2013-28404 Reso RESOLUTION NO. 2013-28404
RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA("CITY"),ACCEPTING THE RECOMMENDATION OF
THE CITY'S FINANCE AND CITYWIDE PROJECTS COMMITTEE("FCWPC");
APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE A LEASE AGREEMENT BETWEEN THE CITY AND ALPHA 22, LLC
("TENANT") INVOLVING THE USE OF APPROXIMATELY 2,216 SQUARE
FEET OF CITY-OWNED VACANT PROPERTY, LOCATED AT 22
WASHINGTON AVENUE, MIAMI BEACH, FLORIDA ("PROPERTY"),
ADJACENT TO EXISTING RESTAURANT SPACE LOCATED AT 816
COMMERCE STREET, MIAMI BEACH, FLORIDA ("RESTAURANT SPACE"),
TO BE USED AS AN OUTDOOR CAFE,CONCURRENT WITH THE LEASE/USE
OF THE ADJOINING RESTAURANT SPACE; SAID LEASE HAVING AN INITIAL
TERM OF FIVE YEARS, WITH AN OPTION TO RENEW FOR FOUR YEARS
AND 364 DAYS, AT THE CITY'S SOLE DISCRETION; AND FURTHER
WAIVING, BY A 5/7TH VOTE,THE COMPETITIVE BIDDING REQUIREMENT,AS
REQUIRED BY SECTION 82-39 OF THE MIAMI BEACH CITY CODE, FINDING
SUCH WAIVER TO BE IN THE BEST INTEREST OF THE PUBLIC.
WHEREAS, the City and Alpha 22, LLC,a Florida limited liability company("Tenant"),have
negotiated a five (5)year lease, with an option to renew for an additional four(4)years and three
hundred sixty four(364) days ("Lease"), at the City's sole discretion, for the use of approximately
2,216 square feet of vacant City-owned property, located at 22 Washington Avenue(the"Property")
for an outdoor cafe associated with a restaurant operation located at 816 Commerce Street,which is
directly adjacent to and west of the Property; and
WHEREAS, the lease proposal for this Site was referred by the City Manager to the City's
Finance and Citywide Projects Committee ("FCWPC") meeting of September 19, 2013 and the
FCWPC recommended entering into a Lease with Tenant and directed Staff to finalize a proposed
Lease for approval by the City Commission; and
WHEREAS, pursuant to Section 82-37 of the Miami Beach City Code,governing the lease
of City property for a term of ten years or less(including option periods),the Lease requires a public
hearing to obtain citizen input and may be approved on one reading; and
WHEREAS Section 82-39 of the Miami Beach Ci ty Code, governing overnin the sale or lease of
City property requires an advertised public bidding process,which condition may be waived upon a
finding by the City Commission that the public interest would be served by waiving such condition,
and the Administration would hereby recommend that the Mayor and City Commission approve said
Waiver;
NOW,THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission of the City of
Miami Beach, Florida,following a duly noticed Public Hearing to obtain citizen input on same,hereby
approve and authorize the Mayor and City Clerk to execute a Lease agreement between the City
and Alpha 22, LLC, involving approximately 2,216 square feet of the City-owned property,located at
22 Washington Avenue, Miami Beach, Florida ("Property"), adjacent to existing restaurant space
located at 816 Commerce Street, Miami Beach, Florida, to be used as an outdoor cafe, concurrent
with the lease/use of the adjoining restaurant; said lease having an initial term of five years,with an
option to renew for four years and 364 days,at the City's discretion;further waiving, by 5/7ths vote,
the competitive bidding, as required by Section 82-39 of the Miami Beach City Code, said waiver
being in the best interest of the Public.
PASSED and ADOPTED this 16th day of October, 2013.
ATTEST:
CITY CLIEERK =i ► ... MAYOR
JLM\KGB\MS\GNT
F:\DDHP\$ALL\ASSET\22 WASHINGTOWN a ,E ase o Co issi kl 16-2013
P ORATED:
APPROVED AS TO
FORM &LANGUAGE
&,FOR EXECUTION
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[Date
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COMMISSION ITEM SUMMARY
Condensed Title:
Resolution approving and authorizing the Mayor and City Clerk to execute a Lease between the City and Alpha 22, LLC ("Tenant"),
involving the use of approximately 2,216 square feet of City-Owned vacant property, located at 22 Washington Avenue, Miami Beach,
FL("Property"), adjacent to existing restaurant space located at 816 Commerce Street, Miami Beach, Florida ("Restaurant Space"),to
be used as an outdoor cafe, concurrent with the adjoining Restaurant Space; said Lease having an initial term of five (5) years, with
an option to renew for four 4 ears and 364 days, at the City's sole discretion.
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.
Issue:
Shall the City commission authorize the execution of the Lease and further waive the competitive bidding requirements.
Item Summa /Recommendation:
The Administration received a letter of Intent from Tenant, involving the use of the Property as an outdoor cafe, adjacent to the
existing Restaurant Space, in connection with establishing a French restaurant.
The Administration recommends entering into a lease with Tenant, subject to the known Neighborhood Restrictions previously
discussed and approved by SOFNA, based upon the following material terms,which have been incorporated in the proposed Lease:
1. Term to be for an initial five (5)years, with an initial base rent of$20.00 per square foot, plus 3%annual escalations with an
option to renew for four(4)years and 364 days, at the City's sole discretion;
2. Rent during the renewal term will be subject to a review of the Tenant's annual operating results, upon which a determination
will be made whether to charge the Tenant a percentage of gross receipts or to continue to assess a fixed annual rent, based
upon the fair market rent at the time, to be escalated annually by 3%; however, at no time will the base rent during the
renewal period be less than the rent for the previous lease year plus the 3%escalation;
3. Three(3) months deposit($11,079.99);
4. Rent to Commence as of the later of: one month from lease Commencement Date or when the restaurant opens; however
no later than six months from Lease Commencement Date;
5. One time Special Event Permit for opening the restaurant. No other special event permits allowed.
Recommendation:
The administration has conducted a current review of rates in connection with the use of other outdoor concession/lease agreements
with the City and finds that the rates are consistent with the determination of$20.00 per square foot rent, as recommended by the
City's Finance and Citywide Projects Committee. Additionally, the Administration is recommending that during the renewal period, at
year six of the Lease, the Administration will have an opportunity to analyze the rent again and may adjust the rent, based upon Fair
Market Rent at the time, including the possibility of percentage rent.
The Administration therefore recommends that the Mayor and City Commission approve a resolution accepting the recommendation
of the City's Finance and Citywide Projects Committee, approving and authorizing the Mayor and City Clerk to execute a lease
agreement between the City and Alpha 22, LLC ("Tenant") involving the use of approximately 2,216 square feet of City-Owned vacant
property, located at 22 Washington Avenue, adjacent to existing restaurant space located at 816 Commerce Street, Miami Beach,
Florida 33139 ("Property"), to be used as an outdoor cafe, concurrent with the Lease/use of the adjoining restaurant; said Lease
having an initial term of five(5)years,with an option to renew for four(4)years and 364 days, at the City's sole discretion; and further
waiving, by a 5/7th vote, the competitive bidding requirement, as required by Section 82-39 of the Miami Beach City Code, finding
such waiver to be in the best interest of the Public.
Advisory Board Recommendation:
Finance&Citywide Projects Committee on September 19,2013 recommended execution of lease with Tenant.
Financial Information:
Source of Funds: Amount Account
1
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Max Sklar, Ext. 6116
Sign-Offs:
RHC i ct r Assistant Citnanager Cit napger
MS KGB JL
D7
AAIAMIBEACH AGENDA ITEIIA ��
�
DATE 10-16- �3
MIAMIBEACH
City of Miami Beath, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti H. Bower and Member of the City ommission
FROM: Jimmy L. Morales, City Manager
DATE: October 16, 2013
SUBJECT: RESOLUTION OF THE MAYOR ND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FL RIDA ("CITY"), ACCEPTING THE
RECOMMENDATION OF THE CITY'S FINANCE AND CITYWIDE
PROJECTS COMMITTEE ("FCWPC"); APPROVING AND
AUTHORIZING THE MAYOR AND CITY CLERK -TO EXECUTE A
LEASE AGREEMENT BETWEEN THE CITY AND ALPHA 22, LLC
("TENANT") INVOLVING THE USE OF APPROXIMATELY 2,216
SQUARE FEET OF CITY-OWNED VACANT PROPERTY, LOCATED
AT 22 WASHINGTON AVENUE, MIAMI BEACH, FLORIDA
("PROPERTY"), ADJACENT TO EXISTING RESTAURANT SPACE
LOCATED AT 816 COMMERCE STREET, MIAMI BEACH, FLORIDA
("RESTAURANT SPACE"), TO BE USED AS AN OUTDOOR CAFE,
CONCURRENT WITH THE LEASEWSE OF THE ADJOINING
RESTAURANT SPACE; SAID LEASE HAVING AN INITIAL TERM OF
FIVE YEARS, WITH AN OPTION TO RENEW FOR FOUR YEARS AND
364 DAYS, AT THE CITY'S SOLE DISCRETION; AND FURTHER
WAIVING, BY A 5/7T" VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, AS REQUIRED BY SECTION 82-39 OF THE MIAMI
BEACH CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE PUBLIC.
Background
The City has received an offer from Alpha 22, LLC ("Tenant" or "Alpha") to lease a City-
owned vacant parcel, having approximately 2,216 square feet, located at 22 Washington
Avenue, ("City-Owned Parcel" or "Property"), which is adjacent and east of 816
Commerce Street, a privately owned two-story commercial building. This Property is a
remaining portion of an undeveloped platted lot which is the residual lot in connection
with the expansion of Washington Avenue. Due to its limited size and shape, the
Property serves little more than to provide access to 816 Commerce Street. The
proposal to lease this Site is from a restaurateur who proposes to place tables and
chairs on the Site to supplement the interior seating in the adjacent, privately-owned
restaurant ("Restaurant Space").
The City has been approached by other restaurant operators in the past regarding the
use of this Site. In 2006, the City Commission approved a lease agreement with
Manpriya, Inc. for use of the Site, and the lease was fully executed; however, the project
was never developed. In 2009, the City Commission approved a Lease Agreement with
Commission Memo Alpha 22, LLC
22 Washington Ave. Lease Agreement
October 16, 2013
Page 2 of 5
Moon Thai South Beach, Inc., for use of the Site as an out-door cafe. The financial
lease terms approved were substantially the same as a previous lease agreement, with
an initial base rent of $25.00 per square foot or 3% of sales. A list of operational
conditions were recommended by the local neighborhood association ("Neighborhood
Restrictions") and subsequently approved by the City Commission and incorporated into
the lease. As had occurred previously, the proposed tenant failed to develop the Site for
its intended use and the lease terminated for non-payment of rent.
On November 7, 2010, the City Commission approved a Lease Agreement with Syanna,
LLC ("Syanna"), whose managing principal, Symcha Zilberman, invested substantial
sums in building out the interior space as well as improving the City-Owned Parcel. The
lease with Syanna was subject to the Neighborhood Restrictions and was for an initial
five (5) year term, with one (1) renewal option for a period of four years and 364 days.
The base rent for the initial lease term was $20.00 per square foot, which increased to
$25.00 per square foot for the second year and $30.00 per square foot for years three
through five. The base rent for the renewal period was subject to be negotiated by the
City and could have involved a percentage rent structure, as part of the negotiated
terms. The Restaurant Space accommodates approximately 35 people; however, as a
result of the Outdoor Improvements made by Syanna, the City-Owned Parcel
accommodates outdoor seating for an additional 56 people, pursuant to the site plan
attached hereto as Exhibit "A". Within one year from the Rent Commencement date,
Syanna's managing principal became ill, Syanna defaulted under its lease terms by
failing to pay the rent and shortly thereafter closed its doors.
Analysis
This latest offer to lease the City-Owned Parcel comes from Alpha, with the proposal of
utilizing the City-Owned Parcel and adjoining Restaurant Space as a French Restaurant.
Alpha's managing principal, Mr. Olivier Lubrano, currently manages and operates a
French restaurant in New York, under the name of Rouge NYC. Mr. Lubrano intends to
follow a similar business plan, inclusive of menu, as the one currently utilized for Rouge
NYC, a copy of which is attached hereto and made a part hereof as Exhibit "B". Mr.
Lubrano has more than 20 years of experience managing various businesses and more
than thirteen years managing various French restaurants, as evidenced from the
Resume, attached hereto and made a part hereof as Exhibit "C". Alpha currently intends
to use the plan developed by the previous tenant, Syanna, ("Syanna Site Plan"), which
was approved by Planning; however, Tenant understands that any modifications thereto
have to be approved by the City, as Landlord, and the Planning and Zoning Department.
In order to mirror the lease terms for the Restaurant Space, Alpha proposes a lease for
nine years and 364 days, for the use of this Property, with an initial base rent of $20.00
per square foot, plus 3% annual increases every year thereafter, subject to the known
Neighborhood Restrictions, as evidenced from the Letter of Intent, attached hereto and
made a part hereof as Exhibit "D'.
In order to develop a recommendation for the lease proposal, in connection with the
previous lease with Syanna, the Administration obtained an appraisal for the site
prepared by Bondarenko Associates. The appraiser found no comparables as there are
no other outdoor seating areas in the vicinity. The subject site is not a sidewalk cafe,
and therefore, current sidewalk cafe fees are not a reasonable market comparable;
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
Commission Memo Alpha 22, LLC
22 Washington Ave. Lease Agreement
October 16, 2013
Page 3 of 5
foot basis, is provided below:
Annual Annual Gross Revenue
Concessionaire/ Gross % Base Amount Square To City
Tenant Address Revenue To City Rent To City Feet Per Sg. Ft.
Smith&Wollensky 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
Damian J. Gallo 1701 Meridian Avenue N/A N/A 10140 $10,140 507 $20.00
It should be noted that the outdoor concession areas for this Site have been previously
unsuccessful, including for Syanna. Cinematheque, similarly closed prematurely because it
was not generating sufficient revenue to stay open.
In determining a fair market rate for use of the outdoor concession, The Administration took
the average per square foot rate from the highest rent paid under the Syanna Lease and
Cinematheque, which was approximately $20.00 per square foot. Smith and Wollensky was
not considered to be comparable to the operation proposed by Alpha.
Based on the foregoing, the Administration recommends the following terms, which have
been incorporated in the proposed Lease, attached hereto and made a part hereof as
Exhibit "F":
Terms Recommended by the Administration
Lease Term: 5 Years
Renewal Option: One (1)for four(4)years and 364 days
Deposit: 3 months, $11,079.99
Area 2,216 Square Feet
Price/psf ?Annual Rent 'Monthly Rent
Year 1 $ 20.00 $44,320.0&
& $ 3,693.33
year 2 $ 20.60 ; $45,649.60 -^«- :-$ -� 3,804.13
year 3 ! $ 21.22 ! $ _47,019.09 J T _ _ _-' $__ 3,918.26
year 4
, $ 48,,--$ �,r tL_.-
_1.85 ' 429.66_ `�r 1 $ _�4,035.81
year 5 i $ _22.51,;$ 49,882.55 Yi-, $ 4,156.88^
Renewal Option (Analyze for Fair Market Rent)
year 6 $ 23.19 � $ �51,379.03 i, $T� 4,281.59
year 7 , $ _23.88 ; $ 52,920.40 _ $ 4,410.03
year 8 $ 24.60 $—54,508.01 $ K 4,542.33
year 9 ^a_v$ 25.34 ; $ 4,678.60
year 1001 $ 26.10 $ �57,827.55 ;--v— $ �-4,818.96_
Total $ 508,079.13 -
Rent during the renewal term will be subject to a review of the Tenant's annual operating
results, upon which a determination will be made whether to charge the Tenant a
percentage of gross receipts or to continue to assess a fixed annual rent, based upon
Commission Memo Alpha 22, LLC
22 Washington Ave. Lease Agreement
October 16, 2013
Page 4 of 5
the fair market rent at the time, to be escalated annually by 3%; however, at no time will
the base rent during the renewal period be less than the rent for the previous lease year
plus the 3% escalation.
In order to allow Alpha time to obtain its governmental approvals to open for business,
the Administration is recommending that rent commence at the later of one month from
the Lease Commencement Date or the date the restaurant opens for business ("Rent
Abatement Period"); however, said Rent Abatement Period shall not exceed six (6)
months from the Lease Commencement Date. This Rent Abatement Period will allow
Tenant time to develop the Site and start up its operations, so that it will have cash flow
in order start remitting rent.
In addition, as provided in the Syanna Lease, the Administration is recommending a
one-time exclusion (only if needed) to pull a special event permit in order to host its
grand opening event (subject to Special Event permit requirements and reviews). At no
other time during the lease term would the Tenant be allowed to apply for a special
event permit.
The balance of Alpha's proposed lease terms generally include, but are not limited to the
following provisions (consistent with the terms approved for Syanna), inclusive of the
Neighborhood Restrictions:
1) Tenant, at its sole cost and expense, may develop the City-Owned Property into
the aforementioned outdoor cafe, and demolish and remove any improvements
at lease termination (at the City's discretion);
2) Tenant agrees to use the City-Owned Property solely as an outdoor cafe to serve
the patrons and guests of the adjoining restaurant at 816 Commerce Street.
Furthermore, Tenant agrees not to place any speakers in or around the Property
and/or attach any speakers to the exterior of the restaurant building at 816
Commerce Street. The Planning Department analysis dated March 16, 2006
supports such use of the City-Owned Property and recommends the condition of
use as stated herein. The Planning Department condition of use is consistent
with expressed City Commission concerns relating to the previous leases for this
Property'and has been incorporated in order to mitigate those concerns;
3) Alpha must obtain approvals from the Planning Department and the City
Administration in the design and layout of the outdoor cafe pavers, tables, chairs
and umbrellas;
4) In addition to the above-referenced security deposit, Alpha agrees to provide a
performance bond, or other similar instrument (e.g. irrevocable letter of credit,
surety bond, etc.) acceptable to the City, in an amount equal to the estimated
costs to construct any proposed improvements;
5) Any delivery, take-out, valet, taxi or sidewalk cafe must only utilize Commerce
Street; these activities will not be allowed on Washington Avenue; deliveries to
the business must be made from the kitchen entrance located in the alley on the
south side of 816 Commerce Street;
6) No televisions will be permitted to be part of the outdoor cafe;
7) There shall be no bar counter allowed outside. Liquor and food operations
involving the outdoor cafe shall only be done in conjunction with the adjacent
restaurant operations and only when the interior kitchen is operational;
8) Tenant will not apply for Special Event permits;
9) Tenant's operation will not interfere with pedestrian traffic;
10)Tenant's hours of operation are currently established as follows: Sunday through
Thursday 11:30am to 11:00pm; Friday through Saturday 11:30am to midnight;
Commission Memo Alpha 22, LLC
22 Washington Ave. Lease Agreement
October 16, 2013
Page 5 of 5
11)No bussing stations shall be permitted in the outdoor cafe area.
CONCLUSION
Based on the unique disposition of this undeveloped parcel of land, and its limited use
due to the size and location, it has been determined that the parcel would not be subject
to public bidding as it could only be used with any functionality by the adjacent property.
The administration has conducted a current review of rates in connection with the use of
other outdoor concession/lease agreements with the City and finds that the rates are
consistent with the determination of $20.00 per square foot rent, as recommended by
the City's Finance and Citywide Projects Committee. Additionally, the Administration is
recommending that during the renewal period, at year six of the Lease, the
Administration will have an opportunity to analyze the rent again and may adjust the
rent, based upon Fair Market Rent at the time, including the possibility of percentage
rent.
The Administration therefore recommends that the Mayor and City Commission approve
a resolution accepting the recommendation of the City's Finance and Citywide Projects
Committee, approving and authorizing the Mayor and City Clerk to execute a lease
agreement between the City and Alpha 22, LLC ("Tenant") involving the use of
approximately 2.216 square feet of City-Owned vacant property, located at 22
Washington Avenue, Miami Beach, Florida ("Property"), adjacent to existing restaurant
space located at 816 Commerce Street, Miami Beach, Florida ("Restaurant Space"), to
be used as an outdoor cafe, concurrent with the Lease/use of the adjoining restaurant;
said Lease having an initial term of five (5) years, with an option to renew for four (4)
years and 364 days, at the City's sole discretion; and further waiving, by a 5/7th vote, the
competitive bidding requirement, as required by Section 82-39 of the Miami Beach City
Cod , inding such waiver to be in the best interest of the Public.
JLM\ , B\ NT
Attachme
"A" -Syanna Site Plan
"B"- Rouge NYC Business Plan and Menu
"C"- Managing Principal's Resume
"D" -Alpha Letter of Intent and Corporate Information
"E"- Proposed Lease
cc: Jimmy L. Morales, City Manager
Kathie G. Brooks, Assistant City Manager
Max Sklar, Director for Tourism, Culture and Economic Development
Gisela Nanson Torres, Leasing Specialist
FAECOM$ALLIASSE7122 WASHINGTOMCommission Memo Alpha 22, LLC Lease 10-16--2013
------- _JL4j LJL_•L uIU.
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OUTDOOR SEATING AREAS:
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),kUGE
Appetizers
Lobster Salad
Artichoke Salad
Salade Nicoise with fresh tuna
Fish soup
Haricots verts with Foie gras
Beef Carpaccio
Tuna tartare
See food Carpaccio(octopuss,schrimp,fish from the fresh market)
Apple tarte with foie gras
Poissons-From the Sea
Grilled fish(fresh from the market)
Grilled Lobster
French traditionnal.octopuss"daube"
Branzino
Fish en croute de sel"
Gambas with lemon reduction sauce
Viande-Meat
Souris d'agneau
Filon mignon grille fleur de sel
Roasted organic chicken
Roast beef
French traditional "Roti de Veau" au jus de truffe
Tajine de poulet
Accompagnement-Side
Ratatouille
Coquillettes aux truffes
Spinach with roasted garlic
Green Salad
French Fries with rosmary
--Dessert--1
Mousse au chocolat
Trio de"cr6me brulee"Vanilia,cofee,pistachio
Fraise a la chantilly maison
Tarte
Millefeuille
Fruit frais
Home made sorbet granite
French Cheeses plate
-------------------------------- .............................------------------------------------ ----------------- -----------
Mr. 01iWerLUBR,4N0
95 Wall Street,Apt. 1605
New York,NY, 10005
USA
Cellphone:+1718-502-5914
Email: o.lubrano@gmail.com
PROFESSIONAL EXPERIENCE:
From June 2012 Restaurant Le Seaven,Radisson Hotel,
Owner and creator of the concept
Restaurant located on the rooftop of this five star hotel.
October 2010-June 2012 Restaurant La Petite Maison,New York
General Manager
Fine dining french restaurant with 140 seats,
Managing staff of 45 people,including kitchen
June 2007—September 20 10 Palais Club Cannes.France(Club and restaurant)
General Manager
Bar and full kitchen french restaurant with 120 seats
September 2006—June 2010 Tantra Restaurant Cannes,France
Co-owner
Full kitchen french restaurant
June 2000—April 2006 Restaurant Le Cabanon
Co-owner
Full kitchen french restaurant with fish specialities
March 2006—June 2007: Caption UK Ltd,London.UK
Sales Manager and Associate
Company specialized in Silver Jewelry.
I was recruited as sales manager and following the good
performances obtained,the owner of the company
proposed to me to become associated.
June 2000—february 2006: Kulte,the French Brand. Marseille.France
Sales Manager.
Lwas in charge of the customers and.the sales
-a
dd'-12TA16-s�rop7fe RiV
V6�`(220jitiilers
increasing business Turnover of 70%in 3 years.
December 98—May 2000 : Le Galoubet,Restaurant.Val Thorens.France
Floor Manager
Management of the reservations customers.
Manager of the staff of Waiters(16 people
March 96—September 98 : Balle de Match.Paris,France
Sales Manager
Balle de Match is a press,communicaton and advertising
agency.
EXHIBIT C
September 90—February 96 : Decathlon sport store.Toulon.Trance
Department Manager and Store Manager
After a first period of 3 years as department manager,
I became store manager.
I had during this period a training specialized in
recruitment,management and human resources.
EDUCATION :
i
1989-90 : School of Management in Restaurant Business
1988-89 : Business School of the«Chambre de Commerce et d'Industrie de Paris o
i
1987: Lycee Langevin—Toulon
Baccalaureat(U.S. equivalent High School Diploma).
SPECIALS SKILLS:
English Language: Fluent
Italian Language: Basic
Computer skills: Familiar with Microsoft Office,Word,Excel....
Travel: Once every year to Italy,UK.2 times in NY in 2009.
i
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August 9,2013
Mr. Max Sklar, Director
Tourism, Culture& Economic Development
Office of Real Estate
1755 Meridian Avenue, Suite 500
Miami Beach, FL 33139
Re: Non-Binding Letter of Intent and proposal by Alpha 22, LLC to lease a 2,216
square foot outdoor space at 816 Commerce Street(22 Washington), Miami Beach
FL 33139("Premises").
Dear Mr. Sklar:
Please consider the below outlined terms and conditions, subject to future approval by the City,
in connection with a possible lease of the above referenced City-owned property.
Tenant: Alpha 22, LLC; DBA: To be Determined
Landlord: City of Miami Beach
Premises: 2,216 square foot space, more particularly described in the
attached Exhibit"A"
Use: For an outdoor cafe to serve patrons and guests of the
adjoining restaurant at 816 Commerce Street and for no
other use or purpose, subject to the restrictions attached
hereto as Exhibit"B"and any other necessary restrictions
to be contained in the final lease, at the sole discretion of
Landlord.
Base Rent: $20.00/PSF, plus sales tax, for the first year, with 3%
annual increases thereafter.
Term: Initial nine years and 364 days from Lease
-- _� Cor��menc. me_t;Concurrent with adjoining-restaurant
- -lease;.terminable upon term mation of adjoie mg restaurant_-_ _ 1
lease.
Possession/
Lease Commencement: Upon lease Commencement of the adjoining restaurant
lease.
Rent Commencement: The later of one month from execution of lease or date
restaurant opening premises for business at 816
EXHIBIT 0
Commerce(22 Washington), but no later than(6) six
months from lease execution date.
Security Deposit: One month of Base Rent, plus sales taxes.
Option: N/A
Property Taxes: Tenant.shall be responsible for all Property Taxes and
other impositions in connection with the Leased Premises,
to the extent that such Property Taxes and other
impositions become due.
Delivery Condition: As-Is
Sales Tax: Tenant shall pay any and all applicable sales and use
tax.
Additional Restrictions: Tenant agrees that any (i) valet parking and/or a taxi
cab stand; (ii) delivery and/or take-out service; and
(iii) any Sidewalk Caf6 permit, if approved by the City
in conjunction with the Tenant's restaurant operation
at 816 Commerce Street shall not utilize Washington
Avenue and will be limited to Commerce Street.
No application for a City of Miami Beach special event
permit shall be sought by Tenant for the Demised
Premises and Tenant's restaurant building at 816
Commerce Street during the term of the Lease
Agreement.
It is understood and agreed that the Demised
Premises shall be used by the Tenant during the term
of this Agreement only for the uses contemplated
p ose or use whatsoever.other purpose. herein, and for no p
Tenant will not make or permit any use of the
Demised Premises that, directly or indirectly, is
forbidden by public law, ordinance or government
regulation, or that may be dangerous to life, limb or
Ten_ant�.�m_,aJ not commit waste on.nth -
- -. -
= - - isetl =Premises,-use 'he emise remises`"f6r
any illegal purpose, or commit a nuisance on the
Demised Premises. In the event that the Tenant uses
the Demised Premises for any purpose not expressly
permitted herein, then the City may declare this
Agreement in default, or without notice to Tenant,
restrain such improper use by injunction or other legal
action.
improvements—Required
Approvals/Procedures: Capital improvements contemplated for the Lease
Premises require and are subject to Landlord's prior
written consent. Plans for such improvements are
also subject to Landlord's review and approval in
writing. Moreover, such construction shall be properly
permitted and done in compliance with all applicable
Municipal, County, State and Federal regulatory
requirements, and shall be accomplished through the
use of licensed, reputable contractors who are
acceptable to the City.
Without the prior written consent of the City, Tenant
shall not permit the painting and display of any signs,
plaques, lettering or advertising material of any kind
on or near the Demised Premises. All additional
signage shall comply with signage standards
established by the City and comply with all applicable
building codes, and any other Municipal, County,
State and Federal laws.
Performance Bond: Tenant shall deliver a Performance Bond, or other
similar instrument (e.g. Letter of Credit, Surety Bond,
etc.) acceptable to the City, in an amount equal to the
estimated cost to demolish and remove, at the City's
sole discretion, any improvements constructed on the
Demised Premises, at the termination and/or
expiration of the Agreement.
Tenants Insurance: Comprehensive General Liability in an amount not
less than$1,000,000 per occurrence.
F Workers Compensation and Employers Liability
Coverage in accordance with Florida Statutes.
_--
_- 'M�interiance Oblogationa- -Tenant shall be responsible for day tb='day 1.
maintenance and repairs of the Leased Premises.
Utilities: Tenant shall be responsible for all utility costs,
including without limitation, water, gas, electricity,
sewer, storm water, and any other utility service
provided to the Leased Premises.
r
Commission: Landlord shall .not be responsible for payment of a
commission in connection with the lease of the subject
property.
This proposal and shall not be deemed to be a commitment by or binding upon Landlord or
Tenant until a lease has been negotiated and executed by the parties.
Should you have any questions with respect to this Letter of Intent please do not hesitate to
y contact me.
Sincerely,
Alpha 22, LLC
,By:
Oliver Lubrano, a
i
F:/RHCD/$aIUECON/$aIYAsseVAsset/22 Washington/L01 from Alpha 22.LLC 8-5-13
I
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;
f
;
i 1
EXHIBIT A
Description of Demised Premises
A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No. 3, according to the plat thereof,
recorded in Plat Book 2, at page 81, of the Public Records of Dade County, Florida, being more
particularly described as follows: Bounded on the North by the South R/W line of Commerce St.;
Bounded on the West by the East line of Lot 2; Bounded on the South by the North`1R.M line of
Biscayne Court; Bounded on the East by a line that is a perpendicular distance of 1'004,eOt'westerly
and parallel to the East R/W line of Washington Avenue.
"93/ 4 A ® 4 JA N iI N R T 'U
i
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w �
�.� ,� C'OM"r-,,pCr ST��r-7 � �'' ,
o __ 00
JO' W .d Ora
o � � n ?
/sCAV F C .
7 JL ZI ZZ 0 24 15 r&
.77'
U-
0
SOUTH POINTE DRIVE
r - --
�Y
1�
i f
� t
Additional Requirements
The Demised Premises shall be maintained in a clean,neat and orderly appearance at all times by the
Tenant. The area of the sidewalk, curb and gutter immediately adjacent to the Demised Premises
shall be cleared of all debris during hours of operation,and again at the close of each business day,or
as may otherwise be determined by the City Manager.
The Tenant shall be responsible for cleaning the floor surface on which the outdoor seating is located
at the close of each business day. In addition, the following conditions shall apply:
a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a
clean,attractive,and orderly appearance,and shall be maintained and kept in good repair
at all times;
b. All outdoor furniture shall be of high quality, design, materials, and workmanship so as to
ensure the safety and convenience of the public;
c. Only the outdoor cafe furniture specifically shown on the approved site plan shall be
allowed in the Demised Area;
d. Ail tables,chairs,umbrellas,and any other outdoor furniture shall be readily removable,and
i
shall not be physically attached, chained, or in any other manner affixed to any public
structure, street furniture, signage, and/or other public fixture, or to a curb and/or public
right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Demised Premises;
f. At close of business, all tables, chairs and any other outdoor furniture shall be removed
from the Demised Premises and stored in a non-visible location from the public right-of-way.
Any exception to this requirement shall be at the sole and absolute discretion of the City
Manager and/or his/her designee.
g. No storage of dishes, silverware or other similar restaurant equipment shall be allowed in
the Demised Area,or in any other portion of the public right-of-way,or outside the structural
confines of the building in which the restaurant is located, during non-business hours;
h. There shall be no live entertainment or speakers placed in the Demised Area;
i. Only one menu board shall be permitted to be displayed on the Demised Premises, the
location of which shall be set back next to the main entrance door of the enclosed area of
the restaurant;
j. No food preparation,food storage, refrigeration-apparatus•or.equipment;-or-fire apparatus
or equipment, shall be allowed on the Demised Premises;
k. _No food displays shall be-permitted on Demised Premises.No advertising slgns or business
- v z_ _ ._
ide:ratification signs shall be perrnitt®d;exceptVttiat'the restaurant_nariie and/or its-lo'go may be permitted on umbrellas but such logos and/or lettering may not exceed six inches in
height;
I. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant
fertilizers which contain material that can stain the sidewalks shall not be allowed;
m. The City Manager or his/her designee may cause the immediate removal,relocation and/or
storage of all or part of any furniture located on the Demised Premises In emergency
situations or for public safety considerations. Upon written and/or verbal notification by the
City Manager of a hurricane or other major weather event, or the issuance of a hurricane
warning by Miami-Dade County, whichever occurs first, the Tenant shall, within no more
EXHIBIT "B"
than four hours of same, remove and place indoors all tables,chairs and any other outdoor
furniture located on the Demised Premises. The notification by the City Manager of a
hurricane or other major weather event, or the issuance of a hurricane warning, shall
constitute a public emergency situation as referenced in this division. The City Manager
may remove, relocate, and/or store any outdoor furniture found on the Demised Premises
that has otherwise not been removed by the Tenant pursuant to this subsection.Any and all
costs incurred by the City for removal, relocation and/or storage of Tenant's furniture shall
be the responsibility of the Tenant.
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Detail by Entity Name Page 1 of 2
FLORIDADEPARTMENT OF
OR 1 1 NVS s
Detail by Entity Name
Florida Limited Liability Com an
ALPHA 22 LLC
Filing Information
Document Number L13000103545
FEI/EIN Number NONE
Date Filed 07/22/2013
State FL
Status ACTIVE
Princi al Address
2 WASHINGTON AVENUE
MIAMI BEACH, FL 33139
Mallina Address
2 WASHINGTON AVENUE
MIAMI BEACH, FL 33139
Registered Agent Name&Address
RAC-THE REGISTERED AGENT COMPANY
1574 VILLAGE SQUARE BLVD
SUITE 100
TALLAHASSEE, FL 32309
Mana er/Member Detail
Name&Address
Title MGRM
BENNACEUR, HAZEM
15 WARREN STREET---APT 422
JERSEY CITY, NJ 07302
Title MGR
LUBRANO, OLIVIER
95 WALL STREET---APT. 1605
NEW YORK, NY 10005
Annual Re orts
No Annual Reports Filed
http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail/EntityName/flal-11... 9/30/2013
Detail by Entity Name Page 2 of 2
Document !ma es
07/22/2013-- Florida Limited Liability View image in PDF format
Home Contact Us E-Filing Services_, f. Document Searches Forms_ _y Help 4�
Coovrinht n and Privacy Policies
State of Florida,Department of State
i
i
http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail/EntityName/flal-11... 9/30/2013
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 16th day of October, 2013, by and between the CITY
OF MIAMI BEACH,a Florida municipal corporation,(hereinafter referred to as"City'),and ALPHA 22,
LLC, a Florida limited liability company, (hereinafter referred to as "Tenant").
1. Demised Premises.
The City, in consideration of the rentals hereinafter reserved to be paid and of the covenants,
conditions and agreements to be kept and performed by the Tenant, hereby leases, lets and
demises to the Tenant, and Tenant hereby leases and hires from the City, those certain
premises hereinafter referred to as the"Demised Premises", located at 22 Washington Avenue,
Miami Beach, Florida 33139, and more fully described as follows:
Approximately two thousand two hundred sixteen (2,216) square feet of
unimproved land. Such Demised Premises are specified in Exhibit A, which is
hereby made a part of this Lease Agreement(the Lease or the Agreement). i
Tenant is leasing the Demised Premises concurrently with the restaurant space,adjacent to the
Demised Premises, having a physical address of 816 Commerce Street, Miami Beach, Florida
33139 ("Restaurant at 816 Commerce Street").
2. Term.
2.1. Tenant shall be entitled to have and to hold the Demised Premises for an initial term of
five (5)years, commencing on the Ist day of November, 2013(Commencement Date),
and ending on the 31 st day of October, 2018.
2.2. The City, at its sole discretion, may grant Tenant an option to renew Agreement for one
additional term of four(4) years and 364 days. In the event Tenant wishes to request
said renewal option, Tenant shall communicate said request, in writing, to the City at
least 180 days prior to the end of the initial term.
3. Rent.
3.1 Base Rent:
Base Rent for the Demised Premises during the initial term shall begin to accrue as of
the later of one month from the Commencement Date or the date the restaurant opens
for business("Rent Abatement Period"); however,said Rent Abatement Period shall not
exceed six (.6)_months_from the Commencement Date, base_d upon the total leasable
space of 2,216 square feet as follows:
Assuming the restaurant opens December 1, 2013, the Base Rent for the Demised
Premises shall be as follows:
Initials: Date: Initials: Date:
City of Miami Beach(Landlord) Syannna, LLC(Tenant)
1
EXHIBIT E
Base Rent per Total Annual Monthly Rent
Year Rent Commencement Square Foot Rent Payment
Year 1 December 1, 2013 $20.00 $40,626.63 $3,693.33
Year 2 November 1, 2014 $20.60 $45,649.60 $3,804.13
Year 3 November 1, 2015 $21.22 $47,019.09 $3,918.26
Year 4 November 1, 2016 $21.85 $48,429.66 $4,035.81
Year 5 November 1, 2017 $22.51 1 $49,882.55 $4,156.88
3.1.2 Base Rent shall be due and payable on the first day of each month
throughout the Term of this Agreement, along with applicable sales tax.
3.1.3 Notwithstanding anything in this Section 3 or in the Agreement, the City
reserves the right to re-negotiate 'the Base Rent amount concurrent with
Tenant's right to exercise, and City's approval (if at all)of, the renewal term
("Renewal Rent"). The Renewal Rent may be based upon a percentage of
gross receipts or may continue to be assessed as a fixed annual rent, based
upon the fair market rent at the time, to be escalated annually by 3%; j
however, at no time will the Base Rent during the renewal term be less than
the rent for the previous lease year plus the 3% escalation.
3.2 Late Payment.
It is expressly agreed and understood by and between the parties hereto that any
installments of rent accruing under the provisions of this Agreement which shall not be
paid when due shall bear interest at the maximum legal rate of interest per annum then
prevailing in Florida from the date when the same was payable by the terms hereof, until
the same shall be paid by Tenant. Any failure on Landlord's behalf to enforce this
Section shall not constitute a waiver of this provision with respect to future accruals of
past due rent. In addition, there will be a late charge of $50.00 for any payments
submitted after the due date.
3.3 Sales and Use Tax.
It is also understood that Tenant shall also include and forward to the City any and all
additional sums for all applicable sales and use tax, now or hereafter prescribed by
State, Federal or local law,and now described by Florida Statute 212.031. It is the City's
intent that it is to receive all payments due from Tenant as net of such Florida State
Sales and Use Tax.
3.4 ._Location.for-Payments.All rents or other payments due hereunder shall be paid to the City of Miami Beach at
the following address:
City of Miami Beach
Finance Department
c/o Revenue Supervisor
1700 Convention Center Drive
Miami Beach, Florida 33139
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4. MAINTENANCE AND EXAMINATION OF RECORDS.
Tenant shall maintain current, accurate, and complete financial records on an accrual basis of
accounting related to its operations pursuant to this Agreement, including such records and
accounting related to the Restaurant at 816 Commerce Street.Systems and procedures used
to maintain these records shall include a system of internal controls and all accounting records
shall be maintained in accordance with generally accepted accounting principles and shall be
open to inspection and audit by the City Manager or his designee upon reasonable prior
request and during normal business hours. Such records and accounts shall include a
breakdown of gross receipts,expenses,and profit and loss statements,and such records shall
be maintained as would be required by an independent CPA in order to audit a statement of
annual.gross receipts and profit and loss statement pursuant to generally accepted accounting
principles.
5. INSPECTION AND AUDIT.
Tenant shall maintain its financial records pertaining to its operation pursuant to this Agreement
and including the Restaurant at 816 Commerce Street for a period of three(3)years after the
conclusion of the initial term, or(if approved)the last renewal term, and such records shall be
open and available to the City Manager or his designee, as deemed necessary by the City
Manager or his designee.Tenant shall maintain all such records at its principal office,currently
located at 816 Commerce Street, Miami Beach, Florida,33139 or,if moved to another location,
all such records shall be relocated, at Tenant's expense,to a location within the City of Miami
Beach,within ten(10)days'written notice from the City Manager or his designee that the City
desires to review said records.
6. TAXES, ASSESSMENTS, AND UTILITIES.
6.1 Tenant agrees to and shall pay before delinquency all taxes(including but not limited to
Resort Taxes)and assessments of any kind assessed or levied upon Tenant by reason
of this Agreement or by reason of the business or other activities and operations of
Tenant upon or in connection with the Demised Premises and/or the adjoining
Restaurant at 816 Commerce Street..
Tenant shall also pay for any fees imposed by law for licenses or permits for any
business, activities, or operations of Tenant upon the Demised Premises and/or the
adjoining ground level restaurant at 816 Commerce Street, and shall maintain same
current and in good standing throughout the Term of this Agreement.
6.2 Utilities.
-- - - The-City shall.not-be-responsible for providing.electrical-or water service,_.-or any and-all -i
other utilities to and/or for, and/or in connection with, the Demised Premises.
Requests for installation of electrical, water and /or any and all other utilities shall be
submitted in writing to the City Manager or his designee. Installation and connection of
any and all utilities, as and if approved by the City, will be performed at Tenant's sole
cost and expense.
6.3 Procedure If Ad Valorem Taxes Assessed.
During the term of this Agreement, Tenant shall be solely responsible for all taxes of
whatever nature lawfully levied upon or assessed against the Demised Premises and
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improvements, sales, or operations thereon, including but not limited to, Ad Valorem
taxes.
7. Security Deposit.
7.1 On or prior to the Commencement Date,Tenant shall to pay the City a Security Deposit,
in the sum of eleven thousand seventy-nine dollars and 99/100 ($11,079.99). Said
Security Deposit is to ensure the full and faithful performance by the Tenant of each and
every term,covenant and condition of this Agreement. In the event that Tenant defaults
with respect to any of the terms, provisions, covenants and conditions of this
Agreement, including but not limited to,the payment of any rent,the City may use,apply
or retain the whole or any part of the Security Deposit for the payment of such rents in
default or any other sum which the City may expend or be required to expend by reason
of the Tenant's default, including any damages or deficiency in the re-letting of the
Demised Premises,whether such damages or deficiency may accrue or after summary
proceedings or other re-entry by City.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Agreement, the Security Deposit or any
balance thereof shall be returned to the Tenant,without interest, upon the expiration of
the Agreement and peaceful surrender of the Demised Premises.
7.3 City shall not be required to keep the Security Deposit in a segregated account and the
Security Deposit may be commingled with other funds of City and in no event shall the
Tenant be entitled to any interest on the Security Deposit.
7.4 In the event of a bona fide sale of the Demised Premises, as delineated in this
Agreement,the City shall have the right to transfer the Security Deposit to the purchaser
for the benefit of the Tenant and the City shall be considered by the Tenant free from all
liability for the return of such Security Deposit,and the Tenant agrees to look to the new
owner/landlord solely for the return of the Security Deposit, if such Security Deposit is
actually transferred,and it is agreed that this shall apply to every transfer or assignment
made of the Security Deposit to any new owner/landlord.
It is expressly understood that the issuance of a warrant and the lawful re-entry to the
Demised Premises by the City for any default on the part of the Tenant, prior to the
expiration of the term of this Agreement, shall not be deemed such termination of this
Agreement as to entitle the Tenant to recovery of the Security Deposit and the Security
- - -- --Deposif-shall-be-retained-and-remain-the--possession of the City.
8. Use and Possession of Demised Premises.
8.1 The Demised Premises shall be used by the Tenant solely as an outdoor cafe to serve
the patrons and guests of Tenant's adjoining Restaurant at 816 commerce Street.The
outdoor cafe shall have days and hours of operation from Sunday through Thursday
commencing on 11:30 a.m., and ending no later than 11:00 p.m., and Friday through
Saturday, commencing on 11:30 a.m., and ending no later than midnight.
Notwithstanding the preceding hours of operation, the outdoor cafe on the Demised
Premises shall only be open when the restaurant at 816 Commerce Street is open for
business (and, conversely, shall be closed when the restaurant is closed).
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8.2 Tenant and owner/tenant of the Restaurant at 816 Commerce Street shall at all times
throughout the Term of the Agreement be one and the same and cannot exist
independently of each other. Tenant acknowledges and agrees that its use of the
Demised Premises shall be, and remain at all times throughout the Term, an ancillary
use to Tenant's restaurant at 816 Commerce Street. Additionally, Tenant's operation
will not interfere with pedestrian traffic.
The number of seating on the Demised Premises shall not exceed 65 and shall be
included in the overall seating count of Tenant's Restaurant at 816 Commerce Street.
There shall be no bar counter of any kind as part of the Demised Premises and all food
served shall be prepared within the interior kitchen of the Tenant's restaurant and only
when the interior kitchen is operational. Any and all alcoholic beverages served at the
outdoor cafe shall be serviced by Tenant's restaurant. All tables and chairs will be
removed and stored each night at close of business.Any exception to this requirement
shall be at the sole and absolute discretion of the City Manager or his designee.Tenant
shall further maintain the Demised Premises and abide by the conditions set forth in
Exhibit"B" of the Lease.
8.3 Tenant hereby warrants and represents that Alpha 22, LLC. is the owner of the
Restaurant at 816 Commerce Street and shall, throughout the Term of the Lease,
remain as the owner of said restaurant, unless any change in ownership is approved by
the City Manager, in writing, prior to such change taking place.Change of ownership for
purposes hereof shall include,without limitation,a sale,exchange,assignment,transfer
or other disposition by Tenant of all or a portion of Tenant's interest in the restaurant,
whether by operation of law or otherwise.
8.4 Tenant agrees not to place any television, speakers,or any other device used to amplify
sound, on or around the Demised Premises. Tenant further agrees to not attach any
televisions, speakers, or any other device used to amplify sound, to the exterior of the
Restaurant building at 816 Commerce Street. Furthermore, Tenant shall in no manner
use the Demised Premises, or Tenant's restaurant at 816 Commerce Street, as an
outdoor entertainment or open air entertainment establishment, and hereby
acknowledges that such uses are prohibited (whether as main or accessory uses).
8.5 Tenant agrees that any(i) valet parking and/or a taxi cab stand; (ii)Take-out service;
and (iii) any Sidewalk Cafe permit, if approved by the City in conjunction with the
---- _- --- _ Tenant's-restaurant operation.at-816 Commerce-Street-shall not-utilize-Washington
Avenue and will be limited to Commerce Street. Furthermore, any and all deliveries to
the restaurant shall be limited to the alley located on the south side of 816 Commerce
Street.
8.6 Tenant shall be permitted to apply to the City of Miami Beach for one(1)special event
permit for the sole and express purpose of hosting an opening event for the restaurant.
At no time thereafter, throughout the remaining term of the Lease, shall the tenant be
permitted to submit an application for a special event to be held on the Demised
Premises.
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8.7 It is understood and agreed that the Demised Premises shall be used by the Tenant
during the term of this Agreement only for the uses contemplated herein, and for no
other purpose or use whatsoever. Tenant will not make or permit any use of the
Demised Premises that, directly or indirectly, is forbidden by public law, ordinance or
government regulation, or that may be dangerous to life, limb or property. Tenant may
not commit waste on the Demised Premises, use the Demised Premises for any illegal
purpose, or commit a nuisance on the Demised Premises. In the event that the Tenant
uses the Demised Premises for any purpose not expressly permitted herein, then the
City may declare this Agreement in default pursuant to Section 18, or without notice to
Tenant, restrain such improper use by injunction or other legal action.
8.8 Notwithstanding anything to the contrary contained herein, in the event of a
breach by Tenant of any conditions in this Section 8,the City Manager,in his sole
determination and judgment,shall have the right to automatically terminate this
Lease, without any liability to the City; said termination effective upon three (3) '
days written notice to Tenant. By executing the Lease, Tenant hereby agrees to
this condition,and further voluntarily and knowingly waives and releases any and
all rights now or hereinafter conferred upon Tenant pursuant to Florida Statutes
including, without limitation, the procedures set forth in Chapter 83, Florida
Statutes'for removal in nonresidential tenancies;the Miami-Dade;and the Miami
Beach Code(respectively);to the extent this and applicable law(s)would have the
effect of limiting or modifying the City's rights to terminate this Lease pursuant to
this Subsection.
9. Improvements.
9.1 Any improvements on the Demised Premises shall be subject to the prior written
approval of the City Manager, which approval, if given at all, shall be at the his sole
discretion.All permanent(fixed)improvements to the Demised Premises shall become
the property of the City upon termination of the Lease. Notwithstanding the preceding
sentence,the City may require that Tenant, upon termination of the Agreement,remove
all permanent(fixed)improvements to the Demised Premises(at his/her sole discretion),
without damage to the Demised Premises or cost to the City. Furthermore, upon the
lawful termination of the Agreement, all personal property and trade fixtures may be
removed by the Tenant from the Demised Premises without damage to the Demised
Premises. Tenant will permit no liens to attach to the Demised Premises arising from,
connected with or related to the construction of any improvements. Moreover, such
construction shall be properly permitted and done in compliance with all applicable
_-__Mu nicipal- Counfy State -and Federal regulatory requirements, and shall 'be
accomplished through the use of licensed, reputable contractors who are acceptable to
the City. Any and all costs, permits and or licenses required for the installation of
improvements shall be the sole responsibility of Tenant.
9.2 Performance Bond.
As additional consideration for the City entering into this Lease, Tenant has agreed to
make certain improvements to the Demised Premises including, without limitation,
landscaping and paving (Tenant Improvements), which shall be approved by the City
pursuant to Section 9.1 above. Tenant shall deliver to the City a Performance Bond,or
other similar instrument(e.g. Letter of Credit, Surety Bond, etc.)acceptable to the City,
6
in an amount equal to the estimated cost of Tenant's improvements. In the event that
Tenant does not complete the Tenant's Improvements within eight(8)months from the
Effective Date,then City may,without further notice to Tenant,apply or retain the whole
or any part of the Performance Bond (or alternate security)as agreed upon liquidated
damages.
10. City's Right of EntN.
10.1 The City, or its authorized agent or agents, shall have the right to enter upon the
Demised Premises at all reasonable times for the purpose of inspecting same,
preventing waste, making such repairs as the City may consider necessary and for the
purpose of preventing fire, theft or vandalism. However, the City agrees that whenever
possible,the City shall provide reasonable notice, in writing,to Tenant, unless the need
to enter the Demised Premises is an emergency, as deemed by the City at its sole
discretion,which if not immediately addressed could cause property damage, loss of life
or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the
City to do any work that under any provisions of this Agreement the Tenant may be i
required to perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
10.2 If the Tenant shall not be personally present to permit entry onto the Demised Premises
at any time,for any reason,and any entry thereon shall be necessary or permissible,the
City, or its agents, may enter the Demised Premises, including, without limitation,
forcibly entering the Demised Premises,without rendering the City or such agents liable
therefore.
11. Tenant's Insurance.
The Tenant shall, at its sole cost and expense, comply with all insurance requirements
of the City. It is agreed by the parties that the Tenant shall not occupy the Demised
Premises until proof of the following insurance coverages have been furnished to and
approved by the City's Risk Manager:
Comprehensive General Liability in the minimum amount of$1,000,000 per
occurrence for bodily injury and property damage. The City of Miami Beach
must be named as an additional insured party on this policy.
Workers Compensation and Employers Liability coverage in accordance with
Florida statutory requirements.
All-Risks property and casualty insurance, written at a minimum of 80% of
replacement cost value and with replacement cost endorsement, covering all
of Tenant's personal property in the Demised Premises (including, without
limitation, inventory, trade fixtures, floor coverings, furniture and other
property removable by Tenant under the provisions of the Lease) and all
leasehold improvements installed in the Demised Premises by or on behalf of
Tenant.
Proof of these coverages must be provided by submitting original certificates of
insurance.All policies must provide thirty(30)days written notice of cancellation to both
7
the City's Risk Manager and Asset Manager at 1700 Convention Center Drive, Miami
Beach, Florida, 33139.All insurance policies shall be issued by companies authorized to
do business under the laws of the State of Florida and must have a rating of B+:VI or
better per A.M. Best's Key Rating Guide, latest edition,and certificates are subject to the
approval of the City's Risk Manager.
12. Assignment and Subletting.
12.1. Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in
part, without the prior written consent of City which shall not be unreasonably withheld.
Such written consent is not a matter of right and City is not obligated to give such
consent. If granted as provided herein, the making of any assignment or sublease will
not release Tenant from any of its obligations under this Agreement.A sale or transfer of
a majority interest of the stock of Tenant's corporate entity shall be deemed an
assignment, and for purposes of this Agreement,the City shall have the right to approve
the new majority owner. Said approval shall be provided in writing.Tenant is prohibited
from assigning or subletting this Agreement to any person or entity which is not of the
same or higher financial responsibility as Tenant, as shall be determined by City, in its
sole judgment and discretion. Further, Tenant shall be prohibited from any changes in
ownership, whether in the Demised Premises or the restaurant located at 816
Commerce Street, as set forth in Subsections 8.2 and 8.3.
12.2 Any consent by the City to any act of assignment shall apply only to the specific
transaction thereby authorized. Such consent shall not be construed as a waiver of the
duty of the Tenant or the legal representatives or assigns of the Tenant, to obtain from
the City consent to any other or subsequent assignment, or as modifying or limiting the
rights of the City under the foregoing covenants of the Tenant not to assign without such
consent.
12.3 Any violation of the provisions of this Agreement, whether by act or omissions, by
assignee, sub-tenant,or under-tenant or occupant, shall be deemed a violation of such
provision by the Tenant, it being the intention and meaning of the parties hereto,that the
Tenant shall assume and be liable to the City for any and all acts and omissions of any
and all assignees, sub-tenants, or under-tenants or occupants. If the Agreement be
assigned,the City may and is hereby empowered to collect rent from the assignee;if the
Demised Premises or any part thereof be underlet or occupied by any person,other that
the Tenant, the City, in the event of the Tenant's default, may, and is hereby
empowered to,collect rent from the under-tenant or occupants; in either of such events,
-. --- the=City may_apply the net amount received by it for rent herein reserved, and no such
collection shall be deemed a waiver of the covenant herein against assignment or the
acceptance of the assignee, under-tenant or occupant as tenant, or a release of the
Tenant from the further performance of the covenants herein contained on the part of
the Tenant.
13. Maintenance and Repair.
13.1 Tenant shall maintain the Demised Premises and any fixtures and appurtenances
thereon, and, at its sole cost and expense, shall make all repairs thereto as and when
needed to preserve them in good working order and condition.This shall include, but not
be limited to, Tenant being responsible for maintenance and repair of any and all
8
i
_.... ..............
improvements, such as fences,walkways, pavers,ground-coverings, landscaping,and
gates.
13.2 All damage or injury of any kind to the Demised Premises shall be the obligation of
Tenant, and shall be repaired, restored or replaced promptly by Tenant at its sole cost
and expense to the satisfaction of the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class
equal to the original work or installations and shall be done in good and workmanlike
manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the same may be
made by the City, at the expense of the Tenant, and all sums spent and expenses
incurred by the City shall be collectable and shall be paid by the Tenant within ten (10)
days after rendition of a bill or statement thereof.
13.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or
improvements made by Tenant to the Demised Premises comply with all applicable
building codes and life safety codes of governmental authorities having jurisdiction.
13.6 THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION. Tenant may construct or cause to be constructed, such exterior
improvements to the Demised Premises, as reasonably necessary for it to carry on its
permitted use(s); provided, however,that any plans for such improvements shall be first
submitted to the City Manager for his prior received written approval,which approval, if
granted at all, shall be at the City Manager's sole and absolute discretion. Additionally,
any and all approved improvements shall be made at Tenant's sole cost and expense.
All permanent(fixed)improvements to the Demised Premises shall remain the property
of the City upon termination and/or expiration of this Agreement. Upon termination
and/or expiration of this Agreement, all personal property and non-permanent trade
fixtures may be removed by the Tenant from the Demised Premises, provided that they
can be(and are)removed without damage to the Demised Premises.Tenant will permit
no liens to attach to the Demised Premises arising from, connected with, or related to
the design and construction of any improvements. Moreover, such construction shall be
accomplished through the use of licensed, reputable contractors who are acceptable to
the City Manager. Any and all permits and or licenses required for the construction
and/or installation of improvements shall be the sole cost and responsibility of Tenant.
14. Governmental Regulations.
The Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules,
orders, regulations, and requirements of any and all governmental bodies, including but not
limited to Federal, State, Miami-Dade County, and City governments, and any and all of their
departments and bureaus applicable to the Demised Premises and shall also comply with and
fulfill all rules, orders, and regulations for the prevention of fire, all at Tenant's own cost and
expense.Tenant shall pay all costs, expenses,claims,fines, penalties,and damages that may
be imposed because of Tenant's failure to comply with this Section, and shall indemnify and
hold harmless the City from all liability arising from each non-compliance.
9
15. Intentionally Omitted.
16. Condemnation.
16.1 If at any time during the term of this Agreement all or any part or portion of the Demised
Premises are taken, appropriated, or condemned by reason of Eminent Domain
proceedings (except if the Eminent Domain proceedings are initiated by the City of
Miami Beach), then this Agreement shall be terminated as of the date of such taking,
and shall thereafter be completely null and void, and neither of the parties hereto shall
thereafter have any rights against the other by reason of this Agreement or anything
contained therein, except that any rent prepaid beyond the date of such taking shall be
prorated to such date, and the Tenant shall pay any and all rents,additional rents, utility
charges, or other costs including excess taxes for which it is liable under the terms of
this Agreement, up to the date of such taking.
16.2 Except as hereunder provided,Tenant shall not be entitled to participate in the proceeds
of any award made to the City in any such Eminent Domain proceeding, excepting,
however, the Tenant shall have the right to claim and recover from the condemning
authority, but not from the City, such compensation as may be separately awarded or
recoverable by Tenant in Tenant's own right on account of any and all damage to
Tenant's business by reasons of the condemnation and for or on account of any cost or
loss which Tenant might incur in removing Tenant's furniture and fixtures.
17 Default.
17.1 Default by Tenant.
At the City's option, any of the following shall constitute an Event of Default under this
Agreement:
17.1.1 Rent, or any installment thereof is not paid promptly when and where due
within fifteen (15) days of due date and if Tenant shall not cure such failure
within five(5)days after receipt of written notice from the City specifying such
default;
17.1.2 Any other payment provided for under this Agreement is not paid promptly
when and where due;
17.1.3 Demised Premises shall be deserted, abandoned, or vacated;
17.1.4 Tenant shall fail to comply with any material term, provision, condition or
covenant contained herein other than the payment of rent and shall not cure
such failure within thirty(30)days after the receipt of written notice from City
specifying any such default; or such longer period of time acceptable to the
City, at its sole discretion;
17.1.5 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a code, regulation, ordinance or the like, which
remains uncured within the time specified in such notice of violation or such
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period of time acceptable to the City Manager, at his sole discretion;
17.1.6 Any petition is filed by or against Tenant under any section or chapter of the
Bankruptcy Act,as amended,which remains pending for more than sixty(60)
days,or any other proceedings now or hereafter authorized by the laws of the
United States or of any state for the purpose of discharging or extending the
time for payment of debts;
17.1.7 Tenant shall become insolvent;
17.1.8 Tenant shall make an assignment for benefit of creditors;
17.1.9 A receiver is appointed for Tenant b court and shall not be dissolved
PP Y any
within thirty(30)days thereafter; or
17.1.10 The leasehold interest is levied on under execution.
17.1.11 Tenant's violation of the provision of Subsection 8.8 herein,which shall result
in an automatic termination of the Lease, as further provided in said
subsection.
18 Rights on Default.
18.1 Rights on Default.
18.1.1 In the event of any default by Tenant as provided herein, the City shall have
the option to do any of the following in addition to and not in limitation of any
other remedy permitted by law or by this Agreement;
18.1.2 Terminate this Agreement, in which event Tenant shall immediately surrender
the Demised Premises to the City, but if Tenant shall fail to do so the City
may, without further notice, and without prejudice to any other remedy the
City may have for possession or arrearages in rent or damages for breach of
contract, enter upon Demised Premises and expel or remove Tenant and his
effects in accordance with law, without being liable for prosecution or any
claim for damages therefore, and Tenant agrees to indemnify and hold
harmless the City for all loss and damage which the City may suffer by
reasons of such termination, whether through inability to re-let the Demised
Pcernises, or-through_decreas_e`in rent;_or otherwise.-
18.1.3 Declare the entire amount of the rent which would become due and payable
during the remainder of the term of this Agreement to be due and payable
immediately, in which event Tenant agrees to pay the same at once,together
with all rents therefore due, at the address of the City, as provided in the
Notices section of this Agreement; provided, however, that such payment
shall not constitute a penalty, forfeiture, or liquidated damage, but shall
merely constitute payment in advance of the rents for the remainder of said
term and such payment shall be considered, construed and taken to be a
debt provable in bankruptcy or receivership.
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18.1.4 Enter the Demised Premises as the agent of Tenant, by force if necessary,
without being liable to prosecution or any claim for damages therefore,
remove Tenant's property there from, and re-let the Demised Premises, or
portions thereof, for such terms and upon such conditions which the City
deems, in its sole discretion,desirable,and to receive the rents therefore,and
Tenant shall pay the City any deficiency that may arise by reason of such re-
letting, on demand at any time and from time to time at the office of the City;
and for the purpose of re-letting, City may (i) make any repairs, changes,
alterations or additions in or to said Demised Premises that may be
necessary or convenient; (ii)pay all costs and expenses therefore from rents
resulting from re-letting; and (iii)Tenant shall pay the City any deficiency as
aforesaid.
18.1.5 Take possession of any personal property owned by Tenant on said Demised
Premises and sell the same at public or private sale, and apply same to the
payment of rent due, holding the Tenant liable for the deficiency, if any.
18.1.6 It is expressly agreed and understood by and between the parties hereto that
any installments of rent accruing under the provisions of this Agreement
which shall not be paid when due shall bear interest at the maximum legal
rate of interest per annum then prevailing in Florida from the date when the
same was payable by the terms hereof, until the same shall be paid by
Tenant. Any failure on the City's behalf to enforce this Section shall not
constitute a waiver of this provision with respect to future accruals of past due
rent. No interest will be charged for payments made within the grace period,
such grace period to be defined as within five (5) days of the due date. In
addition, there will be a late charge of fifty($50.00)dollars for any payments
submitted after the grace period.
18.1.7 If Tenant shall default in making any payment of monies to any person 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 payable by Tenant to the City hereunder
shall be deemed as rent for use of the Demised Premises and collectable by
the City from Tenant as rent, and shall be due from Tenant to City on the first
- = _ day of the month-following the payment of-the expense by the City.
18.1.8 The rights of the City under this Agreement shall be cumulative but not
restrictive to those given by law and failure on the part of the City to exercise
promptly any rights given hereunder shall not operate to waive or to forfeit
any of the said rights.
18.2 Default by City.
Failure of the City to perform any of the covenants, conditions and agreements of the
Agreement which are to be performed by the City and the continuance of such failure for
a period of thirty(30)days after notice thereof in writing from Tenant to the City(which
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notice shall specify the respects in which Tenant contends that the City failed to perform
any such covenant, conditions and agreements) shall constitute a default by the City,
unless such default is one which cannot be cured within thirty (30) days because of
circumstances beyond the City's control, and the City within such thirty(30)day period
shall have commenced and thereafter shall continue diligently to prosecute all actions
necessary to cure such defaults.
However, in the event the City fails to perform within the initial thirty (30) day period
provided above,and such failure to perform prevents Tenant from operating its business
in a customary manner and causes an undue hardship for the Tenant,then such failure
to perform (regardless of circumstances beyond its control) as indicated above, shall
constitute a default by the City.
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18.3 Tenant's Rights on Default.
If an event of the City's default shall occur,Tenant,to the fullest extent permitted by law,
shall have the right to pursue any and all remedies available at law or in equity,including
the right to sue for and collect damages, including reasonable attorney fees and costs,
to terminate this Agreement(and all of its obligations hereunder by giving notice of such
election to the City, whereupon this Agreement shall terminate as of the date of such
notice), to specifically enforce Tenant's rights; and/or to enjoin the City.
19. Indemnity Against Costs and Charges.
19.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable
attorney's fees,and damages which may be incurred or sustained by the City,by reason
of the Tenant's breach of any of the provisions of this Agreement. Any sums due the
City under the provisions of this item shall constitute a lien against the interest of the
Tenant and the Demised Premises and all of Tenant's property situated thereon to the
same extent and on the same conditions as delinquent rent would constitute a lien on
said premises and property.
19.2 If Tenant shall at any time be in default hereunder, and if the City shall deem it
necessary to engage an attorney to enforce the City's rights and Tenant's obligations
hereunder,Tenant will reimburse the City for the reasonable expenses incurred thereby,
including, but not limited to, court costs and reasonable attorney's fees,whether suit be
brought or not and if suit be brought,then Tenant shall be liable for expenses incurred at
both the trial and appellate levels.
- - - 20:= Indemnification-Against-Claims.-.- -=
20.1 Tenant shall indemnify and save the City harmless from and against any and all claims
or causes of action (whether groundless or otherwise) by or on behalf of any person,
firm,or corporation,for personal injury or property damage occurring upon the Demised
Premises or upon any parking lot or other facility or appurtenance used in connection
with the Demised Premises, occasioned in whole or in part by any of the following:
20.1.1 An act or omission on the part of the Tenant,or any employee, agent, invitee,
or guest, assignee or sub-tenant of the Tenant;
20.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or the building
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in which the Demised Premises is located or any of its facilities by the Tenant,
or any employee, agent, invitee, or guest, assignee or sub-tenant or the
Tenant, but not to include trespassers upon the Demised Premises;
20.1.3 Any breach, violation, or non-performance of any undertaking of the Tenant
under this Agreement;
20.1.4 Anything growing out of the use or occupancy of the Demised Premises by
the Tenant or anyone holding or claiming to hold through or under the
Agreement.
20.2 Tenant agrees to pay all damages to the Demised Premises or other facilities used in
connection therewith, caused by the Tenant or any employee, guest, or invitee of the
Tenant.
21. Signs and Advertising.
Without the prior written consent of the City, at the City's sole discretion, Tenant shall not
permit the painting and display of any signs, plaques, lettering or advertising material of any
kind on or near the Demised Premises. All additional signage shall comply with signage
standards established by the City and comply with all applicable building codes,and any other
Municipal, County, State and Federal laws.
22. Damage to the Demised Premises and/or Restaurant at 816 Commerce Street.
22.1 If the Demised Premises and/or restaurant at 816 Commerce Street shall be damaged
by the elements or other casualty not due to Tenant's negligence, or by fire, but are not
thereby rendered untenantable, as determined by the City, in whole or in part
(hereinafter referred to as "such occurrence"), Tenant shall as soon as possible after
such occurrence, utilize its insurance proceeds to cause such damage to be repaired
and the rent for the Demised Premises shall not be abated. If by reason of such
occurrence,the Demised Premises and/or restaurant at 816 Commerce Street shall be
rendered untenantable,as determined by the City,only in part,Tenant shall as soon as
possible utilize its insurance proceeds to cause the damage to be repaired,and the rent
for the Demised Premises shall be abated proportionately as to the portion of the
Demised Premises rendered untenantable; provided however, if either the Demised
Premises and/or restaurant at 816 Commerce Street are by reason of such occurrence,
rendered more than 50% but less than 100% untenantable, as determined by the City,
Tenant shall promptly obtain a good faith estimate, from a licensed contractor
---- - -acceptable to--the City;-of the time-required to render-the-Demised--Premises-and/or =
restaurant at 816 Commerce Street tenantable. If such time exceeds sixty(60)days,
the City and/or Tenant shall have the option of canceling this Agreement, which
option shall be exercised by the requesting party in writing within ten(10)days of
the end of the sixty(60)day period,and the Agreement shall be terminated within
thirty(30) days from the date thereof.
22.2 If the Demised Premises and/or restaurant at 816 Commerce Street shall be rendered
wholly untenantable by reason of such occurrence, Tenant shall utilize its insurance
proceeds to cause such damage to be repaired and the rent for the Demised Premises
shall be abated in whole; provided, however, that the Tenant shall have the right,to be
14
exercised by notice in writing delivered to the City within sixty(60)days from and after
said occurrence, to elect not to reconstruct the destroyed Demised Premises and/or
restaurant, and in such event, this Agreement and the.tenancy hereby created shall
cease as of the date of said occurrence, the rent to be adjusted as of such date. If the
Demised Premises shall be rendered wholly untenantable,the City and/or Tenant shall
have the right, to be exercised by notice in writing, delivered to the other party within
thirty(30)days from and after said occurrence,to elect to terminate this Agreement,the
rent to be adjusted accordingly.
23. Quiet Enioyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or
disturbed in possession of the Demised Premises so long as Tenant complies with the terms of
this Agreement.
24. Waiver.
24.1 It is mutually covenanted and agreed by and between the parties hereto that the failure
of the City to insist upon the strict performance of any of the conditions,covenants,terms
or provisions of this Agreement, or to exercise any option herein conferred, will not be
considered or construed as a waiver or relinquishment for the future of any such
conditions, covenants, terms, provisions or options but the same shall continue and
remain in full force and effect.
24.2 A waiver of any term expressed herein shall not be implied by any neglect of the City to
declare a forfeiture on account of the violation of such term if such violation by continued
or repeated subsequently and any express waiver shall not affect any term other than the
one specified in such waiver and that one only for the time and in the manner specifically
stated.
24.3 The receipt of any sum paid by Tenant to the City after breach of any condition,
covenant, term or provision herein contained shall not be deemed a waiver of such
breach, but shall be taken, considered and construed as payment for use and
occupation, and not as rent, unless such breach be expressly waived in writing by the
City.
25. Notices.
The addresses for all notices required under this Agreement shall be as follows, or at such
other address as either party shall be in writing, notify the other:
CITY: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to: Asset Manager
-City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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TENANT: Alpha 22, LLC
816 Commerce Street
Miami Beach, Florida 33139
Attn: Symcha Zilberman
With copies to: N.A.
All notices shall be hand delivered and a receipt requested, or by certified mail with return
receipt requested, and shall be effective upon receipt.
26. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it may not be
modified in any manner other than by agreement in writing signed by all the parties hereto or
their successors in interest.The terms, covenants and conditions contained herein shall inure
to the benefit of and be binding upon the City and Tenant and their respective successors and
assigns, except as may be otherwise expressly provided in this Agreement.
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27. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall,to any extent, be invalid or unenforceable,the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
28. Captions.
The captions contained herein are for the convenience and reference only and shall not be
deemed a part of this Agreement or construed as in any manner limiting or amplifying the terms
and provisions of this Agreement to which they relate.
29. Number and Gender.
Whenever used herein,the singular number shall include the plural and the plural shall include
the singular, and the use of one gender shall include all genders.
30. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of the State of
Florida.
31. .- _Limitation of,Liability:-=
The City desires to enter into this Agreement only if in so doing the City can place a limit on the
City's liability for any cause of action for money damages due to an alleged breach by the City
of this Agreement, so that its liability for any such breach never exceeds the sum of Ten
Thousand ($10,000.00) Dollars and no/100. Tenant hereby expresses its willingness to enter
into this Agreement with the Tenant's recovery from the City for any damage action for breach
of contract to be limited to a maximum amount of Ten Thousand ($10,000.00) Dollars.
Accordingly,and notwithstanding any other term or condition of this Agreement,Tenant hereby
agrees that the City shall not be liable to Tenant for damage in an amount in excess of Ten
Thousand ($10,000.00)Dollars for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this Agreement.
16
Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon City's liability as set forth in Florida Statutes, Section
768.28.
32. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the term herein demised, or the sooner termination
thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised
Premises, together with any and all equipment, fixtures, furnishings, appliances or other
personal property, if any, located at or on the Demised Premises and used by Tenant in the
maintenance, management or operation of the Demised Premises,excluding any trade fixtures
or personal property, if any, which can be removed without material injury to the Demised
Premises free of all liens claims and encumbrances and rights of others or broom-clean,
together with all structural changes, alterations, additions, and improvements which may have
been made upon the Demised Premises, in good order, condition and repair, reasonable wear
and tear excepted, subject, however,to the subsequent provisions of this Article.Any property
which pursuant to the provisions of this Section is removable by Tenant on or at the Demised
Premises upon the termination of this Agreement and is not so removed may, at the option of
the City, be deemed abandoned by the Tenant, and either may be retained by the City as its
property or may be removed and disposed of at the sole cost of the Tenant in such manner as
the City may see fit. If the Demised Premises and personal property, if any, be not surrendered
at the end of the term as provided in this Section, the Tenant shall make good the City all
damages which the City shall suffer by reason thereof, and shall indemnify and hold harmless
the City against all claims made by any succeeding tenant or purchaser, so far as such delay is
occasioned by the failure of the Tenant to surrender the Demised Premises as and when
herein required.
33. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay money is
involved.
34. Venue.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or conditions
herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT MAY
HEREIN_AFTER INSTITUTE-AGAINST-EACH-OTHER WITH RESPECT TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AGREEMENT.
17
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by the
respective duly authorized officers and the respective corporate seals to be affixed this day of
, 2013.
ATTEST: CITY:
CITY OF MIAMI BEACH, FLORIDA
BY:
Matti Herrera Bower, MAYOR
(Print Name) Dated:
(Print Name)
Rafael Granado, CITY CLERK
(Print Name) Dated:
(Print Name)
ATTEST: TENANT:
ALPHA 22, LLC.
BY:
(Print Name) (Print Name/Position)
(Print Name) (Print Name/Position)
Dated:
f:1$AIIIRHCD\Asset\22 Washington Ave\Alpha U Lease.doc
18
EXHIBIT A
Description of Demised Premises
A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No. 3, according to the plat thereof,
recorded in Plat Book 2, at page 81, of the Public Records of Dade County, Florida, being more
particularly described as follows: Bounded on the North by the South RM line of Commerce St.;
Bounded on the West by the East line of Lot 2; Bounded on the South by the North R/W line of
Biscayne Court; Bounded on the East by a line that is a perpendicular distance of 100 feet westerly
and parallel to the East R/W line of Washington Avenue.
r0 ="^f 4 At 4N M II 7 � •~ .7� UJ
fD
ioo'
47 60 4 3
o
81,5C,4Mr- 0111 G r. v
� ..gam yam'
771 l0
L>>A 30,
2
SOUTH POINTE DRIVE
Ct+ A s0ZiRio^ 5-?IT
415' 297.s4'
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EXHIBIT B
Additional Requirements
The Demised Premises shall be maintained in a clean, neat and orderly appearance at all times by the
Tenant. The area of the sidewalk, curb and gutter immediately adjacent to the Demised Premises
shall be cleared of all debris during hours of operation, and again at the close of each business day,or
as may otherwise be determined by the City Manager.
The Tenant shall be responsible for cleaning the floor surface on which the outdoor seating is located
at the close of each business day. In addition, the following conditions shall apply:
a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a
clean, attractive, and orderly appearance, and shall be maintained and kept in good repair
at all times;
b. All outdoor furniture shall be of high quality, design, materials, and workmanship so as to
ensure the safety and convenience of the public;
c. Tenant must obtain approvals from the Planning Department and the City Administration in
the design and layout of the outdoor cafe pavers, tables, chairs and umbrellas. Only the
outdoor cafe furniture specifically shown on the approved site plan shall be allowed in the f
Demised Area;
d. All tables, chairs, umbrellas, and any other outdoor furniture shall be readily removable,and
shall not be physically attached, chained, or in any other manner affixed to any public
structure, street furniture, signage, and/or other public fixture, or to a curb and/or public
right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Demised Premises;
f. At close of business, all tables, chairs and any other outdoor furniture shall be removed
from the Demised Premises and stored in a non-visible location from the public right-of-way.
Any exception to this requirement shall be at the sole and absolute discretion of the City
Manager and/or his/her designee.
g. No storage of dishes, silverware, bussing stations or other similar restaurant equipment
shall be allowed in the Demised Area, or in any other portion of the public right-of-way, or
outside the structural confines of the building in which the restaurant is located,during non-
business hours;
h. There shall be no live entertainment or speakers placed in the Demised Area;
L Only one menu board shall be_permitted to be displayed on the Demised Premises, the
- location,-of which shall be set-back next-to-the main entrance-door of the enclosed area of
the restaurant;
j. No food preparation, food storage, refrigeration apparatus or equipment, or fire apparatus
or equipment, shall be allowed on the Demised Premises;
k. No food displays shall be permitted on Demised Premises. No advertising signs or business
identification signs shall be permitted, except that the restaurant name and/or its logo may
be permitted on umbrellas but such logos and/or lettering may not exceed six inches in
height;
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;
20
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m. The City Manager or his/her designee may cause the immediate removal, relocation and/or
storage of all or part of any furniture located on the Demised Premises in emergency
situations or for public safety considerations. Upon written and/or verbal notification by the
City Manager of a hurricane or other major weather event, or the issuance of a hurricane
warning by Miami-Dade County, whichever occurs first, the Tenant shall, within no more
than four hours of same, remove and place indoors all tables,chairs and any other outdoor
furniture located on the Demised Premises. The notification by the City Manager of a
hurricane or other major weather event, or the issuance of a hurricane warning, shall
constitute a public emergency situation as referenced in this division. The City Manager
may remove, relocate, and/or store any outdoor furniture found on the Demised Premises
that has otherwise not been removed by the Tenant pursuant to this subsection.Any and all
costs incurred by the City for removal, relocation and/or storage of Tenant's furniture shall
be the responsibility of the Tenant.
(THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK)
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