2017-29834 Reso 2017-29834
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED
PUBLIC HEARING, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE AND OF THE CITY
MANAGER, 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 COLONY THEATER CAFE, INC.
D/B/A SEGAFREDO (TENANT) fOR THE USE OF APPROXIMATELY
1,371 SQUARE FEET OF CITY-OWNED PROPERTY, LOCATED AT 1040
LINCOLN ROAD, MIAMI BEACH, FLORIDA (PREMISES), FOR A PERIOD
Of THREE (3) YEARS, COMMENCING NOVEMBER 1, 2017 AND
EXPIRING OCTOBER 31, 2020, WITH TWO (2) RENEWAL OPTIONS FOR
THREE (3) YEARS EACH, AT THE CITY'S SOLE DISCRETION.
WHEREAS, RFP No. 19-07/08 was issued on February 14, 2008, with an opening
date of April 18, 2008; and
WHEREAS, on January 28th, 2009, the Mayor and City Commission adopted
Resolution No. 2009-26994, approving a lease agreement (Lease) between the City of
Miami Beach{Landlord) and Colony Theater Cafe, Inc. d/b/a Segafredo (Tenant), for the
use of 1,371 square feet of City-owned property located at 1040 Lincoln Road, Miami
Beach, Florida; and
WHEREAS, the initial Lease term was for a period of three (3) years, commencing
November 1, 2008 and ending October 31, 2011, with two (2) additional three (3) year
renewal terms; and
WHEREAS, Tenant has exercised all of its renewal options, and the Lease is due
to expire on October 31, 2017; and
WHEREAS, Tenant has requested a new lease agreement; and
WHEREAS, the Administration submitted Tenant's renewal request to the Finance
and Citywide Projects Committee (FCWPC), at its December 16, 201-6 meeting, and the
FCWPC recommended in favor of negotiating a new lease agreement with Tenant; and
WHEREAS, on January 11, 2017, the Mayor and City Commission adopted
Resolution No. 2017-29710 accepting the recommendation of fCWPC, authorizing the
Administration to negotiate a new lease agreement with Tenant; and
WHEREAS, the Administration negotiated with Tenant and then presented the
following terms and conditions to the FCWPC during its February 17, 2017 meeting:
Initial Term: Three (3)years
Renewal Options: Two (2), three (3) year options
Percentage Rent: 7% of gross receipts
Base Rent: $219,000 annually
Base Rent Annual Increase: 2% from the previous year
Add. Rent for Dumpster/Storage: $7,650 annually
Business Interruption Abatement:
Tenant may request to abate the monthly Base Rent (Business Interruption
Base Rent Abatement), for a period of time not to exceed four (4) full
consecutive calendar months for business interruption, if caused by the
proposed Lincoln Road Project, upon providing satisfactory evidence thereof to
the City. During the Business Interruption Base Rent Abatement period, Tenant
shall: (i) pay a Business Interruption Base Rent, in the amount of seven percent
(7%) of the monthly gross receipts, and (ii) continue to pay all other Rents due;
and
WHEREAS, The FCWPC considered this matter and recommended approving a
new lease with Colony Theater Cafe, Inc. d/b/a Segafredo based upon the essential
terms presented.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the Finance and Citywide Projects
Committee and of the City Manager, and waive, by 5/7th 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 and Colony Theater
Cafe, Inc. d/b/a Segafredo (Tenant) for the use of approximately 1,371 square feet of
City-owned property, located at 1040 Lincoln Road, Miami Beach, Florida (Premises), for
a period of three (3) years, commencing November 1, 2017 and expiring October 31,
2020, with two (2) renewal options for three (3) years each, at the City's sole discretion.
PASSED and ADOPTED this o?I'O day of Aprl f 2017.
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RAFA L E. ANA O CITY _tom'-'4""�*1 PHIL; 1 , MAYOR
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T:\AGENDA\2017\4-April\TOED\Colony Th 01ew 'e Agreement RESO.docx �/ I
LEASE AGREEMENT
THIS LEASE AGREEMENT, (also referred to as the Lease or Agreement), made
this day of 2017, by and between the CITY OF
MIAMI BEACH, FLORIDA, a Florida municipal corporation (hereinafter referred to as
City or Landlord), and COLONY THEATER CAFE, Inc. (d/b/a SEGAFREDO), a Florida
corporation (hereinafter referred to as 'Tenant").
1. Demised Premises.
1.1 Landlord, in consideration of the rentals hereinafter reserved to be paid and
of the covenants, conditions and agreements`to be kept and performed by
the Tenant, hereby leases, lets and demises to, the Tenant, and Tenant
hereby leases and hires from the Landlord, thosrtain premises, located
in and adjacent to the Colony Theatre, 1040 LincolnRoad, Miami Beach,
Florida, 33139, and more fully described as follows:
Approximately 1,371 square feet delineated as follows:
(a) 769 sq ft of resta .." nt/cafe space (the Restaurant Space ;
(b) 107 restaurant/cafe rage space (the Storage Space);
(c) 189 sq ft in theColonyThea gabby for use as a food and beverage
concession (the Concession Are); and
(d) 306 sqft adjacent to the is Theatre buildin for dum ster/stora e
j 9 P 9
area (the Dumpster/Storage ° -a).
1dectively, the areas identified subsections (a)-(d) above shall be
r o s the Demised Premises.% The Demised Premises" are further
i
delineate aExhibit 1, attached and incorporated hereto.
1.2 Av Restaurant pace also operates a sidewalk café, under a Sidewalk
C a Permit issu pursuant to and in accordance with Sections 82-366
throw .e82-385 of the of the City of Miami Beach Code. The sidewalk café
part of the,Demised Premises.
area isnot y
3.
2. Term.
to
2.1 Initial Term.
The Tenant shall be entitled to have and to hold the Demised Premises for a
term of three (3) years, commencing retroactively on the 1st day of
November 2017 (Commencement Date), and ending on the 31st day of
October, 2020.
2.1.1 Renewal Term.
(i) Provided Tenant is in good standing and free from default(s)
hereunder, and (ii) upon written notice from Tenant, which notice
„A
shall be submitted to the City Manager no earlier than one hundred
and twenty (120) days, but in any case no later than thirty (90)
days, prior to the expiration of the initial term (or any renewal term,
as the case may be), this Lease may be extended for two (2)
additional three (3) year renewal terms. Any extensions shall be
memorialized in writing and signed by the parties hereto (with the
City hereby designating the City Manager as the individual
authorized to execute such extension on its behalf).
2.2 Liquor License.
As of the Commencement Date, the Tenant shall obtain and maintain active
and current a liquor license issued to the Colony Theater Cafe, Inc. and
designated for Retail Beverage) for the Restaurant Space and Concession.
Upon termination or non-renewal f this Lease, the Liquor License shall
remain the property of the Tenants aid any and all liabilities relating to such
liquor license shall be the responsibility of the Tenant.
3. Rent.
3.1 Base Rent: Av=
Base Rent for the Demised Premises .=Il begin to accrue as of November
1, 2017 (the Commencement Date).
3.1.1 Duringthe initial term of this Lease, he annual Base Rent for the
Demised Premises shall be Two Hundred Nineteen Thousand and
00/100 dollars ($219,000.00), payable in monthly installments of
ighteen thousand Two Hundred Fifty and 00/100 Dollars
($1 • 0 00)
3.1.2 Rent s a •e duendpayable on the first day of each month
througho 1 e Term of Allis Agreement.
3.1.3 The BaseRent .. Il be increased annually, on the anniversary of
the Commencement Date of the Lease by two percent (2%) from
the Base Rent payable for the immediately prior year.
3.1.4 In the event Tenant suffers business impairment to the Demised
Premise as a direct result of the proposed Lincoln Road renovation
("Business Interruption"), Tenant may request to abate the monthly
Base Rent payment ("Business Interruption Base Rent
Abatement"), which shall only commence on the first day of the
month following the initial Business Interruption request, not to
exceed four (4) consecutive months. Tenant's request for Business
Interruption Base Rent Abatement shall be submitted for
consideration and approval by the City Manager, at the City
Manager's sole discretion, along with any additional proof of the
Business Interruption as may be requested by the City Manager.
2
Upon submitting the written request, Tenant may defer any future
Base Rent payments until such time as the City Manager has come
to his/her decision. In the event the City Manager denies Tenant's
Business Interruption Base Rent Abatement, all deferred rent
payments shall be due within 5 business days of written notice from
the City. During the Business Interruption Base Rent Abatement
period, Tenant shall (i) pay a new monthly Base Rent ("Business
Interruption Base Rent") of seven percent (7%) of the Tenant's
monthly "gross receipts", as defined in Section 3.4.2, due on or
before the 30th day of the following tenth; and (ii) continue to pay
all Additional Rent as defined inection 3.2. Nothing contained
herein, shall be construed as an •,°tement of the Percentage Rent
due as defined in Section 3.4 Additionally, any monthly Business
Interruption Base Rent payment shale considered part of the
annual Base Rent.
Upon Tenant's written request, the City Ma`eager may, at his/her
sole discretion, approve an extension of the 'ness Interruption
Base Rent Abatement period.
3.2 Additional Rent: �� ,U
In addition to the mon yB : Rent (as set forth in Section 3.1) Tenant
shall also pay to Landlore rou by the Term, Additional Rent as provided
below: � '
3.2.1 Operating Expenses a pertv es; Insurance; and Common
Area Maintenance ("C 'M"):
Tenant
Tenant shall remit together with regular monthly payments of
Al sMinimum Rent, its proportionate share of estimated Operating
enses for the Premise as additional rent, as determined by
ui p,;.
` La .rd, in its sole discretion and judgment, including Property
Tax-Vs Insurance, and CAM, and as more particularly described
hereinafter.
fin
Tenant's'proportionate Share means a fraction, the numerator of
hichhi'e square footage of the Demised Premise occupied by
the T " t, 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.
3
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"):
Intentionally Omitted
3.2.1.2 Property Taxes and Assessments.
For the purposes of thisection and other provisions of
this Agreement: �_
The Property Tax PAyment(as defined in hereafter) shall
be payable by Tenant, in accordance with Section 3.2.1
hereof. The Property Tax Pay t for Property Tax Year
2016 is estimated at Zero and 60/100 Dollars ($0.00).
Notwithstanding the preceding sente , the City makes
nowarranty or representation, wh er express or
infilied, that the Colony Theatre building, the Land,
an oche Demised Premises will not be subject to ad
valorem (orSoffer) taxes in subsequent years.
The ter dProperty T
' °axes" shall mean (i) the real estate
taxes, a sessmt'ts, nd special assessments of any
kind which ,ay be imposed upon the tax lot on which the
building is cbpstructed and (ii) any expenses incurred by
Landlord in obtaining a reduction of any such taxes or
., assessments.
,, ,, The term "Property Tax Yeas" shall mean the period of
' � twelve (12) calendar months, beginning on January 1st of
- �
" leach year.
,,The term "Tenant's Proportionate Share" shall mean the
;ratio that the total square footage of the Demised
"1;,,-4
,Premises within the Colony Theatre building, not to
�
include the adjacent Dumpster/Storage Area (1,065
square feet), bears to the square footage of the space
(16,687 square feet) in the entire building.
Tenant shall pay, as Additional Rent (pursuant to Section
3.2), for such Property Tax Year an amount ("Property
Tax Payment") equal to Tenant's Proportionate Share of
the Property Taxes, if any, for such Property Tax Year. If
a Property Tax Year ends after the expiration or
termination of the Term of this Agreement, the Property
4
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 along with the rent on the first
day of each month in accordance with the provisions of
Section 3.2. The monthly Property Tax Payment shall be
equivalent to 1 /12th of the estimated yearly taxes, based
on the previous year's actual taxes. A copy of the tax
bill(s) or other evidence of such taxes issued by the
taxing authorities, together with Landlord's computation
of the Property Tax Payment, will be made available to
Tenant once received from the taxing authorities, if
requested by Tenant. Tenant shall pay any difference in
the amount between the estimated Property Taxes and
the actual Pre,le* Taxes to Landlord immediately upon
receipt of r quest for said payment from the Landlord.
3.2.1.3 Insurance:
The Additional.Rent"F•shall also include Tenant's
Proportionate Share of the insurance costs for the
Building, as determi y by the Landlord, in its sole
discretion and judgment:,c.r,be sufficient to insure and/or
self-insure the Facility for ►azard, flood, windstorm, and
f.
yt� liability insurance for the following calendar year. Tenant
knowledges that Landlord may choose to self-insure
z tet,
for any or all of Landlord's Insurance coverage's,
including without limitation liability insurance. Tenant's
Anitia g urance cost shall be One Thousand Seventeen
and • ��, ^„Dollars ($1,017.60), payable in monthly
stallments of Eighty-Four and 80/100 Dollars ($84.80).
The Insurance cost may be adjusted periodically, at the
City's ole discretion, from time to time.
This insurance coverage is in addition to the insurance
required pursuant to Section 11, which shall be obtained
at Tenant's sole expense and responsibility.
3.2.2 Tenant Responsibilities for Utilities and Services.
Tenant is solely responsible for, and shall promptly pay when due,
all charges (including, without limitation, all hook-up fees) and
impact fees for utility services for the Demised Premises (including
without limitation, cable, gas, telephone, janitorial, garbage removal
and any other utility services provided to the Demised Premises);
provided however, that Tenant shall pay 50% of the water
consumption of the Colony Theatre building on a monthly basis, as
invoiced by the City.
5
In addition to other rights and remedies hereinafter reserved to the
City, upon the failure of Tenant to pay for any utility services when
due, the City may elect, at its sole option, to pay same, whereby
Tenant agrees to promptly reimburse the City upon demand. In no
event, however, shall the City be liable, whether to Tenant and/or
third parties, for an interruption or failure in the supply of any
utilities or services to the Demised Premises.
3.2.3 Dumpster/Storage Area Rent.
In addition to the Base Rent, Tenartpshall pay an annual rent for
the Dumpster/Storage Area in the unt of Seven Thousand Six
Hundred Fifty and 00/100 Dollars 7,650.00), payable in monthly
installments of Six Hundred `its-Seven and 50/100 Dollars
($637.50).
3.3 Sales Tax:
Concurrent with payment of the monthly installment installment444,J3 ase Rent, Tenant
shall also include any and all additional sums for all licable sales and
use tax, as now or hereafter prescribed by State, Federal or"ocal law.
3.4 Percentage of Gross vs. Base Rent.
3.4.1 In addition to mnimue onthly Base Rent, Tenant shall also pay
Landlord, at the,end Oroeach Lease year and on or before
December 31St of'eachch , a percentage of gross in the
amount of seven percept (7.0%Yearthe Tenant's gross receipts
(PG) for such Lease'year, less the total paid annual Base Rent
amount (for such Lease)tear). The additional amount, if any, equal
y awsto the difference between PG for such Lease year and the annual
'-A ease Rent for such Lease year, shall be payable in full concurrent
with the delivery to the City of the Annual Statement of Gross
•
"' Receipts (required pursuant to Section 5 of this Agreement), or no
later than December 31st of each Lease year during the Term.
3.4 ag:The term receipts" is understood to mean all income
received byr the Tenant from all sales made by Tenant of food,
beverages and merchandise, in, on or from the Demised Premises
inclusive of the receipts generated by the Sidewalk Cafe (less
returns and refunds) excluding amounts of any Federal, State, or
City sales tax, or other tax, governmental imposition, assessment,
charge or expense of any kind, collected by the Tenant from
customers and required by law to be remitted to the taxing or other
governmental authority
Notwithstanding the foregoing, "gross receipts" shall also not
include any of the following:
6
(a) gratuities to employees paid by Tenant's patrons or customers
(even if included in the check to the patron or customer);
(b) food and beverages served to employees of Tenant at no
cost;
(c) food and beverages provided by way of promotions or promo
checks; or
(d) a walkout (i.e. a meal served but,not paid for).
3.5 Tenant agrees to pay the Base Rent, Additional Rent, and any other sum
due under this Lease at the time andmanner aforesaid, and should
said rents and/or other amounts hereinProved at any time remain due and
unpaid for a period of fifteen (15) days after the same shall become due, the
Landlord may exercise any or all options avai a to it hereunder, which
options may be exercised concurrently or separaateelyt.or the Landlord may
pursue any other remedies enforced by law.
3.6 All rents or other payments due hereunder shall be paid to the City of Miami
Beach at the following address•
Cityoi iami Beach
Financepartment
1700vent n enter Drive
Mia Betch, FloAda 33139
4. Maintenance and Examination of Records.
Tenant shall maintain current, accurate, and. complete financial records on an
accrual basis of accounting related to itoperations pursuant to this Agreement.
Systems and procedures used to maintain these records shall include a system of
internal controls and all accounting records shall be maintained in accordance with
generally accepted accounting principles and shall be open to inspection and audit
by the City Manager or his designee upon reasonable prior request and during
normal business hours. Such records and accounts shall include a breakdown of
gross receipts, expenses, and profit and loss statements.
5. Inspection and Audit /Annual Statement of Gross Receipts.
Tenant shall maintain its financial records pertaining to its operations fora period of
three (3) years after the conclusion of any Lease year and such records shall be
open and available to the City Manager or his designee, as deemed necessary by
the City Manager. Tenant shall maintain all such records at its principal office,
currently located at 1641 Jefferson Avenue, Third Floor, Miami Beach, Florida,
33139, or, if moved to another location, all such records shall be relocated, at
Tenant's expense, to a location in Miami Beach, within ten (10) days' written notice
from the City Manager.
7
The City Manager or his designee shall be entitled to audit Tenant's records
pertaining to its operations as often as it deems reasonably necessary throughout
the Term of this Agreement. The City shall be responsible for paying all costs
associated with such audits, unless the audits) reveals a deficiency of five (5%)
percent or more in Tenant's statement of gross receipts for any year or years
audited, in which case the Tenant shall pay to the City, within thirty (30) days of the
audit being deemed final (as specified below), the cost of the audit and a sum
equal to the amount of the deficiency revealed by the audit, plus interest; provided,
however, the audit shall not be deemed final until Tenant has received the audit
and has had a reasonable opportunity to review the audit and discuss the audit
with the City. These audits are in addition to periodic audits by the City of Resort
Tax collections and payments, which are performed separately. Nothing contained
within this Section or in this Agreement shall preclude the City's audit rights for
Resort Tax collection purposes.
Tenant shall submit at the end of a Lease year and in any event no later that
December 31st of each year, an Annual Statement of Gross Receipts, in a form
consistent with generally accepted punting principles. Additionally, such
Statement shall be accompanied by a rep fro anindependent CPA firm.
6. Parking.
Intentionally Omitted.
7. Security. ,,
7.1 Concurrentwith ,execution of this Lease, Tenant shall provide an
Irrevocable Letter of.Credit, in the amount of $50,187.51, guaranteeing
Tenant's faithful p i mance of the terms and conditions of this Agreement.
The form of'the
C I,' vocable Letter of Credit shall be as required and
approved by the iterF Manager or his designee. Tenant shall be required to
��
maintain said Irrevb :ble LetterCredit (as approved by City Manager or
his designee) in full brce and effect throughout the Term. In the event that
Tenant defaults in respef any of the terms, provisions, covenants and
conditions of this Agreement, including but not limited to, the payment of any
rent and other amounts due hereunder, the Landlord may use, apply or
retain the whole or any part of the Irrevocable Letter of Credit for the
payment of such rentals and/or other amounts in default, or any other sum
which the Landlord may expend or be required to expend by reason of the
Tenant's default, including any damages or deficiency in the re-letting of all
or any portion of the Demised Premises, whether such damages or
deficiency may accrue or after summary proceedings or other re-entry by
Landlord.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Agreement, the
Irrevocable Letter of Credit shall be returned to the Tenant, upon the
8
expiration of this Agreement and peaceful surrender of the Demised
Premises.
8. Use and Possession of Demised Premises.
8.1 The Demised Premises shall be used by the Tenant solely as follows:
(a) the Restaurant Space shall be open to the public daily with minimum
hours of operation being from Sunday through Thursday from 11:00
a.m. to 2:00 a.m., and Friday through Saturday, from11:00 a.m. to 3:00
a.m. Upon request of renters of the Tony Theatre (Renters), the
Restaurant will provide green room catering within the menu items
identified or a catering menu pro by Tenant; and
(b) the Concession Area will provide food an• aeverage sales and service
exclusively to Colony Theatre patrons. Tenantl hall have the exclusive
right to provide food and beverage sales and s Nice to Colony Theatre
patrons inside the Theatre; provided, however, `t should a Renter
have a sponsor which commercially produces a rticular food or
beverage, such, od or beverage will be permitted ,:be distributed,
and/or served, "` complimentary basis, in the lobby or the adjacent
area at the entrance `to� he.. main Theatre. The Concession Area shall
only be open andraten days of performances or events in the
Colony Theatre, beginning one-hour prior to advertised curtain time,
and closing one half lir after etofiperformance. Notwithstanding
the above, Tenant shat l >t ave t elight to open and operate the
Concession Area, and provide food and beverage service for parties or
gatherings originating from9he Restaurant Space, so long as Tenant
-7
does not do so more than five 5) times per Lease year; and
(c) the ir' pster/Storage Area is solely for use by the Tenant to support
operations , of the Restaurant Area and Concession Area and is
available as needed by the Tenant.
The 'uses, and :: s and hours of operation set forth above, shall not
otherwise Sebe mp 7 ied without prior written approval of the City Manager
which shallof beunre.asonably withheld. Nothing herein contained shall be
construed tt authorize hours contrary to the laws governing such
operations.
8.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant only for the purposes set forth in this Lease, and for no other
purposes or uses whatsoever. Tenant will not make or permit any use of the
Demised Premises that, directly or indirectly, is forbidden by law, ordinance
or government regulation, or that may be dangerous to life, limb or property.
Tenant may not commit waste on the Demised Premises, use the Demised
Premises for any illegal purpose, or commit a nuisance on the Demised
9
Premises. In the event that the Tenant uses the Demised Premises for any
purposes not expressly permitted herein, then the Landlord may declare this
Agreement in default and/or, without notice to Tenant, restrain such
improper use by injunction or other legal action.
8.3 The Concession Area shall not be used for storage of sidewalk cafe
furniture, but may be used for dry storage. All cafe / restaurant materials
must be stored in the Restaurant Space, behind the bar, or in the
Dumpster/Storage Area.
8.3.1 Renters shall not be permitted to utilize any portion of the
Concession Area. Renters ma -oily utilize the lobby or the
adjacent area at the entrance‘the:main Theatre (as permitted by
the Theatre Manager).
8.3.2 The Tenant must serve any liquor, including complimentary liquor
that is provided by Renters to patrons he case of liquor
provided by Renters, the Tenant has the right be paid a corkage
fee (which shall be determined by Tenant according to industry
standards, • which shall also approved by the City tanager).
8.3.3 Notwithstandi • :an • in this Lease to the contrary, in no event
shall Tenant b.` iabl oh any damage or injury caused by any
Renters
8.4 At all mes dun , he Term, Tenant must maintain the Liquor License
referenced in Section 2.3 in go d standing and in full force and effect.
8.5 The •arties ck ede��andagree that the Restaurant Space and
Concession Area a inter tod shall be operated, maintained and
erlp ,
repaired in a first' °i`Po manner and otherwise consistent with the standard
of the historic desig the building. The operations shall be of a level of
quality equal to or griller than the Industry Standard for a first class
restaurant. All food and beverages dispensed by Tenant shall be of high
quality, and prepared and presented in a professional manner. No imitation,
adulterated or misbranded article or items shall be sold or kept for sale and
all food and beverages shall be stored and handled by Tenant in a manner
consistent with standards of sanitation, preservation and purity.
8.6 From one hour prior to advertised curtain time through duration and up to
conclusion of a performance or event in the Theatre, the sound system in
the Restaurant Space must be at an ambient level.
8.7 When a performance is in session, Restaurant Space patrons and
employees must use the Restaurant Space restroom; however, at all other
times, patrons may have use of the Colony Theatre restrooms.
10
9. Improvements.
9.1 Tenant accepts the Demised Premises in their present "AS IS" condition and
may construct or cause to be constructed, such interior and exterior
improvements to the Demised Premises, as reasonably necessary for it to
carry on its permitted use(s); provided, however, that any plans for such
improvements shall be first submitted to the City Manager for his prior
received written approval, which approval, if granted at all, shall be at the
City Manager's sole and absolute discretion. Additionally, any and all
approved improvements shall be made at Tenant's sole cost and expense.
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 PrerpOisz. 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 anyimprovements. Moreover, such
construction shall be accomplished.through;the use of licensed, reputable
contractors who are acceptable to the City Manager. Any and all permits
and or licenses required for theconstruction and/or installation of
improvements shall be the sole cost and r'''''''responsibility of Tenant.
9.2 Notwithstanding Subsection 9.1, upon termination; and/or expiration of this
Agree ", nt, and ;the City Manager's sole option and discretion, any or all
alteratir s or ad ons made by Tenant to or in the Demised Premises
shall, up `written errand by the City Manager, be promptly removed by
Tenant, ate st . sense, and Tenant further hereby agrees, in such
to
event, to restore a sed Premises t.o their original condition prior to the
Commencement "" a of this reement.
9.3 The City Manager's ,,,oval shall not be required as to improvements
(which term, for purposes,of this Subsection 9.3 only, shall also include
improvements as necessary for Tenant's maintenance and repair of the
Demised Premises) which do not exceed One Thousand ($1,000.00)
Dollars, provided that the work is not structural, and provided that it is
permitted by applicable law.
10. Landlord's Right of Entry.
10.1 The City Manager, or his authorized agent or agents, shall have the right to
enter upon the Demised Premises at all reasonable times for the purpose of
inspecting same, preventing waste, making such repairs as the Landlord
may consider necessary, and for the purpose of preventing fire, theft or
vandalism. However, Landlord agrees that, whenever possible, the City
Manager shall provide reasonable notice (whether written or verbal) to
Tenant, unless the need to enter the Demised Premises is deemed an
11
emergency by the City Manager, in his sole discretion, whichif not
immediately addressed could cause property damage, loss of life or limb, or
other injury to persons. Nothing herein shall imply any duty or obligation on
the part of the Landlord to do any work that under any provisions of this
Agreement the Tenant may be required to perform, and the performance
thereof by the Landlord shall not constitute a waiver of the Tenant's default.
10.2 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 Cit .Manager, or his authorized
agents, may enter the Demised Premisesby. easter key, or may forcibly
enter the Demised Premises without rend rng the Landlord or such agents
liable therefore. r
10.3 Tenant shall furnish the City Manager with , icate keys to all locks
including exterior and interior doors upon the Commencement Date of this
Agreement. Tenant shall not change the locks to demised Premises
without the prior written consent of the City anager, not to be
unreasonablywithheld, and in the event such consent is `
men, Tenant shall
furnish the City Man /with duplicate keys to said locks in advance of their
installation. 1 °'
11. Tenant's Insurance. 4� ,u
11.1 Before beginning any wo ands `roughout the term of the Agreement
(including renewal periods), " ,enant shah, ` its sole cost and expense,
comply with all insurance requirements of the City. It is agreed by the parties
that Tenant shall not occupy tie, Demised Premises until proof of the
L"foo f insurance coverage have3 been reviewed and approved b the
- ity s Manager. All insurance policies required below shall be issued
�x�3by companies authorized to do business under the laws of the State of
�
lorida. Providercoverage has been obtained
shall indicate that insurance
hivch meets *requirements asoutlined below by submitting original
certificates of in Mance to the City's Risk Manager and Asset Manager
respectively:
11.1.1 V rkels `Compensation for all employees of the provider as
required by Florida Statute 440 and Employer's Liability coverage
in accordance with the Florida Statutory requirements and
Employer's Liability Insurance in an amount not less than
$1,000,000.
11.1.2 Commercial General Liability on a comprehensive basis in an
amount not less than $2,000,000 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.
12
11.1.3 Intentionally Omitted
11.1.4 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 "der the provisions of this
Agreement).
11.1.5 Intentionally Omitted
11.1.6 If beer, wine, liquor, or any other alcohol is being served at any
time during the Lease term within the Demised Premises, Liquor
liability insurance is required. Such policy""' `:". .II contain inclusive
limits per occurrence of not less than 1000,000.00 per
occurrence; $2,000,000 general aggregate; pro '$,Vor severability
of interests; and include as additional insureds, the`Landlord, its
affiliates, and any mortgagee of Landlord in connection with the
facility.
11.1.7 T w surance coverage required shall include those classifications,
steckio,standard liability insurance manuals, which most nearly
lect the operations of the provider.
1,4!
n G//
11.1.8 Any insurance coverage required above must include a waiver of
subrogationr faorf the City.
11.1.9 The company must be rated no less than "B+" as to management,
and no less' n "Class VII" as to financial strength, by the latest
edition of Bess, Insurance Guide, published by A.M. Best
Company, Oldwidk, New Jersey, or its equivalent, subject to the
approval of the City Risk Management Division.
11.1.9.1 CERTIFICATE HOLDER MUST READ:
CIO Insurance Tracking Services, Inc. (ITS)
P.O. Box 20270
Long Beach, CA 90801
11.1.10 Updated COI must be submitted to ITS via email with the following:
1. Email address: miamibeach.contracts@instracking.com
2. Copy Andrew Bejel at AndrewBejel@miamibeachfl.gov and Febe
Perez at febeperez@miamibeachfl.gov on the submittal to ITS
13
11.2 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.
11.3 City reserves the right to impose additional reasonable insurance
requirements as the City may deem necessary or in accordance with
common practice
12. Assignment and Subletting.
Tenant shall not have the right to sublet the Demised Premises, in whole or in part.
Tenant shall not have the right to assign the Demised Premises, in whole or in part,
without the prior written consent of the City, through its Mayor and City
Commission, and which consent, •if given at all, shall be at the sole discretion of the
City Commission.
F c
13. Maintenance and Repair.
13.1 Tenant shall maintain the raised Pr raises and the fixtures and
appurtenances therein, at •its sol. t apense, to the satisfaction of
the Landlord, in good and sanitaryborder, proper working condition and
repair, and consistent with the operation f a first-class quality restaurant in
the Miami Dade County area. Tenant shamake all repairs thereto as and
when needed to preserve fixtures and appu �nances in good working order
and Condit on: Landlord shall be responsible for +e maintenance of the roof,
the exteriorfly wilding, the structural, electrical"and plumbing (other than
plumbingsurrounding any sink within the Demised Premises), and the
chilled ter"supply system. Tenant shall also be responsible for all interior
walls and III rate or aid exterior of all windows and doors, as well as
. ,,,yam
immediate re�ceme any and all plate glass or other glass in the
Demised Premiss which maybecome broken (using glass of the same or
better quality) at its` ole cost and expense.
13.2 All damage or injury o ;ny kind to the Demised Premises and/or to its
fixtures, glass, appurtenances, and equipment, except damage •
caused by
the willful misconduct or gross negligence of the Landlord, shall be the
obligation of Tenant, and shall be repaired, restored or replaced promptly by
Tenant at its sole cost and expense to the satisfaction of the City Manager.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality
and class equal to the original work or •installations and shall be done in
good and workmanlike manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the Landlord, at the expense of Tenant, and all sums
spent and expenses incurred by Landlord shall be collectable as Additional
Rent and shall be paid by Tenant within ten (10) days after rendition of a bill
or statement thereof.
14
13.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or
improvements made by Tenant to the Demised Premises comply with all
applicable building codes and life safety codes of governmental authorities
having jurisdiction.
13.6 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION.
14. Laws.
14.1 Governmental Regulations.
The Tenant covenants and agrees to fulfill and comply with all statutes,
ordinances, rules, orders, regulations,-and requirements of any and all
governmental bodies, including but not limited Federal, State, Miami-
Dade County, and City governments, and any anc I of their departments
and bureaus applicable to the Demised Premises an"• hall also comply with
and fulfill all rules, orders, and regulations for the pr- ention of fire, all at
Tenant's own cost and expense. The Tenant shall pay all fists, expenses,
claims, fines, penal ",,and damages that may be imposed because of
Tenant's failure to c• ply with this Section, and shall indemnify and hold
harmless the Landlor. '%ill liability arising from each incident of non-
compliance.
14.2 No Discrimination.
Lessee shall comply fully with the City of :Miami Beach Human Rights
Ordinance, codified in Chapter462 of the City Code, as may be amended
from time to time, prohibiting discrimination in employment, housing, public
,,, fa • modations, and public services on account of actual or perceived
', "ace, 'calor:, national origin, religion, sex, intersexuality, gender identity,
sexual orientation, marital and familial status, age, disability, ancestry,
height, weig domestic partner status, labor organization membership,
milia) situation, or political affiliation.
15. Liens. f
Tenant will not lr mechanics, laborers, or materialman's liens to stand
against the leased premises or improvements for any labor or materials to Tenant
or claimed to have'y :: en 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 Landlord reasonable security as may be demanded by Landlord 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 '/2) times the amount of such lien or such claim of lien. Such
security shall be posted by Tenant within ten (10) days of written notice from
15
Landlord, or Tenant may "bond off the lien according to statutory procedures.
Tenant will immediately pay any judgment rendered with all proper cost and
charges and shall have such lien released or judgment satisfied at Tenant's own
expense. Tenant shall not have the right to pledge the Demised Premises and/or
leasehold interest thereon as security or collateral for any loan, mortgage, lien,
and/or other indenture which would affect the Demised Premises, and/orthe Colony
Theatre building, and/other Land.
16. Enforcement.
Intentionally Omitted.
17. Condemnation.
17.1 If at any time during the Term of, al any aterial part or portion of the
building in which the Demised Premises are located, is taken, appropriated,
or condemned by reason of vent Domain pro edings (except if the
Eminent Domain proceedings le initiated by the Ci of Miami Beach), then
this Agreement shall be termin ted as of 01.9, date of such taking, and shall
thereafter be completely null and iid, an 'jther of the'pat es hereto shall
thereafter have any rights against thet hereby reason of thisAgreement or
anything contained therein, except thatany rent prepaid beyond the date of
such taking shall be prorated to such daf nd the Tenant shall pay any
and all rents, additional rents, utility charges, ether costs including excess
taxes for I al!.is liable under the terms of th Agreement, up to the date
of such,
ing
172 Except as` , reund .provided, Tenant shall not be entitled to participate in
the procee of a at/ rd made to the Landlord in any such Eminent
Domain proceeding, rceating, however, the Tenant shall have the right to
claim and recover 'rom the co demning authority, but not from the Landlord,
such compensations, may bei""separately awarded or recoverable by
Tenant in Tenant's o Tight on account of any and all damage to Tenant's
business by reasons of<ft, condemnation and for or on account of any cost
or loss which Tenant mi 'incur in removing Tenant's furniture and fixtures.
18. Default.
18.1 Default by Tenant:
At the Landlord'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 installment thereof is not
paid promptly when and where due within fifteen (15) days of due
date and if Tenant shall not cure such failure within five (5) days
after receipt of written notice from Landlord specifying such default;
18.1.2 Any other payment provided for under this Agreement is not paid
promptly when and where due and if Tenant shall not cure such
16
failure within five (5) days after receipt of written notice from
Landlord specifying such default;
18.1.3 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.4 The Tenant shall fail to comply with any material term, provision,
condition or covenant contained herein other than the payment of
rent and shall not cure such failure within thirty (30) days after the
receipt of written notice from Landlord specifying any such default;
or such longer period of time acceptable to Landlord, at its sole
discretion;
18.1.5 Receipt of notice of violation (including, without limitation, a
violation issued pursuant to Tenant's Sidewalk Cafe Permit) from
any governmental authority having jurisdiction dealing with a code,
regulation, ordinance ihr=the like, and such violation remains
uncured within the tithe specified in such notice of violation. In the
case of an uncured vibtation, an event of default shall be deemed
to have occurred if(following the;,; xptration of the cure period in the
notice of violation) Tenant Stijl f ils to cure within five (5) days from
receipt of written notice fromLandlord advising Tenant that the
violation remains uncured.
18.1.6 Any petition is filed by or against Tenant under any section or
eptero the Bankruptcy Act, as amended, which remains
pending for more than sixty (60) days, or any other proceedings
(eh
now or hereafter authorized by the laws of the United States or of
ate for the purpose of discharging or extending the time for
paymt nt�odebts
18.1.7 Tenant s become ns lvent; Tenant shall make an assignment
for benefit o creditors,
18.1.8 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter;
18.1.9 The leasehold interest is levied on under execution; or
18.1.10 Tenant shall fail to take out or to keep in force any insurance
referred to in Section 11 of the Agreement.
19. Rights on Default.
19.1 Rights on Default:
In the event of any default by Tenant as provided herein, Landlord shall
have the option to do any of the following in addition to and not in limitation
of any other remedy permitted by law or by this Agreement;
17
19.1.1 Terminate this Agreement, in which event Tenant shall immediately
surrender the Demised Premises to Landlord, but if Tenant shall fail
to do so Landlord may, without further notice, and without prejudice
to any other remedy Landlord may have for possession or
arrearages in rent or damages for breach of contract, enter upon
Demised Premises and expel or remove Tenant and his effects in
accordance with law, without being liable for prosecution or any
claim for damages therefore, and Tenant agrees to indemnify and
hold harmless Landlord for all loss and damage which Landlord
may suffer by reasons of such Act.-ement termination, whether
through inability to re-let the :�: sed Premises, or through
decrease in rent, or otherwise.
19.1.2 Declare the entire amount at the b'aja,Rent and Additional Rent
which would become due and payablelturg the remainder of the
Term to be due andpayable immediately, in which event Tenant
agrees to pay the same at once, together, hall rents therefore
due, at the address of Landlord, as provided Wi the Notices section
of this Agreepent; provided, however, that such `payment shall not
constitute ,
°"j �nalty, forfeiture, or liquidated damage,
but shall
merely constitute payment in advance of the rents for the
remainder of 'sari er end such payment shall be considered,
`;
construed and ken to a debt provable in bankruptcy or
receivership.
19.1.3 Enter the Demised rethe 'agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for
damages therefore, remizr Tenant's property there from, and re-
y
:)Allf''''41,1,991?,stet the Demised Premises, or portions thereof, for such terms and
such conditions which Landlord deems, in its sole discretion,
d rable, and to receive the rents therefore, and Tenant shall pay
LandlordLand19.0any deficiency that may arise by reason of such re-letting,
,� .. on demand at any time and from time to time at the office of
,v47_. Landlord; and for the purpose of re-letting, Landlord may (i) make
ny repairs, changes, alterations or additions in or to said Demised
'remises hat may be necessary or convenient; (ii) pay all costs
and expenses therefore from rents resulting from re-letting; and (iii)
Tenaint""shall pay Landlord 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 the 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 bear interest
18
at the maximum legal rate of interest per annum then prevailing in
Florida from the date when the same was payable by the terms
hereof, until the same shall be paid by Tenant. Any failure on
Landlord's behalf to enforce this Section shall not constitute a
waiver of this provision with respect to future accruals of past due
rent. No interest will be charged for payments made within the
grace period, such grace period to be defined as within five (5)
days of the due date. In addition, there will be a late charge of
$50.00 for any payments submitted after the grace period.
19.1.6 Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, Landlord
may pay such expense but Landlord shall not be obligated to do so.
Tenant upon Landlord's paying such expense shall be obligated to
forthwith reimburse Lao ! for the amount thereof. All sums of
money payable by T_ rigid to Landlord hereunder shall be deemed
as rent for use of e.: Demised Premises and collectable by
Landlord from Tenant ent, and:.shall be due from Tenant to
Landlord on the first daythe month following the payment of the
expense by Landlord. 1, ,.
19.1.7 Rights of the Landlord under this Agreement shall be cumulative
but not restrictive to those given bylaw and failure on the part of
t Landlord to exercise promptly any ghts given hereunder shall
'at operate to waive or to forfeit any of the said rights.
19.2 Default b andlord
The failure-44 a ,ttord to perform any of the covenants, conditions and
agreements o` s .greerent,which are to be performed by Landlord and
the continuance p� such fain , or a period of thirty (30) days after notice
thereof in writing rom Tenant o Landlord (which notice shall specify the
respects in which Tenant contends that Landlord failed to perform any such
covenant, conditions and'agreements) shall constitute a default by Landlord,
unless such default is one which cannot be cured within thirty (30) days
because of circumstances beyond Landlord's control, and Landlord within
such thirty (30) day period shall have commenced and thereafter shall
continue diligently to prosecute ail actions necessary to cure such defaults.
19.2.1 However, in the event Landlord fails to perform within the initial 30
day period provided above, and such failure to perform prevents
Tenant from operating its business in a customary manner and
causes an undue hardship for the Tenant, then such failure to
perform (regardless of circumstances beyond its control) as
indicated above, shall constitute a default by Landlord.
19.3 Tenant's Rights on Default:
If an event of Landlord's default shall occur, Tenant, to the fullest extent
19
permitted by law, shall have the right and option to terminate this Lease and
all of its obligations hereunder by giving written notice of such election to
Landlord, and shall further have the right to pursue any actions at law or
suits in equity to obtain damages resulting from Landlord's default.
Notwithstanding anything in this Section 19.3 or the Agreement, in the event
of a default by Landlord, Tenant hereby agrees and acknowledges that in no
event shall Landlord beliable for any incidental, indirect, special or
consequential damages, including without limitation loss of revenue and lost
profits, of Tenant which may be alleged as a result of Landlord's default.
20. Indemnity Against Costs and Charges.
20.1 The Tenant shall be liable to the Landlord for all costs and charges,
expenses, reasonable attorney's fees, and damages which may be incurred
or sustained by the Landlord, by reason of the Tenant's breach of any of the
provisions of this Agreement: Any sums due the Landlord under the
provisions of this item shall nstitute 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 o e a conditions as delinquent rent
would constitute a lien on said Premises same
And property.
N
20.2 If Tenant shall at any time be in default, ereunder, and if Landlord shall
deem it necessary to engage an attorney o enforce Landlord's rights and
Tenant'sobligations hereunder, the Tenant will''reimburse the Landlord for
the reasonable penses incurred thereby, inc uding, but not limited to,
court and reap attorney's fees, whether suit be brought or not
and if suit brought, then Tenant shall be liable for expenses incurred at
both the tris',d(appellate levels.
21. Indemnification Agains laims.
21.1 The Tenant shall indemnify and save the Landlord harmless from and
against any and all claims or causes of action (whether groundless or
otherwise) by or on behalf'of any person, firm, or corporation, for personal
injury or property damage occurring upon the Demised Premises,
occasioned in whole or in part by any of the following:
21.1.1 An act or omission onthe part of the Tenants, or any employee,
agent, invitee, or guest, assignee or sub-tenant of the Tenant;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or
the building in which the Demised Premises is located or any of its
facilities by Tenant, or any employee, agent, invitee, or guest,
assignee or sub-tenantor the Tenant, but not to include
trespassers upon the Demised Premises;
21.1.3 Any breach, violation, or non-performance of any undertaking of the
Tenant under this Agreement;
20
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by the Tenant or anyone holding or claiming to hold
through or under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises or other
facilities used in connection therewith, caused by the Tenant or any
employee, guest, or invitee of the Tenant.
21.3 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action
by Landlord or Tenant, as applicable, Landlord or Tenant, as applicable,
shall not be liable or responsible for, andtere shall be excluded from the
computation of such period of time, art „delays due to strikes, riots, acts of
God, shortages of labor or math als� r, or governmental laws,
regulations, or restrictions in the nature of a prohibition or moratorium, or
any bona fide delay beyond the reasonable control Landlord or Tenant, as
applicable. The foregoing shall not I to
pp 9 g apply any payments of money due
under this Lease.
v
22. Signs and Advertisinq.
Without the prior written co 1'0(0-Landlord, Tenant shall not permit the painting
and display of any signs, plaques,Ca ering or advertising material of any kind on or
near the Demised Premises with theexception of current signage as approved by
the City Manager duringprior ncy "9„,lage shall comply with signage
standards established by Landlordand rrtply h all applicable building codes,
and any other Municipal, County, SteandFederlws.
23. Damage to the Demised Premises.
i,
� yam ,
23, �1hie mtsed Premises or the Restaurant Space shall be damaged by the
elements, re, or other casualty not due to Tenant's negligence (hereinafter
*-referred to ` "such occurrence"), but are not thereby rendered
° ntenantable, In whole or in part, as determined by the City Manager, in his
sty' reasonable judgment and discretion, and such damage is covered by
the. ceeds fro - .andlord's insurance (if any), Landlord shall, as soon as
possib `after such. occurrence, utilize the insurance proceeds (if any) to
cause sue damage to be repaired, and the rent shall not be abated. If by
reason of such occurrence, the Demised Premises or Restaurant Space
shall be rendered untenantable, but only inpart, as determined by the City
Manager in his sole reasonable judgment and discretion, and such damage
is covered by the proceeds from Landlord's insurance (if any), Landlord
shall, as soon as possible, utilize the insurance proceeds (if any) to cause
the damage to be repaired, and the rent meanwhile shall be abated
proportionately as to the portion of the Demised Premises or Restaurant
Space rendered untenantable; provided however, if the Demised Premises
or Restaurant Space, are by reason of such occurrence, rendered more
than fifty (50%) percent but less than one hundred (100%) percent
21
untenantable, as determined by the City Manager, in his sole reasonable
judgment and discretionLandlord shall promptly obtain a good faith
estimate of the time required to render the damaged premises tenantable.
Notwithstanding anything contained in this Subsection 23.1 or in the
Agreement, if the time to repair the damaged premises to render them
tenantable exceeds one hundred and twenty (120) days, the Tenant shall
have the option of canceling this Agreement, which option shall be
exercised by Tenant in writing within ten (10) days of receipt of notice of
same from Landlord, and the rent shall be adjusted accordingly.
23.2 If the Demised Premises, or the Restaurant Space, shall be rendered wholly
untenantable by reason of such occurrence, and such damage is covered
by the proceeds from Landlord's insurance (if any), the Landlord shall utilize
the insurance proceeds (if any) toause such damage to be repaired, and
the rent meanwhile shall be abated In whole; provided, however, that
notwithstanding anything in this` Section 23 including, without limitation, any
duty of Landlord to repair, eitherthe City Manager or Tenant shall have the
right, to be exercised by notice writing delivered to the other party within
sixty (60) days from and after suc ; occurrre ce, to elect to terminate the
Lease and, in that event, then thiissg ement and the tenancy hereby
created shall cease as of the date o said notice, and the rent shall be
adjusted accordingly as of such date.
24. Quiet Enjovmen
The Tenant s ; i enjoy t iet enjoyment of the Demised Premises and shall not be
evicted or disturbed in *session of the Demised Premises so long as Tenant
complies with th`e4erms of this Agreement.
25. Waiver. **
25.1 It is mutually coverijed and agreed by and between the parties hereto that
the failure of Landlord to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise
any option herein conferred, will not be considered or construed as a waiver
or relinquishment for the future of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in full force
and effect.
25.2 A waiver of any term expressed herein shall not be implied by any neglect of
Landlord to declare a forfeiture on account of the violation of such term if
such violation by continued or repeated subsequently and any express
waiver shall not affect any term other than the one specified in such waiver
and that one only for the time and in the manner specifically stated.
25.3 The receipt of any sum paid by. Tenant to Landlord after breach of any
condition, covenant, term or provision herein contained shall not be deemed
a waiver of such breach, but shall be taken, considered and construed as
22
payment for use and occupation, and not as rent, unless such breach be
expressly waived in writing by Landlord.
26. 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 copies to: Asset Manager
City of Miami Beach 1700
Conation Center Drive
Miami each, Florida 33139
TENANT: Colony Theater Cafe, Inc. d/b/a Segafredo
1040Lincoln , o d
Miami Oft ri d a 33139
Attn: Graziano Sbroggio
All notices shall be hand delivered and a receipt requested, or by certified mail with
return receipt reque ted, and shall be effective upon *Opt.
27. Entire and Bi01 4' Agreement.
This Agreement „ntains'all of the agreements between the parties hereto, and it
may not be modified modifi4in any ma ner other than by agreement in writing signed by all
thes reto r. eir s u cessors in interest. The terms, covenants and
conditions ;gmned erein shall nur to
,�� ��o the benefit of and be binding upon
Landlord and Tena an ''' eir respective successors and assigns, except as may
be therwise expresslyprovided in this Agreement.
28. Provisionseverable 'Nfr
If any term rprovisionf.this Agreement or the application thereof to any person
or circumstanceshall, tiny extent, be Invalid or unenforceable, the remainder of
this Agreementlipr,,t4 application of such term or provision to persons or
circumstances othern 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.
29. 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
30. 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.
31. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of
the State of Florida.
32. Limitation of Liability.
The Landlord desires to enter into this Agreement only if in so doing the Landlord
can place a limit on Landlord's liability for any cause of action for money damages
due to an alleged breach by the Landlord of this Agreement, so that its liability for
any such breach never exceeds the sum off tsand ($50,000.00) dollars and
00/100. Tenant hereby expresses its willingness to iter into this Agreement with
the Tenant's recovery from the Landlord for anydeage action for breach of
contract to be limited to a maximum amount of $50,000.00. Accordingly, and
notwithstanding any other term or condition of this Agreement, Tenant hereby
agrees that the Landlord shall not be liable to Tenant for damage in an amount in
excess of $50,000.00 for any action or claim for breach of contrast arising out of
the performance or non-per rmance of any obligations imposed upon the Landlord
by this Agreement. Nothingcontained in this Section or elsewhere in this
Agreement is in anyway intended intepiledApie a waiver of the limitation placed upon
Landlord's liability as set forth in Florida Statutes, Section 768.28.
33. Surrender of the Demised Premises
The Tenant shall, on or before thews day of the.term herein demised, or the
sooner termination thereof, peaceablynd quietly leave, surrender and yield upon
to the Landlord the Demised Premis together with any and all equipment,
fixture 'ehings, appliances or other�tangible personal property, if any, located
at�or on the emised Premises andused by Tenant in the maintenance,
management oroperation of the Demised Premises (excluding any trade fixtures or
personal property, if, ny, which can be removed without material injury to the
Demise remises), tree of all liens, claims and encumbrances and rights of others
or broo44tean, togetherwith all structural changes, alterations, additions, and
improvementsnrhichmay have been made upon the Demised Premises, in good
order, condition and repair, reasonable wear and tear excepted, subject, however,
to the subsequent provis ons of this Section. Any property which pursuant to the
provisions of this Section is removable by Tenant onr or at the Demised Premises
upon the termination of this Agreement and is not so removed may, at the option of
the Landlord, be deemed abandoned by the Tenant, and either may be retained by
the Landlord as its property or may be removed and disposed of at the sole cost of
the Tenant in such manner as the Landlord may see fit. If the Demised Premises
and personal property, if any, be not surrendered at the end of the term as
provided in this Section, the Tenant shall make good the Landlord all damages
which the Landlord shall suffer by reason thereof, and shall indemnify and hold
harmless the Landlord against all claims made by any succeeding tenant or
24
purchaser, so far as such delay is occasioned by the failure of the 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 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.
36. Radon Notice.
As required by Section 404.056 of Florida;Statutes the following warning is given:
RADON GAS: Radon is a naturally` occurring radioactive gas that, when it
has accumulated In a building in Sufficient quantities, may present health
risks to persons who are exposed to it over ti e,Levels of radon that exceed
federal and state guidelines have been Mound in buildings in Florida.
Additional information regarding radon aha Tadon testing may be obtained
from your county public health unit. '
LANDLORD AND 'ENANT HEREBY KNOWING -Y= AND INTENTIONALLY
WAIVE THE ' GHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
THAT THE ;NDLORD 4ND TENANT MAY HEREIN AFTER INSTITUTE
rQ..
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF
OR RELATED TO THIS A REEMENT.
37. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES OR PLASM STRAWS.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time,
effective August 2, 2014, the Cityas prohibited the use of expanded polystyrene
food service articles by City Contractors, in connection with any City contract,
lease, concession agreement or Special event permit. Additionally, pursuant to
Section 82-385 of the City Code, as may be amended from time to time, no
polystyrene food service articles will be allowed in the right-of-way, and no
polystyrene food service articles can be provided to sidewalk café patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam.
Expanded polystyrene is more particularly defined as blown polystyrene and
expanded and extruded foams that are thermoplastic petrochemical materials
utilizing a styrene monomer and processed by any number of techniques including,
but not limited to, fusion of polymer spheres (expandable bead foam), injection
molding, foam molding, and extrusion-blown molding (extruded foam polystyrene).
25
Expanded polystyrene food service articles means plates, bowls, cups, containers,
lids, trays, coolers, ice chests, and all similar articles that consist of expanded
polystyrene.
Tenant agrees not to sell, use, provide food in, or offer the use of expanded
polystyrene food service articles at the Demised Premises or in connection with
this Lease. Tenant shall ensure that all vendors operating in the Demised Premises
abide by the restrictions contained in this Section 37. A violation of this section
shall be deemed a default under the terms of this Lease. This subsection shall not
apply to expanded polystyrene food service articles used for prepackaged food that
have been filled and sealed prior to receipt by the Tenant or its vendors.
Additionally, Tenant agrees to comply (and ensure compliance by its vendors) with
Section 46-92 (c) of the City Code, which Mates that it is unlawful for any person to
carry any expanded polystyrene product on o any beach or into any park within the
City or for any business to provide plastic straws with the service or delivery of any
beverage to patrons on the beach
38. FLORIDA PUBLIC RECORDS LAW.
38.1 Tenant shall comply with Florida Pubic Records law under Chapter 119,
Florida Statutes, as may be amended from froniOne to time.
38.2 The term "public records" shall have the meaning set forth in Section
119.011(12), which means all documents, papers, letters, maps, books,
tapes, photographs, films, sound recordings, data processing software, or
other material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in
tnection with the transaction of official business of the City.
Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets
the definitionf "Tenant" as defined in Section 119.0701(1)(a), the Tenant
shall: ...
38.3 ,Keep aria:maintain public records required by the City to perform
e serer;
38.3.2 Upon request from the City's custodian of public records, provide
the City with a copy of the requested records or allow the records to
be inspected or copied within a reasonable time at a cost that does
not exceed the cost provided in Chapter 119, Florida Statutes or as
otherwise provided by law;
38.3.3 Ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not
disclosed, except as authorized by law, for the duration of the
26
contract term and following completion of the Agreement if the
Tenant does not transfer the records to the City;
38.3.4 Upon completion of the Agreement, transfer, at no cost to the City,
all public records in possession of the Tenant or keep and maintain
public records required by the City to perform the service. If the
Tenant transfers all public records to the City upon completion of
the Agreement, the Tenant shall destroy any duplicate public
records that are exempt or confidential and exempt from public
records disclosure requirements. If t Tenant keeps and maintains
P Pon com
ublic records u letion of e,Agreement, the Tenant shall
P
meet all applicable requirements' or retaining public records. All
records stored electronically must a provided to the City, upon
request from the City's custodian of pu lic records, in a format that
is compatible with the information technology systems of the City.
38.4 REQUEST FOR RECORDS; NONCOMPLIANCE.
38.4.1 A request to inspect or copy public records re ati Y to the City's
contract forservices must be made directly to the£' ty. If the City
does not possessthe requested records, the City shall immediately
notify the Tenantf the request, and the Tenant must provide the
records to the day oralI.Rw he records to be inspected or copied
within a reasonabletime.
38.4.2 Tenant's failure to comply with h q ty's request for records shall
constitute a breach cif"this Agreement, and the City, at its sole
discretion, may: (1) unilaterally terminate the Agreement; (2) avail
itself of the remedies worth under the Agreement; and/or (3)
veil itself of any available
-or at law or in equity.
8.4.3 A Tent who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
38.5 CIVIL ACTION
38.5.1a civilfiction is filed against a Tenant to compel production of
publicrecords relating to the City's contract for services, the court
shall and award against the Tenant the reasonable costs of
enforcement, including reasonable attorney fees, if:
38.5.1.1 The court determines that the Tenant unlawfully refused
to comply with the public records request within a
reasonable time; and
38.5.1.2 At least 8 business days before filing the action, the
plaintiff provided written notice of the public records
27
request, including a statement that the Tenant has not
complied with the request, to the City and to the Tenant.
38.5.2 A notice complies with subparagraph (1)(b) if it is sent to the City's
custodian of public records and to the Tenant at the Tenant's
address listed on its contract with the City or to the Tenant's
registered agent. Such notices must be sent by common carrier
delivery service or by registered, Global Express Guaranteed, or
certified mail, with postage or shipping paid by the sender and with
evidence of delivery, which may be in an electronic format.
38.5.3 A Tenant who complies with a public records request within 8
business days after the notice is sent is not liable for the
reasonable costs of enforcement.
38.6 IF THE TENANT HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE TENANT'S DUTY TO
PROVIDE PUBLIC RECORDS .RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF :,UBLIC--RECORDS AT:
CITY OF-MIAMI BEACH
ATTENTION: RAFAEL % RANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
- MIAMI BEACH, FLORIDA 33139
AIL: RAFAELGRANADO@WAMIBEACHFL.GOV
PHONE: 305-673-7411
11
(REMAINDER 7F PAGE. fTENTIONALLY LEFT BLANK)
28
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed
by the respective duly authorized officers and the respective corporate seals to be
affixed this day of 2017.
Landlord:
CITY OF MIAMI BEACH, FLORIDIA
ATTEST:
By:
RAFAEL GRANADO, CITY CLERK ApHILIP LEVINE, MAYOR
Print Name
Date: 4 :
TENANT:
COLONY THEATER CAFÉ, INC. d/b/a
SEGAFREDO
ATTEST1 ' ';
NN
By:
MARK SOYKA, PRESIDENT
Print Nam .:yt
Print Name
Date:
29
EXHIBIT
(page 1 of 3)
"Restaurant Space"
/ /
CS4
6.5' 12.6'
KITCHEN
KITCHEN
to RESTROOM
5.7'
trArArsemill
/
3'
BAR AREA
BAR AREA
SEATING AREA
.1111
SEATING AREA
/
ACCESS TO THEATER LOBBY
— or
3' MAIN ACCESS FROM LINCOLN RD. MALL
aminsmainumissummun ,
1 9 1'
COLONY THEATER CAFE
repored by RESTAURANT SPACE
TOTAL AREA:769 S.F.
iral4"e
wtto•1 t!,,:oseni
epginewsioof 4.644.1
47,41,'6441,444,41,A, Page 4 of 5
-464141, !Ad,:ii4/74,8
30
EXHIBIT 1
(page 2 of 3)
"Concession Area"
"Storage Area"
�''
F / 4061
4511
8.5' # 6.1cci 0fT
j: w
_ cc
v I n. m w
M; Q
r:
CC
_
::,..,.JIJ./ t1 , N "
,
Isi
// / ( ``�/
ii
r +rust SINK C� __, v'
w SO
I '
/e' it,# 6.43' ( I
^,c7,4
N p STORACE >2
STAIRS ABOVE
COLONY THEATER CAFE
Pr pareo ?:. CONCESSION AREA
ea. TOTAL AREA:296 SQUARE FEET
1#444 r#44-'1124###/######1
#7###{,dr�ueilr+r� rale,s�a�ai� ".
Page 5 of 5
�,JR4 e ta,,i 6.74,4 A', ',1,#6# #t a ,,,,,
31
EXHIBIT 1
(page 3 of 3)
"Dumpster Area/Storage
Area"
I 14
/ ."'""c i
. I
li
I A i /1
,„„,--s: . .5 i 1§
,,,,,,,,,'S: ...„, *
„7,...---c: m
li
0 .7'"-c. ,41.„7" / 1
th y I ''
T
•
i/ iAs'
IC
0
9
7 NI. if
I;I .‘
* It 00
32
Resolutions-R7 I
MIAMI BEACH
,. . COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: April 26,2017
11:30 a.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,
ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE
PROJECTS COMMITTEE AND OF THE CITY MANAGER, 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 COLONY THEATER CAFE, INC. D/B/A SEGAFREDO
(TENANT) FOR THE USE OF APPROXIMATELY 1,371 SQUARE FEET OF CITY-
OWNED PROPERTY, LOCATED AT 1040 LINCOLN ROAD, MIAMI BEACH, FLORIDA
(PREMISES), FOR A PERIOD OF THREE (3) YEARS, COMMENCING NOVEMBER 1,
2017 AND EXPIRING OCTOBER 31, 2020, WITH TWO (2) RENEWAL OPTIONS FOR
THREE (3)YEARS EACH,AT THE CITY'S SOLE DISCRETION.
RECOMMENDATION
Adopt the Resolution.
BACKGROUND
On January 28th, 2009, the Mayor and City Commission adopted Resolution No. 2009-26994 approving a new
lease agreement between the City and Colony Theater Cafe, Inc.d/b/a Segafredo(Tenant), for a 1,371 square
feet City-owned facility known as the Colony Theater Café. The initial lease term was for a period of three (3)
years,commencing November 1,2008 and ending October 31,2011,with two(2),three(3)year renewal terms.
The lease was extended for both renewal terms with the second and final renewal term expiring October 31,
2017. The Tenant has requested a new lease agreement with the City. The Administration presented this
matter at the December 16, 2016 Finance and Citywide Projects Committee ("FCWPC") meeting and the
FCWPC recommended in favor of negotiating a new lease agreement with Colony Theater Café. On January
11,2017,the Mayor and City Commission voted in favor of executing a new lease with Tenant.
ANALYSIS
Colony Theater Café is a full service restaurant and bar with an active Sidewalk Cafe permit authorized for
forty-eight (48) tables and one hundred eighty-three (183) seats on Lincoln Road. The Sidewalk Cafe
permit is not part of the Premises; however, the City receives percentage rent from the combined
operations.
The basic terms of the current lease are as follows:
Premises: 1040 Lincoln Road
Page 1158 of 1596
Initial Term: Three(3)years commencing November 1, 2008 and ending October 31,2011
Renewal Terms: Two(2)renewal terms for three(3)years each(second and final renewal term
expires October 31,2017)
Size: The total leased area consists of approximately 1,371 square feet delineated as
follows:
769 SF restaurant/cafe space
107 SF restaurant/cafe storage space located in theater lobby
876 SF total revenue generating area
189 SF food&beverage concession located in theater lobby
306 SF dumpster/storage area located off-site
495 SF total ancillary area
Since the 189 square foot food & beverage concession located in the theater lobby
is intended only for Colony Theatre patrons, and since the 306 square foot
dumpster/storage area is located off-site, the remaining 876 square feet (769 SF
cafe plus 107 SF storage) is an adjusted square footage which most accurately
reflects the revenue generating area occupied by Tenant for purposes of calculating
rent per square foot.
Rental Rate: The greater of Base Rent, in the amount of$217,174 for contract year 2015/16,
or 6.5%of Gross Receipts (with allowable deductions). For contract year 2015/16,
the total rent paid was$218,769($250 per square foot).
The chart below illustrates the rent revenue figures for the most recent four(4)contract
years.
Contract Year 2012/13 2013/14 2014/15 2015/16
Gross Receipts $4,025,015 $3,766,836 $3,804,577 $3,365,670
Total Rent Paid(6.5%) $261,626 $244,844 $247,298 $218,769
Rent per Square Foot(876 SF) $299 $280 $282 $250
The chart below compares the basic terms and conditions of the current lease to the proposed terms
and conditions of the new lease.
Current Lease New Lease
Initial Term Three(3)years Three(3)years
Renewal Options Two(2),three(3)year options Two(2),three(3)year options
Percentage Rent 6.5%of Gross Sales 7%of Gross Sales
Minimum Guarantee $218,970 annually(FY16/17) $219,000 annually
$250 per square foot $250 per square foot
CPI annual increases 2%annual increases
Rent for Dumpser/ None $7,650 annually
Storage Area(306 SF) $25 per square foot
Page 1159 of 1596
Additionally, Tenant requested that the Minimum Guarantee be waived, on a pro-rata basis, during periods
of business disruption due to the proposed Lincoln Road construction/renovations. During said periods,
only the Percentage of Gross Sales(7%)would be applicable.
FINANCE &CITYWIDE PROJECTS COMMITTEE
At the February 17, 2017 Finance and Citywide Projects Committee ("FCWPC") meeting, the
Administration presented the terms and conditions set forth above. The FCWPC considered this matter
and recommended in favor of approving a new lease with Colony Theater Cafe, Inc. d/b/a Segafredo.
The FCWPC also recommended in favor of approving Tenant's request to waive the Minimum Guarantee,
on a pro-rata basis, during periods of business disruption due to the proposed Lincoln Road
construction/renovations. Said waiver shall be limited to a period up to four (4) calendar months, which
may be extended, subject to the City Manager's sole discretion. During said waiver period, Tenant shall
only be required to pay the Percentage of Gross Sales.
CITY MANAGER'S RECOMMENDATION
Based upon the foregoing,the City Manager recommends that the Mayor and City Commission waive the
formal competitive bidding requirement, by a 5/7ths vote, as permitted under Section 2-367(e)of the City
Code, as being in the best interest of the City.
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the Resolution in favor of
accepting the recommendations of the FCWPC.
Legislative Tracking
Tourism, Culture& Economic Development
ATTACHMENTS:
Description
❑ Exhibit"A"-Draft Lease Agreement
o Resolution
Page 1160 of 1596