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2017-29943 Resolution RESOLUTION NO. 2017-29943 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, FOLLOWING A DULY NOTICED PUBLIC HEARING, AND APPROVING, IN SUBSTANTIAL FORM, THE LEASE AGREEMENT AND CONCESSION AGREEMENT (THE AGREEMENTS) ATTACHED TO THIS RESOLUTION, BETWEEN THE CITY AND TASTE BAKERY CAFE, LLC ("TENANT"), INVOLVING THE USE OF APPROXIMATELY 734 SQUARE FEET OF CITY-OWNED GROUND FLOOR RETAIL SPACE, LOCATED AT 773 17TH STREET, INCLUDING AN ADJOINING OUTDOOR SEATING AREA, HAVING APPROXIMATELY 507 SQUARE FEET, FOR USE AS A CAFE; SAID AGREEMENTS HAVING AN INITIAL TERM OF THREE (3) YEARS, COMMENCING ON SEPTEMBER 1, 2017, WITH TWO (2) ONE-YEAR RENEWAL OPTIONS, AT THE CITY MANAGER'S SOLE DISCRETION; AND PROVIDING, IN MATERIAL PART, THAT TENANT WILL PROVIDE CITY EMPLOYEES WITH HEALTHY FOOD CHOICES AT A FORTY PERCENT (40%) DISCOUNT, WITH THE CITY REIMBURSING TASTE BAKERY FOR EMPLOYEE DISCOUNTS, IN AN AMOUNT NOT TO EXCEED $200,000 PER CONTRACT YEAR; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENTS, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. WHEREAS, Invitation to Negotiate No. 2017-097-WG (the "ITN") for a City Employee Healthy Café was issued January 25, 2017 with an opening date of March 2, 2017; and WHEREAS, on May 17, 2017, the Mayor and City Commission adopted Resolution No. 2017-29866, accepting the recommendation of the City Manager pertaining to the ranking of Proposals pursuant to the ITN and authorizing the Administration to negotiate with the top- ranked proposer, Taste Bakery café, LLC; and if not successful in negotiating with Taste Bakery Café, LLC, authorizing the Administration to enter into negotiations with the second highest ranked proposer, Sande! Beach, LLC; and further providing that the final agreement would be subject to the advanced approval of the Mayor and City Commission; and WHEREAS, the parties have substantially completed negotiations of a Lease Agreement (the "Lease") for the use of approximately 734 square feet of city-owned ground floor retail space, located at 773 17th Street (the "Demised Premises") and a Concession Agreement for the use of and adjoining outdoor a seating area having approximately 507 square feet (the "Concession Area") (the Lease and Concession Agreement shall be collectively referred to herein as the "Agreements"), having an initial term of three (3) years, with two (2) one-year renewal options; and WHEREAS, the Base Rent for the Demised Premises and use of the Concession Area shall be One Dollar ($1.00) per Contract Year and other good and valuable consideration; and 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 approve in substantial form, the Lease Agreement and Concession Agreement (the "Agreements") attached to this Resolution, between the City and Taste Bakery Café, LLC ("Tenant"), involving the use of approximately 734 square feet of City-owned ground floor retail space, located at 773 17th Street, including an adjoining outdoor seating area, having approximately 507 square feet, for use as a Café; said Agreements having an initial term of three (3) years, commencing on September 1, 2017 with two (2) one-year renewal options, at the City Manager's sole discretion; providing, in material part, that Tenant will provide City employees with healthy food choices at a forty percent (40%) discount, with the City reimbursing Taste Bakery for Employee Discounts, in an amount not to exceed $200,000 per Contract Year; and further authorize the Mayor and City Clerk to execute the final negotiated Agreements, subject to review and form approval by the City Attorney. / PASSED AND ADOPTED this ogday of \U/y 2017. !i9 ATTEST:/10 8r r RAF A EL RANA DO, CI 7 E j' fie �� � PHI L , 'y MAYOR c-3111T:\AGENDA\2017\7-July\Procure '� Apart}- \I oil>49-1FV ' Em `� iee Healthy Cafe\ITN 2017-097-WG-BAFO Resolution.doc ORS ,x G ./o ''fir APPROVED AS TO FORM OR EXECUTIONS .7j1g117 Date City Attorneyt7} Resolutions- R7 I MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: July 26, 2017 2:35 p.m. Public Hearing SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, FOLLOWING A DULY NOTICED PUBLIC HEARING, AND APPROVING, IN SUBSTANTIAL FORM, THE LEASE AGREEMENT AND CONCESSION AGREEMENT (THE AGREEMENTS) ATTACHED TO THIS RESOLUTION, BETWEEN THE CITY AND TASTE BAKERY CAFE, LLC ("TENANT"), INVOLVING THE USE OF APPROXIMATELY 734 SQUARE FEET OF CITY-OWNED GROUND FLOOR RETAIL SPACE, LOCATED AT 773 17TH STREET, INCLUDING AN ADJOINING OUTDOOR SEATING AREA, HAVING APPROXIMATELY 507 SQUARE FEET, FOR USE AS A CAFE; SAID AGREEMENTS HAVING AN INITIAL TERM OF THREE (3) YEARS, COMMENCING ON SEPTEMBER 1, 2017, WITH TWO (2) ONE-YEAR RENEWAL OPTIONS, AT THE CITY MANAGER'S SOLE DISCRETION; AND PROVIDING, IN MATERIAL PART, THAT TENANT WILL PROVIDE CITY EMPLOYEES WITH HEALTHY FOOD CHOICES AT A FORTY PERCENT (40%) DISCOUNT, WITH THE CITY REIMBURSING TASTE BAKERY FOR EMPLOYEE DISCOUNTS, IN AN AMOUNT NOT TO EXCEED $200,000 PER CONTRACT YEAR; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENTS, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. RECOMMENDATION Approve the Resolution. ANALYSIS On January 25, 2017, the Mayor and City Commission were updated via Letter to Commission (LTC) # 051-2017, that Invitation to Negotiate (ITN) 2017-097-WG for City Employee Healthy Café was issued on January 25, 2017 and that responses were due February 23, 2017. An addendum was subsequently issued postponing the proposal due date to March 2, 2017. The City received a total of two (2) proposals, one from Sandel Beach, LLC and the other from Taste Bakery Café, LLC. On May 17, 2017, the Mayor and City Commission approved Resolution 2017-29866 accepting the recommendation of the City Manager pertaining to the ranking of proposals, pursuant to Invitation to Negotiate No. 2017-097-WG (the ITN), for City Employee Healthy Cafe, authorizing the Administration to enter into negotiations with the highest ranked proposer Taste Bakery Café, LLC; and if unsuccessful in negotiating an agreement with Taste Bakery Café, LLC, authorizing the Administration to enter into negotiations with the second highest ranked proposer Sandel Beach, Page 1719 of 2495 LLC; and further requiring the administration to present the final agreement to the Mayor and City Commission for approval prior to execution. As directed by the City Commission, the Administration has engaged in negotiations with Taste Bakery Café, LLC ("Tenant") in connection with a lease agreement for the use of approximately 734 square feet of City-owned ground floor retail space, located at 773 17th Street ("Demised Premises") and a Concession Agreement for the use of an adjoining outdoor seating area having approximately 507 square feet (the "Concession Area"), having an initial term of three (3) years, with two (2) one- year options. The Concession Agreement shall be collectively referred to herein as the "Agreements." The Base Rent for the Demised Premises shall be for One Dollar ($1.00) per Contract Year and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto. In consideration for the reduced rent for the Demised Premises and Concession Area, Tenant shall provide a forty percent(40%)discount on the purchase price of all food and beverages from any Taste Bakery Café location within the City of Miami Beach to City employees with an active and verified City of Miami Beach issued employee identification ("Employee ID"); whether the purchase was made onsite or ordered for delivery ("City Employee Discount"). Notwithstanding the foregoing, the Employee Discount shall not be applied to any delivery charges. The City may choose to impose additional requirements, such as a card reader in order to ensure the integrity of the City Employee Discount. The term "City Employee Purchases" is understood to mean the sales price of any purchases applied a City Employee Discount, inclusive of the City Employee Discount amount. It does not include the price of any other discounts Tenant may offer to City employees or customers in general. City will reimburse Tenant a maximum of Two Hundred Thousand and 00/100 Dollars ($200,000.00) per Contract Year towards the City Employee Discount at the following rates: Annual City Employee Purchases Reimbursement Reimbursement Rate Maximum From To $0.00 $422,400.00 $ 168,960.00 40%of City Employee Purchases $422,400.01 $629,333.33 $ 31,040.00 15%of City Employee Purchases Greater Than $629,333.33 $0.00 0%of City Employee Purchases Thereafter, Tenant will continue to provide the City Employee Discount regardless of any reimbursement amount. City will not reimburse Tenant for: 1) any amounts discounted above 40% of the purchase price, 2) unauthorized employees as Tenant has been Notified by City, or 3) persons without an active Employee ID. Tenant hereby agrees to perform the following services and obligations: a) free coffee, any size and drip, during normal business hours, at all Taste Bakery Café locations, with the purchase of any item; b)free WiFi signal at all Taste Bakery Café locations; c) free delivery to City employees located within the City Hall complex (1700 Convention Center Drive, 1701 Meridian Avenue and 1755 Meridian Avenue); d)the charge for delivery service from South Pointe Drive to 41st Street shall be$3.00; Page 1720 of 2495 e)the charge for delivery service from 42nd Street to 87th Terrace shall be$5.00; and f) a marketing flyer shall be sent, at least on a monthly basis, to City employees promoting the employee café, including such things as weekly combo specials, pricing specials, etc. A Satisfaction Survey shall be provided on a quarterly basis to City employees. The survey is online and can only be accessed by individuals who are provided the link to the survey. The survey is only eligible to be completed once per browser, preventing multiple entries. The survey will consist of simple, useful questions which will allow Tenant to assess customer satisfaction and possible input for future menu items. Percentage of Gross Receipts Derived from the Demised Premises and Concession Area ("PG"): During the term of these Agreements, within thirty (30) days of the end of the Contract Year, Tenant shall also pay to the City an amount equal to five percent (5%) of Tenant's annual Gross Receipts, not including Employee Discounted Purchases or unreimbursed Employee Discounts, derived from the use of the Demised Premises and Concession Area ("PG"). The payment of five percent (5%) will continue throughout the Contract Year until the City has reached the $200,000 City contribution, at which time, Tenant will no longer be responsible for said payment until the start of the following Contract Year. The term"Gross Receipts" is understood to mean all income collected or accrued, derived by Tenant under the privileges granted by this Lease Agreement, excluding amounts of any Federal, State, or City sales tax, or other tax, governmental imposition, assessment, charge or expense of any kind, collected by Tenant from customers and required by law to be remitted to the taxing or other governmental authority. The Administration recommends that the Mayor and City Commission approve, in substantial form, the Agreements attached hereto, subject to final negotiations by the Administration and review and from approval by the City Attorney. CONCLUSION The Administration recommends that the Mayor and City Commission approve the Resolution. KEY INTENDED OUTCOMES SUPPORTED Ensure Expenditure Trends Are Sustainable Over The Long Term FINANCIAL INFORMATION Grant funding will not be utilized to fund this project. Legislative Tracking Tourism Culture and Economic Development/Procurement Page 1721 of 2495 ATTACHMENTS: Description ❑ Form Approved Reso ❑ Ad Page 1722 of 2495 LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease"), made this day of 2017, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation, organized TASTE and existing under the laws of the State of Florida (hereinafter referred "City" to as the or "Landlord"), and t"). BAKERY CAFE, LLC, a Floridalimited liability company (hereinafter referred to as "Tenant"). 1, Demised Premises. The City owns simple that certain land aBned.t,h,,,,z -I.,-,.-rt.,v, t3h3eire3o9n, (the "Building"), which Building located at 1701MeridianAvenue, Miami ,- i ar;i',,',...,f;4'- includes approximately 20,777 square feet of rz a. area . ,..ice space (the "Office Space"), andapproximately 5,690 square. fr"; , rentable ar- ., ,...,...., . •n sideration t-ILY, of t-h: g-rottau”)insdo fhftelohroeeri hereinafter space (the . Space"). "Retail reserved to be paid, and of the coven.' ., . onditions -nd,. agreem- .., .o be kept and a/k/a 773 ' ts an. - performed by the Tenant, hereby lea ises to Ten. , and Tenant.n hereby leases and hires. from the City, app ' ' -_ ' 34 square feet.0f those certain premises (the "Demise : of .,,Unit 4 (the "Unit") Space, which Unit hasbapespro i'''''''''''' 1,269 sq feet, as depicted in Exhibit "lA", , sguarein;:'1, ,.i: '.7,:.*:;,„.''Cl' and more fully described Prefrnelii:s::' which a The easterly Condomini . , Declaration aMrea triiodni a nthePreropoPfu,ebnal Public recorded- ' .. ic)a ni,.°111°rds '!'.. 25724, at Page 1183, of the Recorti iami-Da County, 7 trida. St - at- 17 square :1° 'cla 33139. 1.1, having ap . otba aconcession agreement. of even. date (the "Conce ,...-i;.,,- ir P ,,,-h.,dAg r.,i,,,,nt.anrte,,),praereietisng "Conce , . concession area depicted in Exhibit "1", e conbefsesitnonf outdoor space adjacent to and east of Area"). the Demised mise • 1.2. i, Demised:,, Concessi. , , rea and Premises are more specifically delineated in .i:. 'it"1" ,. . hed hereto and incorporated herein. 2. Term. 2.1. Tenant shall be entitled to have and to hold the Demised Premises for 2017 (the an initial term of three (3) years, commencing on the 1st day of September, "CommencementLleastee,"), and ending on the 31st day of August, 2020. For purposes of thiser shall be st and including, without limitation, Subsection 2.2 herein, a "Contract Yeadefinedas that certain period commencing on the 1 day of September, and ending on the 31st day of August EXHIBIT .1. P. § 1726 of 495 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 priortD the expiration of the first renewal term, as the case may be), this Lease may be extended, at the City Manager's sole discretion, for two (2), one (1) year renewal terms. Any extension, if apprDved. shall be memorialized in writing and signed by the parties hereto (with the City hereby designating the City Manager as the individual authorized to execute such extensions on its behalf). In the event that the City Manager dftermioG3, in his sole d|scn8tion, not to extend this Lease (upon expiration of the initial ter[n, or the first renewal term, as the case may be), the City Manager shall notify Tenant of same in ibng which notice shall be provided tojapant within thirty (30) business days of the City Manager's receipt of TenatO:Written notice. 2.3. Termination for Convenience: Notwithstanding anything in this sublsectib,k,'Pr any other term or condition in this Lease, the City reserves the right,*rb6gh its City Manager, to terminate this Lease, without cause and without liatiLtty, to the City, upon providing Tenant with one hundred ninety(90)days prior wri*chotice. In the event pfilermination by the City pursuantlo this subsection 2.3, Tenant herein acknoWled'ix:s and agrees that it shall not have any claim, demand, or cause 'of,::action of*natsoever kind or nature, against the City, its agents, servants an,d,,emplcyees (including, but not limited to, claims for any start-up costs, interfe*cOlci!bu*ness or damages for interruption of services, or interference in ita-.06hceiSion:pperations). In no event shall the City be liable to Tenant for any itidirect, inCtdantal, special, lost profits or consequential 2.4. Tenant may take possei of the Demised Premises and Concession Area prior to the Commencement Date upon execution of the Lease by all parties hereto and by providing written Notice to Landlord of Tenant's intent to occupy the Demised Premises. Any additional time provided to Tenant shall be added to the initial Contract Year and as such, any and all amounts of Rent, Additional Rent, Reimbursernents, due to, or proffered by the Land|ord. shall be prorated accordingly for the additional days. 3. Rent. 3.1. Base Rent: Tenant's payment of Rent, as defined in this Section 3, shall commence on September 1"`. 2U17 (the "Rent Commencement Dote^'\ and, thereafter, Oneach first day of subsequent months. Page 177of2485 z 3.1.1. The Base Rent for the Demised Premises shall be for One Dollar($1.00) per Contract Year and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto. 3.2 Additional Rent: In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also pay, as Additional Rent, its proportionate share of Common Area Maintenance (CAM), Property Taxes, and Insurance (collectively, "Operating Expenses"), as provided below: 3.2.1 Tenant's Proportionate Share: Tenant shall remit, together with the monthly payment of Base Rent, its proportionate share of the estimated Operating Expenses for the Demised Premises, as determined by Landlord, in its sole discretion and judgment, including as morearticularly described hereinafter. Tenant's Proportionate She of CAM and Insurance means a fraction, the numerator of which is the thesquare,footage of the Demised Premise, and the denominator of which is the total Rentable Area of the Building. Tenant's Proportionate Share Of.,..1*perty Taxes means a fraction, the numerator of which is the square footage of the Demised Premises, and the denominator of which is the squa4footage of the Unit. Land may also implement and choose a more appropriate method to catctilite Tenant's Proportionate Share for different Operating Expenses, su*as, butnotlimited to, Proportionate Share of replacement value for insdraAce, i*ortionate Share of Rentable Area for Cam, CondOminiurrion for property taxes, individual or sub-metering for utilities, 'inAlyidUaI assessments if Tenant is solely responsible, or any other metriO44:which thg't;endlord, 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 and, as such, Tenant's proportionate share of Operating Expenses shall increase or decrease accordingly. 3.2.2 Common Area Maintenance ("CAM"): During the first Contract Year, the Operating Expenses for the Demised Premises shall be Two Thousand Nine Hundred Thirty-Six and 04/100 Dollars ($2,936.04) per year, payable in monthly installments of Two Hundred Forty-Four and 67/100 Dollars ($244.67), for its proportionate share of CAM which is defined as follows: "Common Area Maintenance ("CAM')" shall mean the following costs and expenses incurred in operating, repairing, and maintaining the Page 178 of 2495 Common Facilities (as hereinafter defined) and shall include, without limitation, water service to the Building, sewer service to the Building, trash removal from the Building, costs incurred for gardening and landscaping, repairing and maintaining elevator(s), painting, janitorial services (except for areas within the Demised Premises), lighting, cleaning, striping, policing, removing garbage and other refuse and trash, removing ice and snow, repairing and maintaining sprinkler systems, water pipes, air-conditioning systems, temperature control systems, and security systems, fire alarm repair and maintenance and other equipment in the common areas and the exterior, and structural portions of the Building, paving and repairing, patcohjhg and maintaining the parking areas and walkways, and cleaningAdjacent areas, management fees • and the City's employment to employees furnishing and rendering any services to the ctirtittion-*ioa,s, together with an additional administration charge equal to fifteen percent (15%) of all other expenses included in the annual common area expenses, provided by the City for the common or joint use and/or benefit of the occupants of the Building, their employees, agents, servantsCustomers and other invitees. "Common Facilliee*ell mean all Building areas, spaces, equipment, as well as certai&seMCes available for use by or for the benefit of Tenant and/or its eMployeeS4egents, servants, volunteers, customers, guests and/or invitees-:% 3.2.3 Property Taxes: The estimated Property Th,x,Payment for the first Contract Year shall be ek, based upon the 2016 Propeny Tax Payment, in the total sum of Four Thousand Eight Hundred Ninety Dollars and 36/100 ($4,890.36), payable in monthly installments of Four Hundred Seven and 53/100 Dollars ($407;53). 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 due. 'RA Tenant shaifyipay' as Additional Rent pursuant to this Subsection, for StiChProperty Tax Year an amount (Property Tax Payment") equal to TenarieMportionate share of Property Taxes (if any) for such Property Tax Ye°41-? If a Property Tax Year ends after the expiration or termination of the term of this Lease, the Property Tax Payment therefore shall be prorated to correspond -to that portion of such Property Tax Year occurring within the term of this Lease 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 Page 17429 of 2495 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 Lease Agreement: The term "Property Taxes" shall mean (i) real estate taxes, assessments, and special assessments of any kind which may be imposed upon the Demised Premises, and (ii) any expenses incurred by the City in obtaining a reduction of any such taxes or assessments. The term "Property Tax Year" shall mean the period of twelve (12) calendar months, beginning on January 1st of each year. 3.2.4 Insurance: The Additional Rent shall also include Tenant's pro rata share toward estimated insurance costsdetermined by the City in its sole discretion and judgment, to be sufficient to self-insure the Demised Premises (Landlord Insurance). Tenant's pro-rata share of the Landlord Insurance cost for the first Contract Year shall be Six Hundred Sixty Dollars and 60/100 ($660.60), payable in monthly installments of Fifty Five and 05/100 Dollars ($55.05). The LandlA Insurance cost may be adjusted periodically, in the City's sole discretion,during each anniversary of the Commencement Date, This insurance coverage is in addition to the insurance required pursuant to Section 10, which shall be obtained at Teriant's sole expense and responsibility. 3.3. Additional Services 7 In consideration for the reduced rent for the Demised Premises and Concession Area, Tenant sharprovide a forty percent(40%) discount on the purchase price of all food and beverages from any Taste Bakery Cafe location within the City of Miami Beach, to City employees with an active and verified City of Miami Beach issued employee identification ("Employee ID"); whether the purchase was made onsite or ordered for delivery ("City Employee Discount"). Notwithstanding the foregoing, the Employee Discount shall not be applied to any delivery charges, The City may choose to impose additional requirements, such as a card reader in order to ensure the integrity of the City Employee Discount. The term "City Employee Purchases" is understood to mean the sales price of any purchases applied a City Employee Discount, inclusive of the City Employee Discount amount. It does not include the price of any other discounts Tenant may offer to City employees or customers in general. The City will reimburse Tenant a maximum of Two Hundred Thousand and 00/100 Dollars ($200,000.00) per Contract Year towards the City Employee Discount at the following rates: Page 17530 of 2495 Annual City Employee Purchases Reimbursement Reimbursement Rate Maximum From To $0.00 $422,400.00 $168,960.00 40%of City Employee Purchases $422,400.01 $629,333.33 $ 31,040.00 15%of City Employee Purchases Greater Than $629,333.33 $0.00 0%of City Employee Purchases Thereafter, Tenant will continue to provide the City Employee Discount regardless of any reimbursement amount. City reserves the right to notify Tenant, in advance of any purchases, of City's objection to provide the City Employee Discount to any particular City employee, thereafter authorizing Tehant to deny the City Employee Discount to said employee. City will not reirhb;6rse Tenant for 1) any amounts discounted above 40% of the purchase pripe, 2) unauthorized employees as Tenant has been Notified by City, or 3) pers6.4 without an active Employee ID. Along with any reimbursement requeSt, Tenant shall provide a Daily Sales Summary Report in a digital spreadsheet format (such as Excel) which includes, Employee ID'S numbers, and, zategories for City Employee Discounted Sales, from each store location as*I1 as the Gross Receipts from the Demised Premises. Tenant shall also provide Special Summary Reports for any peripd'($) tipoh fequest by the City. Any SuMmary Reports provided from any Taste Bakery loOation shall not be intermingled with any other location. Tenant MAY request.e reimbursement, by providing an invoice along with any required doburhents,ertci-files, no more than once a month. The City shall have 3.3.1� Tenant hereby and obligations: business hours, at all Taste Bakery Cafe locetiOps, with the purchase of any item; b)free WiFt signal et all Taste Bakery Cafe locations; c) free deliCity employees located within the City Hall complex (1700 Convention Center Drive, 1701 Meridian Avenue and 1755 Meridian Avenue); d) delivery service from South Pointe Drive to 41»t Street at the agreed service charge $3.00/DO City Employee Discount shall apply); e) delivery service from42nu Street to 87m Terrace at the agreed service charge $5.00 (no City Employee Discount shall apply); f) a marketing flyer shall be sent, at least on a monthly basis, to City employees Page of 2495 � promoting the employee café, including such things as weekly combo specials, pricing specials, etc.; and g) a Satisfaction Survey shall be provided on a quarterly basis to City employees. The survey will be online and will only be accessible by individuals who are provided the link to the survey. The survey is only eligible to be completed once per browser, preventing multiple entries. The survey will consist of simple, useful questions which will allow Tenant to assess customer satisfaction and possible input for future menu items. The City Manager or his designee will have access to the survey through the website, including response outcome summaries and other us*ljnformation. An example of the Satisfaction Survey is attached hereto aspcbiblt 3.3 (Satisfaction Survey). 3.4, Percentace of Gross Receipts Derived Fr The Demised Premises and Concession Area ("PG"): During the Term of this Lease, within thirty (30) daye9f the end of the Contract Year, Tenant shall also pay to the City an amount eqt.i*to five percent (5%) of Tenant's annual Gross Receipts, excluding City Employee Purchases which are processed at the Demised Premises during the Contract Year ("PG"). By way of example, if the total amount of Gross Receipts for a Contract Year is $1,000,000, and the to/tat:amount of City Employee Purchases totals $600,000, Concessionaire would pay Od, in the amount of $20,000.00 for the Contract Year; to wit: $1,000,000.00 - $ 600,000.00 $ 400,000.00 x 5% = $20,000.00 (PG) The payment of five percent (5%) Will continue throughout the Contract Year until the Cay„has reached the $200,000 City contribution, at which time, Tenant will no longer be responsible for said payment until the start of the following Contract Year., Thelerm "GroskfReceipts" is understood to mean all income collected or accrueCkderived t‘by Tenant under the privileges granted by this Lease, excludinPamountei of any Federal, State, or City sales tax, or other tax, ,,,t- governmentaLOPbsition, assessment, charge or expense of any kind, collected by Tenant freM-Customers and required by law to be remitted to the taxing or other governmental authority. 3.4.1. Maintenance and Examination of Records. Tenant shall maintain current, accurate, and complete financial records on an accrual basis of accounting related to its operations pursuant to this Lease. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit, but not Page 17732 of 2495 photocopying, by the City Manager or his designee upon reasonable prior request and during normal business hours. Such records and accounts shall include a breakdown of Gross Receipts, expenses, and profit and loss statements, and such records shall be maintained as would be required by an independent CPA in order to audit a statement of annual Gross Receipts and profit and loss statement pursuant to generally accepted accounting principles. 3.4.2. Inspection and Audit for Demised Premises . Tenant shall maintain its financial records pertaining to its operations for a period of three (3) years after the conclusion of any contract year and such records shall be open and available to the City Manager [ his designee, as deemed necessary by them. Tenant shall maintain all such records at its principal offi,ce, currently located at 773 17th Street, Miami Beach, Florida 33139, Orof moved to another location, all such records shall be relocated, at Tenants expense, to a location in Miami Beach, within ten (10) days' written notice fromthe City, The City Manager or his designee shall be entitled to audit Tenant's records pertaining to its operations as often as the City deems reasonably necessary throughout the Term of this Lease, and three (3) times wi )n the three(3) year period following termination of this Lease, (regardless of whether such termination results from the natural expiration of the term or for any other reason). The City shall be resp6nsible for paying all costs associated with such audits, unless the audit(4 reveals'a deficiency of five (5%) percent or more in Tenant's stateme"nt of Gross koceipts for any year or years audited, in which case Tenant shail*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 audit shall not be /deemed final until ....~.. 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 shall preclude the City's audit rights for Resort Tax collection purposes. 3.4.2.1. Tenant shall submit at the end of each Contract Year, an annual statement of Gross Reo8ipta, in a form consistent with generally accepted accounting principles. Additionally, such statement shall be accompanied by a report from an independent CPA firm which shall perform certain agreed upon procedures, as described in the attached Exhibit "3". 3.4.2.2. It is Tenant's intent to stay informed of comments and Page 1Zo33of2405 suggestions by the City regarding Tenant's performance under this Lease. Within thirty (30) days after the end of each contract year, Tenant and the City Manager or his designee may meet to review Tenant's performance under this Lease for the previous contract year. At the meeting, Tenant and City may discuss quality, operational, maintenance and any other issues regarding Tenant's performance under this Lease. 3.5. 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. 3,6. Enforcement. Tenant agrees to pay the Base Rent, Additional Rent, and any other amounts as may be due and payable by Tenant under this Lease, 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. 4. Location for Payments. All rants 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 addrs 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 Four (4) 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 Lease Tenant shall furnish the City with a Security Deposit, in the amount of Five Thousand and 001100 Dollars ($5,000.00). Said Security Deposit Page 17034 of 2495 shall serve to secure Tenant's performance in accordance with the provisions of this Lease. In the event Tenant fails to perform in accordance with said provisions, the City may retain said Security Deposit, as well as pursue any and all other legal remedies provided herein, or as may be provided by applicable law. The parties agree and acknowledge that the foregoing condition is intended to be a condition subsequent to the City's approval of this Lease. Accordingly, in the event that Tenant does not satisfy the aforestated, then the City Manager or his designee may immediately, without further demand or notice, terminate this Lease without being prejudiced as to any remedies which may be available to him for breach of contract. 7. Use and Possession of Demised Premises. The Demised Premises shall be used by Tenant solely for the purpose(s) of operating a cafe, with the primary objective being to provide the City of Miami Beach employees with healthy food choices at a price which is discounted by forty percent (40%) off the approved price schedule. Tenant shall cook, prepare, or cause to be prepared, for sale within the Demised Premises, such cooked, prepared, andia(prepackaged foods, and such non-alcoholic beverages as those set forth in Exhibiti,9.7.1" (Menu/Price Schedule), attached hereto and incorporated herein. --„„ - Tenant agrees that prices charged for sales of food and beverage service, and will be consistent with the price schedule herein submitted by the Tenant and approved by the City, and incorporated herein,as Exhibit: !Tr (Menu/Price Schedule), attached hereto and incorporated herein. All subseqbentPrice_approvals and changes must be approved in writing by the City Manager or his/her designee. Prices shall be reasonably consistent with those charged for similar items and services in the general vicinity. The City Manager shall have the final right of approval for all such prices and changa*,',.bbt.;,said right shall not be arbitrary or unreasonably withheld. The Tenant refratntipm the sale of any item identified as prohibited by the City and to sell Only those items approved by the City. 7.3. The Demised Premises shall be open for operation a minimum of five (5)days a week,with minim*hours of operation being as follows: „.. Hours of9p4ation: Monday- Friday: 7:00 AM to 5:00 PM Nothing hereincontained 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. 7.4. It is understood and agreed that the Demised Premises shall be used by the Tenant during the Term of this Lease 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) Page 15 of 2495 waste on the Demised Premises; nor permit the use of the Demised Premises for any illegal purposes; nor commit a nuisance on the Demised Premises. In the event that the Tenant uses the Demised Premises (or otherwise allows the Demised Premises to be used) for any purpose(s) not expressly permitted herein, or permits and/or allows any prohibited use(s) as provided herein, then the City may declare this Lease in default pursuant to Section 18 or, without notice to Tenant, restrain such improper use by injunction or other legal action. 8. Improvements. 8.3. Tenant accepts the Demised Premises in their present "AS IS" condition and may construct or cause to be constructed, such interior and exterior improvements and maintenance to the Demised Premises, as reasonably necessary for it to carry on its permitted use(s), as set forth in Section 7; provided, however, that any plans', for such improvements shall be first submitted to the City ManagerIdr:his prior written consent, which consent, if granted at all, shall be at th4%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(flied) improvements to the Demised Premises shall remain the property it;the City upon termination and/or expiration of this Lease. Upon termination and/or expiration of this Lease, 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 attachtothe Deal 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 imptOyernente shall be the sole cost and responsibility of Tenant. 8.4. Notwithstanding Subsection 8.1, upon termination and/or expiration of this Lease, and at City's sole option and discretion, any or all alterations or additions made by Tenant to or in the'Demised Premises shall, upon written demand by the City Manager, be promptly removed by Tenant, at its expense and responsibility, and Tenant further hereby agrees, in such event, to restore the Demised Premises to their original condition prior to the Commencement Date of this Lease. 8.5. The above requirements for submission of plans and the use of specific contractors shall not apply to improvements (which term, for purposes of this Subsection 8.3 only, shall also include improvements as necessary for Tenant's maintenance and repair of the Demised Premises) which do not exceed Five Hundred ($500.00) Dollars, provided that the work is not structural, and provided that it is permitted by applicable law. 8.6. Landlord Improvements. Landlord agrees to make certain improvements (the "Tenant Improvements") to Page 16 of 2495 the Demised Premises (valued by the parties at approximately Five Thousand and 00/100 Dollars ($5,000.00), as contained in Exhibit "8.4" (Landlord Improvements), attached hereto and incorporated herein. The Landlord Improvements shall be made in accordance with the following timeline: • Landlord shall obtain a building permit no later than thirty (30) days from the Commencement Date of this Lease; • Landlord shall commence making the Landlord Improvements no later than ten (10) days from the date the building permit is issued (the "Building Permit Date"); and • Landlord Improvements shall be completed, and Landlord shall obtain a Certificate of Occupancy (or Temporary Certificate of Occupancy, as the case may be) from the Cliff's Building Department for said Landlord Improvements, no later than thirty (30) days from the date the building permit is obtained. Failure to comply with the timeline and complete the Landlord Improvements within the time period specified shati-pOt constitute an event of default hereunder. The times for performance related to the permitting and construction of the Landlord Improvements, as set forth in this Section 8.4, may be extended for good cause. 9. City's Right of Entry. 9.3. 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; 'Pas of fifé or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the City to do any work that under any provisions of this Lease Me' Tenant may be required to perform, and the performance thereof by theCify shall not constitute a waiver of the Tenant's default. 9.4. 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, 9.5. Tenant shall furnish the City with duplicate keys to all locks including exterior Page 17 of 2495 and interior doors prior to (but no later than by) the Commencement Date of this Lease. 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. 10.3. Before beginning any work and throughout the term of the Lease (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 unti('proof of the following insurance coverage have been reviewed and appj vec y the City's Risk Manager_ All insurance policies required below shallbe 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: 10.3.1. Worker's 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. 10.3.2. Commercial General Liability on a comprehensive basis in an amount not less than $1,040,000 combined single limit per occurrence, for bodily injury and property damageCity of Miami Beach must be shown as an additional insured with respect to this coverage. 'tf3 Additionally Tenant will be insured for the following coverage: 10.3.3.1. 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. 10.3.4. Intentionally Omitted 10.3.5. '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 Lease). Page 138 of 2495 10.4. The insurance coverage required shall include those classifications, as listed in standard liability insurance manuals, which most nearly reflect the operations of the provider. 10.5. Any insurance coverage required above must include a waiver of subrogation in favor of the City. 10.6. 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 OFFICE OF REAL ESTATE MIAMI BEACH, FL 33139 10.7. 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 Lease. 10.8. City reserves the right to impose additional reasonable insurance requirements as the City/II-lay deem necessary or in accordance with common practice. 10.9. 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 subjecr fa :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 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. 10.10.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 Page 1 of 2495 or should be insured against under the terms of the standard fire and extended coverage insurance policies referred to in this Lease, regardless of whether such insurance is actually maintained and regardless of the cause or origin of the damage involved, including negligence of the other party hereto, its agents, officers, or employees. The City and Tenant shall each obtain from their respective insurers, under all policies of fire, theft, public liability, worker's compensation, and other insurance maintained by either of them at any time during the term hereof insuring or covering the Retail Space or any portion thereof or operations therein, a waiver of all rights of subrogation which the insurer of one party might have against the other party, and the City and Tenant shall each indemnify, defend, and hold harmless the other against any loss or expense, including reasonable attorneys' fees (appellate or otherwise) resulting from the failure to obtain such waiver. 11. Property Taxes and Assessments. For the purposes of this Section and other provisions of this Lease: 11.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments, and special assessments of any kind which may be imposed upon the Demised Premises, and (ii) any expenses incurred by the City in obtaining a reduction of any such taxes or assesenients. 11.2 The term "Property Tax Year" shall mean the period of twelve (12) calendar months, beginning on January 1st of each year. 11.3 Tenant shall pay, as Additional Rent pursuant to Subsection 3.2, for such Property Tax Year an amount ("Property Tax Payment") equal to Tenant's pro- rata share of Property Taxes (if any) for such Property Tax Year; said pro-rata share to be determined by the City based upon the ratio of the Demised Premises' o the square footage of the Unit. If a Property Tax Year ends after the expiration or termination of the term of this Lease, the Property Tax Payment therefore shall be prorated to correspond to that portion of such Property Tax Yeeyoccurring within the term of this Lease. The Property Tax Payment shall be'payable by Tenant immediately upon receipt of notice from the City. A copy of he 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. 11.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 Page litO of 2495 from any of its obligations under this Lease. 12. Operation, Maintenance and Repair. 12.3. 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 plate91s or other glass in the Demised Premises which may become broken, using 910s of the same or better quality. 12.3.1 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), grease' trap(s) and/or toilet(s), including such sink(s), grease trap(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. 12.3.2. If the City proVidee 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. 12.3.3. 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 Lease, and continuously maintain in good standing, at Tenant's expense, throughout the Term of this Lease, a maintenance and repair contract, approved by the City, with a service company previously approved In writing by the City, providing for the preventative rnaintenanceiand repair of all HVAC equipment servicing the Demised PremisesIn 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. 12.4, 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 Page 11 of 2495 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. 12.5. 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. 12.6. 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. 12.7. It shall be Tenant's sole obligation and responsibility to insure that any renovations, repairs and/or improvements made by Tenant to the Demised Premises comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. 12.8. Tenant Responsibilities for Utilities knot included within Operating Expenses). Tenant is solely responsible for, and shall promptly pay when due all charges for electricity, gas, cable, telephone, intermit, 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 116) 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. 12.9. TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS" CONDITION. 13. 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 Page 12 of 2495 the City from all liability arising from each non-compliance. 14. Liens. Tenant will not permit any mechanics, laborers, or materialman's liens to stand against the Demised Premises or improvements for any labor or materials to Tenant or claimed to have been furnished to Tenant's agents, contractors, or sub-tenants, in connection with work of any character performed or claimed to have performed on said Premises, or improvements by or at the direction or sufferance of the Tenant; provided however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give the City reasonable security as may be demanded by the City to insure payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or irnprOements by reasons of such non- payment. Such security need not exceed onaandae half (1Y2) times the amount of such lien or such claim of lien. Such security shall be,Oested by Tenant within ten (10) days of written notice from the City, or Tenant may "bond off the lien according to statutory procedures. Tenant will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at Tenant's own expense. 15. Intentionally Omitted. 16. Condemnation. 16.3. If at any time during the Term of this Lease (including any renewal term hereunder) all or any part or, p*On of,the Demised Premises is taken, appropriated, or condemned bi,:iqaton of Eminent Domain proceedings, then this Lease shall be terminated as the date of such taking, and shall thereafter be completely null and void, and neither of the parties hereto shall thereafter :..ffaVaartyrights against the other by'reason of this Lease or anything contained erein, p t that any rent prepaid beyond the date of such taking shall be • -zeie, prorated to such date, and Tenant shall pay any and all rents, additional rents, sutility charges and/or other costs for which it is liable under the terms of this Lease, up to the‘ate of such taking. 16.4. Except as hereundar: provided, Tenant shall not be entitled to participate in the proceecisof anyfaward made to the City in any such Eminent Domain proceedinMePting, however, Tenant shall have the right to claim and recover frorrr71 he 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. Default. 16.5. Default by Tenant: At the City's option, any of the following shall constitute an Event of Default under this Lease: Page 13 of 2495 16.5.1. The Base Rent, Additional Rent, or any other amounts as may be due and payable by Tenant under this Lease, 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; 16.5.2. The Demised Premises shall be deserted, abandoned, or vacated; 16.5.3. 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; 16.5.4. Receipt of notice of violation from any governmental authority having jurisdiction dealing with a law, code, regulation, ordinance or the like, which remains uncured for a period of thirty (30) days from its issuance, or such longer period of time as may be acceptable and approved in writing by the City Manager, at his sole discretion; 16.5.5. 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 wdending the time for payment of debts; 16.5.6. Tenant shall become insolvent; 16.5.71 Tenant shall make an assignment for benefit of creditors; 16.5.8. A receiver is appointed for Tenant by any court and shall not be dissolved within thirty(30) days thereafter; or 16.5.9. The leasehold interest is levied on under execution; or 16.5.10. 'A default under the Concession (as such agreement is referenced in SubseCtion 1.1 of this Lease). 17. Rights on Default. 17.3. Rights on Default: 17.3.1. 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 Lease; 17.3.2. Terminate this Lease, in which event Tenant shall immediately Page 174 of 2495 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 Lease termination, whether through inability to re-let the Demised Premises, or otherwise. 17.3.3. 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 Lease to be due and payable immediately, in which event Tenant agrees to pay the same at once, together with all rents therefore due, at the address of the City, as provided in the Notices section of this Lease; provided, however, that such payment shall not constitute a penalty, forfeiture, or liquidated damage, but shall merely constitute payment in advance of the rents for the remainder of said term and such payment shall be considered, construed and taken to be a debt provable in bankruptcy or receivership. 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 Gib/deems, in its sole discretion, desirable, and to receive the rents therefore*, and Tenant shall pay the City any deficiency that may arise hYreason'Of such re-letting, on demand at any time and from time to time ate office of the City; and for the purpose of re-letting, the City may (i) make4Any 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. 17.3.5. 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. 17.3.6. It is expressly agreed and understood by and between the parties hereto that any installments of rent accruing under the provisions of this Lease which shall not be paid when due shall be subject to a late charge of Fifty and 00/100 Dollars ($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 Page 1385 of 2495 provision with respect to future accruals of past due rent. 17.3.7. 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. 17.3.8. The rights of the City under this Lease shall be cumulative but not restrictive to those given by law,and failure on the part of the City to exercise promptly any rights given hereunder shall not operate to waive or to forfeit any of the said rights. 17.4. Default by City: The failure of the City to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the City and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Tenant to the City(which notice shall specify the respects in which Tenant contends that the City failed to perform any such covenant, conditions and agreements) shall constitute a default by the City, unless such default is one which cannot be cured within thirty (30) days because of circumstances beyond the City's control, and the City within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults. owever ir the event the City fails to perform within the initial thirty (30) day period provided above, and such failure to perform prevents Tenant from operating its business in a customary manner and causes an undue hardship for Tenant, then such failure to perform (regardless of circumstances beyond its control) as indicated above, shall constitute a default by the City. 17.5. Tenant's Rights on Default. If an event;orLandlord's default shall occur, Tenant, to the fullest extent 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 18.3 or the Lease, in the event of a default by Landlord, Tenant hereby agrees and acknowledges that in no event shall Landlord be liable 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. 18. Laws. Page 1316 of 2495 18.3. Compliance. Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations (including but not limited to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations, as same may be amended from time to time. 18.4. No Discrimination. Concessionaire hereby agrees hereby agrees to comply with City of Miami Beach Human Rights Ordinance, as codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in employment, housing, public accommodations, or pu)jCzServices, on the basis of actual or perceived race, color, national origiivireligion, sex, intersexuality, sexual orientation, gender identity, familial and marital status, age, ancestry, height, weight, domestic partner status, labor organization membership, familial situation, political affiliation, or disability. 19. Indemnity Against Costs and Charges. 19.3. 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 Lease. 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 hen on said premises and property. 19.4. If Tenant shall at any time be in default hereunder, and if the City shall deem it necessary to engage an attorney to enforce the City's rights and Tenant's obligations hereunder, Tenant will reimburse the City for the reasonable expenses incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, whether suit be brought or not and if suit be brought, then Tenant shall be liable for expenses incurred at both the trial and appellate levels. 20. Indemnification Against Claims. 20.3. 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: 20.3A. An act or omission on the part of Tenant, or any employee, agent, contractor, invitee, guest, assignee, sub-tenant or subcontractor of Tenant; Page 17 of 2495 20.3.2. 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; 20.3.3. Any breach, violation, or non-performance of any undertaking of Tenant under this Lease; 20.3.4. 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 Lease, 20.4. 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. 21. 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, lettedng or advertising material of any kind on or near the Demised Premises. All additional signage shall comply with signage standards established by the City and comply with"all applicable building codes, and any other municipal, County, State and Federal laws. 22. Effect of Conveyance. The term "City" and/or "Landlord" as used in the Lease 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, am-A:shall be deemed and construed without further agreement between the pathes, 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. 23. Damage to the Demised Premises. 23.3. 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 Page 18 of 2495 abated proportionately as to the portion of the Demised Premises rendered untenantable; provided however, that the City shall promptly obtain a good faith estimate of the time required to render the Demised Premises tenantable and if such time exceeds sixty (60) days, either party shall have the option of canceling this Lease. 23.4. 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 writIngl*livered to Tenant within sixty (60) days from and after said occurrenteyio elect not to reconstruct the destroyed Demised Premises, and in,.;$0*Oent, this Lease and the tenancy hereby created shall cease as of the 4ate ofid occurrence, the Rent to be adjusted as of such date. If the Demised PreMi,.ses shall be rendered wholly untenantable, Tenant shall have the right, to be exerbised by notice in writing, delivered to the City within thirty (30) days from anif-ater said occurrence, to elect to terminate this Lease, the Rent to be adjusted accordingly. Notwithstanding any clause contained in this Section 25, 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 Lease, and the Rent shall be adjusted accordingly. 24. Quiet Enioyment. Tenant shall enjoy quiet enjoyment of thepemised Premises and shall not be evicted or disturbed in possession of the Demised Premises so long as Tenant complies with ks—of-this thefl ase. 25. Waiver 25.3. It ismutually covenanted and agreed by and between the parties hereto that the failure*the City to insist upon the strict performance of any of the conditions, covenants. terms or provisions of this Lease, or to exercise any option herein conferred,*#ribthe considered or construed as a waiver or relinquishment for the future future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. 25.4. 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 1349 of 2495 25.5. 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. 26. Notices. The addresses for all notices required under this Lease 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 Beagh4v 1700 Convention CentefDriVe, Miami Beach, Florida 33139 With copy to: Office of Real Estate City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 ' TENANT: Rohit T ha kore TASTE BAKERY„qAFE, LLC 773 17111 Stilet Mien-1i Beach Florida 33139 All notices shall be hand delillered and a receipt requested, or by certified mail with Return receipt requested,and shall he'"effective upon receipt. 27. Entire and Binding Lease. ... This Lease 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 Lease. 28. Provisions Severable. If any term or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, 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 Lease shall be valid and be enforced to the fullest extent permitted by law. Page 9'50 of 2495 29. Captions. The captions contained herein are for the convenience and reference only and shall not be deemed a part of this Lease or construed as in any manner limiting or amplifying the terms and provisions of this Lease to which they relate. 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. Limitation of Liability. The City desires to enter into this Lease 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 Lease, 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 Lease 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 Lease, 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 Lease. Nothing contained in this Section or elsewhere in this Lease is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. 32. Surrender of the Demised Premises. Tenant shall, on or before the last day of the Term herein demised, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised Premises, together with any and all equipment, fixtures, furnishings, appliances or other personal property, if any, located at or on the Demised Premises and used by Tenant in Inez maintenance, management or operation of the Demised Premises, excluding any trade fixtures- or personal property, if any, which can be removed without material injury to the Demised Premises, free of all liens, claims and encumbrances and rights of others or broom-clean, together with all structural changes, alterations, additions, and improvements which may have been made upon the Demised Premises, in good order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent provisions of this Section. Any property which pursuant to the provisions of this Section is removable by Tenant on or at the Demised Premises upon the termination of this Lease and is not so removed may, at the option of the City, be deemed abandoned by Tenant, and either may be retained by the City as its property or may be removed and disposed of at the sole cost of the Tenant in such manner as the City may see fit. If the Demised Premises and personal property, if any, be not surrendered at the end of the Term as provided in this Section, Tenant shall make good the City all damages which the City shall suffer by reason thereof, and shall indemnify and hold harmless the City against all claims made by any succeeding tenant or purchaser, so far as such delay is occasioned by the failure of Tenant to surrender the Demised Premises as and when herein required. Page 11 of 2495 33. Time is of the Essence. Time is of the essence in every particular and particularly where the obligation to pay money is involved. 34. Venue: This Lease shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Lease 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. z CITY AND TENANT HEREBY KNOWINGLY ANDANTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION ORI!ROCEEDING THAT THE CITY AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS LEASE. LIVING WAGE REQUIREMENT. Pursuant to Sections 2-407 thru 2-410 of the Miami Beach City Code ("Living Wage Ordinance"), as same may be amended from time to time, Contractor shall be required to pay all employees who provide services pursuant to this Lease, the hourly living wage rates listed below: • $11.62/hour with health benefits; or$13.31/hour without benefits. The living wage rate and health care benefits rate may, by Resolution of the City Commission, be indexed annually for inflation using'the Consumer Price Index for all Urban Consumers (CPI-U) Miami/Ft. Lauderdale, issued by the U.S. Department of Labor's Bureau of Labor Statistics, in which case Contractor shall be required to pay its employees such adjusted Living Wage rate under this Lease. Notwithstanding the preceding, no annual index shall exceed three percent (3%). The City may also, by resolution, elect not to index the living wage rate in any particular year, if it determines it would not be fiscally sound to implement same (in a particular year). Contractor's failure to comply with this provision shall be deemed a material breach under this Leas* entitling the City to terminate this Lease immediately, without further liability to the City, and/or may further subject Contractor to additional penalties and fines, as provided in the City's Living Wage Ordinance, as amended. 35. Radon is a naturally occurring radioactive gas that, when it is accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your County Public Health Unit. 36. No Dangerous Materials. Tenant agrees not to use or permit in the Demised Premises the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity Page 192 of 2495 producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. Any such substances or materials found within the Demised Premises shall be immediately removed. Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Tenant of any "hazardous substance" or "petroleum products" on, incr upon the Demised Premises as those terms are defined by applicable F9140 and State Statute, or any environmental rules and environmental regulates promulgated thereunder. The provisions of this Section 38 shall survive thelejniination or earlier expiration of this Lease 37. 37. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED.POLYSTYRENE FOOD SERVICE ARTICLES OR PLASTIC STRAWS. Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective August 2, 2014, the City has 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 proOded to sidewalk cafe 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 (expandahti bead foam), injection molding, foam molding, and extrusion-blown molding(extruded foam polystyrene). "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 39. 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 states that it is unlawful for any person to carry any expanded polystyrene product onto any beach or into any park within the Page 1 '853 of 2495 City or for any business to provide plastic straws with the service or delivery of any beverage to patrons on the beach. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 5' 4 of 2495 IN WITNESS WHEREOF, the parties hereto have caused their names indicating besigned and their seals to be affixed, all as of the day and year first above written, their agreement. ATTEST: CITY: CITY OF MIAMI BEACH, FLORIDA BY: Rafael E. Granado, City Clerk phio Levine, Mayor Dated -• (Print Name) Dated: ATTEST: TENANT: TASTE BAKERY CAFE, LLC BY Rohit Thakore (Print Name) Managing Member (Print Name) Dated: T1AGENDA1201717-July1TCED1Taste Bakery CafelTasete Bakery Lease Agreement(Draft 07-17-17)dock Page 135 of 2495 EXHIBIT 1 Demised Premises and Concession Area Layout i , , .......L, ...4. ....,, -...,000,fr / A ,Nr, ''',/,,, ,,. 7/7 / //tom 9 ' ' - -",.4/ 9,149411k ftlimr,e• :;•`7..'/,'' ./2.7 / /11'.."," ' i ''' • " 4 ', '' ''''t'',V' .41111111.11 ... ' 'Me -" - 1',,l'i ,y,..i .. kr 77 d'ill'pa Li ..-1- i -----, ,,,7... „-ro„, Aft4 , ....„ , , -„,, , i , .. / , , il, 1, r. 0-;-.4- ,_..,:. ,...,... , 1 1 1 (73 -. A I __ ..:.. i '+` . 9 9 P !" ,, ' ; ' •A 4"" er.,1",..A I "4144.1. Demi . Premises mef '9: ' ' ' • ' 4.1r.i'l.7°‘'''%':. -. *..o'4.„' Lr' $ * I v s -1'..* : ' ' 1 ., reitlikrijt --; vji i ,§ , ,....V.,* , ,„ __.,,.,,.,:'csrwup,^•,-...fs;Aa I , -,-, ,. r/.,,:k;wiiv,,i..., ,..,. .. rs . concession Area#-_-,44.,..-:,,, Iris,,TioAto f. - la "ff" ; ' : - ':' ris--14 .„,,... __...,,, , -., A „if- , - -_ ___,„„t,- ."--,--. . ,410 .„,„„‘„. , ::,/''' ! :,- '' ; ,, , - ItzAltrie",4,.. : Ali to „..... -,- ' : ,..-----icl- — v le,—'1! A 4 t ••• , .t.4 „,:,:,,,u,sr„": .. . t 'N....1 sallibil. szt ri, 111;:: ,/ yv :4: AA .v43 , . ,„._:,,.. 1, •,...•rd. .4, * IIIP 1 * \ I, , ., ,,.., ,,I.,,-,.A.ihtitg..L , , , H rICI * ----4-' ,„, , fitAziwie__,...':7-.... r 11 ; ,I. • r.11Pr: .400,c I**, It . , : ,..,.4 cil 1 _ v A /... . ' '' ,------- , .„— .. = --- V II A ,4 • Jth, 1 .=•---"—4 - „,...,,,,,,.ir.7-.97 -4•01.1" .... ›. > A '. i , , f ,.,.,.:rIledi70,,,NI' • A ' ... %„. -1.4 0 / ----' -— 4 , .-.......' IC —. 4 ..., ..„..,,, L.',- , t'critakr" I 471 4 r=0146,......3 i .'or 1414%*00•4111 N.,444111K.e.4. a.„........ TOWNIFIMP1410414. / dan A.*4.41.11k .1401016111111AILL Of .... ... .411....}1.0* .., 9 Page lip6 of 2495 EXHIBIT 'IA UNIT 4 I F.EL RSD ..c5311111UNtT4 • dil � a *;? , \�A...\: UNIT 3 `,,,, i L. r ,,.....A:,7..,, ‘,.-V„ZIM, ii-3 11 UNIT 2 h 't.\ , `. \` t z Q zUNIT 1 \ w�\\r\ 4� ti: \ :115—€)X 11\ ▪ �L a\'Z\•'4: `Z �,\`��,�`t��4k\ \��. t�\x`.',44.. 1 / 7 y GflMMQN ELEMENTS 4.u sTO RS � A t1 , : + ---.....r-z— AREA UNIT 1=1,326.78 SIF f' AREA UNIT 2=1,802.89 S/F L.,,„,.., a Too Tr AREA UNIT 3=1,290.59 S/F 1`,...".=.:„`-- 4 FEET AREA UNIT 4=1,288.87 S/P "x.-�� .. SURVEYOR'S NOTE DETAILS EI'M IEAbOS MALLS WERE SASD M ORIGINAL DRANINIS AFD REST IN C4WAT M COLA*TROY POD SORLEY First Floor Plan Prepared by. 1701 MERIDIAN BUILDING CONDOMINIUM .65* *4.41: n4 ..saALt ~•sr.1<a dT �.+ ,;ltoi�� 1 �.taa• Page 4 ot9 �� �f 05 6T Aga s39 Exhibit"B" eat...07/2007 Page 11257 of 2495 Exhibit � "� (Page 1 of 2) AGREED-UPON PROCEDURES (A) System Utilized by Tenant: The tenant shall utilize a Point of POS has the capabilityof tracking transactions by revenue centers. This shall be capable of providing separate detail for each revenue centeras well as a combined report for the unit in its entirety. For this lease agreement, it is understood that the POS system can er will: 1. Generate various revenue centers,such as Restaurant, Bar, Catering Merchandising, etc. as applicable; 2. Each revenue center can report sales by time period (e.g.,breakfast lunch and dinner) and type of sales (e.g., food, beer wine, liquor, other beverage, coffee/tea), tax Calchlations, discounts, voids, guest counts, transaction counts,tips and payments(cash, Visa, MC,Amex,etc.); • Revenue Center shall also report sales by store location as well as reporbog City Employee Purchases 3. All daily transactions entered in the POS system will be archived in the system, providing the capability to audit transactions. • City Employee Purchase Transactions shall also record the City Employee ID number. Furthermore, the tenants accounting team wifl,treat each revenue center with any different rent requirements as its own unit by preparing separate journals to capture gross sales, discounts and payments for each(where (B) Agreed-upon Procedures will include the f611pWing: On an annual basis, the tenant shall prepare and deliverio the City, within the time specified in the agreement, a report prepared by a Certified Public Accountant applying these agreed-upon procedures that reflects their findings of their reView of the tenants operations. Such review, and report thereof, shall include the following: 1. ANALYSIS OF OPERATION: Inquire of management and obtain and review documentation on the nature.of the tenanfs business and the factors that affect sales, Inquire about and document any major changes made during-the period. a. Reqew procedures-for recording sales within the Demised Premises. b. Obtain)*operating'pelicies and procedures from the tenant. c. Interviewl(ey tenant representatives to determine procedures used. d. Observe theublization and effectiveness of the procedures through periodic site visits to the designated Iodation. 2. ANNUAL STATEMENT OF GROSS RECEIPTS: Obtain the Annual Statement of Gross Receipts schedule for the year ended, prepared in conformity with the agreement, Recalculate lease fees for the period based on sales per the schedule and the terms of the agreement. 3. TIMELINESS OF LEASE PAYMENTS: Verify that the payments were remitted timely in adherence to the due dates designated by the City pursuant to the lease agreement. Page 1��8of2405 �� Exhibit 3 (Page 2 of 2) AGREED-UPON PROCEDURES • 4, TEST OF SALES BY REVENUE CENTER, TIME PERIOD AND TYPE OF SALES: Perform an analytical test of sales by obtaining a schedule summarizing sales by revenue center,time period, and type of sales. Obtain or prepare a reconciliation of total sales recorded in the general ledger for the period to the Annual Statement of Gross Receipts schedule provided to the City of Miami Beach. Perform the following procedures: e. Test the analysis by selecting each revenue center and related sub-categories, and compare the amounts shown with those recorded in the sales schedule. Document the items selected for testing. Agree the sales schedule balances to the general ledger. f. Review the analysis, and identify any unusual trends or variations within the period or the prior period. g. Obtain sound business reasons for large variations that are unusual in amount or nature Included in the analysis. 6. TEST OF SALES COMPLETENESS: Perform a test of sales completeness by applying the following procedures: a. Using sales documentation or daily POS reports,select 1 (one)day per month throughout the year, including weekdays and weekends. Document the items selected for testing. Trace a sample of gum€checks(sales documentation-including cash sales and credit card sales)to the daily POS recaps.Note the proper handling of any credit memos, etc. b. Agree the'iummaryin mation on the daily POS recap to proper recording in the general ledger, as appropriate. c. Agree a sample of deposits per the daily POS recap to the bank statements. d. Foot and cross flat a'Fselected number of monthly reports of gross receipts submitted to the City and other linked documents to Verify their accuracy. e. Compare total sales for seleetedmonths to sales tax returns filed with the applicable taxing jurisdictions. 7. VERIFICATION OF TENANT AREA OPERATIONS: Verify the status of operations within the designated area. a. Conduct site visits to determine the level of operations. b. Review provided documents to determine the period of activity. c. Discuss and document any variances with the tenant for explanation. (C) City Richt to Review Notwithstanding the foregoing, the City shall retain the right to engage in all or similar reviews delineated above. Tenant agrees that the City, or their designee, shall be provided all necessary documentation to perform the tests,verifications and reviews described above. Page 159 of 2495 Exhibit 3.3 Satisfaction Survey (Page 1 of 2) Taste Bakery Cafe Satisfaction Survey *Indicates a response Is required. This is an example of a Satisfaction Survey which will be distributed to Miami Beach City Hall Employe . ■1.Please rate the quality of she service you received from Taste 1-POOR to 5-EXCEPTIONAL 01 0 2 03 04 0s O 2.Please rete the quality of your meal 1•POOR to 5-EXCEPTIONAL 01 02 03 04 05 •3.was our restaurant clean? 1-POOR to 5-EXCEPTIONAL 01 02 03 04 Os •4.?loose rate your II doniny experience. 1-POOR to 5-EXCEPTIONAL 01 02 0 3 0 4 Os Page 'go of 2495 Exhibit 3.3 Satisfaction Survey (Page 2 of 2) •s.Please rote the time It took to complete your order 1-DOOR to 5-EXCEPTIONAL 01 02 03 04 05 *6.Do you plan to return to our restaurant? Q Yes O No *7.Would it be beneficial to you for us to extend our hours end stay open later? 0 Yes 0 No •B.Would it be beneficial to you for us to extend our tours and stay open later? O Yes 0N 9.Any other suggestions or comments? Next 146 completed Dowered by AlCounted,Inc.Free Online Surveys for All eCOUNTED Hramw9nrr,rrnr' Page lig 1 of 2495 Exhibit 7.1 Menu/Price Schedule (Page 1 of 2) T TASTE HQ SS ALI DAY . :AST TASTE SUP MOD BOW „ 4A?A 10,01„. ,04 ,. ,,, .... 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Page '7..p2 of 2495 Exhibit 7.1 Menu/Price Schedule (Page 2 of 2) • ARTISANHANDC&+#h!�E21lR9 . _ - 11C) _ - - - �`, &redwit6apkllerpm/aathe We lieltalk9,-Fre$kmi etbmdteacearatedredpepperswhack Welcome to de Tarte Leach 6'Diener Mean.follow the eteps MedeetAla,ha w.Pi.eeppk&peectlmv`l fora custom,Lend-adtede1Geee meal madeJust for slon IR�"caaa�r�e]llleeanRamoseFoto as Bile Nut Blaebmia.buisi,*Mbnkrdrpeal Pao nted°CU•Ramose tamakes,applewmd soaked lam. ?Headiest,B.....pmm4 clrro„„oaaedmillb a lwd START '+ = Lass a+audomasicheer,Weracadomock&wind as duw6mee 1 {}" Ile�lOssiscooe tell pm:aaredmlms.aalfakpeaaaIiii1 Uso'Aaaoa4.&Bassmedloolden,'abaci dcadrfralmad aegamiekppedwill wilaimeras&rowdose 191 edir STP 1aa CHOOSE TOUR BASE Le sttdlk/.1.6ea- a6ra.616,ImrL6adl.lm600 tDolt=•Paw,lama plseapplRcilia medrllmemn `fir SALAD N lapped will Weakslme me lireshes Spt.�6lme • !1{�Gem Rem.Mem&Builas&ussaaebppedmdl6lroLbull ��e -Papgsdn.dxrr!at6w.aylsegpk{mlub dd arwraw Isuhmpsser�ndmelted arubmdeaa le solar -Aeond;*wok d la6vi.14/1kale,=Si Don &ddQ 11" no n1Pa6.•a awl al law lamp 41ikkeiss.e+.bru C46a.kBa,raBke e}Io•s. baaser,acao!dlkgluhdltae !moat dilaseedeffreplied laretabardrkel to 091 Mellltaltledl•P Irb 01 Wide {a� � , L The Teas•Tomtaa nd anion ad limb ylmc1 topped wish melted ( aa'„di t y I.'�{mf saw iderl t amp ' S�WN.p �1 1•SkNberismiienie.owl.NM Laaq.V amOwaB.,1Nw Ilad peppetpcckdeemaidaurl6endw!tC6ipode�,cn$ ea imodadL T6e5060•Tomaleardato4l'ned+A! ille"6e4awaad Mode Nock.StymiertlaaelglaaawWmaatwain � Matt Wheal Breed Whim Cam 'modem!.4 has Red Hol Bala Sauce 191 The Alta.A�og•Plxappk balm,mem*dsaeae.ansa c6u opine Clhe saeete Tie time-Applenedrmobdhim,pickles musk maltmaea eedsainch d'SW baea,obi=cal mtlk toil won,IalapeoaloxalkttLwelted mucleae. aw Add a Protein Shot to ale smoothie-51.50 STEP a:CHOOSE TOUR TASTE STEP 3:CHOOSE TOUR PROTEIN Fug/xnel am ARTISAN HANDCRAFTED SALADSOpde o Kouselfteleacovquloudderpo caml Ourdeluaowitieoscue mule tooriel 6mthe fres6estbaad. 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Served wills aaorange wedgechaser &PowerIleum-Can*mutes,eammlem,IA peppemclie y_Side+40mSodomb Capd$m+40,.so&/Pref -Nark Wseswulakacldiesaabrr.6mee S leed mul000malam monde laded eas,limb meet&rah nodne] lalTx/Sappie/Demi0 IcdTa/Sem ph/Duca.1 Ti$eypshol•immak u.kmaeadsda6dmteaepeppa kmotobuildaatpeitekesshs ISO ClIaShot-CU,eel wok lei spkjdal Cseel�mrtumfamstedmb rarltrP,sofa4siteHfil4e� Aso Side+l6a$.00l6rra Ari Slde+Fas6Jalao ororpteesizedelk oisykimePtatrefdtcd(ootma Buss. . � ���aeedaLsaaeaduwlo.gi Page 1763 of 2495 Exhibit 8.4 (Page 1 of 1) LANDLORD IMPROVEMENTS 1. Close the existing demising wall to fully separate the west portion of Unit 4 from the Demised Premises, as show in Exhibit 1, including separating the restrooms, by performing any necessary demolition, construction, electrical, plumbing, repairs and paint. 2. Relocate the intake for the HVAC servicing the Demised Premises into the Demised Premises. 3. Relocate the HVAC controller for the HVAC servicing the Demised Premises into the Demised Premises, 4. Install one single point of use water heater for the bathroom in the westerly portion of Unit 4 (a/k/a 775 17h Street): Page g4 of 2495 6 � '." KE ,..,;*, .... - ,... „ .,,, TASTE ,,,,,, y ® «, 44 s y ,....„ <3 ,, © . . -� c -.--,,,.„<3 - `s s i o n � d % ^ d*1 , \ . ''. e n ° <�^` � % ^ �" �> ~. ƒ . � ya \ \ > �� \ :�a . Page 17 5 7 2495 CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH AND TASTE BAKERY CAFE, LLC FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION IN THE OUTDOOR SPACE ADJACENT TO 773 17th Street THIS CONCESSION AGREEMENT(the"Agreement") made the day of 2017, between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized and existing under the laws of the State of Florida (hereinafter called the "City"), having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and TASTE BAKERY CAFE, LLC, a Florida limited liability company, having its principal place of business at 773 17th Street, Miami Beach, Florida, 33139 (hereinafter called"Concessionaire"). The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the rights to maintain, manage, and operate a food and beverage concession within the Concession Area (as hereinafter defined), in accordance with the purpose(s) and for the term(s) stated herein, and subject to all the terms and conditions herein contained. SECTION 1. TERM. 1.1 This Agreement shall commence retroactively on the 1st day of September, 2017 (the "Commencement Date"), and terminate on the 31st day of August, 2020('Term"). For purposes of this Agreement, a "Contract Year"shall be defined as that certain period commencing on the 1st day of September, and ending on the 31st day of August. Provided Concessionaire is in good standing and free from default(s) under Section 13 hereof, and upon written notice from Concessionaire, 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, this Agreement may be extended for two (2) additional one (1) year renewal terms. Any extension, if approved, shall be memorialized in writing and signed by the parties hereto (with the City hereby designating the City Manager as the individual authorized to execute such extensions on its behalf). In the event that the City Manager determines, in his sole discretion, not to extend or renew this Agreement (upon expiration of the initial term or of the first renewal term), the City Manager shall notify Concessionaire of same in writing, which notice shall be provided to Concessionaire within thirty(30) business days of the City Manager's receipt of Concessionaire's written notice. 2 Page 1766 of 2495 It is the intent of the parties hereto that, unless otherwise terminated pursuant to the provisions of this Agreement, the Term of this Agreement is intended to run concurrent with the term, including any extensions thereof, of the Lease Agreement, as referenced on Page 1 of this Agreement. The City shall have the right to terminate this Agreement, without cause and for convenience, and without any liability to the City, upon providing thirty(30) days written notice to Concessionaire. if, at any time during the Term of this Agreement, the Lease Agreement is terminated or otherwise ceases to be of any legal force and effect, for whatever reason whatsoever, then this Agreement shall automatically terminate, and shall be null and void and of no further force and effect, and the City shall have no further liability with respect to same. SECTION 2. CONCESSION AREA. The City hereby grants to Concessionaire the right, during the Term herein, to maintain, manage and operate an outdoor seating area in the following Concession Area: 2.1 Concession Area: The City and Concessionaire are parties to a Lease Agreement, of even date (the "Lease Agreement") relating to 734 square feet of restaurant space located at 773 17th Street, Miami Beach, Florida 33139 (the "Leased Premises"). The concession area shall consist of 507 square feet of outdoor space adjacent to and east of the Leased Premises (the "Concession Area"); which outdoor space is further delineated in "Exhibit 2.1", attached hereto and incorporated herein. Concessionaire shall have the right to place up to twenty six (26) chairs (with associated tables) and five (5) umbrellas within the Concession Area, subject to approval of a site plan by the City, and compliance with applicable ADA requirements. The proposed site plan is also delineated in Exhibit 2.1. No material change in the proposed site plan (or in Exhibit 2.1) shall be permitted without prior written consent of the City Manager or her designee, which consent(if given at ail) shall be at the City Manager's (or his designee's) sole and reasonable judgment and discretion. 2.2 Concessionaire hereby agrees and acknowledges that the Concession Area shall be open and available to all members of the general public choosing to enjoy Concessionaire's food and beverage services. 3 Page 1767 of 2495 SECTION 3. USE(S). 3.1 The Concession Area shall be used by the Concessionaire solely as an outdoor seating area for the patrons and guests of the Leased Premises. The Concession Area shall have minimum days and hours of operation from Monday through Friday, commencing at 7:00 AM, and ending at 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 or hours of operation shall require the prior written consent of the City Manager. In no event shall the hours of operation extend earlier than 7:00 AM, or later than 11:00 PM. Notwithstanding the preceding hours of operation, the Concession Area shall only be open when the Leased Premises are open for business (and, conversely, shall be closed when the Leased Premises is closed). 3.2 Concessionaire and the tenant of the Leased Premises shall at all times throughout the Term of this Agreement be one and the same and cannot exist independently of each other. Concessionaire acknowledges and agrees that its use of the Concession Area shall be, and remain at all times throughout the Term, an ancillary use to the Leased Premises. The number of seating in the Concession Area shall be included in the overall seating count of the Leased Premises, There shall be no bar counter of any kind as part of the Concession Area and all food served • shall be prepared within the interior kitchen of the Leased Premises. There shall be no alcoholic beverages permitted on the Concession Area. All tables, chairs, and umbrellas will be removed and stored each night at close of business. Any exception to this requirement shall be at the sole and absolute discretion of the City Manager or his designee. Concessionaire shall further maintain the Concession Area and abide by the conditions set forth in "Exhibit 3.2" (the "Additional Requirements"), attached hereto and incorporated herein. 3.2.1. Removal of Concessionaire's Property during Emeraencv Situations. The City Manager or his/her designee may direct or require the Concessionaire to immediately remove, relocate and/or store all or part of the Concession Area Improvements or any of Concessionaire's equipment located at the Park ("Concessionaire's Property") for public safety considerations in emergency situations, including, without limitation, a threatened tropical storm or hurricane. Upon written and/or verbal notification by the City Manager of a tropical storm/hurricane warning or alert, or other major weather event that may adversely impact the City, or upon the designation by the United States National Weather Service or National Hurricane Center of a tropical storm/hurricane warning or alert, whichever occurs first, the Concessionaire shall, within no more than two hours of same, remove and store all of Concessionaire's Property to secure Concessionaire's 4 Page 1768 of 2495 Property in response to the threatened storm or other emergency, and shall take all other measures which may be necessary for the protection of the public with respect thereto.The notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning, shall constitute a public emergency situation. The failure of the City to direct the Concessionaire to remove or safety store Concessionaire's Property shall not relieve the Concessionaire of its obligation to remove and store Concessionaire's Property in response to a threatened storm event as outlined herein. Should Concessionaire fail to remove Concessionaire's Property within said two (2) hour period, or in the event the City Manager or his/her designee determines, at his/her sole discretion, that Concessionaire's removal, storage and other efforts are otherwise not satisfactory, Concessionaire shall thereafter be assessed a fee of$50.00 per hour, until such time as all of Concessionaire's Property have been removed to the City Manager's satisfaction. In addition, the City Manager, without any obligation to do so, may immediately proceed to remove, relocate, and/or store the Concessionaire's Property that has otherwise not been removed by the Concessionaire, at the Concessionaire's sole cost and expense, with payment to the City for all such costs due within thirty(30)days of City's invoice to Concessionaire. Concessionaire shall be solely responsible for any damage to City property or other property resulting from Concessionaire's failure to remove and store Concessionaire's property, or otherwise implement appropriate measures in response to a threatened storm or hurricane. Concessionaire's failure to comply with this section shall constitute a default under this Agreement. The remedies identified herein for Concessionaire's failure to comply with this section are cumulative, and in addition to, all remedies that may be available to the City at law and in equity. 3.3 Concessionaire hereby warrants and represents to City that Concessionaire Is the owner of the restaurant at the Leased Premises and shall, throughout the Term of the Lease Agreement, remain as the owner of said restaurant, unless any change in ownership is approved by the City Manager, in writing, prior to such change taking place. Change of ownership for purposes hereof shall include, without limitation, a sale, exchange, assignment, transfer or other disposition by tenant of all or a portion of tenant's interest In the restaurant,whether by operation of law or otherwise. 3.4 Concessionaire agrees not to place any speakers, or any other device used to amplify sound, in or around the Concession Area. Concessionaire further agrees to not attach any televisions, speakers, or any other device used to amplify sound, to the exterior of the Leased Premises. 5 Page 1769 of 2495 Furthermore, Concessionaire shall in no manner use the Concession Area, or Concessionaire's restaurant at the Leased Premises, as an outdoor entertainment or open air entertainment establishment, and hereby acknowledges that such uses are prohibited (whether as main or accessory uses). 3.5 Concessionaire shall be permitted to apply to the City of Miami Beach far one (1) special event permit for the sole and express purpose of hosting an opening event for the restaurant. At no time thereafter, throughout the remaining term of the Lease, shall the Concessionaire be permitted to submit an application for a special event to be held an the Concession Area. 3.6 It is understood and agreed that the Concession Area shall be used by the Concessionaire during the term of this Agreement only for the uses contemplated herein, and for no other purpose or use whatsoever. Concessionaire will not make or permit any use of the Concession Area that, directly or indirectly, is forbidden by public law, ordinance or government regulation, or that may be dangerous to life, limb or property. Concessionaire may not commit waste on the Concession Area, use the Concession Area for any illegal purpose, or commit a nuisance on the Concession Area. In the event that the Concessionaire uses the Concession Area for any purpose not expressly permitted herein, then the City may declare this Agreement in default pursuant to Section 13, or without notice to Concessionaire, restrain such improper use by injunction or other legal action. 3.7 Notwithstanding anything to the contrary contained herein, In the event of a breach by Concessionaire of any conditions in this Section 3, the City Manager, In his sole determination and judgment, shall have the right to automatically terminate this Agreement, without any liability to the City; said termination effective upon three (3) days written notice to Concessionaire. By executing this Agreement, Concessionaire hereby agrees to this condition, and further voluntarily and knowingly waives and releases any and all rights now or hereinafter conferred upon Concessionaire pursuant to Florida Statutes including, without limitation, the procedures set forth in Chapter 83, Florida Statutes' for removal in nonresidential tenancies; the Miami-Dade; and the Miami Beach Code (respectively); to the extent this and applicable law(s)would have the effect of limiting or modifying the City's rights to terminate this Agreement pursuant to this Subsection. 3.8 Concessionaire shall obtain, at its sole expense and responsibility, any business tax receipts required by the City for the proposed use(s) contemplated herein. 6 Page 1770 of 2495 SECTION 4. CONCESSION FEES. 4.1 Intentionally Omitted 4.2 Intentionally Omitted 4.3 Interest for Late Payment. Any payment which Concessionaire is required to make to the City which is not paid on or before the respective date provided for in this Agreement shall be subject to a late charge of Fifty and 00/100($50.00), plus interest at the rate of eighteen(18%) percent per annum, or the maximum amount allowable under Florida law, whichever is lesser, from the due date of payment until such time as payment is actually received by the City. 4.4 Sales and Use Tax. It is also understood that the required Florida State Sales and Use Tax shall be added to Concessionaire's payments and forwarded to the City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire as net of such Florida State Sales and Use Tax. SECTION 5. Intentionally Omitted SECTION 6. Intentionally Omitted SECTION 7. TAXES, ASSESSMENTS.AND UTILITIES. Concessionaire agrees and shall pay, before delinquency, all taxes and assessments of any kind (including, without limitation, ad valorem taxes, if assessed, and/or Resort Taxes) levied or assessed upon Concessionaire and/or the Concession Area including, without limitation, any such taxes and/or assessments that may be levied and/or assessed against Concessionaire and/or the Concession Area by reason of this Agreement, or by reason of the business or other operations and/or activities of Concessionaire upon or in connection with the Concession Area. Concessionaire will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax and/or assessment by appropriate proceedings, which Concessionaire shall conduct diligently and continuously, in good faith. Concessionaire may refrain from paying a tax to the extent it is contesting the imposition of same in a manner that Is in accordance with law; provided, however, if, as a result of such contest, additional delinquency charges become due, Concessionaire shall be responsible for such delinquency charges, in addition to payment of the contested tax(if so ordered). Concessionaire shall be solely responsible for and shall promptly pay when due all charges for utility service(s)provided to the Concession Area (including all hook-up fees and impact fees) for gas, electricity, water, sewer, cable, telephone, trash collection, etc., if applicable. 7 Page 1771 of 2495 In addition to other rights and remedies hereinafter reserved to the City, upon the failure of Concessionaire to pay for such utility services when due, the City may elect to pay same and Concessionaire shall promptly reimburse the City upon demand. In no event shall the City be liable, whether to Concessionaire or to third parties, for an interruption or failure in the supply of any utilities services to the Concession Area. SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. 8.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such number of employees and/or independent contractors as is necessary and appropriate for Concessionaire to satisfy its responsibilities hereunder, and as necessary to maintain the same levels of service as exist in similar first class concession facilities and operations. Concessionaire's employees and/or independent contractors shall be employees and/or independent contractors of Concessionaire and not of the City, and Concessionaire shall be solely responsible for their supervision and daily direction and control. Concessionaire shall be solely responsible for, and have the sole authority to hire, terminate and discipline any and all personnel and/or contractors employed or retained by Concessionaire. 8.2 All employees and/or independent contractors shall observe all the graces of personal grooming. Concessionaire shall hire people to work in its • operation who are neat, clean, well groomed, and comport themselves in • a professional and courteous manner. Concessionaire and any persons hired and/or retained by Concessionaire shall never have been convicted of a felony. Concessionaire shall have an experienced manager or managers overseeing the concession operations at all times. SECTION 9. Intentionally Omitted SECTION 10. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION. Concessionaire accepts the use of the Concession Area in its "AS IS" "WHERE IS" condition. Concessionaire assumes sole responsibility and expense for maintenance of the Concession Area (including all furniture, fixtures, equipment and any other improvements thereon). This shall include, without limitation, daily (i.e. 385 days) removal of litter, garbage and debris. Concessionaire shall also be responsible for all garbage disposal generated by its operations. 10.1 improvements. 10.1.1. Any inmpmvements to the Concession Area shall be at Concessionaire's sole expense and responsibility; provided, however, that any plans for such improvements shall be submitted to the City 8 Page 1772 of 2495 Manager or her designee for prior written approval. Upon termination and/or expiration of this Agreement, all personal property and non- permanent trade fixtures may be removed by Concessionaire without causing damage to the Concession Area. All permanent (fixed) improvements to the Concession Area shall remain the property of theCity upon termination and/or expiration of this Agreement, except as provided in Subsection 10.1.3. Concessionaire will permit no liens to attach to the Concession Area arising from, connected with, or related to, the design, construction, and installation of any improvements. Construction of any approved improvements shall be diligently prosecuted to completion and accomplished through the use of licensed, reputable contractors who are acceptable to the City Manager or her designee. In addition to obtaining the prior approval of the City Manager or her designee (acting on behalf of the City, in a proprietary capacity), Concessionaire shall also be solely responsible for obtaining, at its sole cost and expense, any and all permits, licenses, and/or regulatory approvals; such regulatory approvals which may include, without limitation, land use board and/or the approvals of other required regulatory agencies having jurisdiction) required for the construction of improvements. 10.1.2. Notwithstanding Subsection 10.1.2 hereof, upon termination and/or expiration of this Agreement, Concessionaire shall immediately remove any permanent improvements made to the Concession Area during the Term, at Concessionaire's sole expense and responsibility. In such event, Concessionaire shall also restore the Concession Area to its original condition prior to the improvements being made, reasonable wear and tear excepted. 10.1.3. 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 10.1.4 only, shall also include improvements necessary for Concessionaire's ongoing maintenance and repair of the Concession Area) which do not exceed Five Hundred ($500.00)Dollars; provided that the work is not structural, and provided further that it is permitted by applicable law. 9 Page 1773 of 2495 10.2 Garbage Receptacles. With respect to litter, garbage and debris removal, Concessionaire shall provide, at its sole expense, a sufficient number of trash receptacles for its own use and for the use of its patrons. Determination of the "number" of receptacles shall at all times be within the City Manager or her designee's sole discretion. Disposal of the contents of said receptacles'(and removal of litter, garbage and debris within the Concession Area), shall be done on a daily (i.e. 365 days) basis. Any costs for removal of the contents of said trash receptacles by the City, because of the Concessionaire's failure to do so, will be assessed to, and become the responsibility of, the Concessionaire. The dumping or disposal of any refuse, discards, trash or garbage, generated by, or as a result of Concessionaire's operations, into any of the City's trash dumpster shall be prohibited. 10.3 Maintenance/Repair. Concessionaire shall maintain, at its sole expense and responsibility, all furniture, fixtures, and equipment (FFE) and any other improvements (whether permanent or not) required to operate the concession. In the event any FFE and/or other improvement(s) is lost, stolen, or damaged, it shall be replaced or repaired promptly, at the sole expense of Concessionaire. 10.3.1. All damage or injury of any kind to the Concession Area, and/or to any improvements and/or FFE thereon, except damage caused by the willful misconduct or gross negligence of the City, shall be the sole obligation of Concessionaire, and shall be repaired, restored and/or replaced promptly by Concessionaire, at its sole expense, to the satisfaction of the City Manager or his designee. 10.3.2. All of the aforesaid repairs, restoration and replacement shall be in quality and class equal to or better than the original work (or FFE, as the case may be)and shall be done in good and workmanlike manner. 10.3.3. If Concessionaire fails to make any repairs, restoration and/or replacement, the same may be made by the City, at the expense of Concessionaire, and all sums spent and expenses incurred by the City shall be collectable by the City and shall be paid by Concessionaire within ten (10) days after receipt of a bill or statement thereof. Notwithstanding that the City may elect to make such repairs, restoration, and/or -replacement, the City shall have no obligation and/or affirmative duty to do so. 10.3.4. It shall be Concessionaire's sole obligation to ensure that any renovations, repairs and/or improvements made by Concessionaire to the Concession Area comply with all applicable permitting, building codes and life safety codes of governmental authorities having jurisdiction. 10 Page 1774 of 2495 10.4 No Dangerous Materials. Concessionaire agrees not to use or permit in the Concession Area the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. Any such substances or materials found within the Concession Area shall be immediately removed. In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Concessionaire 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 Concessionaire of any"hazardous substance" or"petroleum products"on, under, in or upon the Concession Area as those terms are defined by applicable Federal and State statutes, or any environmental rules and environmental regulations promulgated thereunder. The provisions of this subsection 10.4 shall survive the termination or earlier expiration of this Agreement. 10.5 Security, Concessionaire shall be responsible for and provide such reasonable security measures as may be required to protect the Concession Area and any improvements and FFE thereon. Under no circumstances shall the City be responsible for any stolen or damaged FFE; damage to or loss of any improvements; or any stolen, lost, or damaged personal property of Concessionaire's employees, contractors, patrons, guests, invitees, and/or any other third parties. 10.6 Inspection. Concessionaire agrees that the Concession Area and operations thereon) may be inspected at any time during hours of operation by the City Manager or his designee, or by any other municipal, County or State officer, or other agency having responsibility and/or jurisdiction for inspection of such operations. Concessionaire hereby waives all claims against the City for compensation for loss or damage sustained by reason of any interference with the concession operations, whether by the City or by any public agency or official, in enforcing their respective duties, or enforcing compliance with any applicable laws, or ordinances, or regulations. 11 Page 1775 of 2495 SECTION 11. Tenant's Insurance Requirements. 11.1 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. Ail 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: 11.1.1. Worker's 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. 11.1.2. 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. 11.1.3. Additionally Tenant will be insured for the following coverage: 11.1.3.1. 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. 11.1.4. intentionally Omitted 11.1.5. 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). 11.2 The insurance coverage required shall include those classifications, as listed in standard liability insurance manuals, which most nearly reflect the operations of the provider. 11.3 Any insurance coverage required above must include a waiver of subrogation in favor of the City. 11.4 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, 12 Page 1776 of 2495 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 11.5 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. 11.6 City reserves the right to impose additional reasonable insurance requirements as the City may deem necessary or in accordance with common practice. 11.7 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 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. 11.8 Waiver of Subroaation. 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 13 Page 1777 of 2495 rights of subrogation which the insurer of one party might have against the other party, and the City and Tenant shall each indemnify, defend, and hold harmless the other against any loss or expense, including reasonable attorneys' fees (appellate or otherwise) resulting from the failure to obtain such waiver. SECTION 12. INDEMNITY. 12.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officers, employees, contractors, agents or servants from and against any claim, demand or cause of action of whatsoever kind or nature arising out of error, omission, or negligent act of Concessionaire, its officers, employees, contractors, agents or servants in the performance of services under this Agreement. 12.2 In addition, and in consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officers, employees, contractors, agents or servants from and against any claim, demand or cause of action of whatever kind or nature arising out of any misconduct of Concessionaire, its officers, employees, contractors, subconcessionaire(s), agents or servants not included in Subsection 12.1 herein and for which the City, its officers, employees, contractors, subconcessionaire(s), agents or servants are alleged to be liable. 12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such liability, that arises as a result of the willful misconduct or gross negligence of the City, its officers, employees, contractors, agents or servants. 12.4 Intentionally Omitted 12.5 Force Majeure. Whenever a period of time is herein prescribed for the taking of any action by the City or Concessionaire (as applicable), the City or Concessionaire (as applicable), shall not be liable or responsible for, and there shall be excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, or governmental laws, regulations, or restrictions in the nature of a prohibition or moratorium, or any bona fide delay beyond the reasonable control of City or Concessionaire (as applicable). The foregoing shall not apply to any payments of money due under this Agreement. 12.6 Waiver of Loss from Hazards. Concessionaire hereby expressly waives all claims against the City for 14 Page 1778 of 2495 loss or damage sustained by the Concessionaire resulting from an event of Force Majeure (as defined herein), and the Concessionaire hereby expressly waives all rights, claims, and demands against the City and forever releases and discharges the City from all demands, claims, actions and causes of action arising from any of the aforesaid causes. SECTION 13. DEFAULT AND TERMINATION. Subsections 13.1 through 13.4 shalt constitute events of default under this Agreement. An event of default by Concessionaire shall entitle the City to exercise any and all remedies described as the City's remedies under this Agreement, including but not limited to those set forth in Subsection 13.5. An event of default by the City shall entitle Concessionaire to exercise any and all remedies described as Concessionaire's remedies under this Agreement, including but not limited to those set forth in Subsection 13.6. 13.1 Bankruptcy. If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee of ail or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 13.2 Default in Payment. If any payment and accumulated penalties are not received within fifteen (15)days after the payment due date, and such failure continues three (3) days after written notice thereof, then the City may, without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 13.3 Non-Monetary Default. In the event that Concessionaire or the City fails to perform or observe any of the covenants, terms or provisions under this Agreement, and such failure continues thirty (30) days after written notice thereof from the other party hereto, such non-defaulting party may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement. In the event that a default is not reasonably susceptible to being cured within such period, the defaulting party shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall 15 Page 1779 of 2495 such extended cure period exceed ninety {90) days from the date of written notice thereof. In the event Concessionaire cures any default pursuant to this subsection, it shall promptly provide the City with written notice of same. 13.4 Default Under Lease Agreement. In the event that Concessionaire is in default under the Lease Agreement (as referenced in Page 1 of this Agreement) then the City may, without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 13.5 City's Remedies for Concessionaire's Default. If any of the events of default, as set forth in this Section, shall occur, the City may, after notice (if required) and the expiration of cure periods, as provided above, at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such default(s) and to compensate the City for damages resulting from such default(s), including but not limited to the right to give to Concessionaire a notice of termination of this Agreement. If such notice is given,the Term of this Agreement shall terminate upon the date specified in such notice from the City to Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area to the City pursuant to the provisions of Subsection 13.8. Upon the termination of this Agreement by the City, all rights and interest of Concessionaire in and to the Concession Area and to this Agreement, and every part thereof, shall cease and terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by Concessionaire under this Agreement, including but not limited to, beginning procedures to collect the Performance Bond in Section 14 herein. In addition to the rights set forth above, the City shall have the rights to pursue any and all of the following: a. The right to injunction or other similar relief available to it under Florida law against Concessionaire; and/or b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Concessionaire's default. 13.6 Concessionaire's Remedies for Citv's Default. If an event of default, as set forth in this Section, by the City shall occur, Concessionaire may, after the expiration of the cure period, terminate this Agreement upon written notice to the City. Said termination shall become effective upon receipt of the written notice of termination by the City. On the date specified in the notice, Concessionaire shall quit and surrender the Concession Area to the City pursuant to the provisions of Subsection 13.8. 16 Page 1780 of 2495 13.7 Termination for Convenience. 13.7.1. Notwithstanding any other provision of this Section 13, this Agreement may be terminated, in whole or in part, by the City, for convenience and without cause, upon the furnishing of thirty (30) days prior written notice to Concessionaire. 13/.2. In the event of termination by the City pursuant to this subsection, Concessionaire herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature, against the City, its agents, servants and employees(including, but not limited to, claims for any start-up costs, interference in business or damages for interruption of services, or interference in its concession operations). In no event shall the City be liable to Concessionaire for any indirect, incidental, special, lost profits or consequential damages. 13.8 Surrender of Concession Area. At the expiration of this Agreement, or earlier termination in accordance with the terms of this Agreement, Concessionaire shall surrender the Concession Area in the same condition as the Concession Area was prior to the Commencement Date of this Agreement, reasonable wear and tear excepted. Concessionaire shall remove all its personal property, upon forty-eight (48) hours written notice from the City Manager or his designee unless a longer time period is agreed to by the City. Concessionaire's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the Concession Area after termination of the Agreement shall constitute trespass by the Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per day as liquidated damages for such trespass and holding over. SECTION 14. Intentionally Omitted SECTION 15. Intentionally Omitted SECTION 16. SPECIAL EVENTS I SPONSORSHIPS. 16.1 City Special Events. Notwithstanding Subsection 16.1 herein, and in the event that the City, at its sole discretion, deems that it would be in the best interest of the City, the City reserves the right to displace the Concessionaire for City produced and/or sponsored special events and/or City produced and/or sponsored productions. Additionally, the aforestated events may also require additional time for load-in and load-out of the event. In such cases, the City may request that Concessionaire cease and desist operations during the term of, and in the area of, the special event and/or production, and Concessionaire shall cease and desist during such time. To the extent 17 Page 1781 of 2495 that Concessionaire is displaced, and/or required to cease and desist operations, City shall provide, calculated on a per diem basis for the period of time the Concession Area is non-operational, a credit against Concessionaire's Concession Fee, prorated on a per diem basis, to be calculated by dividing the monthly Concession Fee by 30 and multiplying said figure by the number of days the Concessionaire was displaced.. If the Concessionaire is not required to close, or the City Manager or his designee determines that Concessionaire may remain open in such a manner as prescribed by the City, that will not interfere with the special event and/or production, Concessionaire shall use its best efforts, in either case, in cooperating with the City. If Concessionaire is allowed to remain open during special events and/or productions, Concessionaire may be allowed to have in operation its normal daily-complement of equipment and staff. "Normal" shall be defined as equipment and staff that the Concessionaire customarily has available to service its patrons within the Concession Area on a normal business day(during its hours of operation). 18.2 Sponsorships. The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark, property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited from entering into, or otherwise creating any, sponsorships and/or endorsements with third parties which are based solely or in any part on the marketing value of a City trademark, property, brand, logo and/or reputation. SECTION 17. NO IMPROPER USE. Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the Concession Area for any improper, immoral or offensive purpose, or for any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officers, employees, contractors, agents or servants, from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of Concessionaire, or any of its officers, employees, contractors, agents or servants. In the event of any violation by Concessionaire, or if the City shall deem any conduct on the part of Concessionaire to be objectionable or improper, the City Manager or his designee shall have the right to suspend the concession operations should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City Manager or his designee within twenty-four(24) hours after receiving written or verbal notice of the nature and extent of such violation, conduct, or practice; such suspension to 18 Page 1782 of 2495 continue until the violation is cured. Concessionaire further agrees not to commence operations during the suspension until the violation has been corrected to the satisfaction of the City Manager or his designee. SECTION 18. Intentionally Omitted SECTION 19. NOTICES. All notices from the City to Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to Concessionaire at the following addresses: Rohit Thakore TASTE BAKERY CAFE, LLC 77317' Street Miami Beach, Florida 33139 All notices from Concessionaire to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested to the City of Miami Beach at the following addresses: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 With copy to: Office of Real Estate City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Concessionaire and the City may change the above mailing addresses at any time upon giving the other party written notification. All notices under this Agreement must be in writing. SECTION 20. LAWS. 20.1 Compliance. Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations (including but not limited to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations, as same may be amended from time to time. 20.2 No Discrimination. Concessionaire hereby agrees hereby agrees to comply with City of Miami Beach Human Rights Ordinance, as codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in employment, housing, public accommodations, or public services, on the 19 Page 1783 of 2495 basis of actual or perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity, familial and marital status, age, ancestry, height, weight, domestic partner status, labor organization membership,-familial situation, political affiliation, or disability. SECTION 21. MISCELLANEOUS, 21.1 No Partnership. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Concessionaire. 21.2 Modifications. This Agreement cannot be changed or modified except by agreement in writing executed by all parties hereto. Concessionaire acknowledges that no modification to this Agreement may be agreed to by the City unless approved by the Mayor and City Commission except where such authority has been expressly provided herein to the City Manager, 21,3 Complete Agreement_ This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's operations, as contemplated herein. 21.4 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 21.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 21.6 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or.clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 21.7 Severability. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this • • Agreement but the remainder of the Agreement, such provisions and the 20 Page 1784 of 2495 application thereof to other persons or circumstances, shall not be affected thereby and this Agreement shall be so modified. 21.8 Right of Entry. The City, at the direction of the City Manager, shall at all times during hours of operation, have the right to enter into and upon any and all parts of the Concession Area for the purpose of examining the same for any reason relating to the obligations of parties to this Agreement. 21.9 Nota Lease. It is expressly understood and agreed that no part, parcel, building, structure, equipment or space is leased to Concessionaire; that this Agreement Is a concession agreement and not a lease, and that Concessionaire's right to operate, manage, and maintain the concession shall continue only so long as Concessionaire complies with the undertakings, provisions, agreements, stipulations and conditions of this Agreement. Accordingly, Concessionaire hereby agrees and acknowledges that in the event of termination of this Agreement, whether due to a default by Concessionaire or otherwise, Concessionaire shall surrender and yield unto the City the Concession Area, in accordance with Subsection 13.7 hereof, and the City shall in no way be required to evict and/or otherwise remove Concessionaire from the Concession Area as if this were a tenancy under Chapter 83, Florida Statutes, nor shall Concessionaire be afforded any other rights afforded to nonresidential tenants pursuant to said Chapter (the parties having herein expressly acknowledged that this Agreement is intended to be a concession agreement and is in no way intended to be a lease). 21.10 Signage. Concessionaire shall provide, at its sole expense and responsibility, any required signs at its concession. All advertising, signage and postings shall be approved by the City, and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Any signage posted by Concessionaire shall be subject to the prior approval of the City as to size, shape and placement of same. 21.11 Conflict of Interest. Concessionaire shall perform its services under this Agreement and conduct the concession operation(s) contemplated herein, in a manner so as to show no preference for other concession operations/facilities owned, operated, managed, or otherwise controlled by Concessionaire. 21.12 No Waiver. 21.12.1. It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of 21 Page 1785 of 2495 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. 21.12.2, A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. 21.12.3. The receipt of any sum paid by Concessionaire 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. 21.13 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. SECTION 22. LIMITATION OF LIABILITY. The City desires to enter into this Agreement placing the management and operation of the Concession Area in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten Thousand ($10,000.00) Dollar limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of Ten Thousand ($10,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in excess of Ten Thousand ($10,000.00) Dollars, for any action 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 paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 788.28. SECTION 23. VENUE This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue 22 Page 1786 of 2495 for the enforcement of same shall lie in Miami-Dade County, Florida. THE CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 23 Page 1787 of 2495 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: TASTE BAKERY CAFE, LLC ATTEST: By: Witness Managing Member Rohit Thakore Print Name Print Name Date TMGENDA12O1717-JufyITCEO\Taste Bakery Cafe\Taseie Bakery Concession Agreement(Draft 07-17-17).docx 24 Page 1788 of 2495 EXHIBIT 21 Concession Area ..� 1 i'''''''t4. :„,ii-w:'.'4.' s• � * � Y`k L i44=.....,.,;:,11 i 1 1 ‘,,___ ..". ot. % lc 141 t}i11 '��ion -.405, # ',„,,.‘:-=,:f3.r� k •'y31 'S :t I e ....„;.,,,„1,44.0)„, , , - . - _ ***4".14.___----- „.... ,��_` + ' ,,' -tea II t rE.9 60.4 + } }A 4: iiceiSiOnre .. ' .+ t } 'Qit Y 'k :',,,.1' A III: " 11 �).,,,,,_a.m., � } 44K:: �•:... �9 �.;j�0+ klr".y���rC Vii., ) ;f", -: 1-1 4Y^ E } - -,'.7..,4''''''''' Via, '�a� -� i �'�. 4 A r. t 41 rf_ z 1 q �/�" A 4)a , 2 f - . , ..,, A ,.... -, + j t %*...ts, et4 py. jam ir.,,.. + } �*i of-7-. p iy.......,„.„ ,. F,+ ~ ��jr IIIIP *".li:.: i ' 1 :'';',"/ --.='-i" ;* ‘ ' s'-'1:I• .mow . 6"7 yx ,�{. '3K2�NS�HSKgimrS4�te'H N"://k.'?-3-N X'.s4.s+ IAIq.NYISM! IOW} 1 25 Page 1789 of 2495 EXHIBIT 3.2 Additional Requirements The Concession Area shall be maintained in a dean, neat and orderly appearance at all times by the Concessionaire. The area of the sidewalk, curb and gutter immediately adjacent to the Concession Area shall be cleared of all debris during hours of operation, and again at the close of each business day, or as may otherwise be determined by the City Manager. The Concessionaire shall be responsible for cleaning the floor surface on which the outdoor seating is located at the close of each business day. In addition, the following conditions shall apply: a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a clean, attractive, and orderly appearance, and shall be maintained and kept in good repair at all times; b. All outdoor furniture shall be of high quality, design, materials, and workmanship so as to ensure the safety and convenience of the public; c. Only the outdoor cafe furniture specifically shown on the approved site plan shall be allowed on the Concession Area; d. All tables, chairs, umbrellas, and any other outdoor furniture shall be readily removable, and shall not be physically attached, chained, or in any other manner affixed to any public structure, street furniture, signage, and/or other public fixture, or to a curb and/or public right-of-way; e. The stacking or piling up of chairs shall be prohibited on the Concession Area; f. At close of business, all tables, chairs and any other outdoor furniture shall be removed from the Concession Area and stored in a non-visible location from the public right-of-way. Any exception to this requirement shall be at the sole and absolute discretion of the City Manager and/or his/her designee. g. No storage of dishes, silverware or other similar restaurant equipment shall be allowed on the Concession Area, or on any other portion of the public right-of-way, or outside the structural confines of the building in which the restaurant is located, during non-business hours; h. There shall be no live entertainment or speakers placed on the Concession Area; i. No menu board(s)shall be permitted to be displayed on the Concession Area; j. No food preparation, food storage, refrigeration apparatus or equipment, or fire apparatus or equipment, shall be allowed on the Concession Area; k. No food displays shall be permitted on the Concession Area. No advertising signs or business identification signs shall be permitted, except that the restaurant name and/or its logo may be permitted on umbrellas but such logos and/or lettering may not exceed six inches in height; 26 Page 1790 of 2495 1. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant fertilizers which contain material that can stain the sidewalks shall not be allowed; m. The City Manager or his/her designee may cause the immediate removal, relocation and/or storage of all or part of any furniture located on the Concession Area in emergency situations or for public safety considerations. Upon written and/or verbal notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning by Miami- Dade County, whichever occurs first, the Concessionaire shall, within no more than four hours of same, remove and place indoors all tables, chairs and any other outdoor furniture located on the Concession Area. The notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning, shall constitute a public emergency situation as referenced in this division. The City Manager may remove, relocate, and/or store any outdoor furniture found on the Concession Area that has otherwise not been removed by the Concessionaire pursuant to this subsection. Any and all costs incurred by the City for removal, relocation and/or storage of Concessionaire's furniture shall be the responsibility of the Concessionaire. 27 Page 1791 of 2495 MONISM lRTA20I7 $loamiBcialOI Front the front page/ I SA WANINnYaCDN N..f.{7 Lo Cr State 141 MIAMI BEACH CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARINGS JULY 26,2017 NOTICE IS HEREBY given that the folbeing Public Hearings will be heti by the Marcor and City Commissioners of the ON of Miami Dorsch.Ela ids,In the Commieslon Chamber.Third Floor,City Hall, 1700 Convention Center Dave.Miami Beach.Florkla.on July 21,201T,at the Mites Ibted.or an soon thersaler as the matter can be head: 2:30 p.m. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA. FOLLOWING A DULY ADVERTISED PUBLIC HEARING. ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER IAS SET FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION),AND WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT,FINDING SUCH WAIVER 10 DE IN THE BEST INTIH ESI OF THE CITY,APPROVING,IN SUBSTANTIAL RAM,THE LEASE AGREEMENT ATTACkIED 10 THIS RESOLUTION RI RFTWEEN THE CRY AND NORTH PEACH YARD,IIA(TENANT), INVOLVING TIE USE OF THE CITY-OWNED PROPERTY.LOCATED AT 8100-6140 GOWNS AVENUE, MIAMI BEACH,FLORIDA,WITH THE LEASED PFE MISES CONSISTING OF UP TO 52,500 SQUARE FEET,KM USE AS AFOEU,BEVERAGE AND ENTERTAINMENT PAVILION,INCLUDING RE TML AND OTHER VENDORS.AND FOR CULTURAL/COMMUNITY PROGRAMMING AND ENTERTAINMENT OFFERNGS; PROVIDING FOR CITY TO DESIGN AND CONSTRUCT CERTAIN LANDLORD IMPROVEMENTS IDENTIFIED IN TITE LEASE(TIIE'LANDLORD IMPROVEMENTS"):PROVIDING AN INITIAL TERM OF FIVE(6)YEARS,COMMENCING FOLLOWING THE CITY'S COMPLETION OF THE LANDLORD IMPROVEMENTS.WITH TWO (2)RENEWAL TERMS OF TWO(2)YEARS EACH,TO PE EXERCISED(UPON MUTUAL AGREEMENT OF CITY AND TENANT;PROVIDING FOR THE LEASE TO IS SIIPJECT TO AND CONTINGENT UPON(1)AN APPROPRIATION OF FUNDING FOR TI# LANDLORD IMPROVEMENTS; (2)ANY AMENDMENTS,AS MAY DE REQUIRED TO THE CITY OF MAMI REACH CODE OF ORDINANCES, THE CITY'S LAND DEVELOPMENT REGULAT IONS AND OOIIN'REHEN SIVE PLAN,AND(3)ANY FINAL NON-APPEALABLE APPROVALS FROM THE APPLICABLE CITY LAND USE BOARDS;AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED LEASE UPON CONCLUSION OF SUCCESSFUL NEGOTIATIONS BY TEE ADMINISTRATION, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY.fits AesnA t1or.A OOIng Asara pu,manr n SeWvv g/6,3 04,F.S.AgoIrha!may SO atrOde0 ro the 7uwfl'1.Culrare R fYAIOrntC Revebpm0nt Jot OrrmnnI at.306 675.7677 2:35 p.m. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,FOLLOWING A DULY NOTICED PUBLIC HEARING.AND APPROVING.IN SUBSTANTIAL FORM.TIC LEASE AGREEMENT AND CONCESSION AGREEMENT(AGREEMENTS)ATTACHED TO THIS RESOLUTION,BETWEEN THE CITY AND TASTE BAKERY CAFE,LLC("TENANT'),INVOLVING THE USE OF APPROXIMATELY 734 SQUARE FEET OF CITY-OWNED GROUND FLOOR RETAIL SPACE.LOCATED AT 773 17TH STREET.INUIIDNG AN AWOINING OUTDOOR SEATING AREA. HAVING APEROXIMAIFI.Y 507 SQUARE FFFT.FOR USE AS A GAFF:SAID AGREEMENTS HAVING AN INITIAL TERM OF THREE(3)YEARS,COMMENCING ON SEPTEMBER 1,2017,WITH TWO(2) ONE-YEAR RENEWAL OPTIONS,AT THE CITY MANAGER'S SOLE DISCRETION;AND PROVIDING, IN MATERIAL PAR!,!HAI IENANI WILL PROVIDE CITY EMPLOYEES HEALTHY POO SIil.ICkS AT A FORTY PERCENT(40%)DISCOUNT,WITH THE CRY REIMBURSING TASTE BAKERY FOR EliFt.ENEE DISCOUNTS.IN AN AMOUNT NOT TO EXCEED 5200,000 PER CONTRACT YEAR;AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FNAL NEGOTIATED AGREEMENTS, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. 7hA Rd40yotthii!a b6iig heanl Airtyant to-.'6[114/+TTt 6.1147 P.5. :AOUP/os-ray io 7151100 N 1116 Tourisrn,Col:are 8£ccnnmlc Oayetopmenl Oapartmesvar.1,OE.o7,3.7577 ortha fr000remenl Dapartn ant at 305.873.7460, INTERESTED PARTIES are holed to appear at This meathg,or he represented by an ages,or Iv enpr as their News In writing addressed to the City Commission,Ge the City Clerk,1780 Convention Center Drive.1'Rod',City Hell.Miami Peach.Florida 33139 Copies of these Nems we available tor noble nnsnedlon during normal DOOMMY7 tours In the 011106 of the CIly perk,1700 Convention Center Drive,1"Floor,(Sly Hall,Miami Peach,Florida 33139.This meeting,or any Nem herein,may he continued.and under such rirduMancoS additional legal nonce need nth be provided. Pursuant In Section 286.0105.Fla.Slat..the(:ny hereby wMses the public thri I a person decides to appeal are,decision mads by the City Commission with respect to any matter considered in its milling or its hearing,such person must en5nre 11101 a verbaliru recons of the proceedings is/made, which record Includes lite leellmany and evidence upon which the appeal is l0 be based I his nonce doss nal con anine corrsern by the CIty brit*htrodudlon or allrrsslen at otherwise Inadmissible or irrelevant evidence,nor does tl authorise chalengaa Cr appeals no alherunse allowed by Ian. To requeal Itis material In alternate!urinal,sign language Inlerpreler(nvaday nonce required). Iniormaion on ac carslur persons with dlsabinlles,andiar any accorrrnadationloraview anydocurneni or perlicipge in any City-apansared Proceedngs cal 365.6042489 and soled I!or English or 2 to Spanish.Men option 6;T TY users may cal via 711(Florida Relay Service). Rateel E.Granada.Oily Clerk City of Miami Beach Ad 13/5 Page 1792 of 2495