2016-29676 Reso RESOLUTION NO. 2016-29676
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC
HEARING, AND WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CITY; AND APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A NEW LEASE AGREEMENT, SUBSTANTIALLY IN THE
FORM ATTACHED TO THIS RESOLUTION AS EXHIBIT "A", BETWEEN THE
CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. (TENANT), FOR THE USE
OF APPROXIMATELY 535 SQUARE FEET OF GROUND FLOOR RETAIL
SPACE LOCATED IN UNIT 4 OF 1701 MERIDIAN BUILDING CONDOMINIUM,
A/K/A 775 17TH STREET, FOR A PERIOD OF FIVE (5) YEARS, COMMENCING
RETROACTIVELY DECEMBER 1, 2016 AND ENDING NOVEMBER 30, 2021,
WITH ONE (1) RENEWAL OPTION FOR THREE (3) YEARS, AT THE CITY'S
SOLE DISCRETION.
WHEREAS, the City owns the 1701 Meridian Building Condominium, comprised of ground
floor retail spaces (Units 1-4), each having their own physical address, and a four story office
building (Units 5-8, with each floor representing one unit), having a physical address of 1701
Meridian Avenue; and
WHEREAS, on September 11, 2013, the Mayor and City Commission passed Resolution No.
2013-28344 approving a new lease agreement between the City and Damian J. Gallo &
Associates, Inc. d/b/a Permit Doctor (Tenant) for the use of Unit 4, a/k/a 775 17th Street, Miami
Beach, Florida 33139, having approximately 1,269 square feet, and a new revocable concession
agreement for approximately 507 square feet of outdoor space to be used as an outdoor seating
area ( (Former Premises); and
WHEREAS, the western 1/3 of the Former Premises was to be used by Tenant to operate its
existing plan and permit processing services (d/b/a Permit Doctor) and the eastern 2/3rds was to
be used by Tenant, to operate a new café (d/b/a Stardust Coffee); and
WHEREAS, the lease agreement and the concession agreement were for an initial term of
three (3) years, commencing December 1, 2013 and ending November 30, 2016, with two (2)
renewal options for two (2) years each, at the City's sole discretion; and
WHEREAS, in March of 2016, due to a lack of business, Tenant ceased operations in the
café; and
WHEREAS, at the May 11, 2016 City Commission meeting, Mayor Levine sponsored an item
regarding the creation of a City employee healthy cafeteria; and
WHEREAS, Staff identified the eastern portion of the Former Premises as a potential site for
an employee cafeteria due to its close proximity to the City Hall complex; and
WHEREAS, Staff identified Taste Bakery Café as a prospective tenant/operator for the
employee cafeteria; and
WHEREAS, this matter was discussed at the June 17, 2016 and September 30, 2016 Finance
and Citywide Projects Committee ("FCWPC") meetings and the FCWPC recommended in favor of
approving a new lease with Taste Bakery Café for the eastern 2/3rds of the Former Premises, to
be used as an employee cafeteria, as well as a new lease agreement with Tenant for the eastern
1/3 of the Former Premises, so that Tenant may continue to operate its plan and permit
processing services; and
WHEREAS, upon further discussions, the Administration negotiated a new lease with Tenant,
for an initial term of five (5) years, commencing retroactively December 1, 2016 and ending
November 30, 2021; and
WHEREAS, the Administration submitted the agreed upon terms and conditions to the
Finance and Citywide Projects Commission Committee (FCWPC) at its November 18, 2016
meeting, and the Administration recommended approving a new lease agreement with Tenant,
containing the following essential terms:
Premises: Unit 4 of 1701 Meridian Building Condominium
a/k/a 775 17th Street, Miami Beach, Florida 33139
Size: Approximately 535 square feet (subject to verification) of western portion of
Unit 4
Initial Term: Five (5) years commencing retroactively on December 1, 2016 and ending
November 30, 2021.
Renewal Option: So long as Tenant is in good standing and free from default under the
Lease, upon providing Landlord written notice at least one hundred twenty
(120) days prior to the expiration of the Initial Term, Tenant shall have one
(1) renewal option, at the City's sole discretion, for a period of three (3)
years.
Termination
Option: The City shall have the right, through its City Manager, to terminate the
Lease Agreement, at any time, without cause and without liability to the City,
upon providing Tenant with one hundred eighty (180) days prior written
notice.
Base Rental Rate: $40.04 Triple Net (NNN), per rentable square foot ($21,421.40 annually,
$1,785.12 monthly), plus applicable sales tax.
Increases: The Base Rental Rate shall be increased annually by three percent (3%),
including for the renewal term, if applicable.
Operating
Expenses: Tenant shall pay its proportionate share of the costs of real estate taxes,
insurance and common area maintenance expenses (currently estimated at
$11.43 per square foot).
Construction
Allowance: Tenant shall accept the Premises in "as-is" condition; and
•
WHEREAS, the Administration recommends the approval of a new lease agreement,
containing the essential terms outlined in this Resolution, substantially in the form attached as
Exhibit "A" hereto.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission,
following a duly advertised public hearing, hereby waive, by 5/7ths vote, the competitive bidding
requirement, finding such waiver to be in the best interest of the City; and approve and authorize
the Mayor and City Clerk to execute a new lease agreement, substantially in the form attached to
this Resolution as Exhibit "A", between the City of Miami Beach and the Miami Beach
Redevelopment Agency (collectively, Landlord) and Damian J. Gallo & Associates, Inc. (Tenant),
for the use of approximately 535 square feet of ground floor retail space located in Unit 4 of 1701
Meridian Building Condominium a/k/a 775 17th Street, for a period of five (5) years, commencing
retroactively December 1, 2016 and ending November 30, 2021, with one (1) renewal option for
three (3) years, at the City's sole discretion.
PASSED and ADOPTED this "y day of D[Qrh bPr 2016.
ATTEST:
.1
/ -
R.fael E. Granado, City CIe "ll°l"``lllp Philip: eV - -yor
•
y,
* mcoRP ORATED:
26
%gym
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION /
• City Attorne 4,4 Date
T:AGENDA\2016\December\ICED\Damian J.Gallo&Associates\Damian J.Gallo&Associates-New Lease Agreement RESO
(11-28-16).docx
Resolutions - R7 A
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: December 14, 2016
1:30 p.m. Public Hearing
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC HEARING, AND
WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT,
FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND
APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
NEW LEASE AGREEMENT, SUBSTANTIALLY IN THE FORM ATTACHED TO THIS
RESOLUTION AS EXHIBIT "A", BETWEEN THE CITY AND DAMIAN J. GALLO &
ASSOCIATES, INC. (TENANT), FOR THE USE OF APPROXIMATELY 535 SQUARE
FEET OF CITY-OWNED PROPERTY (PREMISES), LOCATED ON THE FIRST
FLOOR AT 1701 MERIDIAN AVENUE, UNIT 4 (A/K/A 775 17TH STREET), MIAMI
BEACH, FLORIDA, FOR A PERIOD OF FIVE (5) YEARS, COMMENCING
RETROACTIVELY DECEMBER 1, 2016 AND ENDING NOVEMBER 30, 2021, WITH
ONE (1) RENEWAL OPTION FOR THREE (3) YEARS, AT THE CITY MANAGER'S
SOLE DISCRETION.
RECOMMENDATION
Adopt the Resolution.
BACKGROUND
On September 11, 2013, the Mayor and City Commission passed Resolution No. 2013-28344 approving
a new lease agreement between the City and Damian J. Gallo &Associates, Inc. d/b/a Permit Doctor
(Tenant) for the use of approximately 1,269 square feet of City-owned property, and a new revocable
concession agreement for approximately 507 square feet of outdoor space to be used as an outdoor
seating area, located on the ground floor at 1701 Meridian Avenue, Unit 4 (a/k/a 775 17th Street), Miami
Beach, Florida (Former Premises) for an initial term of three (3) years, commencing December 1, 2013
and ending November 30, 2016, with two (2) renewal options for two (2) years each, at the City's sole
discretion.
The western 1/3 of the Former Premises was to be used by Tenant to operate its existing plan and
permit processing services (d/b/a Permit Doctor) and the eastern 2/3rds was to be used by Tenant, in
conjunction with an outdoor seating area, to operate a new café (d/b/a Stardust Coffee). In March of
2016, due to a lack of business, Tenant ceased operations in the café.
ANALYSIS
At the May 11, 2016 City Commission meeting, Mayor Levine sponsored an item regarding the
creation of a City employee healthy cafeteria. Staff identified the eastern portion of the Former
Page 641 of 1191
Premises as a potential site for an employee cafeteria due to its close proximity to the City Hall
complex. Staff also identified Taste Bakery Café as a prospective tenant/operator for the
employee cafeteria. This matter was discussed at the June 17, 2016 and September 30, 2016
Finance and Citywide Projects Committee ("FCWPC") meetings. The FCWPC recommended in
favor of approving a new lease with Taste Bakery Café for the eastern 2/3rds of the Former
Premises, to be used as an employee cafeteria, as well as a new lease agreement with Tenant for
the eastern 1/3 of the Former Premises, so that Tenant may continue to operate its plan and permit
processing services.
The basic terms and conditions of the proposed lease agreement are generally consistent with the
terms and conditions contained in the Tenant's renewal option for the Former Premises as follows:
Premises: 1701 Meridian Avenue, Unit 4 (a/k/a 775 17th Street)
Size: Approximately 535 square feet(subject to verification)
Initial Term: Five (5) years commencing retroactively on December
1, 2016 and ending November 30, 2021.
Renewal Option: So long as Tenant has never been in an uncured default
of the Lease, upon providing Landlord written notice at least one hundred
twenty (120) days prior to the expiration of the Initial Term, Tenant shall have
one (1) renewal option, at the City Manager's sole discretion, for a period of
three (3)years.
Termination
Option: The City shall have the right, through its City Manager, to
terminate the Lease Agreement, at any time, without cause and without liability
to the City, upon providing Tenant with one hundred eighty (180) days prior
written notice.
•
Base Rental Rate: $40.04 Triple Net (NNN), per rentable square foot
($21,421.40 annually, $1,785.12 monthly), plus applicable sales tax.
Increases: The Base Rental Rate shall be increased annually by
three percent(3%), including for the renewal term, if applicable.
Operating
Expenses: Tenant shall pay its proportionate share of the costs of
real estate taxes, insurance and common area maintenance expenses
(currently estimated at$11.43 per square foot).
Construction
Allowance: Tenant shall accept the Premises in"as-is" condition.
FINANCE & CITYWIDE PROJECTS COMMITTEE
At the November 18, 2016 Finance and Citywide Projects Committee ("FCWPC") meeting, the
Administration presented the terms and conditions set forth above. The FCWPC considered this
matter and recommended approving a new lease with Damian J. Gallo & Associates, Inc. d/b/a
Permit Doctor._
Page 642 of 1191
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the Resolution in favor
of accepting the recommendation of the FCWPC.
Legislative Tracking
Tourism Culture and Economic Development
Sponsor
Mayor Philip Levine
ATTACHMENTS:
Description
❑ Exhibit A DRAFT Lease Agreement
❑ RESO
Page 643 of 1191
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this day of , 2016
(Lease, Lease Agreement), by and between the CITY OF MIAMI BEACH, a Florida
municipal corporation, (hereinafter referred to as "City" or "Landlord"), and DAMIAN J.
GALLO & ASSOCIATES, INC., a Florida corporation, (hereinafter referred to as
"Tenant").
r�
1. Demised Premises. /
The City, in consideration of the rentals hereinaftjr se erved to be paid and of the
covenants, conditions and agreements to be"kpt 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 describedas follows:/%
The westerly 535 square feet portion of Unit 4 inclusive of one
bathroom ("Demised<Premises"), as more specifically delineated in
"Exhibit 1" with the add\ss"775'17th Street,'Suite 4A
Unit 4", referenced above is Unit 44of the 1701 Meridian Avenue
Condo nium;ia`1;269 square feet spe� lo
, cated on the ground
floor of the Building, and as\( ore acspecifically delineated in "Exhibit
1a"/ also known) as: 775\ 1\7th Street, attached hereto and
incorporated herrein. \\<>`
2. Term:
V
2.1. Tenantshall be\.entitled to have and to hold the Demised Premises for an
initial ter; e five.(5) rears, commencing retroactively on the 1st day of
December`2 .16 (the "Commencement Date"), and ending on the 30th
day of November, 2021. For purposes of this Lease Agreement, and
including, without limitation, Subsection 2.2 herein, a "contract year" shall
be defined a that certain period commencing on the 1st day of December,
and, ndin 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 eighty (180)
days, but in any case no later than one hundred twenty (120) 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 one (1) three (3) year
renewal term. Any extension, if approved, shall be memorialized in writing
Page 644 of 1191
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 expiration of the
initial 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, 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.'2016 (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 Twenty-one Thousand, Four Hundred Twenty and•
12/100 Dollars ($ 21.420:12 j per year, 'payable in monthly installments
of One'\Thousand, Seven\Hundred Eighty-five and 01/100 Dollars ($
• 1.785.01).'; .;!
3.1:2. The Base Rent, amount 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.
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. Property Taxes: Insurance: and Common Area
Maintenance (CAM):
Tenant shall remit together with regular monthly payments of Minimum
Rent, its proportionate share of estimated Operating Expenses for the
Premises as additional rent, as determined by Landlord, in its sole
discretion and judgment, including Property Taxes, Insurance, and
CAM, and as more particularly described hereinafter.
Page 6425 of 1191
Tenant's Proportionate Share means a fraction, the numerator of which
is the square footage of the Demised Premise occupied by the Tenant,
and the denominator of which is the total Rentable Area of the
Building. Landlord may also implement and choose a more
appropriate method to calculate Tenant's Proportionate Share for
different Operating Expenses,`such as, but not limited to, Proportionate
Share of replacement value for insurance, Proportionate Share of
Rentable Area for Cam, Condominiumization for property taxes,
individual or sub-metering for utilities, individual assessments if Tenant
is solely responsible, or any other method which the Landlord, in its
sole discretion and judgment, may reasonably deem more appropriate
in assessing Tenant's share of Operating Expenses.
Tenant agrees and understands that the costs incurred for Operating
Expenses may increase or decrease from time to as Operating
expenses are increased ,to the Landlord and, as such, Tenant's
Proportionate Share of Operating Expenses shall increase or decrease
accordingly from time to time.
3.2.1.1. Common Area Maintenance("CAM"):
During the first Contract Year, the Operating Expenses for the
Demised Premises shall be Two Thousand, One Hundred Thirty-
nine and 96/100c Dollars-($2,139.96) per year, payable in monthly
installments of One, Hundred Seventy-eight and 33/100 Dollars
($178.33), for its proportionate'share,of CAM which is defined as
follows:
"Corrimonr;Area 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
"sand other refuse and trash, removing ice and snow, repairing and
maintaining sprinkler systems, water pipes, air-conditioning
systerns, 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
Page 6yof1191
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.
3.2.1.2. 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 2016
Property Tax Payment, in the total sum of Three Thousand, Four
Hundred Ninety-one and 76/100 Dollars ($3,491.76), payable in
monthly installments of Two Hundred Ninety and 98/100 Dollars
($290.98). 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.
Tenant shall, pay, as Additional-Rent-.pursuant to this Subsection ,
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 is currently determined by
• the City based upon the ratio of the Demised Premises to the tax
lot:'If a Property Taxi'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.
For the purposes of this Section and other provisions of this
Agreement:
The term "Property Taxes" shall mean (i) real estate taxes,
Page 6j7of1191
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.
The term "Property Tax Year" shall mean the period of twelve (12)
calendar months, beginning on January 1st of each year.
3.2.1.3. Insurance:
The Additional Rent shall also include Tenant's Proportionate
Share of the insurance costs for the Building, as determined by the
Landlord, in its sole discretion and judgment, to be sufficient to
insure and/or self-insure the Facility for hazard, flood, windstorm,
and liability insurance for the following calendar year. Tenant
acknowledges that Landlord may choose to self-insure for any or all
of Landlord's Insurance coverage's, including without limitation
liability insurance. Tenant's Initial Insurance cost shall be Four
Hundred Sixty-eight 24/100 Dollars ($468.24), payable in monthly
installments of Thirty-six and 97/100 Dollars ($39.02.). The
Insurance cost may be adjusted periodically, in the City's sole
discretion, from time to time.
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. Intentionally Omitted
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.
Page 6¢8 of 1191
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, 3rd 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 Three (3) parking spaces, if available, within the Municipal
Parking Garage. Rates for said spaces are subject to change, and are currently
One Hundred and 00/100 Dollars ($100.00) 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'f 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; provisions,`the City may retain said Security Deposit, as
well as pursue; any and all other„legar remedies'provided herein, or as may be
provided by`applicable lava ;
6.1. :- 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
aforestatedthen`the,City Manager or his designee may immediately,
without further demand*or notice, terminate this Agreement without being
''.,prejudiced as\t&any remedies which may be available to him for breach of
contract.
7. Use and Possession/of Demised Premises.
7.1. Use of Demised Premises:
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).
Page 6$9 of 1191
Tenant's uses and/or services provided in conjunction with the Demised
Premises may require Tenant to interact, from time to time, with City of
Miami Beach officials and employees, acting in their regulatory 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.
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:
Hours of Operation: 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,4'or:later`than1:1:00 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'`,,Section 7 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
evenithat,the"Tenant uses the Demised Premises (or otherwise allows the
DemisedPrernises 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.
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
Page 50 of 1191
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'ssole 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, andprovidedthat it is permitted by applicable law.
8.4. Intentionally Omitted
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
Page 631 of 1191
injury to persons. Nothing herein shall imply any duty on the part of the
City to do any work that under any provisions of this Agreement the
Tenant may be required to perform, and the performance thereof by the
City shall not constitute a waiver of the Tenant's default.
9.2. If the Tenant shall not be personally present 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 Requirements.
10.1. Before beginning any work and throughout, the term of the Agreement
(including renewal periods), Tenant shall, at its sole cost and expense,
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 coverage have been reviewed and approved by
the City's;Risk Manager. All:,insurance policies required below shall be
issued by`'companies authorized to do business under the laws of the
State;of,Florida: 'Provider shall indicate that insurance coverage has been
obtained which meets the``requirements as outlined below by submitting
original ^certificates, of,,insurance to the City's Risk Manager and Asset
Manager respectively::
10.2. Worker s Compensation for all employees of the provider as required by
Florida-,Statutej440 and Employer's Liability coverage in accordance with
the Florida Statutory requirements.
10.3. Commercial--General Liability on a comprehensive basis in an amount not
less than $1,000,000 combined single limit per occurrence, for bodily
injury and property damage. City of Miami Beach must be shown as an
additional insured with respect to this coverage.
10.4. Additionally Tenant will be insured for the following coverage:
10.4.1. 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.
Page 6,`2 of 1191
10.5. Intentionally Omitted
10.6. 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).
10.7. Intentionally Omitted
10.8. The insurance coverage required shall include those classifications, as
listed in standard liability insurance manuals, which most nearly reflect the
operations of the provider.
10.9. Any insurance coverage required above must include a waiver of
subrogation in favor of the City.
10.10. The company must be rated no less than "B+" as to management, and no
less than "Class VII" as to financial strength, by the latest edition of Best's
Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey,
or its equivalent, subject to the approval of the City Risk Management
Division.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
3rd FLOOR— OFFICE OF REAL ESTATE
MIAMI BEACH, FL 33139
10.11. Compliance with the foregoing requirements shall not relieve the vendor of
his liability and obligation under this section or under any other section of
this Agreement.
10.12. City reserves the right to impose additional reasonable insurance
requirements as the City may deem necessary or in accordance with
common practice.
10.13. The policies of insurance referred to above shall not be subject to
cancellation or changing coverage except upon at least thirty (30) days
written notice to City and then subject to the prior written approval of the
City's Risk Manager. Should Tenant fail to obtain, maintain or renew the
policies of insurance referred to above, in the required amounts, the City
Page 653 of 1191
may, at its sole discretion, obtain such insurance, and any sums expended
by City in obtaining said insurance, shall be repaid by TENANT to City,
plus ten percent (10%) of the amount of premiums paid to compensate
City for its administrative costs. If Tenant does not repay City's
expenditures within fifteen (15) days of demand, the total sum owed shall
accrue interest at the rate of twelve percent (12%) until paid, and such
failure shall be deemed an event of default hereunder.
10.13.1. 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 anyloss.or expense, including reasonable attorneys' fees
`,,(appellate or'otherwise) resulting from the failure to obtain such waiver.
11. Intentionally'Omitted !(' /f.
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.
Page 615it of 1191
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.
13.1.1. The City shall be responsible for the maintenance of the roof, the
exterior of the Building, the structural electrical and plumbing (other
than plumbing surrounding any sink(s) and/or toilet(s), including such
sink(s) and toilet(s) fixture(s), within the Demised Premises), the
common areas and the chilled water supply system. The City shall
maintain and/or repair those items that it is responsible for, so as to
keep same in proper working condition.
13.1.2. 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,'Ahroughout 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.
Page 6e of 1191
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.
131.4. 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
Premises comply with'all,app,licable 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.
Page 6,pg of 1191
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 forr any labor or materials to
Tenant or claimed to have been furnished to Tenant's agents, contractors, or
sub-tenants, in connection with work of any character performed or claimed to
have performed on said Premises, or improvements by or at the direction or
sufferance of the Tenant; provided however, Tenant shall have the right to
contest the validity or amount of any such lien or claimed lien. In the event of
such contest, Tenant shall give the City, reasonable security as may be
demanded by the City to insure payment thereof.and prevent sale, foreclosure, or
forfeiture of the Premises or ,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 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.
Page 6„piT of 1191
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;
•
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. Recei'pt;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
Page 6.pg of 1191
18.1.9. The leasehold interest is levied on under execution; or
19. Rights on Default.
19.1. Rights on Default:
19.1.1. 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 permitted by law or by this Agreement;
19.1.2. 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 the Demised Premises and
expel or remove Tenant and its effects in accordance with law, without
being liable for prosecution or any claim for damages therefore, and
Tenant agrees to indemnify and hold harmless the City for all loss and
damage which the City may suffer by reasons of such Agreement
termination, whether through inability to re-let the Demised Premises,
or otherwise.
19.1.3. 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' 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,,,,-fo feiture, or liquidated damage, but shall
merely 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.
19.1.4.`,.; 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, 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.
Page 6.pg of 1191
19.1.5. 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 Tenant liable for the
deficiency, if any.
19.1.6. 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 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.
19.1.7. 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, the City on the first day of the month
following-the payment of the expense,by the'City.
19.1.8. 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 orto forfeit any of,the said.,rights.
19.2. \. '\. Default by City:
The failure'.ofAhe City,,to perform any of the covenants, conditions and
'agreements"Of this Agreement which are to be performed by the City and
thecontinuance 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
Page 6f9 of 1191
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, shall have the right 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).
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;
Page 66g of 1191
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.
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
Page qa of 1191
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,
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.
Page 6g3of1191
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.
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: 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.
775 17th Street, Suite 4A
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.
Page 6y of 1191
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.
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'Sectionor;elsewhere in this Agreement
is in any way intended to be a: waiver:.of the Amitation 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 dayof,.the Term herein demised, or the sooner
termination thereof, peaceablya'nd 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 •Iree of all:liens, claims and encumbrances and rights of others or
broom-clean;•..;togetherywith all structural changes, alterations, additions, and
improvements which:may have been made upon the Demised Premises, in good
order, condition arid 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
Page 60 of 1191
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.
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 Radon testing may be obtained from your County Public
Health Unit.
37. ,'No Dangerous Materials. •
'Tenant agrees not'to use.,o"r,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 similar;substances, combustible materials, or explosives of any
kind, or any,, ubstance 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.
Page CM of 1191
38. Termination of Existing Lease and Concession.
The City and Tenant are parties to an existing Lease Agreement and Concession
Agreement for Unit 4 and use of a portion of the exterior patio area, respectively,
dated January 8th, 2014 (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, 2016
("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. Tenant shall also pay to the City
upon execution any and all retroactive Base Rent, Additional Rent, and any and
all sums due to the City pursuant to',Section 3 of.this,Lease Agreement
The City shall,transfer`the security,deposit, in the amount of $5,000.00, from the
Existing Lease;to this Agreement, such amount of,$5,000.00 being required as
Security Deposit under Section 6 of;this-Agreement"
i •
:'REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Page EN of 1191
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed and their seals to be affixed, all as of the day and year first above written,
indicating their agreement.
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Philip Levine, Mayor
Date
FOR TENANT: DAMIAN J. GALLO & ASSOCIATES,
INC.
ATTEST:
By:
Secretary President
Print Name Print Name
Date
F:\RHCD1$ALL\ECON1$ALL\ASSET\777-17th Street\Permit Doctor_Damian Gallo\Damian J Gallo Lease Agreement DRAFT(10-
8-13).docx
Page le of 1191
EXHIBIT 1
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Page 6g of 1191
EXHIBIT 1a
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SURVEYOR'S NOTE
DETAILS OF INTERIORS WALLS WERE BASED IN ORIGINAL DRAVANOS AND BEEF INFORMATION OBTAIN FROM Fa0.13 SO(VEY
First Floor Plan
Prepared by. 1701 MERIDIAN BUILDING CONDOMINIUM
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Page 63 of 1191
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC
HEARING, AND WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CITY; AND APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A NEW LEASE AGREEMENT, SUBSTANTIALLY IN THE
FORM ATTACHED TO THIS RESOLUTION AS EXHIBIT "A", BETWEEN THE
CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. (TENANT), FOR THE USE
OF APPROXIMATELY 535 SQUARE FEET OF CITY-OWNED PROPERTY
(PREMISES), LOCATED ON THE FIRST FLOOR AT 1701 MERIDIAN AVENUE,
UNIT 4 (A/K/A 775 17TH STREET), MIAMI BEACH, FLORIDA, FOR A PERIOD
OF FIVE (5) YEARS, COMMENCING RETROACTIVELY DECEMBER 1, 2016
AND ENDING NOVEMBER 30, 2021, WITH ONE (1) RENEWAL OPTION FOR
THREE (3) YEARS, AT THE CITY MANAGER'S SOLE DISCRETION.
WHEREAS, on September 11, 2013, the Mayor and City Commission passed Resolution No.
2013-28344 approving a new lease agreement between the City and Damian J. Gallo &
Associates, Inc. d/b/a Permit Doctor (Tenant) for the use of approximately 1,269 square feet of
City-owned property, and a new revocable concession agreement for approximately 507 square
feet of outdoor space to be used as an outdoor seating area, located on the ground floor at 1701
Meridian Avenue, Unit 4 (a/k/a 775 17th Street), Miami Beach, Florida (Former Premises); and
WHEREAS, the western 1/3 of the Former Premises was to be used by Tenant to operate its
existing plan and permit processing services (d/b/a Permit Doctor) and the eastern 2/3rds was to
be used by Tenant, to operate a new café (d/b/a Stardust Coffee).
WHEREAS, the lease agreement and the concession agreement were for an initial term of
three (3) years, commencing December 1, 2013 and ending November 30, 2016, with two (2)
renewal options for two (2) years each, at the City's sole discretion.
WHEREAS, in March of 2016, due to a lack of business, Tenant ceased operations in the
café; and
WHEREAS, at the May 11, 2016 City Commission meeting, Mayor Levine sponsored an item
regarding the creation of a City employee healthy cafeteria; and
WHEREAS, Staff identified the eastern portion of the Former Premises as a potential site for
an employee cafeteria due to its close proximity to the City Hall complex; and
WHEREAS, Staff identified Taste Bakery Café as a prospective tenant/operator for the
employee cafeteria; and
WHEREAS, this matter was discussed at the June 17, 2016 and September 30, 2016 Finance
and Citywide Projects Committee ("FCWPC") meetings and the FCWPC recommended in favor of
approving a new lease with Taste Bakery Café for the eastern 2/3rds of the Former Premises, to
be used as an employee cafeteria, as well as a new lease agreement with Tenant for the eastern
1/3 of the Former Premises, so that Tenant may continue to operate its plan and permit
processing services; and
Page 671 of 1191
WHEREAS, upon further discussions, the Administration negotiated a new lease with Tenant,
for an initial term of five (5) years, commencing retroactively December 1, 2016 and ending
November 30, 2021; and
WHEREAS, the Administration submitted the agreed upon terms and conditions to the
Finance and Citywide Projects Commission Committee (FCWPC) at its November 18, 2016
meeting, and the Administration recommended approving a new lease agreement with Tenant,
containing the following essential terms:
Premises: 1701 Meridian Avenue, Unit 4 (a/k/a 775 17th Street)
Size: Approximately 535 square feet (subject to verification)
Initial Term: Five (5) years commencing retroactively on December 1, 2016 and ending
November 30, 2021.
Renewal Option: So long as Tenant has never been in an uncured default of the Lease, upon
providing Landlord written notice at least one hundred twenty (120) days
prior to the expiration of the Initial Term, Tenant shall have one (1) renewal
option, at the City Manager's sole discretion, for a period of three (3)years.
Termination
Option: The City shall have the right, through its City Manager, to terminate the
Lease Agreement, at any time, without cause and without liability to the City,
upon providing Tenant with one hundred eighty (180) days prior written
notice.
Base Rental Rate: $40.04 Triple Net (NNN), per rentable square foot ($21,421.40 annually,
$1,785.12 monthly), plus applicable sales tax.
Increases: The Base Rental Rate shall be increased annually by three percent (3%),
including for the renewal term, if applicable.
Operating
Expenses: Tenant shall pay its proportionate share of the costs of real estate taxes,
insurance and common area maintenance expenses (currently estimated at
$11.43 per square foot).
Construction
Allowance: Tenant shall accept the Premises in "as-is" condition.
WHEREAS, the Administration recommends the approval of a new lease agreement,
containing the essential terms outlined in this Resolution, substantially in the form attached hereto
as Exhibit "A".
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission,
following a duly advertised public hearing, hereby waive, by 5/7ths vote, the competitive bidding
requirement, finding such waiver to be in the best interest of the City; and approve and authorize
the Mayor and City Clerk to execute a new lease agreement, substantially in the form attached to
this Resolution as Exhibit "A", between the City of Miami Beach and the Miami Beach
Page 672 of 1191
Redevelopment Agency (collectively, Landlord) and Damian J. Gallo & Associates, Inc. (Tenant),
for the use of approximately 535 square feet of City-owned property (Premises), located on the first
floor at 1701 Meridian Avenue, Unit 4 (a/k/a 775 17th Street), Miami Beach, Florida, for a period of
five (5) years, commencing retroactively December 1, 2016 and ending November 30, 2021, with
one (1) renewal option for three (3) years, at the City Manager's sole discretion.
PASSED and ADOPTED this day of 2016.
ATTEST:
Rafael E. Granado, City Clerk Philip Levine, Mayor
T:\AGENDA\2016\December\TCED\Damian J.Gallo&Associates\Damian J.Gallo&Associates-New Lease Agreement RESO
(11-28-16).docx
Page 673 of 1191