Damian J. Gallo & Associates, Inc. Lease Agreement 6483YY
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made this day of 201
(Lease, Lease Agreement), by and between the CITY OF MIAMI EACH, a Florida
municipal corporation, (hereinafter referred to as "City" or "Landlord"), and DAMIAN J.
GALLO & ASSOCIATES, INC., a Florida corporation, (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 (the "Demised Premises") located in
the City-owned building at 1701 Meridian Avenue, Miami Beach, Florida 33139
(the "Building"), and more fully described as follows:
1,269 square feet located on the rg ound floor of the Building, and
as more specifically delineated in "Exhibit 1" (Demised Premises),
attached hereto and incorporated herein. Also known as: Unit 4
(a.k.a. 775 17th Street).
468 square feet of the western portion of Demised Premises
shall be used by Tenant as a permit processing office (the
"Office Space").
801 square feet of the eastern portion of the Demised
Premises shall be used by Tenant solely for the purpose(s)
of operating a cafe (the "Cafe Space").
1.1 The City and Tenant are parties to a concession agreement dated 2013
(the "Concession Agreement"), as contained in "Exhibit 1.1", attached hereto and
incorporated herein, for 507 square feet of outdoor space adjacent to and east of
the Demised Premises (the "Concession Area").
1.2 The Office Space, the Cafe Space and the Concession Area are more
specifically delineated in "Exhibit 1.2" (Layout), attached hereto and incorporated
herein.
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises for an
initial term of three (3) years, commencing retroactively on the 1st day of
December, 2013 (the "Commencement Date"), and ending on the 30th
day of November, 2016. For purposes of this Lease Agreement, and
including, without limitation, Subsection 2.2 herein, a "contract year" shall
be defined as that certain period commencing on the 1St day of December,
and ending on the 30th day of November.
2.2 Provided Tenant is in good standing and free from default(s) under
Section 18 hereof, and upon written notice from Tenant, which notice shall
be submitted to the City Manager no earlier than one hundred twenty
(120) days, but in any case no later than sixty (60) days prior to the
expiration of the initial term (or prior to the expiration of the first renewal
term, as the case may be), this Lease may be extended, at the City
Manager's sole and reasonable discretion, for two (2) additional two (2)
year renewal terms. Any extension, if approved, shall be memorialized in
writing and signed by the parties hereto (with the City hereby designating
the City Manager as the individual authorized to execute such extensions
on its behalf).
In the event that the City Manager determines, in his sole and reasonable
discretion, not to extend this Lease Agreement (upon either the expiration
of the initial term or of the first renewal term), the City Manager shall notify
Tenant of same in writing, which notice shall be provided to Tenant within
fifteen (15) business days of the City Manager's receipt of Tenant's written
notice.
2.3 Notwithstanding anything in this subsection, or any other term or condition
in this Lease Agreement, the City reserves the right, through its City
Manager, to terminate this Lease Agreement effective any time after July
1, 2014, without cause and without liability to the City, upon providing
Tenant with 180 days prior written notice.
3. Rent.
3.1 Base Rent:
Tenant's payment of Rent, as defined in this Section 3, shall commence
on December 1, 2013 (the "Rent Commencement Date") and, thereafter,
on each first day of subsequent months.
3.1.1 During the first Contract Year, the Base Rent for the Demised
Premises shall be Forty Six Thousand Four Hundred Ninety Six
and 16/100 Dollars ($46,496.16) per year, payable in monthly
installments of Three Thousand Eight Hundred Seventy Four and
68/100 Dollars ($3,874.68).
3.1.2 The Base Rent amount pursuant to this Section 3.1 shall be
increased annually throughout the Term, including any renewal
terms, commencing on the anniversary of the Commencement
Date of the Lease, and each anniversary of the Commencement
Date thereafter, in increments of three (3%) percent per year.
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3.2 Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also
pay the following Additional Rent as provided below:
3.2.1 Operating Expenses:
During the first Contract Year, the Operating Expenses for the
Demised Premises shall be Five Thousand Seventy Six and 00/100
Dollars ($5,076.00) per year, payable in monthly installments of
Four Hundred Twenty Three and 00/100 Dollars ($423.00), for its
proportionate share of "Operating Expenses" which are defined as
follows:
"Operating Expenses" shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the Common
Facilities (as hereinafter defined) and shall include, without
limitation, water service to the Building, sewer service to the
Building, trash removal from the Building, costs incurred for
gardening and landscaping, repairing and maintaining elevator(s),
painting, janitorial services (except for areas within the Demised
Premises), lighting, cleaning, striping, policing, removing garbage
and other refuse and trash, removing ice and snow, repairing and
maintaining sprinkler systems, water pipes, air-conditioning
systems, temperature control systems, and security systems, fire
alarm repair and maintenance and other equipment in the common
areas and the exterior and structural portions of the Building,
paving and repairing, patching and maintaining the parking areas
and walkways, and cleaning adjacent areas, management fees and
the City's employment expenses to employees furnishing and
rendering any services to the common areas, together with an
additional administration charge equal to fifteen percent (15%) of all
other expenses included in the annual common area expenses,
provided by the City for the common or joint use and/or benefit of
the occupants of the Building, their employees, agents, servants,
customers and other invitees.
"Common Facilities" shall mean all Building areas, spaces,
equipment, as well as certain services, available for use by or for
the benefit of Tenant and/or its employees, agents, servants,
volunteers, customers, guests and/or invitees.
Tenant agrees and understands that the costs incurred for
Operating Expenses may increase or decrease and, as such,
Tenant's pro-rata share of Operating Expenses shall increase or
decrease accordingly.
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3.2.2 Property Taxes:
The Property Tax Payment shall be payable by Tenant, in
accordance with Section 11 herein. The estimated Property Tax
Payment for the first Contract Year shall be based upon the 2013
Property Tax Payment, in the total sum of Nine Thousand Five
Hundred Forty Two Dollars and 35/100 ($9,542.35), payable in
monthly installments of Seven Hundred Ninety Five and 20/100
Dollars ($795.20). Notwithstanding the preceding, Tenant shall be
responsible for paying any difference in the amount between the
estimated Property Tax Payment and the actual property taxes.
3.2.3 Insurance:
The Additional Rent shall also include Tenant's pro-rata share
toward estimated insurance costs, determined by the City in its sole
discretion an judgment, to be sufficient to self-insure the Demised
Premises (Landlord Insurance). Tenant's pro-rata share of the
Landlord Insurance cost for the first Contract Year shall be One
Thousand One Hundred Forty Two Dollars and 16/100 ($1,142.16)1
payable in monthly installments of Ninety Five and 18/100 Dollars
($95.18). The Landlord Insurance cost may be adjusted
periodically, in the City's sole discretion, during each anniversary of
the Commencejment Date. This insurance coverage is in addition
to the insurance required pursuant to Section 10, which shall be
obtained at Tenant's sole expense and responsibility.
3.3 Percentage of Gross Derived From Cafe Space ("PGCS"):
During the Term of this Lease Agreement, in the event that the amount
equal to fifteen percent (15%) of Tenant's annual gross receipts derived
from the use of the Cafe Space (PGCS) exceeds the total Base Rent and
Additional Rent provided in Subsections 3.1 (as increased annually
pursuant to Subsection 3.1.2) and 3.2 above which is proportionate to the
Cafe Space (the "Cafe Space Proportionate Rent"), then Tenant shall also
pay to the City within thirty (30) days of the anniversary of this Agreement,
the difference between the amount of the PGCS and the Cafe Space
Proportionate Rent, each year during the Term of this Agreement,
including any renewal terms. The Cafe Space Proportionate Rent is
hereby stipulated as the percentage which the square footage of the Cafe
Space, which is 801 square feet (as contained in Section 1 of this Lease
Agreement), bears to the total square footage of the Demised Premises,
which is 1,269 square feet (as contained in Section 1 of this Lease
Agreement). Accordingly, for purposes of this Subsection 3.3, the Cafe
Space Proportionate Rent is 63.12% of the total Base Rent and Additional
Rent provided in Subsections 3.1 (as increased annually pursuant to
Subsection 3.1.2) and 3.2 above
The term "gross receipts" is understood to mean all income collected or
accrued, derived by Tenant under the privileges granted by this Lease
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Agreement, excluding amounts of any Federal, State, or City sales tax, or
other tax, governmental imposition, assessment, charge or expense of
any kind, collected by Tenant from customers and required by law to be
remitted to the taxing or other governmental authority.
3.3.1 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 Lease Agreement. Systems and procedures used
to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with
generally accepted accounting principles and shall be open to
inspection and audit, but not photocopying, by the City Manager or
his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a
breakdown of gross receipts, expenses, and profit and loss
statements, and such records shall be maintained as would be
required by an independent CPA in order to audit a statement of
annual gross receipts and profit and loss statement pursuant to
generally accepted accounting principles.
3.3.2 Inspection and Audit for Cafe Space.
Tenant shall maintain its financial records pertaining to its
operations for a period of three (3) years after the conclusion of any
contract year and such records shall be open and available to the
City Manager or his designee, as deemed necessary by them.
Tenant shall maintain all such records at its principal office,
currently located at 1701 Meridian Avenue, Unit 4, Miami Beach,
Florida 33139, or, if moved to another location, all such records
shall be relocated, at Tenant's expense, to a location in Miami
Beach, within ten (10) days' written notice from the City.
The City Manager or his designee shall be entitled to audit Tenant's
records pertaining to its operations as often as the City deems
reasonably necessary throughout the Term of this Lease
Agreement, and three (3) times within the three (3) year period
following termination of this Lease Agreement, (regardless of
whether such termination results from the natural expiration of the
term or for any other reason). The City shall be responsible for
paying all costs associated with such audits, unless the audit(s)
reveals a deficiency of five (5%) percent or more in Tenant's
statement of gross receipts for any year or years audited, in which
case Tenant shall pay to the City, within thirty (30) days of the audit
being deemed final (as specified below), the cost of the audit and a
sum equal to the amount of the deficiency revealed by the audit,
plus interest. The audit shall not be deemed final until Tenant has
received the audit and has had a reasonable opportunity to review
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the audit and discuss the audit with the City. These audits are in
addition to periodic audits by the City of Resort Tax collections and
payments, which are performed separately. Nothing contained
within this Section shall preclude the City's audit rights for Resort
Tax collection purposes.
Tenant shall submit at the end of each contract year, an annual
statement of gross receipts, in a form consistent with generally
accepted accounting principles. Additionally, such statement shall
be accompanied by a report from an independent CPA firm which
shall perform certain agreed upon procedures, as described in the
attached Exhibit 6.
It is Tenant's intent to stay informed of comments and suggestions
by the City regarding Tenant's performance under this Lease
Agreement. Within thirty (30) days after the end of each contract
year, Tenant and the City Manager or his designee may meet to
review Tenant's performance under this Lease Agreement for the
previous contract year. At the meeting, Tenant and City may
discuss quality, operational, maintenance and any other issues
regarding Tenant's performance under this Lease Agreement.
3.4 Sales Taxes.
Concurrent with the payment of the Base Rent and Additional Rent as
provided herein, Tenant shall also pay any and all sums for all applicable
tax(es), including without limitation, sales and use taxes and Property
Taxes, imposed, levied or assessed against the Demised Premises, or
any other charge or payment required by any governmental authority
having jurisdiction there over, even though the taxing statute or ordinance
may purport to impose such tax against the City.
3.5 Enforcement.
Tenant agrees to pay the Base Rent, Additional Rent, and any other
amounts as may be due and payable by Tenant under this Agreement, at
the time and in the manner provided herein, and should said rents and/or
other additional amounts due herein provided, at any time remain due and
unpaid for a period of fifteen (15) days after the same shall become due,
the City may exercise any or all options available to it hereunder, which
options may be exercised concurrently or separately, or the City may
pursue any other remedies enforced by law.
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4. Location for Payments.
All rents or other payments due hereunder shall be paid to the City at the
following address:
City of Miami Beach
Revenue Manager
1700 Convention Center Drive, 3�d Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in writing.
5. Parking.
Tenant may request, at Tenant's cost, from the City's Parking Department, the
use of no more than six (6) parking spaces, if available, within the Municipal
Parking Garage. Rates for said spaces are subject to change, and are currently
Seventy ($70.00) Dollars per month, plus applicable sales and use tax per space.
6. Security Deposit.
Upon execution of this Agreement Tenant shall furnish the City with a Security
Deposit, in the amount of Five Thousand and 00/100 Dollars ($5,000.00). Said
Security Deposit shall serve to secure Tenant's performance in accordance with
the provisions of this Agreement. In the event Tenant fails to perform in
accordance with said provisions, the City may retain said Security Deposit, as
well as pursue any and all other legal remedies provided herein, or as may be
provided by applicable law.
The parties agree and acknowledge that the foregoing condition is intended to be
a condition subsequent to the City's approval of this Agreement. Accordingly, in
the event that Tenant does not satisfy the aforestated, then the City Manager or
his designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available
to him for breach of contract.
7. Use and Possession of Demised Premises.
7.1 Office Space:
Approximately 468 square feet of the western portion of the Demised Premises
shall be used by the Tenant solely for the purpose(s) of providing building plan
and permit processing services (i.e. certificates of completion, certificates of
occupancy, violation remediation, plan review, processing and expediting
services, inspection management, special and 40 year inspections, fire and
building compliance, permit administration, occupancy load calculations, special
event permitting, and recording services).
Tenant's uses and/or services provided in conjunction with the Office Space
upon the Demised Premises may require Tenant to interact, from time to time,
with City of Miami Beach officials and employees, acting in their regulatory
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capacity. Notwithstanding the preceding, Tenant hereby represents and warrants
to the City that it shall in no way, whether express or implied, give the impression
that Tenant is in any way acting as an agent and/or representative of the City of
Miami Beach, nor that, by virtue of this Agreement, Tenant derives any special
benefit and/or consideration from the City (acting in its regulatory capacity) with
regard to Tenant's provision of plan and permit processing services to third
parties. Any violation of this Subsection 7.1 by Tenant shall be deemed as an
automatic default under this Agreement and, notwithstanding any other provision
set forth herein, shall entitle the City to automatically terminate this Agreement,
without further notice to Tenant, and without liability to the City.
Cafe Space:
Approximately 801 square feet of the eastern portion of the Demised Premises
shall be used by Tenant solely for the purpose(s) of operating a cafe. Tenant
shall cook, prepare, or cause to be prepared, for sale within the Demised
Premises, such cooked, prepared, and/or prepackaged foods, and such non-
alcoholic beverages as those set forth in "Exhibit 7.1" (Menu), attached hereto
and incorporated herein.
7.2 The Demised Premises shall be open for operation a minimum of five (5) days a
week, with minimum hours of operation being as follows:
Office Space: Monday - Friday: 7:00 AM to 5:00 PM
Cafe Space: Monday - Friday: 7:00 AM to 5:00 PM
Nothing herein contained shall be construed to authorize hours contrary to the
laws governing such operations. Any change in the minimum days and/or hours
of operation shall require the prior written consent of the City Manager; provided,
however, that in no event shall the hours of operation extend earlier than 7:00
AM, or later than 11:00 PM.
7.3 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the purpose(s)/use(s) set forth
in Subsections 7.1 and 7.2 hereof, and for no other purpose(s) and/or use(s)
whatsoever. Tenant will not make or permit any use of the Demised Premises
that, directly or indirectly, is forbidden by law, ordinance or government
regulation, or that may be dangerous to life, limb or property. Tenant may not
commit (nor permit) waste on the Demised Premises; nor permit the use of the
Demised Premises for any illegal purposes; nor commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised Premises (or
otherwise allows the Demised Premises to be used) for any purpose(s) not
expressly permitted herein, or permits and/or allows any prohibited use(s) as
provided 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.
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8. Improvements.
8.1 Tenant accepts the Demised Premises in their present "AS IS" condition
and may construct or cause to be constructed, such interior and exterior
improvements and maintenance to the Demised Premises, as reasonably
necessary for it to carry on its permitted use(s), as set forth in Section 7;
provided, however, that any plans for such improvements shall be first
submitted to the City Manager for his prior written consent, which consent,
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 expense and responsibility. 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. Any and all permits and or
licenses required for the installation of improvements shall be the sole cost
and responsibility of Tenant.
8.2 Notwithstanding Subsection 8.1, upon termination and/or expiration of this
Agreement, and at City's sole option and discretion, any or all alterations
or additions made by Tenant to or in the Demised Premises shall, upon
written demand by the City Manager, be promptly removed by Tenant, at
its expense and responsibility, and Tenant further hereby agrees, in such
event, to restore the Demised Premises to their original condition prior to
the Commencement Date of this Agreement.
8.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of
this Subsection 8.3 only, shall also include improvements as necessary for
Tenant's maintenance and repair of the Demised Premises) which do not
exceed Five Hundred ($500.00) Dollars, provided that the work is not
structural, and provided that it is permitted by applicable law.
8.4 Tenant Improvements.
Tenant agrees to make certain improvements (the "Tenant
Improvements") to the Demised Premises (valued by the parties at
approximately Eighty Thousand Dollars and 00/100 ($80,000.00), as
contained in "Exhibit 8.4" (Tenant Improvements), attached hereto and
incorporated herein. The Tenant Improvements shall be made in
accordance with the following timeline:
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• Tenant shall obtain a building permit no later than one hundred
eighty (180) days from the Commencement Date of this
Agreement;
• Tenant shall commence making the Tenant Improvements no
later than forty five (45) days from the date the building permit is
issued (the "Building Permit Date"); and
• Tenant Improvements shall be completed, and Tenant shall
obtain a Certificate of Occupancy (or Temporary Certificate of
Occupancy, as the case may be) from the City's Building
Department for said Tenant Improvements, no later than one
hundred eighty (180) days from the date the building permit is
obtained.
Failure to comply with the timeline and complete the Tenant
Improvements within the time period specified shall constitute an event of
default hereunder. The times for performance related to the permitting and
construction of the Tenant Improvements, as set forth in this Section 8.4,
may be extended for good cause shown, upon request, in writing, to the
City Manager, which extension by the City Manager (if approved) shall
also be in writing and shall not be unreasonably withheld.
8.4.1 Tenant shall provide the City with proof that the contractor engaged
for the construction of the Tenant Improvements has obtained the
requisite insurance coverage, as set forth on the attached "Exhibit
8.4.1" (Contractor's Insurance Requirements), listing Tenant and
the City as an additional insured thereunder.
9. City's Right of Entry.
9.1 The City Manager, and/or his authorized representatives, shall have the
right to enter upon the Demised Premises at all reasonable times for the
purpose of inspecting same; preventing waste; making such repairs as the
City may consider necessary; and for the purpose of preventing fire, theft
or vandalism. The City agrees that, whenever reasonably possible, it shall
use reasonable efforts to provide notice (whether written or verbal), unless
the need to enter the Demised Premises is an emergency, as deemed by
the City Manager, in his sole discretion, which if not immediately
addressed could cause property damage, loss of life or limb, or other
injury to persons. Nothing herein shall imply any duty on the part of the
City to do any work that under any provisions of this Agreement the
Tenant may be required to perform, and the performance thereof by the
City shall not constitute a waiver of the Tenant's default.
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9.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at any time, for any reason, and any entry thereon
shall be necessary or permissible, the City Manager, and/or his authorized
representatives, may enter the Demised Premises by master key, or may
forcibly enter the Demised Premises without rendering the City or such
agents liable therefore.
9.3 Tenant shall furnish the City with duplicate keys to all locks including
exterior and interior doors prior to (but no later than by) the
Commencement Date of this Agreement. Tenant shall not change the
locks to the Demised Premises without the prior written consent of the City
Manager, and in the event such consent is given, Tenant shall furnish the
City with duplicate keys to said locks in advance of their installation.
10. Tenant's Insurance.
10.1 Tenant shall, at its sole expense and responsibility, comply with all
insurance requirements of the City. It is agreed by the parties that Tenant
shall not occupy the Demised Premises until proof of the following
insurance coverages have been reviewed and approved by the City's Risk
Manager:
10.1.1 Comprehensive General Liability, in the minimum amount of One
Million ($1,000,000) Dollars (subject to adjustment for inflation) per
occurrence for bodily injury and property damage. The City of
Miami Beach must be named as an additional insured on this
policy.
10.1.2 Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
10.1.3 All-Risk property and casualty insurance, written at a minimum of
eighty (80%) percent of replacement cost value and with
replacement cost endorsement, covering all leasehold
improvements installed in the Demised Premises by or on behalf of
Tenant and including without limitation all of Tenant's personal
property in the Demised Premises (including, without limitation,
inventory, trade fixtures, floor coverings, furniture, and other
property removable by Tenant under the provisions of this
Agreement).
10.1.4 Business interruption insurance sufficient to insure Tenant for no
less than one (1) full year of loss of business, with the City named
thereon as loss payee to the extent permitted by applicable law.
10.1.5 Any other form of insurance which Tenant or the City, acting
reasonably, requires form time to time, in amounts, and for risks
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against which a prudent tenant would insure, but in any event not
less than that carried by comparable restaurants/retail
establishments in Miami-Dade County area.
10.1.6 Waiver of Subrogation.
The City and Tenant each hereby waives on behalf of itself and its
insurers (none of which shall ever be assigned any such claim or
be entitled thereto due to subrogation or otherwise) any and all
rights of recovery, claim, action, or cause of action, against the
other, its agents, officers, or employees, for any loss or damage
that may occur to the Demised Premises, or any improvements
thereto or any improvements thereto, or any personal property of
such party therein, by reason of fire, the elements, or any other
causes which are, or could or should be insured against under the
terms of the standard fire and extended coverage insurance
policies referred to in this Lease, regardless of whether such
insurance is actually maintained and regardless of the cause or
origin of the damage involved, including negligence of the other
party hereto, its agents, officers, or employees. The City and
Tenant shall each obtain from their respective insurers, under all
policies of fire, theft, public liability, worker's compensation, and
other insurance maintained by either of them at any time during the
term hereof insuring or covering the Retail Space or any portion
thereof or operations therein, a waiver of all rights of subrogation
which the insurer of one party might have against the other party,
and the City and Tenant shall each indemnify, defend, and hold
harmless the other against any loss or expense, including
reasonable attorneys' fees (appellate or otherwise) resulting from
the failure to obtain such waiver.
10.2 Proof of these coverages must be provided by submitting original
certificates of insurance to the City's Risk Manager and Asset Manager
respectively. All policies must provide thirty (30) days written notice of
cancellation to both the City's Risk Manager and Asset Manager (to be
submitted to the addresses set forth in Section 27 hereof). All insurance
policies shall be issued by companies authorized to do business under the
laws of the State of Florida and must have a rating of B+:VI or better per
A.M. Best's Key Rating Guide, latest edition, and certificates are subject to
the approval of the City's Risk Manager.
11. Property Taxes and Assessments.
For the purposes of this Section and other provisions of this Agreement:
11.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the
Demised Premises, and (ii) any expenses incurred by the City in obtaining
a reduction of any such taxes or assessments.
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11.2 The term "Property Tax Year" shall mean the period of twelve (12)
calendar months, beginning on January 1s' of each year.
11.3 Tenant shall pay, as Additional Rent pursuant to Subsection 3.2, for such
Property Tax Year an amount ("Property Tax Payment") equal to Tenant's
pro-rata share of Property Taxes (if any) for such Property Tax Year; said
pro-rata share to be determined by the City based upon the ratio of the
Demised Premises to the tax lot. If a Property Tax Year ends after the
expiration or termination of the term of this Agreement, the Property Tax
Payment therefore shall be prorated to correspond to that portion of such
Property Tax Year occurring within the term of this Agreement. The
Property Tax Payment shall be payable by Tenant immediately upon
receipt of notice from the City. A copy of the tax bill(s) or other evidence of
such taxes issued by the taxing authorities, together with the City's
computation of the Property Tax Payment, will be made available to
Tenant once received from the taxing authorities, if requested by Tenant.
Tenant shall pay any difference in the amount between the estimated
property taxes and the actual property taxes to the City immediately, upon
receipt of request for said payment from the City.
12. Assignment and Subletting.
Tenant shall not have the right to assign or sublet the Demised Premises, in
whole or in part, without the prior written consent of the City Manager, which
consent, if granted at all shall be at the City Manager's sole and absolute
discretion. Such written consent is not a matter of right and the 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.
13. Operation, Maintenance and Repair.
13.1 Tenant shall be solely responsible for the operation, maintenance and
repair of the Demised Premises. Tenant shall, at its sole expense and
responsibility, maintain the Demised Premises, and all fixtures and
appurtenances therein, and shall make all repairs thereto, as and when
needed, to preserve them in good working order and condition. Tenant
shall be responsible for all interior walls and the interior and exterior of all
windows and doors, as well as immediate replacement of any and all plate
glass or other glass in the Demised Premises which may become broken,
using glass of the same or better quality.
The City shall be responsible for the maintenance of the roof, the exterior
of the Building, the structural electrical and plumbing (other than plumbing
surrounding any sink(s) and/or toilet(s), including such sink(s) and toilet(s)
fixture(s), within the Demised Premises), the common areas and the
chilled water supply system. The City shall maintain and/or repair those
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items that it is responsible for, so as to keep same in proper working
condition.
If the City provides a separate air-conditioning unit for the Demised
Premises, Tenant agrees and understands that Tenant shall be solely
responsible for the maintenance, repair and replacement of the
heating/ventilation/air-conditioning (HVAC) equipment servicing the
Demised Premises, at Tenant's sole expense.
Tenant further agrees and understands that, if the City provides a
separate HVAC unit for the Demised Premises, the City, at its sole
discretion, may require that Tenant obtain, at any time during the Term of
this Agreement, and continuously maintain in good standing, at Tenant's
expense, throughout the Term of this Agreement, a maintenance and
repair contract, approved by the City, with a service company previously
approved in writing by the City, providing for the preventative maintenance
and repair of all HVAC equipment servicing the Demised Premises. In the
event that the City notifies Tenant that it will require Tenant to contract for
said maintenance and repair services, Tenant shall provide to the City, in
writing, within ten (10) business days, the name(s) and telephone
number(s) of service company(ies) for the City's review and approval.
Tenant shall provide a copy of a current, enforceable and fully executed
maintenance and repair contract, no later than ten (10) business days
after receipt of the City's approval of the service company, as proof of
Tenant's compliance with this provision.
13.2 All damage or injury of any kind to the Demised Premises, and including
without limitation its fixtures, glass, appurtenances, and equipment (if
any), or to the building fixtures, glass, appurtenances, and equipment, if
any, except damage caused by the gross negligence and/or willful
misconduct of the City, shall be the sole obligation of Tenant, and shall be
repaired, restored or replaced promptly by Tenant, at its sole expense and
to the satisfaction of the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in
quality and class equal to or better than the original work or installations
and shall be done in good and workmanlike manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the City, at the expense of Tenant, and all sums
spent and expenses incurred by the City shall be collectable by the City
and shall be paid by Tenant within three (3) days after submittal of a bill or
statement therefore.
13.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs and/or improvements made by Tenant to the Demised
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Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
13.6 Tenant Responsibilities for Utilities (not included within Operating
Expenses).
Tenant is solely responsible for, and shall promptly pay when due all
charges for electricity, gas, cable, telephone, internet, janitorial garage
service and any other utility service provided to the Demised Premises,
including, without limitation, all hook-up fees and impact fees, NOT
included as an Operating Expense (pursuant to Subsection 3.2.1).
In addition to other rights and remedies hereinafter reserved to the City,
upon the failure of Tenant to pay for such utility services (as contemplated
in this Subsection 13.6) when due, the City may elect, at its sole
discretion, to pay same, whereby Tenant agrees to promptly reimburse the
City upon demand.
In no event, however, shall the City be liable, whether to Tenant or to third
parties, for an interruption or failure in the supply of any utilities or services
to the Demised Premises.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS
IS" CONDITION.
14. Governmental Regulations.
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 expense and
responsibility. Tenant shall pay all cost, expenses, claims, fines, penalties, and
damages that may be imposed because of the failure of Tenant to comply with
this Section, and shall indemnify and hold harmless the City from all liability
arising from each non-compliance.
15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements for any labor or materials to
Tenant or claimed to have been furnished to Tenant's agents, contractors, or
sub-tenants, in connection with work of any character performed or claimed to
have performed on said Premises, or improvements by or at the direction or
sufferance of the Tenant; provided however, Tenant shall have the right to
contest the validity or amount of any such lien or claimed lien. In the event of
such contest, Tenant shall give the City reasonable security as may be
demanded by the City to insure payment thereof and prevent sale, foreclosure, or
15
forfeiture of the Premises or improvements by reasons of such non-payment.
Such security need not exceed one and one half (1%) times the amount of such
lien or such claim of lien. Such security shall be posted by Tenant within ten (10)
days of written notice from the City, or Tenant may "bond off' the lien according
to statutory procedures. Tenant will immediately pay any judgment rendered with
all proper costs and charges and shall have such lien released or judgment
satisfied at Tenant's own expense.
16. Intentionally Omitted.
17. Condemnation.
17.1 If at any time during the Term of this Agreement (including any renewal
term hereunder) all or any part or portion of the Demised Premises is
taken, appropriated, or condemned by reason of Eminent Domain
proceedings, 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 Tenant shall pay any and all rents, additional rents, utility charges,
and/or other costs for which it is liable under the terms of this Agreement,
up to the date of such taking.
17.2 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, 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.
18. Default.
18.1 Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default under
this Agreement:
18.1.1 The Base Rent, Additional Rent, or any other amounts as may be
due and payable by Tenant under this Agreement, or any
installment thereof, is not paid promptly when and where due, and
Tenant shall not have cured such failure within five (5) days after
receipt of written notice from the City specifying such default;
18.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
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18.1.3 Tenant shall fail to comply with any material term, provision,
condition or covenant contained herein other than the payment of
rent and shall not cure such failure within thirty (30) days after the
receipt of written notice from the City specifying any such default; or
such longer period of time acceptable to the City, at its sole
discretion;
18.1.4 Receipt of notice of violation from any governmental authority
having jurisdiction dealing with a law, code, regulation, ordinance or
the like, which remains uncured for a period of thirty (30) days from
its issuance, or such longer period of time as may be acceptable
and approved in writing by the City Manager, at his sole discretion;
18.1.5 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;
18.1.6 Tenant shall become insolvent;
18.1.7 Tenant shall make an assignment for benefit of creditors;
18.1.8 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
18.1.9 The leasehold interest is levied on under execution; or
18.1.10 A default under the Concession Agreement (as such agreement is
referenced in Subsection 1.1 of this Agreement).
19. Rights on Default.
19.1 Rights on Default:
In the event of any default by Tenant as provided herein, City shall have
the option to do any of the following, in addition to and not in limitation of,
any other remedy ermitted b law or this Agreement;
Y Y Y 9
19.1.1 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
the Demised Premises and expel or remove Tenant and its effects
in accordance with law, without being liable for prosecution or any
claim for damages therefore, and Tenant agrees to indemnify and
17
hold harmless the City for all loss and damage which the City may
suffer by reasons of such Agreement termination, whether through
inability to re-let the Demised Premises, or otherwise.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
term of this Agreement to be due and payable immediately, in
which event Tenant agrees to pay the same at once, together with
all rents therefore due, at the address of the City, as provided in the
Notices section of this Agreement; provided, however, that such
payment shall not constitute a penalty, forfeiture, or liquidated
damage, but shall merely constitute payment in 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.
19.1.3 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for
damages therefore; remove Tenant's property there from; and re-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, the 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.
19.1.4 Take possession of any personal property owned by Tenant on
said Demised Premises and sell the same at public or private sale,
and apply same to the payment of rent due, holding Tenant liable
for the deficiency, if any.
19.1.5 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the provisions of
this Agreement which shall not be paid when due shall be subject
to a late charge of Fifty and 00/100 ($50.00), plus interest at the
rate of eighteen (18%) percent per annum, or the maximum amount
allowable under Florida law, whichever is lesser, from the due date
of payment until such time as payment is actually received by the
City. 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.
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19.1.6 If Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
may pay such expense but the City shall not be obligated to do so.
Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof. All sums of
money payable by Tenant to the City hereunder shall be deemed
as rent for use of the Demised Premises and collectable by the City
from Tenant as rent, and shall be due from Tenant to the City on
the first day of the month following the payment of the expense by
the City.
19.1.7 The rights of the City under this Agreement shall be cumulative but
not restrictive to those given by law and failure on the part of the
City to exercise promptly any rights given hereunder shall not
operate to waive or to forfeit any of the said rights.
19.2 Default by City:
The failure of the City to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed by the City and
the continuance of such failure for a period of thirty (30) days after notice
thereof in writing from Tenant to the City (which notice shall specify the
respects in which Tenant contends that the City failed to 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 Tenant, then such failure to perform (regardless of
circumstances beyond its control) as indicated above, shall constitute a
default by the City.
19.3 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; provided however, that Tenant expressly acknowledges and
agrees that any recovery by Tenant shall be limited to the amount set forth
in Section 32 of this Agreement.
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20. Indemnity Against Costs and Charges.
20.1 Tenant shall be liable to the City for all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of Tenant's breach of any of the
provisions of this Agreement. Any sums due the City under the provisions
of this item shall constitute a lien against the interest of the Tenant and the
Demised Premises and all of Tenant's property situated thereon to the
same extent and on the same conditions as delinquent rent would
constitute a lien on said premises and property.
20.2 If Tenant shall at any time be in default hereunder, and if the City shall
deem it necessary to engage an attorney to enforce the City's rights and
Tenant's obligations hereunder, Tenant will reimburse the City for the
reasonable expenses incurred thereby, including, but not limited to, court
costs and reasonable attorney's fees, whether suit be brought or not and if
suit be brought, then Tenant shall be liable for expenses incurred at both
the trial and appellate levels.
21. Indemnification Against Claims.
21.1 Tenant shall indemnify and save the City 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 other
land or other facility or appurtenance used in connection with the Demised
Premises, occasioned in whole or in part by any of the following:
21.1.1 An act or omission on the part of Tenant, or any employee, agent,
contractor, invitee, guest, assignee, sub-tenant or subcontractor of
Tenant;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by
Tenant, or any employee, agent, contractor, invitee, guest,
assignee, sub-tenant or subcontractor of Tenant;
21.1.3 Any breach, violation, or non-performance of any undertaking of
Tenant under this Agreement;
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by Tenant or anyone holding or claiming to hold through
or under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises and/or other
facilities used in connection therewith, caused by Tenant or any employee,
agent, contractor, guest, or invitee of Tenant.
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22. Signs and Advertising_
Without the prior written consent of the City Manager, which consent, if given at
all, shall be at the City Manager's sole and absolute discretion, Tenant shall not
permit the painting and display of any signs, plaques, lettering or advertising
material of any kind on or near the Demised Premises. All additional signage
shall comply with signage standards established by the City and comply with all
applicable building codes, and any other municipal, County, State and Federal
laws.
23. Effect of Conveyance.
The term "City" and/or "Landlord" as used in the Agreement means only the
owner for the time being of the land and building containing the Demised
Premises, so that in the event of any sale of said land and building, or in the
event of a lease of said building, the City shall be and hereby is entirely freed and
relieved of all covenants and obligations of the City hereunder, and it shall be
deemed and construed without further agreement between the parties, or
between the parties and the purchaser at such sale, or the lease of this building,
that the purchaser or Tenant has assumed and agreed to carry out all covenants
and obligations of the City hereunder.
24. Damage to the Demised Premises.
24.1 If the Demised Premises shall be damaged 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 Manager, in his sole
discretion, in whole or in part, and such damage is covered by the City's
insurance, if any, (hereinafter referred to as "such occurrence"), the City,
shall, as soon as possible after such occurrence, utilize the insurance
proceeds to cause such damage to be repaired and the Rent (Base Rent
and Additional Rent) shall not be abated. If by reason of such occurrence,
the Demised Premises shall be rendered untenantable, as determined by
the City Manager, in his sole discretion, only in part, the City shall as soon
as possible utilize the insurance proceeds to cause the damage to be
repaired, and the Rent meanwhile shall be abated proportionately as to
the portion of the Demised Premises rendered untenantable; provided
however, that the City shall promptly obtain a good faith estimate of the
time required to render the Demised Premises tenantable and if such time
exceeds sixty (60) days, either party shall have the option of canceling this
Agreement.
24.2 If the Demised Premises shall be rendered wholly untenantable by reason
of such occurrence, the City shall have the option, but not the obligation,
in its sole discretion, to utilize the insurance proceeds to cause such
damage to be repaired and the Rent meanwhile shall be abated. However,
the City shall have the right, to be exercised by notice in writing delivered
to Tenant within sixty (60) days from and after said occurrence, to elect
not to reconstruct the destroyed Demised Premises, and in such event,
21
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, Tenant shall
have the right, to be exercised by notice in writing, delivered to the City
within thirty (30) days from and after said occurrence, to elect to terminate
this Agreement, the Rent to be adjusted accordingly.
Notwithstanding any clause contained in this Section 24, if the damage is
not covered by the City's insurance, then the City shall have no obligation
to repair the damage, but the City shall advise Tenant in writing within
thirty (30) days of the occurrence giving rise to the damage and of its
decision not to repair, and the Tenant may, at any time thereafter, elect to
terminate this Agreement, and the Rent shall be adjusted accordingly.
25. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Tenant
complies with the terms of this Agreement.
26. Waiver.
26.1 It is mutually covenanted and agreed by and 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.
26.2 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.
26.3 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.
22
27. 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:
LANDLORD: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copy to: Director
Office of Real Estate
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Damian J. Gallo, President
Damian J. Gallo & Associates, Inc.
1701 Meridian Avenue, Unit 4
Miami Beach, Florida 33139
All notices shall be hand delivered and a receipt requested, or by certified mail
with Return receipt requested, and shall be effective upon receipt.
28. Entire and 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.
29. 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.
30. 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.
23
31. 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.
32. 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.
Tenant hereby expresses its willingness to enter into this Agreement with
Tenant's recovery from the City for any damage action for breach of contract to
be limited to a maximum amount of $10,000.00. 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 $10,000.00 for any action or claim for breach of contract arising out of
the performance or non-performance of any obligations imposed upon the City by
this Agreement. Nothing contained in this Section or elsewhere in this Agreement
is in any way intended to be a waiver of the limitation placed upon the City's
liability as set forth in Florida Statutes, Section 768.28.
33. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the
City the Demised Premises, together with any and all equipment, fixtures,
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 Section. Any property which
pursuant to the provisions of this Section is removable by Tenant on or at the
Demised Premises upon the termination of this Agreement and is not so
removed may, at the option of the City, be deemed abandoned by 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, 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 Tenant to
surrender the Demised Premises as and when herein required.
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34. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to.
pay money is involved.
35. Venue:
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement
shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the
terms or conditions herein, exclusive venue for the enforcement of same shall lie
in Miami-Dade County, Florida.
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.
36. Radon is a naturally occurring radioactive gas that, when it is accumulated in a
building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of Radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional information
regarding Radon and Radon testing may be obtained from your County Public
Health Unit.
37. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or
use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any
kind, or any substance or thing prohibited in the standard policies of fire
insurance companies in the State of Florida. Any such substances or materials
found within the Demised Premises shall be immediately removed.
Tenant shall indemnify and hold the City harmless from any loss, damage, cost,
or expense of the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by Tenant
of any "hazardous substance" or "petroleum products" on, in or upon the
Demised Premises as those terms are defined by applicable Federal and State
Statute, or any environmental rules and environmental regulations promulgated
thereunder. The provisions of this Section 37 shall survive the termination or
earlier expiration of this Agreement.
38. Termination of Existing Lease.
The City and Tenant are parties to an existing Lease Agreement for the Demised
Premises dated July 30, 2003; as amended by a Consent to Assignment and
First Amendment dated January 11, 2006; as amended by a Second Amendment
25
to Lease Agreement dated May 13, 2009; as amended by a Consent to
Assignment and Assumption of Lease Agreement dated May 13, 2009,
(collectively, the "Existing Lease").
Upon execution of this Agreement by the parties, the Existing Lease shall be
deemed terminated and of no further force or effect. Such termination shall also
be deemed to apply retroactively, as of 11:59 P.M. on November 30, 2013
("Existing Lease Termination Date"), as if said time and date were set forth in the
Existing Lease as the lease expiration date of the term.
Tenant shall pay to the City any and all Base Rent, Additional Rent, and any and .
all sums due to the City pursuant to the Existing Lease that are or will be due to
the City as of the Existing Lease Termination Date. Tenant agrees to pay such
amount due within ten (10) days of receiving an invoice from the City. In the
event Tenant fails to pay such amount due within ten (10) days of receiving an
invoice from the City, such failure, at the election of the City, may be deemed a
default of this Lease Agreement and the City shall, in addition to any and all
remedies available to the City at law or in equity, be entitled to all of the remedies
specially provided in this Lease Agreement.
The City shall transfer the security deposit, in the amount of $5,000.00, from the
Existing Lease (as contained in Section 8 of the Second Amendment to Lease
Agreement) to this Agreement; such amount of $5,000.00 being required as
Security Deposit under Section 6 of this Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed and their seals to be affixed, all as of the day and year first above written,
indicating their agreement.
Attest: CITY OF MIAMI BE ORIDA
R ael Granado, CITY CL P Ili ne, MAYOR
.-9 .
:INCORP ORATED
Attest: I, cry DAMI ' 'J. ALLO & A IATES, INC.
,--�-3
2
Signa / ate Secretary Dam n l Gaflo, 15RESITT
Print Name
C/Al.
Sig
Print Name APPROVED AS TO
CORM-&LANGUAGE
$FOR CUTION
r
CORPORATE SEAL
(affix seal here)
i me Date
F:\RHCD\$ALL\ECON\$ALL\ASSET\777-17th Street\Permit Doctor_Damian Gallo\Damian J Gallo Lease Agreement DRAFT(10-
8-13).docx
27
EXHIBIT 1
Demised Premises
Room
ELECTRICAL ROOM
UNIT 4
TORAGE
UNIT 3
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COMMON
ELEMENTS
STAIRS
ELE OR
7
AREA UNIT 1=1,326.78 S/F
AREA UNIT 2=1,802.89 S/F 0 wo 200
AREA UNIT 3=1,290.59 S/F SCALE
AREA UNIT 4--1,268.87 S/F
SURVEYOR'S NOTE
DETAILS OF INTERIORS WALLS WERE BASED IN ORIGINAL DRAVANGS AND BES INFORMATION OBTAIN FROM MEW SURVEY
First Floor Plan
Prepared by. 1701 MERIDIAN BUILDING CONDOMINIUM
-V ve. Page 4 of 9
"7z;
Exhibit"B"
41-1712007
28
EXHIBIT 1 .1
Concession Agreement
29
EXHIBIT 1 s
Layout
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CONCESSIONS
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LEGEND
OFFICE SPACE
CAFE SPACE
CONCESSIONS SPACE
17TH STREET
30
EXHIBIT 7.1
Menu
Soups Lighting Paninis Melting Pot
OUR SOUPS ARE MADE WITH THE FERESHES PANINIS ARE MADE WITH FRESH LOCAL BREADS FRESH GRILLED SANDWICH TO SATISFIED YOUR
INGRIDIENTS USING LOCAL FARMERS,ORGANIC BAKED DAILY AND VERYFAST SERVED TO YOU. TRADITIONS IN OUR CHOICE OF FRESH ORGANIC
BEANS IVEGETABLES AND FREE OFPESTESIDES. Al(include our Joe's avocado air fries
BREADS AND CROISSANTS
French Riviera Beach caramelize 4.00 Chicken tenders and Tomato Ruben up! 8.00
onion soup chutney 10.00 Lean Corn beef,barrel Kraut,Swiss,Russian
Neutral stock base,with Caramelize Vidalia Grilled chicken with adoho and lettuce and dressing,Pumpernickel bread
onions. tomato spread served our French baguettes.
Vegetarian vegan Black moon 3.00
The oriental black bean soup 4.00 Cuban twist 11.00
grilled Portobello,zucchini,onions lettuce
Black beans and a touch of Cuban seasoned. Serrano Ham,slow sous vide pull pork,fried tomato,romaine and chipotle dressing flat
Candy cream of tomato soup 4.00 pickles,French mustard,Swiss chesses bread
. Slow roasted plum Tomato with Italian herbs.
Chicken Poblano 10.00 Permitdoctor Chicken club'" 8.00
Grilled chicken special spice sauce with What the Doctor order,chicken,berries,kale,
Twice Baked potato soup 4.00 romaine lettuce and tomatoes,Chihuahua and low fat cheese in our whole wheel bread,
Baked potato with smoked cherry wood flavor, chesses Flat bread no oil dressing spuma
Italian de Parma 11.00 Una media Noche Croissant 10.00
Crispy prosciutto di Parma,provolone,sun- Sliced ham,roast pork,Swiss cheese,pickles,
Salads dried plum tomato,pesto lettuce,olives sweet Cuban bread
CRISPY DOUBLE WASH SALADS WITH ORGANIC Focaccia bread all sandwich served with air fries and Joe's
TOMATOES AND FRUITS BBQ pull pork Sous Vide 10.00 avocado fries"'
Chicken I`Mbbean style 6.00 Slow over night cooking pork with our south Coffee and more
Baby Romains,croutons avocados Caesar. stout BBQ sauce sharp cheddar cheese. Our Costa Rica Honduras blends
,
South Beach Sunrise 6.00 You said Cooffe Cafe 3.00
Berries and Tomatoes mix lettuce French Low-Fat smoothies
dressing and sliced almonds. Our blend served with cane sugar
FRESH FRUITS AND VEGETABLES SMOOTHIES
Ocean Drive seafood salad 7.00 AND SUPER BUSTERS UM,INDULGENT TOO! Coffee frappe 4.00
Baby shrimp,scallops tossed with romaine Sunshine Earl birds 500 Double fuel strength coffee,chilled,flavored
Early
lettuce Thai dressing with�vamlla,hazelnuts,whipped cream.
Raspberries,blue and bananas agave. Indulgent Chai Tea 3,00
NOS oxide energy 5.00 Vanilla,ginger,cinnamon,cloves and
Citrus Kombucha.Ginger,coconut,kale cardamom
Bahnana Mama 5.00
Avocado.Banana and pickled ginger
31
EXHIBIT 8.4
Tenant Improvements
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ANT
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Curing I ®MEYY PPRTnWNIIr•lL
1"a1lKV1AT� I ALL UOC ICOOt10A.
ENOJECRON Of All LCRVICL IIJ.W.
RODE TPk"ROOM LNYI OL
EIRE SPRIRK.EREO
177.,STREET
32
EXHIBIT 8.4.1
Contractor's Insurance Requirements
Worker's compensation insurance covering all employees of the Contractors (as
required by the laws of the State of Florida) and employer's liability insurance of not less
than One Million Dollars ($ 1,000,000) per occurrence.
Comprehensive general liability insurance in an amount of not less than One
Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual
aggregate covering personal injury and property damage. Such coverage shall include,
but not be limited to, the following:
i. Blanket contractual liability insurance covering all indemnity or hold
harmless agreements.
ii. Protective liability insurance for the operation of the Independent
Contractors.
iii. XCU coverage (explosion, collapse or damage to underground
property).
iv. Products and completed operations (for two (2) year extension
beyond completion of project).
Comprehensive automobile insurance in an amount of not less than Two
Million Dollars ($2,000,000) combined single limit for bodily injury and property damage
covering all owned, non-owned or hired vehicles, trailers or semi-trailers, including any
machinery or apparatus attached thereto.
.3. Builder's Risk Insurance (standard "All Risk" or equivalent coverage) in an amount
not less than the cost of construction, written on a completed value basis or a
reporting basis, for property damage protecting BGCM-D, City, and BGCM-D's
General Contractor, with a deductible of not more than Fifty Thousand Dollars
($50,000), subject to adjustment for inflation (except as to flood and windstorm, with
regard to which the deductible shall be a commercially reasonable amount).
4. Payment and Performance bond guaranteeing the performance of the general
contractor, for the value of the work to be performed.
33