2017-29941 Resolution RESOLUTION NO. 2017-29941
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC
HEARING, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND
CITYWIDE PROJECTS COMMITTEE AND THE WRITTEN RECOMMENDATION
OF THE CITY MANAGER (AS SET FORTH IN THE CITY COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION), AND WAIVING, BY
5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN
SUBSTANTIAL FORM, THE LEASE AGREEMENT ATTACHED TO THIS
RESOLUTION, BETWEEN THE CITY AND SOBE TOSCANA LLC (TENANT),
INVOLVING THE USE OF APPROXIMATELY 2,216 SQUARE FEET OF CITY-
OWNED UNIMPROVED LAND, LOCATED AT 22 WASHINGTON AVENUE,
MIAMI BEACH, FLORIDA, CURRENTLY USED AS AN OUTDOOR SEATING
AREA; SAID LEASE HAVING AN INITIAL TERM OF FIVE (5) YEARS,
COMMENCING ON AUGUST 1, 2017, WITH ONE (1) RENEWAL TERM OF FOUR
(4) YEARS AND NINE (9) MONTHS, AT THE CITY'S SOLE DISCRETION, AND
TO RUN CONCURRENT WITH THE TENANT'S LEASE/USE OF AN ADJACENT
EXISTING RESTAURANT LOCATED AT 816 COMMERCE STREET; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE
FINAL NEGOTIATED LEASE AGREEMENT, SUBJECT TO REVIEW AND FORM
APPROVAL BY THE CITY ATTORNEY.
WHEREAS, on November 9, 2016, the City Commission adopted Resolution No. 2016-
29638 approving and authorizing a new lease agreement with Florida Food District Inc., involving
the use of approximately 2,216 square feet of City owned unimproved land, located at 22
Washington Avenue, Miami Beach, Florida (Property); and
WHEREAS, the Property is adjacent to an existing restaurant space located at 816
Commerce Street, Miami Beach, Florida (Restaurant), and is currently used as an outdoor seating
area, concurrent with the lease/use of the Restaurant; and
WHEREAS, on May 16, 2017, Florida Foods District Inc. requested the assignment of
their lease agreement to Sobe Toscana LLC (Tenant); and
WHEREAS, since Florida Food District Inc. has ceased operations and vacated the
Property, the City Attorney's Office has recommended that a new lease agreement be executed
with Tenant; and
WHEREAS, the discussion of a new lease with Tenant, based upon the same terms and
conditions previously approved for Florida Food District Inc., was submitted to the Finance and
Citywide Projects Committee (FCWPC) at its June 30, 2017 meeting, and the FCWPC
recommended approving a new lease agreement with Tenant, based upon the same terms, for a
period of five (5) years, with one (1) renewal option for an additional four (4) years and nine (9)
months, at the City's sole discretion; and
WHEREAS, subsequent to Tenant's request to remove the termination for convenience
clause, the FCWPC further recommended, in the event the City exercises the termination for
convenience, reimbursing Tenant for the unamortized upfront costs of its concurrency and DERM
fees; and
WHEREAS, the City Manager recommends the termination for convenience shall not
apply to the first three (3) years of the initial five (5) year term and, in the event the termination for
convenience is exercised by the City after the first three (3) years of the initial term, or throughout
the renewal term, there shall be no reimbursement to Tenant for any costs whatsoever.
WHEREAS, the Administration recommends that the Mayor and City Commission
approve, in substantial form, the proposed lease with Tenant, incorporated herein by reference
and attached as Exhibit "A" to this Resolution.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission,
following a duly advertised public hearing, hereby accept the recommendation of the Finance and
Citywide Projects Committee and the written recommendation of the City Manager (as set forth in
the City Commission Memorandum accompanying this Resolution), and waive, by 5/7th vote, the
competitive bidding requirement, finding such waiver to be in the best interest of the City; and
approve, in substantial form, the lease agreement attached to this Resolution, between the City
and Sobe Toscana LLC (Tenant), involving the use of approximately 2,216 square feet of City-
owned unimproved land, located at 22 Washington Avenue, currently used as an outdoor seating
area; said lease having an initial term of five (5) years, commencing on August 1, 2017, with one
(1) renewal term of four (4) years and nine (9) months, at the City's sole discretion, and to run
concurrent with the Tenant's lease/use of an adjacent existing restaurant located at 816
Commerce Street; and further authorize the Mayor and City Clerk to execute the final negotiated
lease agreement, subject to review and form approval�( by the City Attorney.
PASSED and ADOPTED this �Y day of if 2017. ,
ATTEST:
RAFA L E. G ANADO, CITY CLEz„s.owNft PHILIP`LEV,�' , MAYOR
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APPROVED AS TO
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Resolutions- R7 G
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 26, 2017
2:25 p.m. Public Hearing
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC HEARING,
ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE
PROJECTS COMMITTEE, AND THE WRITTEN RECOMMENDATION OF THE
CITY MANAGER (AS SET FORTH IN THE CITY COMMISSION MEMORANDUM
ACCOMPANYING THIS RESOLUTION), AND WAIVING, BY 5/7TH VOTE, THE
COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN
THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE LEASE AGREEMENT ATTACHED TO THIS RESOLUTION,
BETWEEN THE CITY AND SOBE TOSCANA LLC (TENANT), INVOLVING THE
USE OF APPROXIMATELY 2,216 SQUARE FEET OF CITY-OWNED
UNIMPROVED LAND, LOCATED AT 22 WASHINGTON AVENUE, MIAMI BEACH,
FLORIDA, CURRENTLY USED AS AN OUTDOOR SEATING AREA; SAID LEASE
HAVING AN INITIAL TERM OF FIVE (5) YEARS, COMMENCING ON AUGUST 1,
2017, WITH ONE (1) RENEWAL TERM OF FOUR (4) YEARS AND NINE (9)
MONTHS, AT THE CITY'S SOLE DISCRETION, AND TO RUN CONCURRENT
WITH THE TENANT'S LEASE/USE OF AN ADJACENT EXISTING RESTAURANT
LOCATED AT 816 COMMERCE STREET; FURTHER AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED LEASE
AGREEMENT, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY.
RECOMMENDATION
Adopt the Resolution.
BACKGROUND
On November 9, 2016, the City Commission adopted Resolution No. 2016-29638 approving and
authorizing a new lease agreement with Florida Food District Inc., involving the use of approximately
2,216 square feet of City owned unimproved land, located at 22 Washington Avenue, Miami Beach,
Florida (Property). The Property is adjacent to an existing restaurant space located at 816
Commerce Street, Miami Beach, Florida (Restaurant), and was used as an outdoor seating area.
The Restaurant accommodates approximately 60 seats and the Property accommodates outdoor
seating for approximately 65 seats. On May 16, 2017, Florida Food District Inc. requested the
assignment of their lease agreement to Sobe Toscana LLC (Tenant). The City Attorney's Office
recommends that a new lease agreement be executed with Tenant since Florida Food District Inc.
has ceased operations and vacated the Property.
Page 1687 of 2495
ANALYSIS
The principal of Sobe Toscana, Catherine Arrighi Guitera, has extensive experience operating
restaurants in Miami Beach, including Ocean's 10, located at 960 Ocean Drive, for over fifteen (15)
years. The new restaurant at 816 Commerce Street will be operated as an Italian pizzeria.
The basic terms and conditions of the proposed lease agreement are generally consistent with the
previous lease, with the continuation of the base rent schedule and annual rent increases, as follows:
Premises: 22 Washington Avenue
Size: Approximately 2,216 square feet
Initial Term: Five (5)years, commencing August 1, 2017 and ending
July 31, 2022
Base Rental Rate: $22.51 per rentable square foot ($49,882.20 annually,
$4,156.85 monthly), plus applicable sales tax.
Increases: The Base Rental Rate shall be increased by three
percent(3%)annually.
Renewal Option: Tenant shall have one (1) renewal option, at the City
Manager's sole discretion, for a period of four (4) years and nine (9) months.
Subject to the City's approval of the renewal term, the City has the right to re-
negotiate the Base Rent amount based upon a percentage of gross receipts or
may continue to be assessed as a fixed annual rent, based upon the fair market
rent at the time, to be escalated annually by three percent (3%); however, at no
time will the Base Rent during the renewal term be less than the rent for the
previous lease year plus the three percent(3%)escalation.
Security Deposit: $12,470.55(three(3) month's rent)
Personal Guaranty: A rolling six (6) month personal guaranty shall be
provided by Tenant's principal, Catherine Arrighi Guitera.
Termination
For Convenience: The lease agreement may be terminated, in whole or in
part, by the City, for convenience and without cause, upon furnishing sixty (60)
days prior written notice to Tenant.
Improvement
Allowance: Tenant shall accept the Premises in "as-is" condition.
FINANCE AND CITYWIDE PROJECTS COMMITTEE
The Administration submitted the terms and conditions to the Finance and Citywide Projects
Committee (FCWPC) at its June 30, 2017 meeting, and the FCWPC recommended approving a
new lease agreement with Tenant, for a period of five (5) years, with one (1) renewal option for an
additional four(4)years and nine (9) months, at the City Manager's sole discretion.
Additionally, at the FCWPC meeting, Tenant requested the City remove the termination for
convenience provision since they will be investing approximately $300,000 for the renovation and
buildout of the interior restaurant. Additionally, even though the one-time concurrency fees had
previously been paid for the indoor restaurant space, they had never been paid for the outdoor
Page 1688 of 2495
seating area, and Tenant is currently being required to pay said fees in the amount of $29,575.
Tenant is also being required to pay one-time DERM fees for the outdoor seating area estimated to
be $50,000. The FCWPC recommended retaining the termination for convenience but, in the event
the City exercises the provision, reimbursing Tenant for the unamortized upfront costs of its
concurrency and DERM fees up to$80,000.
CITY MANAGER'S RECOMMENDATION
While the FCWPC recommended in favor of retaining the termination for convenience, the City
Manager recommends the provision shall not apply to the first three (3) years of the initial five (5)
year term for the following reasons:
1. providing Tenant a guaranteed three (3) years allows them the opportunity to achieve a
return on their initial capital investment; and
2. it has been challenging to retain a quality operator at this location as the previous two
operators were unsuccessful; and
3. due to its limited size and shape, the Property serves little more than to provide access to
816 Commerce Street and it is unlikely the City would generate any other revenue from the Property
other than as an outdoor seating area for the indoor Restaurant.
After the first three (3) years of the initial term, and throughout the renewal term, the termination for
convenience shall apply. During said time, in the event the termination for convenience is exercised
by the City, there shall be no reimbursement to Tenant for any costs whatsoever.
Based upon the foregoing, and as permitted under Section 2-367(e) of the City Code, the City
Manager recommends that the Mayor and City Commission waive, by a 5/7ths vote, the formal
competitive bidding requirement, and find that such waiver is in the best interest of the City.
CONCLUSION
The Administration recommends that the Mayor and City Commission: 1)accept the recommendation
of the FCWPC to execute a new lease agreement with Sobe Toscana LLC, including the termination
for convenience provision as recommended by the City Manager and 2) adopt the Resolution
approving and authorizing the Mayor and City Clerk to execute said new lease agreement.
Legislative Tracking
Tourism, Culture and Economic Development
ATTACHMENTS:
Description
D Resolution and Lease
Page 1689 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 and existing
under the laws of the State of Florida (hereinafter referred to as "City"), and SOBE TOSCANA
LLC, a Florida for profit corporation (hereinafter referred to as "Tenant").
1. Demised Premises.
The City, in consideration of the rentals hereinafter reserved to be paid and of the covenants,
conditions and agreements to be kept and performed by the Tenant, hereby leases, lets and
demises to the Tenant, and Tenant hereby leases and hires from the City, those certain
premises hereinafter referred to as the "Demised Premises", located at 22 Washington
Avenue, Miami Beach, Florida 33139, and more fully described as follows:
Approximately two thousand two hundred sixteen (2,216) square feet of land
with any existing improvements. Such Demised Premises are specified in
Exhibit A, which is hereby made a part of this Lease.
Tenant is leasing the Demised Premises concurrently with the restaurant space, adjacent to
the Demised Premises, having a physical address of 816 Commerce Street, Miami Beach,
Florida 33139 ("Restaurant at 816 Commerce Street").
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises for an initial term of
five (5) years, commencing on August 1, 2017 (Commencement Date), and ending on
July 31, 2022.
2.2 The City, at its sole discretion, may grant Tenant an option to renew this Lease for one
additional term of four (4) years and nine (9) months, based upon Tenant's agreement
to pay the Renewal Rent, as more particularly described in subsection 3.1.2. In the
event Tenant wishes to request said renewal option, Tenant shall communicate said
request, in writing, to the City no earlier than 180 days and at least 120 days prior to
the end of the initial term.
2.3 Termination for Convenience.
This Lease may be terminated, in whole or in part, by the City, for convenience and
without cause, upon the furnishing of sixty (60) days prior written notice to Tenant.
Notwithstanding the foregoing, the City shall not exercise this Termination for
Convenience within the first three (3) years of the Term.
In the event of termination by the City pursuant to this subsection, Tenant 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
limmimui
o event shall the City be liable to Tenant for any indirect, incidental, special, lost
EXHIBIT ofits or consequential damages.
..,
ft Page 192 of 2495
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3. Rent.
3.1 Base Rent:
Base Rent for the Demised Premises during the initial term shall begin to accrue as of the
Commencement Date; based upon the total leasable space of 2,216 square feet as follows:
The Base Rent for the Demised Premises shall be as follows:
Months of Term Base Rent Monthly Period
Rate Base Rent Base Rent
August 1, 2017 - July 31, 2018 $ 22.51 $ 4,156.85 $ 49,882.20
August 1, 2018 -July 31, 2019 $ 23.19 $ 4,282.42 $ 51,389.04
August 1, 2019 -July 31, 2020 $ 23.89 $ 4,411.69 $ 52,940.28
August 1, 2020 - July 31, 2021 $ 24.61 $ 4,544.65 $ 54,535.80
August 1, 2021 - July 31, 2022 $ 25.35 $ 4,681.30 $ 56,175.60
Total Base Rent $ 264,922.92
3.1.1 Base Rent shall be due and payable on the first day of each month throughout
the Term of this Lease, along with applicable sales tax.
3.1.2 Notwithstanding anything in this Section 3 or in this Lease, the City reserves the
right to re-negotiate the Base Rent amount, concurrent with Tenant's right to
exercise and City's approval (if at all), of the renewal term ("Renewal Rent"). The
Renewal Rent may be based upon a percentage of gross receipts or may
continue to be assessed as a fixed annual rent, based upon the fair market rent
at the time, to be escalated annually by 3%; however, at no time will the Base
Rent during the renewal term be less than the rent for the previous lease year
plus the 3% escalation.
3.2 Late Payment.
It is expressly agreed and understood by and between the parties hereto that any
installments of rent accruing under the provisions of this Lease which shall not be paid
when due shall bear interest at the maximum legal rate of interest per annum then
prevailing in Florida from the date when the same was payable by the terms hereof,
until the same shall be paid by Tenant. Any failure on the City's behalf to enforce this
Section shall not constitute a waiver of this provision with respect to future accruals of
past due rent. In addition, there will be a late charge of $50.00 for any payments
submitted after the due date.
3.3 Sales and Use Tax.
It is also understood that Tenant shall also include and forward to the City any and all
additional sums for all applicable sales and use tax, now or hereafter prescribed by
State, Federal or local law, and now described by Florida Statute 212.031. It is the
City's intent that it is to receive all payments due from Tenant as net of such Florida
State Sales and Use Tax.
Page 193 of 2495
3.4 Location for Payments.
All rents or other payments due hereunder shall be paid to the City of Miami Beach at
the following address:
City of Miami Beach
Finance Department
1700 Convention Center Drive
Miami Beach, Florida 33139
4. Maintenance and Examination of Records.
Tenant shall maintain current, accurate, and complete financial records on an accrual basis
of accounting related to its operations pursuant to this Lease, including such records and
accounting related to the Restaurant at 816 Commerce Street. Systems and procedures used
to maintain these records shall include a system of internal controls and all accounting
records shall be maintained in accordance with generally accepted accounting principles and
shall be open to inspection and audit by the City Manager or his desib|e
prior request and during normal business hours. Such records and accounts shall include a
breakdown of gross [eCSiptm, expeDsoS, and profit and loss state[Oents, and such records
shall be maintained as would be required by an independent CPA in order to audit a
statement of annual gross receipts and profit and loss statement pursuant to generally
accepted accounting principles,
5. Inspection and Audit.
Tenant shall maintain its financial records pertaining to its operation pursuant to this Lease
and including the Restaurant at 816 Commerce Street for a period of three (3) years after the
conclusion of the initial teor t renewal term, and such records shall be
open and available to the City Manager or his designee, as deemed necessary by the City
Manager or his designee. Tenant shall maintain all such records at its principal office,
currentllocated at 816 Commerce Street, Miami Beach, Florida, 33139 or, if moved to
another location, all such records shall be ra|ocmted, at Tenant's expense, to a location within
the City of Miami Beaoh, within ten (10) days' written notice from the City Manager or his
designee that the City desires to review said records.
O. Taxes, Assessmets, and Utilities.
6.1 Tenant agrees to and shall pay before delinquency all taxes (including but not limited to
Resort Taxes) and assessments of any kind assessed or levied upon Tenant by reason
of this Lease or by reason of the business or other activities and operations of Tenant
upon or in connection with the Demised Premises and/or the adjoining Restaurant at
816 Commerce Street.
Tenant shall also pay for any fees imposed by law for licenses or permits for any
bVsineSG, oCtivities, or operations of Tenant upon the Demised Premises and/or the
adjoining ground level restaurant at 816 Commerce Street, and shall maintain same
current and in good standing throughout the Term of this Lease,
3-
pugo1oa4of24O5
6.2 Utilities.
The City shall not be responsible for providing electrical or water sGrvice, or any and all
other utilities to and/or for, and/or in connection with, the Demised Premises.
Requests for installation of electrical, water and /or any and all other utilities shall be
submitted in writing to the City Manager or his designee. Installation and connection of
any and all ud/ibea, as and if approved by the City, will be performed at Tenant's sole
cost and expense.
6.3 Procedure If Ad Valorem Taxes Assessed.
During the term of this Le@Se. Tenant shall be solely responsible for all taxes of
whatever nature lawfully levied upon or assessed against the Demised Premises and
irnpnovennenta, ma|oa, or operations thereon, including but not limited to, Ad Valorem
taxes.
7. Security Deposit.
7.1 On or prior to the Commencement Date, Tenant shall pay the City a Security Deposit,
in the sum of Twelve Thousand Four Hundred Seventy and 55/100 Dollars
($12,470.55). Said Security Deposit is to ensure the full and faithful performance by the
Tenant of each and every to[rn, covenant and condition of this Lease. In the event that
Tenant defaults with respect to any of the ternns, provisions, covenants and conditions
of this Leame, including but not limited to, the payment of any rent, the City may use,
apply or retain the whole or any part of the Security Deposit for the payment of such
rents in default or any other sum which the City may expend or be required to expend
by reason of the Tenant's default, including any damages or deficiency in the re-letting
of the Demised Premises, whether such damages or deficiency may accrue or after
summary proceedings or other re-entry by City.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the termnm,
provisions, covenants and conditions of this Lease, the Security Deposit or any balance
thereof shall be returned to the Tenant, without intereot, upon the expiration of the
Lease and peaceful surrender of the Demised Premises.
7.3 City shall not be required to keep the Security Deposit in a segregated account and the
Security Deposit may be commingled with other funds of City and in no event shall the
Tenant be entitled to any interest on the Security Deposit.
7.4 In the event of a bona fide sale of the Demised Premnises, as delineated in this Lease,
the City shall have the right to transfer the Security Deposit to the purchaser for the
benefit of the Tenant and the City shall be considered by the Tenant free from all
liability for the return of such Security Deposit, and the Tenant agrees to look to the
new owner/landlord solely for the return of the Security Deposit, if such Security
Deposit is actually transferred, and it is agreed that this shall apply to every transfer or
assignment made of the Security Deposit to any new owner/landlord.
4.
Page 1nx5of24O5
It is expressly understood that the issuance of a warrant and the lawful to the
Demised Premises by the City for any default on the part of the Tenant, prior to the
expiration of the term of this Lease, shall not be deemed such termination of this Lease
as to entitle the Tenant to recovery of the Security Deposit and the Security Deposit
shall be retained and remain the possession of the City.
7.5 Tenant shall provide an Unconditional Guaranty by the principal of SOBE TOSCANA
LLC, Catherine Arrighi Guitena, for the entire Term of this Lease including any Renewal
TemOs, equal to the last six (6) months' of Base Rent, in the amount of Twenty Eight
Thousand Eighty-Seven and 80/100 Dollars ($28.087.80). a copy of which is attached
as Exhibit ''C" hereto.
8. Use and Possession of Demised Premises.
8.1 The Demised Premises shall be used by the Tenant solely as an outdoor café to serve
the patrons and guests of Tenant's adjoining Restaurant at 816 Commerce Street. The
outdoor café shall have days and hours of operation from Sunday through Thursday
commencing on 11:30 a.nn., and ending no later than 11:00 p.m., and Friday through
Satunday, commencing on 11:30 a.[n., and ending no later than midnight.
Notwithstanding the preceding hours of operation, the outdoor café on the Demised
Premises shall only be open when the restaurant at 816 Commerce Street is open for
business (and, conversely, shallbec|Vsedvvhenthenestaurantiau|osed).
8.2 Tenant and owner/tenant of the Restaurant at 816 Commerce Street shall at all times
throughout the Term of the Lease be one and the same and cannot exist independently
of each other. Tenant acknowledges and agrees that its use of the Demised Premises
shall be, and remain at all times throughout the Term, an ancillary use to Tenant's
restaurant at 816 Commerce Street. Additionally, Tenant's operation will not interfere
with pedestrian traffic.
The number of seating on the Demised Premises shall not exceed 65 and shall be
included in the overall seating count of Tenant's Restaurant at 816 Commerce Street.
There shall be no bar counter of any kind as part of the Demised Premises and all food
served shall be prepared within the interior kitchen of the Tenant's restaurant and only
when the interior kitchen is operational. Any and all alcoholic beverages served at the
outdoor café shall be serviced by Tenant's restaurant. All tables and chairs will be
removed and stored each night at close of business. Any exception to this requirement
shall be at the sole and absolute discretion of the City Manager or his designee. Tenant
shall further maintain the Demised Premises and abide by the conditions set forth in
Exhibit 'B' of the Lease.
8.3 Tenant hereby warrants and represents that SOBE TOSCANA LLC is the owner of the
Restaurant at 816 Commerce Street and sha||, throughout the Term of the Lea8e,
remain as the owner of said restaurant, unless any change in ownership is approved by
the City K88nGger, in w/riting, prior to such change taking place. Change of ownership
for purposes hereof shall include, without }irnitation, a sale, exChon08, 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.
��
Page 1ov6of24O5
8.4 Tenant agrees not to place any television, speakers, or any other device used to
amplify sound, on or around the Demised Premises. Tenant further agrees to not attach
any televisions, speakers, or any other device used to amplify sound, to the exterior of
the Restaurant building at 816 Commerce Street. Furthermore, Tenant shall in no
manner use the Demised Premises, or Tenant's restaurant at 816 Commerce Street,
as an outdoor entertainment or open air entertainment establishment, and hereby
acknowledges that such uses are prohibited (whether as main or accessory uses).
8.5 Tenant agrees that any (i) valet parking and/or a taxi cab stand; (ii) Take-out service;
and (iii) any Sidewalk Café permit, if approved by the City in conjunction with the
Tenant's restaurant operation at 816 Commerce Street shall not utilize Washington
Avenue and will be limited to Commerce Street. Furthermore, any and all deliveries to
the restaurant shall be limited to the alley located on the south side of 816 Commerce
Street.
8.6 Tenant shall be permitted to apply to the City of Miami Beach for one (1) special event
permit for the sole and express purpose of hosting an opening event for the restaurant.
At no time thereafter, throughout the remaining term of the Lease, shall the Tenant be
permitted to submit an application for a special event to be held on the Demised
Premises.
8.7 It is understood and agreed that the Demised Premises shall be used by the Tenant
during the term of this Lease only for the uses contemplated herein, and for no other
purpose or use whatsoever. Tenant will not make or permit any use of the Demised
Premises that, directly or indirectly, is forbidden by public law, ordinance or government
regulation, or that may be dangerous to life, limb or property. Tenant may not commit
waste on the Demised Premises, use the Demised Premises for any illegal purpose, or
commit a nuisance on the Demised Premises. In the event that the Tenant uses the
Demised Premises for any purpose not expressly permitted herein, then the City may
declare this Lease in default pursuant to Section 18, or without notice to Tenant,
restrain such improper use by injunction or other legal action.
8.8 Notwithstanding anything to the contrary contained herein, in the event of a
breach by Tenant of any conditions in this Section 8, the City Manager, in his
sole determination and judgment, shall have the right to automatically terminate
this Lease, without any liability to the City; said termination effective upon three
(3) days written notice to Tenant. By executing the Lease, Tenant hereby agrees
to this condition, and further voluntarily and knowingly waives and releases any
and all rights now or hereinafter conferred upon Tenant pursuant to Florida
Statutes including, without limitation, the procedures set forth in Chapter 83,
Florida Statutes' for removal in nonresidential tenancies; the Miami-Dade; and
the Miami Beach Code (respectively); to the extent this and applicable law(s)
would have the effect of limiting or modifying the City's rights to terminate this
Lease pursuant to this Subsection.
Page 1q97 of 2495
Q. Improvements.
9.1 Any improvements on the Demised Premises shall be subject to the prior written
approval of the City Manager, which epprov2|, if given at all, shall be at their sole
discretion. As part of such approval, the City Manager may require a Performance
Bond for any proposed Improvements. All permanent (fixed) improvements to the
Demised Premises shall become the property of the City upon termination of the
Lease, Notwithstanding the preceding sentence, the City may require that Tenant, upon
termination of the Lease, remove all permanent (fixed) improvements to the Demised
Premises (at his/her sole diacredon), without damage to the Demised Premises or cost
to the City. Furthermore, upon the lawful termination of the Lase, all personal property
and trade fixtures may be removed by the Tenant from the Demised Premises without
damage to the Demised Premises. Tenant will permit no liens to attach to the Demised
Premises arising fvorn, connected with or related to the construction of any
improvements. Moreover, such construction shall be properly permitted and done in
compliance with all applicable K0un'cipo|. County, State and Federal regulatory
nsquinarnents, and shall be accomplished through the use of |icenoed, reputable
contractors who are acceptable to the City. Any and all costs, permits and or licenses
required for the installation and maintenance of improvements shall be the sole
responsibility of Tenant.
9.2 Performance Bond.
INTENTIONALLY OMITTED
City's Right of Entry.
9.3 The City, or its authorized agent or agenta, shall have the right to enter upon the
Demised Premises t all reasonable times for the purpose of inspecting oanne,
preventing waste, rnak|ng such repairs as the City may consider necessary and for the
purpose of preventing fire, theft or vandalism. However, the City agrees that whenever
possible, the City shall provide reasonable nodce, in writing, to Tenant, unless the need
to enter the Demised Premises is an emergenCy. as deemed by the City at its sole
diecretion, which if not immediately addressed could cause property damage, loss of
life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of
the City to do any work that under any provisions of this Lease the Tenant may be
required to perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
9.4 If the Tenant shall not be personally present to permit entry onto the Demised Premises
at any time, for any reasVO, and any entry thereon shall be necessary or permissible,
the City, or its agento, may enter the Demised Pren1is8G, including, without |inlitatiDD,
forcibly entering the Demised PPennises, without rendering the City or such agents
liable therefore.
��
Page 1"�8of24O5
10. Tenants Insurance Requirements.
10.1 Before beginning any work and throughout the term of the Lease (including renewal
penods). Tenant shall, at its sole cost and expenoe, comply with all insurance
requirements of the City. It is agreed by the parties that Tenant shall not occupy the
Demised Premises until proof of the following insurance coverage have been reviewed
and approved by the City's Risk Manager. All insurance policies required below shall
be issued by companies authorized to do business under the laws of the State of
Florida. Provider shall indicate that insurance coverage has been obtained which meets
the requirements as outlined below by submitting original certificates of insurance to
the City's Risk Manager and Asset Manager respectively:
10.1.1 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.
10.1.2 Commercial General Liability on a comprehensive basis in an amount not less
than 81.000.000 combined single limit per oocuneAce, for bodily injury and
property damage. City of Miami Beach must be shown as an additional insured
with respect to this coverage. Additionally, this insurance coverage shall include
a waiver of subrogation in favor of the City
10.1.3 All-Risk property and casualty insu[@nna, written at a minimum of eighty (80Y6)
percent of replacement cost value and with replacement cost 8ndonaarnent,
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 |innitadon, invantory, trade fixturea,
floor coverings, fUrnitura, and other property removable by Tenant under the
provisions of this Lease).
10.2 The insurance coverage required shall include those classifications, as listed in
standard liability insurance nlanua|s, which most nearly reflect the operations of the
provider.
10.3 The company must be rated no less than ''8+^ as to nnana8ernent, and no less than
"Class VII" as to financial mtrangth, by the latest edition of Best's Insurance Guide,
published byA.KA. Best Connpany, Oldwick, New Jersey, or its equiva|ent, subject to the
approval of the City Risk Management Division.
CERTIFICATE HOLDER MUST READ:
C/O Insurance Tracking Services, Inc. (ITS)
P.[). Box 2D27O
Long Beach, CA 90801
10.3.1 Updated C{]| must be submitted to ITS via email with the following:
I. Email address: miamibeach.contracts@instracking.com
Page 18uOof24A5
U. Copy Andrew Bejel at And@nliarnibeauhfl.0ov and Febe Perez at
febeperezmiamibeachfl.gov on the submittal to ITS
10.4 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.
10.5 City reserves the right to impose additional reasonable insurance requirements as the
City may deem necessary or in accordance with common practice.
10.6 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
obtmin, maintain or renew the policies of insurance referred to above, in the required
amounts, the City may, at its sole diocr8tiOn, obtain such insuranoe, and any sums
expended by City in obtaining said }nsurgnoe, shall be repaid by Tenant to City, plus
ten percent (1096) 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. Asskrnment and Subletting.
11.1 Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in
part, without the prior written consent of City which shall not be unreasonably withheld.
Such written consent is not a matter of right and City is not obligated to give such
consent. If granted as provided henein, the making of any assignment or sublease will
not release Tenant from any of its obligations under this Lease. A sale or transfer of a
majority interest of the stock of Tenant's corporate entity shall be deemed an
assignment, and for purposes of this Lease, the City shall have the right to approve the
new majority owner. Said approval shall be provided in writing. Tenant is prohibited
from assigning or subletting this Lease to any person or entity which is not of the same
or higher financial responsibility as Tenont, as shall be determined by City, in its sole
judgment and discretion. Furthar. Tenant shall be prohibited from any changes in
ovvnorahip, whether in the Demised Premises or the restaurant located at 816
Commerce 8treet, as set forth in Subsections 8.2 and 83
11.2 Any consent by the City to any act of assignment shall apply only to the specific
transaction thereby authorized. Such consent shall not be construed as a waiver of the
duty of the Tenant or the legal representatives or assigns of the Tenant, to obtain from
the City consent to any other or subsequent assignment, or as modifying or limiting the
rights of the City under the foregoing covenants of the Tenant not to assign without
such consent.
11.3 Any violation of the provisions of this Lease, whether by act or onlissionm, by oSSign69,
sub-tenant, or under-tenant or occupant, shall be deemed a violation of such provision
by the Tenant, it being the intention and meaning of the parties heveto, that the Tenant
shall assume and be liable to the City for any and all acts and omissions of any and all
assignees, sVb-tenants. or under-tenants or occupants. If the Lease be assigned, the
Page 1Qn0of24O5
City may and is hereby empowered to collect rent from the assignee; if the Demised
Premises or any part thereof be underlet or occupied by any person, other that the
Tenant, the City, in the event of the Tenant's default, may, and is hereby empowered
to, collect rent from the under-tenant or occupants; in either of such events, the City
may apply the net amount received by it for rent herein reserved, and no such
collection shall be deemed a waiver of the covenant herein against assignment or the
acceptance of the assignee, under-tenant or occupant as tenant, or a release of the
Tenant from the further performance of the covenants herein contained on the part of
the Tenant.
12. Maintenance and Repair,
12.1 Tenant shall maintain the Demised Premises and any fixtures and appurtenances
thereon, and, at its sole cost and expense, shall make all repairs thereto as and when
needed to preserve them in good working order and condition. This shall include, but
not be limited to, Tenant being responsible for maintenance and repair of any and all
improvements, such as fences, walkways, pavers, ground-coverings, landscaping, and
gates.
12.2 All damage or injury of any kind to the Demised Premises shall be the obligation of
Tenant, and shall be repaired, restored or replaced promptly by Tenant at its sole cost
and expense to the satisfaction of the City.
12.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class
equal to the original work or installations and shall be done in good and workmanlike
manner.
12.4 If Tenant fails to make such repairs or restorations or replacements, the same may be
made by the City, at the expense of the Tenant, and all sums spent and expenses
incurred by the City shall be collectable and shall be paid by the Tenant within ten (10)
days after rendition of a bill or statement thereof.
12.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or
improvements made by Tenant to the Demised Premises comply with all applicable
building codes and life safety codes of governmental authorities having jurisdiction.
12.6 THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION. Tenant may construct or cause to be constructed, such exterior
improvements to the Demised Premises, as reasonably necessary for it to carry on its
permitted use(s); provided, however, that any plans for such improvements shall be
first submitted to the City Manager for his prior received written approval, which
approval, if granted at all, shall be at the City Manager's sole and absolute discretion.
Additionally, any and all approved improvements shall be made at Tenant's sole cost
and expense. All permanent (fixed) improvements to the Demised Premises shall
remain the property of the City upon termination and/or expiration of this 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 attach to the Demised Premises arising from, connected with, or
Page 1h1 of 2495
related to the design and construction of any improvements. Moreover, such
construction shall be accomplished through the use of licensed, reputable contractors
who are acceptable to the City Manager. Any and all permits and or licenses required
for the construction and/or installation of improvements shall be the sole cost and
responsibility of Tenant.
13. Governnnenta! Regulations.
The Tenant covenants and agrees to fulfill and comply with all etatutea, ordinanceo, ru|eo,
ordarm, nagu|adons, and requirements of any and all governmental bmdias, 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 rV|ea, ordera, and regulations for the prevention of fire, all at Tenant's own cost
and expense. Tenant shall pay all costs, expanoes, n|airna, fineo, penm|ties, and damages
that may be imposed because of Tenant's failure to comply with this 8eCtion, and shall
indemnify and hold harmless the City from all liability arising from each non-compliance,
14. Intentionally Omitted.
15. Condemnation.
15.1 If at any time during the term of this Lease all or any part or portion of the Demised
Premises are taken, appropriated, or condemned by reason of Eminent Domain
proceedings (except if the Eminent Domain proceedings are initiated by the City of
Miami Beach), then this Lease shall be terminated as of the date of such taking, and
shall thereafter be completely null and void, and neither of the parties hereto shall
thereafter have any rights against the other by reason of this Lease or anything
contained therein, except that any rent prepaid beyond the date of such taking shall be
prorated to such date, and the Tenant shall pay any and all renta, additional rento,
utility cherQes, or other costs including excess taxes for which it is liable under the
terms of this Leaae, up to the date of such taking.
15.2 Except as hereunder provided. Tenant shall not be entitled to participate in the
proceeds of any award made to the City in any such Eminent Domain proceedinQ,
exooptiAG, however, the Tenant shall have the right to claim and recover from the
condemning authority, but not from the City, such compensation as may be separately
awarded or recoverable by Tenant in Tenant's own right on account of any and all
damage to Tenant's business by reasons of the condemnation and for or on account of
any cost or loss which Tenant might incur in removing Tenant's furniture and fixtures.
16. Default.
16.1 Default by Tenant.
At the City's option, any of the following shall constitute an Event of Default under this
Lease:
16.1.1 Rent, or any installment thereof is not paid promptly when and where due within
fifteen (15) days of due date and if Tenant shall not cure such failure within five
(5) days after receipt of written notice from the City specifying such default:
Page +lit2of2495
16.1.2 Any other p . rd provided for under this Lease is not paid promptly when and
where due;
16.1.3 Demised Premises shall be deserted, abandoned, or vacated;
16.1.4 Tenant shall fail to comply with any material &srrn, provision, condition or
covenant contained herein other than the payment of rent and shall not cure
such failure within thirty (30) days after the receipt of written notice from City
specifying any such default; or such longer period of time acceptable to the City,
at its sole discretion;
.
16.1.5 Receipt of notice of violation from any governmental authority having jurisdiction
dealing with a code, regulation, ordinance or the like, which remains uncured
within the time specified in such notice of violation or such period of time
acceptable to the City Manager, at his sole discretion;
16.1.6 Any petition is filed by or against Tenant under an section or chapter of the
Bankruptcy Act, as amended, which remains pending for more than sixty (60)
days, or any other proceedings now or hereafter authorized by the laws of the
United States or of any state for the purpose of discharging or extending the
time for payment of debts;
16.1.7 Tenant shall become insolvent;
16.1.8 Tenant shall make an assignment for benefit of creditors;
16.1.9 A receiver is appointed for Tenant by any court and shall not be dissolved within
thirty (30) days thereafter; or
18.1`10 The leasehold interest is levied on under execution.
16.1.11 Tenant's violation of the provision of Subsection 8.8 henein, which shall result in
an automatic termination of the Leaue, as further provided in said subsection.
17. Rights on Default.
17.1 Rights on Default.
17.1.1 In the event of andefault by Tenant as provided herein, the City shall have the
option to do any ofthe following in addition to and not in limitation of any other
remedy permitted by law or by this Lease;
17.1.2 Terminate this Lease, in which event Tenant shall immediately surrender the
Demised Premises to the City, but if Tenant shall fail to do so the City may,
without further nOtice, and without prejudice to any other remedy the City may
have for possession or arrearages in rent or damages for breach of contract,
enter upon Demised Premises and expel or remove Tenant and his effects in
accordance with |@vv, 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
��
Page .,�3of2405
termination, whether through inability to re-let the Demised Premises, or through
decrease in rent, or otherwise.
17.1.3 Declare the entire amount of the 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.
17.1.4 Enter the Demised Premises as the agent of Tenant, by force if necessary,
without being liable to prosecution or any claim for damages therefore, remove
Tenant's property there from, and re-let the Demised Premises, or portions
thereof, for such terms and upon such conditions which the City deems, in its
sole discretion, desirable, and to receive the rents therefore, and Tenant shall
pay the City any deficiency that may arise by reason of such re-letting, on
demand at any time and from time to time at the office of the City; and for the
purpose of re-letting, City may (i) make any repairs, changes, alterations or
additions in or to said Demised Premises that may be necessary or convenient;
(ii) pay all costs and expenses therefore from rents resulting from re-letting; and
(iii) Tenant shall pay the City any deficiency as aforesaid.
17.1.5 Take possession of any personal property owned by Tenant on said Demised
Premises and sell the same at public or private sale, and apply same to the
payment of rent due, holding the Tenant liable for the deficiency, if any.
17.1.6 It is expressly agreed and understood by and between the parties hereto that
any installments of rent accruing under the provisions of this Lease which shall
not be paid when due shall bear interest at the maximum legal rate of interest
per annum then prevailing in Florida from the date when the same was payable
by the terms hereof, until the same shall be paid by Tenant. Any failure on the
City's behalf to enforce this Section shall not constitute a waiver of this provision
with respect to future accruals of past due rent. No interest will be charged for
payments made within the grace period, such grace period to be defined as
within five (5) days of the due date. In addition, there will be a late charge of fifty
($50.00) dollars for any payments submitted after the grace period.
17.1.7 If Tenant shall default in making any payment of monies to any person or for any
purpose as may be required hereunder, the City may pay such expense but the
City shall not be obligated to do so. Tenant, upon the City's paying such
expense, shall be obligated to forthwith reimburse the City for the amount
thereof. All sums of money payable by Tenant to the City hereunder shall be
deemed as rent for use of the Demised Premises and collectable by the City
from Tenant as rent, and shall be due from Tenant to City on the first day of the
month following the payment of the expense by the City.
Page 11A4 of 2495
17.1.8 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.
17.2 Default by City.
Failure of the City to perform any of the oovenanta, conditions and agreements of the
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 oovenant, 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 contnJ|, 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.
Hovvevar, in the event the City fails to perform within the initial thirty /30> day period
provided @bove, and such failure to perform prevents Tenant from operating its
business in a customary manner and causes an undue hardship for the Tenant, then
such failure to perform (regardless of circumstances beyond its control) as indicated
obove, shall constitute a default by the City.
17.3 Tenant's Rights on Default:
If an event of the City's default shall occur. Tenant, to the fullest extent permitted by
law, shall have the right and option to terminate this Lease and all of its obligations
hereunder by giving written notice of such election to the City, and shall further have
the right to pursue any actions at law or suits in equity to obtain damages resulting from
the City's default. Notwithstanding anything in this Section 17.3 or the LeaGe, in the
event of a default by the City. Tenant hereby agrees and acknowledges that in no event
shall the City be liable for any iDcidanta/, indinsc1, special or consequential darnages,
including without limitation loss of revenue and lost profits, of Tenant which may be
alleged as a result of the City's default,
18. Indemnity Against Costs and Charges.
18.1 Tenantshall be liable to the City for all costs and nhaqgmm, expenmon, reasonable
attorney's fees, and damages which may be incurred or sustained by the City, by
reason of the Tenant's breach of any of the provisions of this 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 lien on
said premises and property.
18.2 If Tenant shall at any time be in default heneundar, 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.
Page 1145of24O5
19. Indemnification Against Claims.
19.1 Tenant shall indemnify and save the City harmless from and against any and all claims
or causes of action (whether groundless or otherwise) by or on behalf of any person,
firm, or corporation, for personal injury or property damage occurring upon the Demised
Premises or upon any parking lot or other facility or appurtenance used in connection
with the Demised Premises, occasioned in whole or in part by any of the following:
19.1.1 An act or omission on the part of the Tenant, or any employee, agent, invitee, or
guest, assignee or sub-tenant of the Tenant;
19.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or the building in
which the Demised Premises is located or any of its facilities by the Tenant, or
any employee, agent, invitee, or guest, assignee or sub-tenant or the Tenant,
but not to include trespassers upon the Demised Premises;
19.1.3 Any breach, violation, or non-performance of any undertaking of the Tenant
under this Lease;
19.1.4 Anything growing out of the use or occupancy of the Demised Premises by the
Tenant or anyone holding or claiming to hold through or under the Lease.
19.2 Tenant agrees to pay all damages to the Demised Premises or other facilities used in
connection therewith, caused by the Tenant or any employee, guest, or invitee of the
Tenant.
20. Signs and Advertising.
Without the prior written consent of the City, at the City's sole discretion, Tenant shall not permit
the painting and display of any signs, plaques, lettering or advertising material of any kind on or
near the Demised Premises. All additional signage shall comply with signage standards
established by the City and comply with all applicable building codes, and any other Municipal,
County, State and Federal laws
21. Damage to the Demised Premises and/or Restaurant at 816 Commerce Street.
21.1 If the Demised Premises and/or restaurant at 816 Commerce Street shall be damaged
by the elements or other casualty not due to Tenant's negligence, or by fire, but are not
thereby rendered untenantable, as determined by the City, in whole or in part
(hereinafter referred to as "such occurrence"), Tenant shall as soon as possible after
such occurrence, utilize its insurance proceeds to cause such damage to be repaired
and the rent for the Demised Premises shall not be abated. If by reason of such
occurrence, the Demised Premises and/or restaurant at 816 Commerce Street shall be
rendered untenantable, as determined by the City, only in part, Tenant shall as soon as
possible utilize its insurance proceeds to cause the damage to be repaired, and the
rent for the Demised Premises shall be abated proportionately as to the portion of the
Demised Premises rendered untenantable; provided however, if either the Demised
Premises and/or restaurant at 816 Commerce Street are by reason of such occurrence,
rendered more than 50% but less than 100% untenantable, as determined by the City,
Tenant shall promptly obtain a good faith estimate, from a licensed contractor
Page 11A6 of 2495
acceptable to the City, of the time required to render the Demised Premises and/or
restaurant at 816 Commerce Street tenantable. If such time exceeds sixty (60) days,
the City and/or Tenant shall have the option of canceling this Lease, which
option shall be exercised by the requesting party in writing within ten (10) days
of the end of the sixty (60) day period, and the Lease shall be terminated within
thirty (30) days from the date thereof.
21.2 If the Demised Premises and/or restaurant at 816 Commerce Street shall be rendered
wholly untenantable by reason of such occurrence, Tenant shall utilize its insurance
proceeds to cause such damage to be repaired and the rent for the Demised Premises
shall be abated in whole; provided, however, that the Tenant shall have the right, to be
exercised by notice in writing delivered to the City within sixty (60) days from and after
said occurrence, to elect not to reconstruct the destroyed Demised Premises and/or
restaurant, and in such event, this Lease and the tenancy hereby created shall cease
as of the date of said occurrence, the rent to be adjusted as of such date. If the
Demised Premises shall be rendered wholly untenantable, the City and/or Tenant shall
have the right, to be exercised by notice in writing, delivered to the other party within
thirty (30) days from and after said occurrence, to elect to terminate this Lease, the rent
to be adjusted accordingly.
22. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or
disturbed in possession of the Demised Premises so long as Tenant complies with the terms
of this Lease.
23. Waiver.
23.1 It is mutually covenanted and agreed by and between the parties hereto that the failure
of the City to insist upon the strict performance of any of the conditions, covenants,
terms or provisions of this Lease, 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.
23.2 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.
23.3 The receipt of any sum paid by Tenant to the City after breach of any condition,
covenant, term or provision herein contained shall not be deemed a waiver of such
breach, but shall be taken, considered and construed as payment for use and
occupation, and not as rent, unless such breach be expressly waived in writing by the
City.
Page 117 of 2495
24. Notices.
The addresses for all notices required under this Lease shall be as foUovva, or at such other
address as either party shall be in vvridng, notify the other:
CITY: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Bemch, Florida 33139
With copies to: Asset Manager
Office of Real Estate
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: SOBE TOSCANA LLC
816 Commerce Street
Miami Beach, Florida 33139
Attn: Catherine Arrighi Guitera
All notices shall be hand delivered and a receipt nequeutad, or by certified mail with return
receipt requested, and shall be effective upon receipt.
25. Entire and Binding Agreement.
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
26. Provisions Severable.
If any teor provision of this Lease or the application thereof to any person or circumstance
mho||, to any ex±ent, be invalid or unenforceab|a, the remainder of this Leaae, or the
application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforcemb|e, 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.
27. 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.
28. 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.
29. Governing Law.
Page fhZ8of24O5
This Lease shall be governed by and construed in accordance with the law of the State of
Florida.
30. 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 and no/100. Tenant hereby expresses its willingness to enter
into this Lease with the Tenant's recovery from the City for any damage action for breach of
contract to be limited to a maximum amount of Ten Thousand ($10.000.00) Dollars.
Accordingly, and notwithstanding any other term or condition of this Lease. Tenant hereby
agrees that the City shall not be liable to Tenant for damage in an amount in excess of Ten
Thousand ($10.000.00) Dollars for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this 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 City's liability as set forth in Florida 8tatuteo, Section
768.28.
31. 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 |eave, surrender and yield upon to the City the Demised
Premises, together with any and all equipment, fin1urms, fVrniShings, appliances or other
personal property, if any, located at or on the Demised Premises and used by Tenant in the
rnainbanance, management or operation of the Demised Premises, excluding any trade
fixtures or personal p[opert*, if any, which can be removed without material injury to the
Demised Prernimeo, free of all liens, claims and encumbrances and rights of others or broom-
clean, together with all structural chgngaa, a|tenations, addidons, and improvements which
may have been made upon the Demised Pmenniaes, in good order, condition and repair,
reasonable wear and tear e%cepted, subject, however, to the subsequent provisions of this
Article. Any property which pursuant to the provisions of this Section is removable by Tenant
on or at the Demised Premises upon the termination of this Lease and is not so removed
may, at the option of the City, be deemed abandoned by the Tenent, 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
propertv, if any, be not surrendered at the end of the term as provided in this Section, the
Tenant shall make goodthe City alldamages which theCity shall suffer by reason thereof,
and shall indemnify and hold harmless the City against all claims made by any succeeding
tenant or purchaser, so far as such delay is occasioned by the failure of the Tenant to
surrender the Demised Premises as and when herein required.
32. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay money
is involved.
Page 1909 of 2495
33. Venue.
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.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT
MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS LEASE.
34. 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 provided to sidewalk café patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded
polystyrene is more particularly defined as blown polystyrene and expanded and extruded
foams that are thermoplastic petrochemical materials utilizing a styrene monomer and
processed by any number of techniques including, but not limited to, fusion of polymer
spheres (expandable bead foam), injection molding, foam molding, and extrusion-blown
molding (extruded foam polystyrene).
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 35. 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 City or for any
business to provide plastic straws with the service or delivery of any beverage to patrons on
the beach.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
Page MO of 2495
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by
the respective duly authorized officers and the respective corporate seals to be affixed this
day of , 2017.
ATTEST: CITY:
CITY OF MIAMI BEACH, FLORIDA
BY:
Rafael E. Granado, City Clerk Philip Levine, Mayor
Dated:
(Print Name)
Dated:
ATTEST: TENANT:
SOBE TOSCANA LLC
BY:
Catherine Arrighi Guitera
(Print Name) as President of Lychee SoBe Corp,
as Manager of Sobe Toscana LLC
(Print Name)
Dated:
T:\AGENDA\2017\7-July\TCED\Sobe Toscana\Sobe Toscana-Lease Agreement(DRAFT 07-18-17).clocx
Page 12/91 of 2495
EXHIBIT A
Description of Demised Premises
A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No. 3, according to the plat thereof,
recorded in Plat Book 2, at page 81, of the Public Records of Dade County, Florida, being more
particularly described as follows: Bounded on the North by the South R/W line of Commerce St.;
Bounded on the West by the East line of Lot 2; Bounded on the South by the North RNV line of
Biscayne Court; Bounded on the East by a line that is a perpendicular distance of 100 feet westerly
and parallel to the East RAN line of Washington Avenue.
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Page 12/112 of 2495
EXHIBIT B
Additional Requirements
The Demised Premises shall be maintained in a clean, neat and orderly appearance at all times by
the Tenant. The area of the midmmua|k, curb and gutter immediately adjacent to the Demised
Premises shall be cleared of all debris during hours of operation, and again at the close of each
business day. or as may otherwise be determined by the City Manager. The Tenant shall be
responsible for cleaning the floor surface on which the outdoor seating is located at the close of
each business day. In addition, the following conditions shall apply:
a. Tmbleg, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a
c|ean, attractive, and orderly appearance, and shall be maintained and kept in good
repair at all times;
b. All outdoor furniture shall be of high qum|itv, desiQO, rDateha|s, and workmanship so as to
ensure the safety and convenience of the public;
c. Tenant must obtain approvals from the Planning Department and the City Administration
in the design and layout of the outdoor cafe pmvers, tables, chairs and umbrellas. Only
the outdoor cafe furniture specifically shown on the approved site plan shall be allowed
in the Demised Premises;
d. All tables, chairs, umbrellas, and any other outdoor furniture h U be di| removable,
and shall not be physically attached, chained, or in any other manner affixed to any
public structure, street furniture, signage, and/or other public fixture, or to a curb and/or
public right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Demised Premises;
[ At clof business, all tables, chairs and any other outdoor furniture shall be removed
from the Demised Premises and stored in a non-visible location from the public right-of-
way. Any exception to this requirement shall be at the sole and absolute discretion of the
City Manager and/or his/her designee.
g. No storage of dishes, si|vemvmre, bussing stations or other similar restaurant equipment
shall be allowed in the Demised Pnarniaen, or in any other portion of the public right-of'
vxmy. or outside the structural confines of the building in which the restaurant is |oomted,
during non-business hours;
h. There shall be no live entertainment or speakers placed in the Demised Premises;
i. Only one menu board shall be permitted to be displayed on the Demised Premises, the
location of which shall be set back next to the main entrance door of the enclosed area
of the restaurant;
.
j No food pnepan3dOU, food storage, refrigeration apparatus or equipnlent, or fire
apparatus or equipment, shall be allowed on the Demised Premises;
k. No food displays shall be permitted on Demised Premises. No advertising signs or
business identification signs shall be pe[Olitted, except that the restaurant name and/or
its logo may be permitted on umbrellas but such logos and/or lettering may not exceed
Six inches in height;
I. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant
fertilizers which contain material that can stain the sidewalks shall not be allowed;
m. The City Manager or his/her designee may cause the immediate removal, relocation
and/or storage of all or part of any furniture located on the Demised Premises in
emergency situations or for public safety considerations. Upon written and/or verbal
notification by the City Manager of a hurricane or other major weather event, or the
issuance of a hurricane warning by Miami-Dade County, whichever occurs first, the
Tenant shall, within no more than four hours of same, remove and place indoors all
tables, chairs and any other outdoor furniture located on the Demised Premises. The
notification by the City Manager of a hurricane or other major weather event, or the
issuance of a hurricane warning, shall constitute a public emergency situation as
referenced in this division. The City Manager may remove, relocate, and/or store any
outdoor furniture found on the Demised Premises that has otherwise not been removed
by the Tenant pursuant to this subsection. Any and all costs incurred by the City for
removal, relocation and/or storage of Tenant's furniture shall be the responsibility of the
Tenant.
(THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK)
Page A4 of 2495
EXHIBIT C
UNCONDITIONAL GUARANTY
THIS UNCONDITIONAL GUARANTY (the "Guaranty") is made as of this day of
, 2017, by Catherine Arrighi Guitera, individually (the "Guarantor"), in favor of CITY OF
MIAMI BEACH, FLORIDA, a municipal corporation organized and existing under the laws of the
State of Florida (the "City"), and is executed pursuant to that certain Lease Agreement, dated
, 2017 (the "Lease"), between the City and SOBE TOSCANA LLC (the
"Tenant") , involving unimproved city-owned land as defined in the Lease as the Demised
Premises, having a physical address of 22 Washington Avenue, Miami Beach, Florida 33139 (the
"Demised Premises"). All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Lease.
FOR VALUE RECEIVED, the receipt whereof is hereby acknowledged, in
consideration of, and as an inducement to the City's entering into the Lease with Tenant, the
undersigned Guarantor, in consideration of the benefits to flow to the Tenant and to the
undersigned as stockholder, officer, and/or director of said Tenant, do hereby irrevocably and
unconditionally guarantee to the City the full and faithful performance of all of the obligations,
duties and liabilities of the Tenant under that certain Lease for the Demised Premises, equal to the
last six months of Rent (as defined in the Lease), currently in the amount of $28,087.80, for the
entire term of the Lease, including the renewal term, which, if granted at all, shall be at the City's
sole discretion (the "Guaranty Term").
This Guaranty is a guarantee of payment and not of collectability is not in any way
conditional or contingent and constitutes a valid obligation of Guarantor, and shall not be
terminated, affected or impaired by reason of the assertion by the City against Tenant of any of the
rights and remedies reserved to the City pursuant to the provisions of the Lease. The validity of
this Guaranty shall not be terminated, affected or impaired by reason of any action which the City
may take or fail to take against Tenant or by reason of any waiver of or failure to enforce any of the
rights or remedies reserved to the City in the Lease or for any other cause or circumstance
whatsoever, including but not limited to any subletting of the Demised Premises, assignment of the
Lease or waiver of any breach by the Tenant.
This liability of Guarantor hereunder shall be primary and independent of the obligations of
Tenant, and the City may proceed against Guarantor without commencing any action against
Tenant. The City shall not be required to make any demand upon or pursue and exhaust any of its
rights or remedies against Tenant, before, simultaneously with, or after enforcing its rights or
remedies against Guarantor under this Guaranty; and Guarantor agrees that the City may enforce
any or all of its remedies hereunder at such time or times or in such manner as it shall deem
appropriate.
This Guaranty shall remain and continue in full force and effect during the Guaranty Term,
notwithstanding any modification, amendment, renewal or extension of the Lease or any provision
thereof and notwithstanding any assignment of interest therein.
The Guarantor consents to all of the terms and provisions of the Lease, as the same may be
from time to time hereafter amended, and expressly waive (i) any and all notices of proof of non-
Page 12/15 of 2495
payment, non-performance or non-observance by Tenant of any covenant or provision of the
Lease, (ii) any and all demands, notices, rights or remedies of any kind which may be required to
be given or which may inure to the benefit of Guarantor under applicable law, and (iii) any and all
notices of default or events of default hereunder or under the Lease.
The City and Guarantor agree that in any action or proceeding brought by either the City or
Guarantor against the other on any matters whatsoever arising out of, under. or by virtue of this
Guaranty ("Legal Proceeding"), the City and Guarantor shall and do hereby waive trial by jury. In
addidon, the venue, in connection with any such Legal Proceeding, shall be in Miami-Dade County,
Florida. Should it become necessary to enforce the terms and conditions of this GUGranty, the
prevailing party shall be entitled to collect court costs and attorney's fees in connection with said
prosecution, including any appeals resulting from said Legal Proceeding.
Following the expiration of the Guaranty Term, upon written request by Tenant, the original
of this Guaranty shall be marked as "cancelled" and returned to Guarantors. This Guaranty shall
inure to the benefit of the City, its heirs, 8xecutors, successors and assigns and shall bind the
heirs, executors, successors and assigns of Guararitors.
EXECUTED as of the day and year first above xv[itteD, to be effective as of the date of the
Lease.
GUARANTOR:
Catherine Arhi Guitera
STATE OF FLORIDA \
)ss:
MIAMI-DADE COUNTY \
The foregoing instrument was acknowledged before me this day of , 2017
by personally known to me or who has
produced a valid driver's license as identification.
Notary Pub|ic, State of Florida
Print Name:
My commission expires:
Page en0of2495