ding any renewal terms, commencing on
the anniv ary of Commencement Date of this Agreement, and each
anniversary rm
I" mmement Date thereafter, in increments of three (3%)
" rcent per yew;
4.2 Inte#tonally Ored
4.3 Interest f``'..: .Payment.
-,----
Any paymdWwhich Concessionaire is required to make to the City which is
not paid on or before the respective date provided for in this Agreement shall
be subject to a late charge of Fifty and 00/100 ($50.00), plus interest at the
rate of eighteen (18%) percent per annum, or the maximum amount
allowable under Florida law, whichever is lesser, from the due date of
payment until such time as payment is actually received by the City.
4.4 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part of
said payments. It is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Use Tax.
6
i
SECTION 5. Intentionally Omitted
SECTION 6. Intentionally Omitted
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
Concessionaire agrees and shall pay, before delinquency, all taxes and assessments of
any kind (including, without limitation, ad valorem taxes, if assessed, and/or Resort Taxes)
levied or assessed upon Concessionaire and/or the Concession Area including, without
limitation, any such taxes and/or assessments that may be:16vied and/or assessed against
Concessionaire and/or the Concession Area by reasorv: is Agreement, or by reason of
the business or other operations and/or activities of� ssionaire upon or in connection
with the Concession Area.
Concessionaire will have the right, at its own',0 ense, to cont6 a amount or validity, in
whole or in part, of any tax and/or asssment by approprrW .; proceedings, which
Concessionaire shall conduct diligently and, ntinuously, in good f Concessionaire
may refrain from paying a tax to the extent rt i .contest rig the impoi on of same in a
manner that is in accordance with w; provided"ho if, as a result ► such contest,
additional delinquency charges bg ;`cue, Concenaire shall be responsible for such
delinquency charges, in addition topyra �n .of the cotsted tax (if so ordered).
Concessionaire shall be solely responsle for anll proxy pay when due all charges
for utility services) o # ahe Condon eluding all hook-up fees and impact
fees)for gas, electr ,water, wer, cablrhon e, th collection, etc., if applicable.
on ,
In addition to other righnd reO.Wd hereir-
Ofter reserved to the City, upon the failure of
Concessi,�� day for �1.. trrty + ,ices men due, the City may elect to pay same
and Ca 0 on9i�i all prdr ly reirnbt��the City upon demand. In no event shall the
S<
City b l6le, whether'',,tp,conc s onaire or t' third parties, for an interruption or failure in
the supp? of any utilities services ;the Concession Area.
SECTION 8.�` II,�PLOYEES D INDEPENDENT CONTRACTORS.
8.1 Conconairtall select, train, employ (or otherwise hire or retain) such
numbe"r" yees and/or independent contractors as is necessary and
appropriate `"'Concessionaire to satisfy its responsibilities hereunder, and
as necessary to maintain the same levels of service as exist in similar first
class concession facilities and operations. Concessionaire's employees
and/or independent contractors shall be employees and/or independent
contractors of Concessionaire and not of the City, and Concessionaire shall
be solely responsible for their supervision and daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authority to
hire, terminate and discipline any and all personnel and/or contractors
employed or retained by Concessionaire.
8.2 All employees and/or independent contractors shall observe all the graces of
personal grooming. Concessionaire shall hire people to work in its operation
who are neat, clean, well groomed, and comport themselves in a
7
i
professional and courteous manner. Concessionaire and any persons hired
and/or retained by Concessionaire shall never have been convicted of a
felony.
Concessionaire shall have an experienced manager or managers overseeing
the concession operations at all times.
SECTION 9. Intentionally Omitted
SECTION 10. IMPROVEMENTS, MAINTENANCE, REP M: and OPERATION.
Concessionaire accepts the use of the Concession ''in its "AS IS" "WHERE IS"
,
condition. Concessionaire assumes sole responsibil ;,expense for maintenance of the
Concession Area (including all furniture fixtures 'rii ,. and an other improvements
( 9 , w. ;.a Y p
thereon). This shall include, without limitation,;:daily (i.e days) removal of litter,
garbage and debris. Concessionaire shall.,abe responsib' for all garbage disposal
generated by its operations.
10.1 Improvements.
10.1.1 Concessionair`i� t l� essiona*t :sole expense and responsibility,
shall be required b denfih and remove the existing concrete ramp
fre , thin the Cc cession ; lrea. Con essionaire shall install new
ere n.a manner and t ' to be tlevel with the surrounding
ea and"toltnatch theng condte.
10.1.2 Any ampa0ments tc the Concession Area shall be at
; Con le expe#�s, e and responsibility; p rovided however
,
at an #a,ns for s�tW, vements shall be submitted to the City
IVi*Mer O*r designa' for prior written approval. Upon termination
andltxpira of this Agreement, all personal property and non
permarm,t trad6Uures may be removed by Concessionaire without
causing 4mage to the Concession Area.
;l, pert_##bent (fixed) improvements to the Concession Area shall
re property of the City upon termination and/or expiration of
this"�� Bement, except as provided in Subsection 10.1.3.
Concessionaire will permit no liens to attach to the Concession Area
arising from, connected with, or related to, the design, construction,
and installation of any improvements.
Construction of any approved improvements shall be diligently
prosecuted to completion and accomplished through the use of
licensed, reputable contractors who are acceptable to the City
Manager or her designee. In addition to obtaining the prior approval of
the City Manager or her designee (acting on behalf of the City, in a
proprietary capacity), Concessionaire shall also be solely responsible
for obtaining, at its sole cost and expense, any and all permits,
i
licenses, and/or regulatory approvals; such regulatory approvals
which may include, without limitation, land use board and/or the
approvals of other required regulatory agencies having jurisdiction)
required for the construction of improvements.
10.1.3 Notwithstanding Subsection 10.1.2 hereof, upon termination and/or
expiration of this Agreement, Concessionaire shall immediately
remove any permanent improvements made to the Concession Area
during the Term, at Concessionaire's sole expense and responsibility.
In such event, Concessionaire shall aha restore the Concession Area
to its original condition prior toy„improvements being made,
reasonable wear and tear excr
10.1.4 The above requirements,far submissidt .of plans and the use of
specific contractors sha „ t.'apply to imprraments (which term, for
purposes of this SU bction 10.1.4 onl t, shall also include
improvements necessforConcessionaire'sc� oing maintenance
and repair of the Condon Ark which da: ot exceed Five
Hundred ($5000) Dollars;;°, that the work :not structural,
and provided mar that it is omitted by applicable law.
10.2 Gage Receptacles
With respe ::to litter, get tbage 6h debris removal, Concessionaire shall
providax;�its s la expenW a suE ft"W i mber'of trash receptacles for its
own ,, and for tae use ofrons termination of the "number” of
recept shall 1 II times "within the City Manager or her designee's
sole discern. D,�� al of the c ptents of said receptacles (and removal of
, ' wthin a.garb Concession Area), shall be done on a
da ,; basis."" wi for removal of the contents of said trash
receptac�by they, becausof the Concessionaire's failure to do so,will
be assess66".,to, and ,come the responsibility of, the Concessionaire.
Taihe dumping disposal of any refuse, discards, trash or garbage,
generated by, c�`as a result of Concessionaire's operations, into any of the
Cityyi #t sh dut ter shall be prohibited.
10.3 Maintenanc Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all
furniture, fixtures, and equipment (FFE) and any other improvements
(whether permanent or not) required to operate the concession. In the event
any FFE and/or other improvement(s) is lost, stolen, or damaged, it shall be
replaced or repaired promptly, at the sole expense of Concessionaire.
10.3.1 All damage or injury of any kind to the Concession Area, and/or to any
improvements and/or FFE thereon, except damage caused by the
willful misconduct or gross negligence of the City, shall be the sole
obligation of Concessionaire, and shall be repaired, restored and/or
replaced promptly by Concessionaire, at its sole expense, to the
satisfaction of the City Manager or his designee.
9
10.3.2 All of the aforesaid repairs, restoration and replacement shall be in
quality and class equal to or better than the original work (or FFE, as
the case may be) and shall be done in good and workmanlike
manner.
10.3.3 If Concessionaire fails to make any repairs, restoration and/or
replacement, the same may be made by the City, at the expense of
Concessionaire, and all sums spent and expenses incurred by the
City shall be collectable by the., : ty and shall be paid by
Concessionaire within ten (10) dater receipt of a bill or statement
thereof. Notwithstanding that thair;may elect to make such repairs,
restoration, and/or replacern3 th pity shall have no obligation
and/or affirmative duty to 00 so".
10.3.4 It shall be Concessa., re's sole obligatil c ,.:to ensure that any
renovations, repairs ari+ M-improvements madd ,Concessionaire to
the Concession Area corYty withpplicable emitting, building
codes and life safety cod governmental a' rities having
jurisdiction
10.4 No Dangerous MateriaW:,.
Concessionaire agrees 001 to use hermit the Concession Area the
storage ndl�use of aasa1ine, f .. ►iis, Weser illuminating oils, oil lamps,
combda ble powet'ed elect �ducing erators, turpentine, benzene,
naphth� ropane� ,natural ga �;�or other similar substances, combustible
materials, t ;.expldw es of any lid, or any substance or thing prohibited in
standard{ insurae companies in the State of Florida. Any
sudit: stand :::or mater'tir -:found within the Concession Area shall be
immedi2rty.. remol.
..fin consideratid,of a s"arate and specific consideration of Ten ($10.00)
`.00,11111ars and oar good and valuable consideration, the receipt and
s6ftency of rich are hereby acknowledged, Concessionaire shall
indem'--* and,1,,..1W6Id the City harmless from any loss, damage, cost, or
expensdib, including, without limitation, reasonable attorney's fees,
incurred as. result of, arising from, or connected with the placement by
Concessionaire of any "hazardous substance" or "petroleum products" on,
under, in or upon the Concession Area as those terms are defined by
applicable Federal and State statutes, or an environmental rules and
pp Y
environmental regulations promulgated thereunder. The provisions of this
subsection 10.4 shall survive the termination or earlier expiration of this
Agreement.
10.5 Secu rity.
Concessionaire shall be responsible for and provide such reasonable
security measures as may be required to protect the Concession Area and
any improvements and FFE thereon. Under no circumstances shall the City
be responsible for any stolen or damaged FFE; damage to or loss of any
10
improvements; or any stolen, lost, or damaged personal property of
Concessionaire's employees, contractors, patrons, guests, invitees, and/or
any other third parties.
10.6 Inspection.
Concessionaire agrees that the Concession Area (and operations thereon)
may be inspected at any time during hours of operation by the City Manager
or his designee, or by any other municipal, County or State officer, or other
agency having responsibility and/or jurisdiction for inspection of such
operations. Concessionaire hereby waives:;All claims against the City for
compensation for loss or damage sustain y reason of any interference
with the concession operations, wheth0, ithe City or by any public agency
or official, in enforcing their respect�iut� ;�gr enforcing compliance with
any applicable laws, or ordinanceg, or regulaf s.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at all times t toughout the Term, at t ,.sole expense and
responsibility, the following types of insurance ye rage
a. Comprehensive G6��;;Liability, in *.:minimum amount of One Million
($1,000,000.00) Dollar (sty ; pt to adjukihent for inflation) per occurrence
for bodily injury and . p6d js policy must also contain
coverage for premises op contractual liability.
b. Worka Compestion Insu � ...shall be wired in accordance with the
laws of fie.State df.,Florida
C. ConAif -,.tae utilig automobiles in connection with the use
o `t " pcess ;Area, sic afire shall purchse automobile Insurance
shall be vi e my ering all"', ned, leased, and hired vehicles and non-
ownership flity fo less than the following limits (subject to adjustment
for inflation):
Bcly Injury $1,000,000.00 per person
Bgly Injury $1,000,000.00 per accident
. ' perty Damage $1,000,000.00 per accident
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Concessionaire
shall provide the City with a Certificate of Insurance for each such policy. ALL
POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN
ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of the
City's Risk Manager.
11
i
Should Concessionaire 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 the City in obtaining said
insurance, shall be repaid by Concessionaire to the City, plus ten (10%) percent of
the amount of premiums paid to compensate the City for its administrative costs. If
Concessionaire fails to repay the City's expenditures following written demand from
the City(and within the time specified in the City's demand notice), such failure shall
be deemed an event of default hereunder and the total sum owed shall accrue
interest at the rate of twelve (12%) percent until p ,
SECTION 12. INDEMNITY.
12.1 In consideration of a separate ; ,.specific cons.,
deration of Ten ($10.00)
Dollars and other good and val 'cons ideratioh a receipt and sufficiency
of which are hereby acknowged, Concessionaishall indemnify, hold
harmless and defend the City' officers, employees;Ontractors, agents or
servants from and against and► Haim, nand or ce of action of
whatsoever kind or ure arising c� � r, omission, or negligent act of
Concessionaire, its�;�-bffimrs, employe :*ntractors, agents or servants in
the performance of selic trlder this 4eement.
12.2 In add itiot �and in consideration o►f . eparat� d specific consideration of
Ten ($'� 4 #bars and crierd a� �ualuable consideration the receipt
and ciencyvhich are : y ackWedged, Concessionaire shall
indemny, hold h' less ar ,defend the City, its officers, employees,
contractoto age Q;�,servants fXOm and against any claim, demand or
use of act it � kind ::,nature arising out of any misconduct of
Go onairb�*office?gg * Idoes, contractors, subconcessionaire(s),
agents orvar t included Subsection 12.1 herein and for which the
City, its officers, erees, contractors, subconcessionaire(s), agents or
;servants are Alleged td liable.
12.3 S ctions 12`4` and 12.2 shall survive the termination or expiration of this
Agreement. Sections 12.1 and 12.2 shall not apply, however, to any such
liabilityI t di` s as a result of the willful misconduct or gross negligence of
the City, its Officers, employees, contractors, agents or servants.
12.4 Subrogation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees, contractors, agents or servants.
12.5 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action by
the City or Concessionaire (as applicable), the City or Concessionaire (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,
12
I
regulations, or restrictions in the nature of a prohibition or moratorium, or any
bona fide delay beyond the reasonable control of City or Concessionaire (as
applicable). The foregoing shall not apply to any payments of money due
under this Agreement.
12.6 Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss
or damage sustained by the Concessionaire resulting from an event of Force
Majeure (as defined herein), and the Concessionaire hereby expressly
waives all rights, claims, and demands agai ,the City and forever releases
and discharges the City from all demanos�daims, actions and causes of
ab
action arising from any of the aforesaises.
SECTION 13. DEFAULT AND TERMINATIOI��
Subsections 13.1 through 13.3 shall constit ., ents of defad,"Oder this Agreement. An
event of default by Concessionaire shall ftthe City to exerc .3anv and all remedies
described as the City's remedies under this reement, including b4mot limited to those
set forth in Subsection 13.4. An event of defauy theshall entitlencessionaire to
exercise any and all remedies : ascribed as '"�� s onaire's remdd s under this
Agreement, including but not limif ,; hose set f n Subsection 13.5.
13.1 Bankruptcy.
If either ��t or Con c eas i n it e,spa II be
ed bankrupt or insolvent,
or if area or trusted.of a art the business property of
either arty shai, e appoirr if anyeiver of all or any part of the
busine roperty all be ap ted and shall not be discharged within sixty
(60) days""
ays ar appnent, orlfther party shall make an assignment of its
a Pe
for a ber�e # crec €rs, or shall file a voluntary petition in
..P, y
...
bard, or iQlvency pply for reorganization or arrangement
with its erect tors"W er the bar ruptcy or insolvency laws now in force or
hereinaftertacted, feral, State, or otherwise, or if such petitions shall be
fed against`der partyend shall not be dismissed within sixty (60) days
After such fili%t : then the other party may immediately, or at any time
thee' after, and 44thout further demand or notice, terminate this Agreement
withebein 9 Au diced as to any remedies which may be available to it for
P..:
breach # ',tact.
13.2 Default in Payment.
If any payment and accumulated penalties are not received within fifteen (15)
days after the payment due date, and such failure continues three (3) days
after written notice thereof, then the City may, without further demand or
notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract..
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
13
and without further demand or notice, terminate this Agreement. In the event
that a default is not reasonably susceptible to being cured within such period,
the defaulting party shall not be considered in default if it shall, within such
period, commence with due diligence and dispatch to cure such default and
thereafter completes with dispatch and due diligence the curing of such
default, but in no event shall such extended cure period exceed ninety (90)
days from the date of written notice thereof. In the event Concessionaire
cures any default pursuant to this subsection, it shall promptly provide the
City with written notice of same.
13.4 City's Remedies for Concessionaire's Dt#.
urruei rrui
If any of the events of default, as set: iC, Jn this Section, shall occur, the
City may, after notice (if required) xpiration of cure periods, as
provided above, at its sole option And discreti nstitute such proceedings
as in its opinion are necessary:.; , i�re such defadft and to compensate the
City for damages resulting frt such default(s), in'k#ding but not limited to
. ,
the right to give to Concession x, a notice of terminal, f this Agreement.
If such notice is given, the Term his A� ment shal��1 �minate upon the
date specified in suckpotice from tf 'Concessionait' �On the date so
specified, Concessm.,al ,shall then q i end surrender the Concession Area
to the City pursuant #o # t :,,.,provisions ;of Subsection 13.7. Upon the
termination of this A eme6 y the 'Oft-,
a all rights and interest of
Concessionaire in and to:fie Co6d00i4n Area;and to this Agreement, and
every t ter`oo;fk shall cue ara fti�te and"the City may, in addition to
any ,;'r rights:mod reme nay ha retain all sums paid to it by
Concdnaire ur this Agtment, including but not limited to, beginning
procedur1p colW ;the Perfof nce Bond in Section 14 herein.
In 'ate i0on to ft, ights"§dt rth Above, the City shall have the rights to
pursue a�rty:and `a _f the following:
,. the rig fp injund� p or other similar relief available to it under Florida
law again t Concessionaire; and/or
b. a rightt maintain any and all actions at law or suits in equity or
otr Wiper proceedings to obtain damages resulting from
C o rtsionaire's default.
13.5 Concessionaire's Remedies for City's Default.
If an event of default, as set forth in this Section, by the City shall occur,
Concessionaire may, after the expiration of the cure period, terminate this
Agreement upon written notice to the City. Said termination shall become
effective upon receipt of the written notice of termination by the City. On the
date specified in the notice, Concessionaire shall quit and surrender the
Concession Area to the City pursuant to the provisions of Subsection 13.7.
13.6 Termination for Convenience.
13.6.1 Notwithstanding any other provision of this Section 13,this Agreement
14
i
may be terminated, in whole or in part, by the City, for convenience
and without cause, upon the furnishing of thirty(30)days prior written
notice to Concessionaire.
13.6.2 In the event of termination by the City pursuant to this subsection,
Concessionaire herein acknowledges and agrees that it shall not have
any claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees (including, but
not limited to, claims for any start-up costs, interference in business or
damages for interruption of services : ,,interference in its concession
operations). In no event shall the Q e liable to Concessionaire for
any indirect, incidental, special, e ` .ofits or consequential damages.
13.7 Surrender of Concession Area.
At the expiration of this Agrees i t,or earlier teri"'O tion in accordance with
the terms of this Agreement, oncessionaire shall!Wdender the Concession
Area in the same conditiorf : , the Concession Ab was prior to the
Commencement Date of this zA',areeme reasonab ,wear and tear
excepted. Concessionaire shall re Ve;:"its personal prop ty, upon forty-
eight (48) hours writttice from the y Manager or his designee unless
a longer time period i auto by the . Concessionaire's obligation to
observe or perform thy, cove W shall ive the expiration or other
term inatio Hof this Agreement. Cored occu ncy of the Concession Area
after I�ti.a n: of the"'.".'A. see :III constitute trespass by the
Con onaire, ,mod may f secuf as such. In addition, the
Conces .naire shill pay to tlity One Thousand ($1,000.00) Dollars per
day as liq #ated.: tages for& ch trespass and holding over.
...
SECTI0N.,.1,' lnteftWnally omitted
SECT104, 1 n t e n t i o n a I mitt
SECTION 16 . PECIAL EV8TS / SPONSORSHIPS.
16.1 City'S ecial Events.
iuruu. u 4uiu
Notwitli nc "S" ubsection 16.1 herein, and in the event that the City, at its
sole discre i . deems that it would be in the best interest of the City, the City
reserves the right to displace the Concessionaire for City produced and/or
sponsored special events and/or City produced and/or sponsored
productions. Additionally, the aforestated events may also require additional
time for load-in and load-out of the event. In such cases, the City may
request that Concessionaire cease and desist operations during the term of,
and in the area of, the special event and/or production, and Concessionaire
shall cease and desist during such time. To the extent that Concessionaire is
displaced, and/or required to cease and desist operations, City shall provide,
calculated on a per diem basis for the period of time the Concession Area is
non-operational, a credit against Concessionaire's Concession Fee, prorated
on a per diem basis, to be calculated by dividing the monthly Concession
Fee by 30 and multiplying said figure by the number of days the
15
i
Concessionaire was displaced.. If the Concessionaire is not required to
close, or the City Manager or his designee determines that Concessionaire
may remain open in such a manner as prescribed by the City, that will not
interfere with the special event and/or production, Concessionaire shall use
its best efforts, in either case, in cooperating with the City. If Concessionaire
is allowed to remain open during special events and/or productions,
Concessionaire may be allowed to have in operation its normal daily
complement of equipment and staff. "Normal"shall be defined as equipment
and staff that the Concessionaire customarily has available to service its
patrons within the Concession Area on a final business day (during its
hours of operation).
16.2 Sponsorships.
The City reserves unto itself all: went and Mture rights to negotiate all
forms of endorsement ,,. tionsorship ai%? ements based on the
marketing value of any 0 .,trademark, propett,, brand, logo and/or
reputation. Any and all berg$ derived from anlorsement and/or
sponsorship agreement based c e meting value' ,;City trademark,
property, brand, to and/or reput6to!N061111 belong exclu'9101y to the City.
Concessionaire sh44'* specificaIt t jrohibited from entering into, or
otherwise creating arx sp+otrships art endorsements with third parties
which are based soled er in part o6:,',#- .,we; marketing value of a City
trademark, property, brace, logo arr reputn.
SECTION 17. NO , OPEt SE.
Concessionaire will use, nor suffer cermit any person to use in any manner
whatsoever, the Conces ion Area,for,any imp per, immoral or offensive purpose, or for
any purpose ►lation 6 ` 6W�Mate, eunty, or municipal ordinance, rule, order
or reg4JW t, or`t over imt e r T �-e�u ation now in effector hereafter enacted
or adcd. Concess"rrre wptect, ind�etirnify, and forever save and keep harmless
the City,ifofficers, empt*es, cdhbactors, agents or servants,from and against damage,
penalty, finIk" dgment, exse or r e suffered, imposed, assessed or incurred for any
violation, or bph of any la*;
SECTION 19. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to Concessionaire at the following
addresses:
Damian J. Gallo, President
Damian J. Gallo & Associates, Inc.
1701 Meridian Avenue, Unit 4
Miami Beach, Florida 331-301"'.''
All notices from Concessionaire to the City shall b :.; ed duly served upon receipt, if
mailed by registered or certified mail return receipu'e to the City of Miami Beach at
the following addresses:
City r�ager
City of Beach
1700 Convention Tenter ltrr�
Miami Beach,
With copy to: €hector
Off ± :.:.,Estate
City .Miami aph
,.x.700 Con #ion,. � i., ave
Miami :: 331
e"
Concessionaire and the fy nge th0.hove mailing addresses at any time upon
giving the ;Party we Alltttices under this Agreement must be in
wntin
9�
SECTION LAWS.
20.1 "Compliance.
C ssionaire, all comply with all applicable City, County, State, and
Fed6* rdina s, statutes, rules and regulations (including but not limited
to all app nvironmental City, County, State, and Federal ordinances,
statutes, r'iW"nd regulations, as same may be amended from time to time.
20.2 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap.
Concessionaire will take affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
20.3 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex,
sexual orientation, color, creed, national origin, familial status, religion or
17
handicap, in its employment practice or in the operations referred to by this
Agreement; and further, there shall be no discrimination regarding any use,
service, maintenance, or operation within the Concession Area. All facilities
and services offered shall be made available to the public.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture betwe ;the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed.,:; r6Wed except by agreement in
writing executed by all parties hex ."�'Concesaire acknowledges that no
modification to this Agreemerlt,:�; ' '�e agreed tot the City unless approved
by the Mayor and City ComdUSA16n except where uoh authority has been
expressly provided herein to'f:,City Manager.
21.3 Complete Agreeme �.:.,
This Agreement, tog ith all exh ft ncorporated hereto, constitutes all
the understandings moments of)Whatsoever nature or kind existing
between the parties *th eftept to C essionaire's operations, as
contemplated.herein.
21.4 Hea ,
The set"i'llo;n, sub§6ction and `. raph headings contained herein are for
convenient ;.of ence only",.","..end are not intended to define, limit, or
rlbe the c r rt# of a ..,provision of this Agreement.
21.5 Binding Efft
.This Agreerr ,shall finding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
21.6 Clauses:'
The il leg a i r invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
18
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement shall be so modified.
21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours
of operation, have the right to enter into and upon any and all parts of the
Concession Area for the purpose of examining the same for any reason
relating to the obligations of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed#W` `,'.ho part, parcel, building, structure,
equipment or space is leased to Ccssrci .ire; that this Agreement is a
concession agreement and not a"lle,se, and"' ,tt.Concessionaire's right to
operate, manage, and mainta�t concession
"hag;�continue only so long as
Concessionaire complies a undertakings, p v.uisions, agreements,
stipulations and conditions o % Agreement.
Accordingly, Concppnaire hereto, and acknowle es that in the
event of termination; -this Agreet, whether due to a default by
Concessionaire or ot> tw ,; pncessi6O*e shall surrender and yield unto
the City the Concession:Are , t ccordar ;with Subsection 13.7 hereof,
and the Ctv,shall in no may be rd to eft and/or otherwise remove
Conces �� rpm the aces as ""'this were a tenancy under
Chaps$3, Flora Statutes ���iall Cortsionaire be afforded any other 11�
rights ded to rtresidenFenants pursuant to said Chapter(the parties
having he n exp y,acknoAdged that this Agreement is intended to be
ncessiotr�^r+ �And is 'rte,no way intended to be a lease).
2 1.10 Siqnage'
Concessio �e sha rovide, at its sole expense and responsibility, any
;required sign at its canssion. All advertising, signage and postings shall
,;approved the City; and shall be in accordance with all applicable
Mpal, Cout , State and Federal laws and regulations. Any signage
posh y Conr„�ssionaire shall be subject to the prior approval of the City as
to sized placement of same.
21.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct
the concession operation(s) contemplated herein, in a manner so as to show
no preference for other concession operations/facilities owned, operated,
managed, or otherwise controlled by Concessionaire.
21.12 No Waiver.
21.12.1 It is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict performance
of any of the conditions, covenants, terms or provisions of this
Agreement, or to exercise any option herein conferred, will not be
19
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.
21.12.2 A waiver of any term expressed herein shall not be implied by any
neglect of the City to declare a forfeiture on account of the violation of
such term if such violation by continued or repeated subsequently and
any express waiver shall not affect any term other than the one
specified in such waiver and that one only for the time and in the
manner specifically stated.
21.12.3 The receipt of any sum paid , ncessionaire to the City after
breach of any condition, cove ,t or provision herein contained
shall not be deemed a wadvee"of sucY� breach, but shall be taken,
V,11%11
.Y11'1
and constr .,.,ds payment fore and occupation (and
not as rent), unless std breach be expressl�Wtaived in writing by the
City.
21.13 No Third Party Be!2e}ccialy.
Nothing in this AgrEi shall confer. :on any person or entity, other than
the parties hereto argil A,h **espective cessors and permitted assigns,
any rights or remedies reas of this Agement.
SECTION 22. LIMN'&'` t O LIABILI'T" y
..
The City desires taer intoi~tAgreem� ing the t�agement and operation of the
Concession Area in tie viands ode private r� bagement entity only if so doing the City can
place a limit on its liabi r at use of a6liw for breach of this Agreement, so that its
liability for, O breach w s the gj: n of Ten Thousand ($10,000.00) Dollars.
Conce sire ex sits w#
pe t' �esso enter into this Agreement with a Ten
ThouiiiW$10,000.0 C �Ila........
ration on`r very for any action for breach of contract.
Accordih and in cor ederatic� Qf the separate consideration of Ten Thousand
($10,000.0 ,; ollars, the race ipt of vh is hereby acknowledged, the City shall not be
liable to Concessionaire for 00mageso Concessionaire in an amount in excess of Ten
Thousand ($10 00
, !,,,00) Doll�t� , for any action for breach of contract arising out of the
performance or n6rs erformrce of any obligations imposed upon the City by this
Agreement. Nothing ' in this paragraph or elsewhere in this Agreement is in any
way intended to be a vver of limitation placed upon the City's liability as set forth in
Florida Statutes, Section 768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. 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. THE CITY
AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND
CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
20
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE CONCESSION AREA.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest: CITY OF: #AMI BEACH, FLORIDA
Rafael Granado, CITY CLERK Matti Herrera Bower, MAYOR
SS
Attest: #M GALLO&A CIATES, INC.
Signature / Corprcretary amian` Gallo, PRESIDENT
.P.ci�t Name.
Signature
Print Na e
CORPORATE SEAL
(affix seal here)
T:\AGENDA\2013\September 11\Damian Gallo\Damian J Gallo Concession Agreement DRAFT(9-3-13).doc
21
EXHIBIT 2.1
Concession Area
y
II
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v A
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,._-I �
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t� v A
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� v A
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22
EXHIBIT 3.2
Additional Requirements
The Concession Area shall be maintained in a clean, neat and orderly appearance at all
times by the Concessionaire. The area of the sidewalk, curb and gutter immediately
adjacent to the Concession Area 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 Manager.
The Concessionaire shall be responsible for cle ' e floor surface on which the
outdoor seating is located at the close of eacti.;;b stiessd"" g In addition, the following
conditions shall apply:
a. Tables, chairs, umbrellas and����,� other outdoor ca` :.:furniture shall be
maintained in a clean, attractive, and ord ly, appeararr and shall be
maintained and kept inod repair #
b. All outdoor furniture slid ►;hi h ualli 1*sin materials and workmanship
so as to ensure the safe f r nvenience�'� ,the public;
c. Only the outdoor cafe furniti sp shovpn the approved site plan shall
be allowed Concessi�ri
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 Concession
Area 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 Concessionaire shall,within no more than four hours
of same, remove and place indoors all tablq ,,: hairs and any other outdoor
furniture located on the Concession Area. Tai Notification by the City Manager
of a hurricane or other major weather :.. r the issuance of a hurricane
warning, shall constitute a public emcyT ation as referenced in this
division. The City Manager may rem,,'*.."',' ye, relocat ; and/or store any outdoor
furniture found on the Concessiop::;Rita that has othe a not been removed by
the Concessionaire pursuant tcs subsection. Any ::all costs incurred by
the City for removal, relocation arY ,'Storage of Concessc # re's furniture shall
be the responsibility of the Concessl6haire
24
Attachment 5
1701 Meridian Avenue
Rent Schedule
RETAIL SPACE
Tenant Sq. Ft. Rent Basis RE Taxes Insurance C.A.M. Total
South Florida Salon 1,327
Monthly $ 5,808.94 $ - $ - $ - $ 5,808.94
Annually $ 69,707.31 $ - $ - $ - $ 69,707.31
PSF $ 52.53 Gross $ - $ - $ - $ 52.53
Massage Envy 1,802.89
Monthly $ 4,146.92 $ 1,115.61 $ 135.22 $ 600.96 $ 5,998.71
Annually $ 49,763.04 $ 13,387.29 $ 1,622.64 $ 7,211.52 $ 71,984.49
PSF $ 27.60 N N N $ 7.43 $ 0.90 $ 4.00 $ 39.93
Uni-K Wax 1,290.59
Monthly $ 3,326.39 $ 798.80 $ 96.79 $ 430.20 $ 4,652.18
Annually $ 39,916.68 $ 9,585.57 $ 1,161.48 $ 5,162.40 $ 55,826.13
PSF $ 30.93 N N N $ 7.43 $ 0.90 $ 4.00 $ 43.26
Permit Doctor 1,268.87
Monthly $ 3,874.10 $ 785.18 $ 95.17 $ 422.96 $ 5,177.41
Annually $ 46,489.23 $ 9,422.16 $ 1,142.04 $ 5,075.52 $ 62,128.95
PSF $ 36.64 N N N $ 7.43 $ 0.90 $ 4.00 $ 48.96
Updated 8/22/13
11411111111 THURSDAY,AUGUST 29,2013 NE MiarrdHmId.com I WANT HERALD
i
MI M BE 4H
CITY OF MIAMI BEACH
NOTICE OF PUBUC HEARINGS
NOTICE IS HERESY given that public hearings will be held by the
Mayor and City Commission of the City of Miami Beach,Florida.in the
Commission Chambers,3rd Floor,City Hall,1700 Convention Center
Drive,Miami Beach,Florida,on Wednesday,September 11,2013 to
consider the following:
11:43 am.
A Resolution Approving A Revocable Permit Request By First Street
Development, LLC, As The Owner Of The Commercial Property
Located At 800 First Street,To Construct Four(4)Concrete Eyebrows
That Project Over And Into The Pubic Right-Of-Way,At A Minimum
Horizontal Dimension Of 2'-2"At 7-6"wove The Sidewalk,To A
Maximum Horizontal Dimension Of 5'-0"At 9'-8"Above The Sidewalk
Inquiries may be directed to the Public Works Department at. 5)673-7080.
1200 pm.
Vacation Of Alleyway-500 Acton Road
A Resolution Approving,On Second Reading,The Vacation Of An Alley
Located In The 5W Block Of Alton Road,Containing Approximately 6,005
Square Feet,In Favor Of The Adjacent Property Owners,South Beach
Heights I,LLC,5W Alton Road Ventures,LLC,And 1220 Sixth,LLC.
Inquiries may be directed to the Public Works Department at(305)673-7080,
1216 P.M.
A Resolution Accepting The Recommendation Of The Finance And
Citywide Projects Committee Pertaining To The Early Termination Of An
Existing Retail Lease Agreement Between The City And Damian J.Gallo
&Associates;Inc.D/WA Permit Doctor;Approving And Authorizing The
Mayor And City Clark To Execute:1)A New Lease Agreement Between
The City And Damian J.Gait&Associates,Inc.D/B/A Permit Doctor,
For An initial Term Of Three(3)Years,With Two(2)Renewal Options For
Two(2)Years Each,Involving The Use Of Approximately 1,269 Square
Feet Of City-Owned Property Located At 1701 Meridian Avenue.
Unit 4 (AWA 775 17th StrereQ, Miami Beach,Florida(The"Leased
Premises"); And 2)A Revocable Concession Agreement Between
The City Arai Damian J.Gallo&Associates.Inc.D/B/A Permit Doctor,
Allowing For An Outdoor Seating Area, Adjacent To The Leased
Premises; And Further Waiving By 5/7ths Vote, The Competitive
Bidding Requirement,Finding Such Waiver To Be In The Best Interest
Of The Public.
Inquiries may be directed to the Real Estate,Housing.&Community
Development Office at(305)673-7260,
INTERESTED PARTIES are invited to appear at this meeting,or be
represented by an agent.or to express their views in writing addressed
to the City Commission,clo the.City Clerk,1700 Convention Center
Drive,1 st Floor.City Halt,Miami Beach,Florida 33139.Copies of these
items are available for public inspection during normal business hours
in the City Clerk's Office, 1700 Convention Center Drive, 1st Floor;
City Hail,Miami Beach,Florida 33139.This meeting or arty of the items
herein may be continued,and under such circumstances additional
legal notice will not be provided.
Rafael E.Granado.City Clerk
City of Miami Beach
Pursuant to Section 286.0105,Fla.Stat.,the City hereby advises the
public that if a person deckles to appeal any decision made by the
City Commission with respect to any matter considered at its meeting
or its hearing,such person must ensure that a verbatim record of the
proceedings is made,which record Includes the testimony and evidence
upon which the appeal is to be based.This notice does not constitute
consent by the City for the introduction or admission of otherwise
inadmissible or irrelevant evidence,nor does it authorize challenges or
appeals not otherwise allowed by law.
To request this material in accessible format,sign language interpreters,
information anaccessforpwsom with disabilities and/oranyac=nmodation
to review any document or participate in any City-sponsored proceeding,
please contact us five days in advance at(305)673-7411(voice)or TTY
users may also call the Florida Relay Service at 711.
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