2017-29942 Resolution RESOLUTION NO. 2017-29942
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 (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; APPROVING, IN SUBSTANTIAL FORM,
THE LEASE AGREEMENT ATTACHED TO THIS RESOLUTION ("LEASE"),
BETWEEN THE CITY AND NORTH BEACH YARD, LLC (TENANT), INVOLVING
THE USE OF THE CITY-OWNED PROPERTY, LOCATED AT 8100-8140
COLLINS AVENUE, MIAMI BEACH, FLORIDA, WITH THE LEASED PREMISES
CONSISTING OF UP TO 52,500 SQUARE FEET, FOR USE AS A FOOD,
BEVERAGE AND ENTERTAINMENT PAVILION, INCLUDING RETAIL AND
OTHER VENDORS, AND FOR CULTURAL/COMMUNITY PROGRAMMING AND
ENTERTAINMENT OFFERINGS; PROVIDING FOR CITY TO DESIGN AND
CONSTRUCT CERTAIN LANDLORD IMPROVEMENTS IDENTIFIED IN THE
LEASE (THE "LANDLORD IMPROVEMENTS"); PROVIDING AN INITIAL TERM
OF FIVE (5) YEARS, COMMENCING FOLLOWING THE CITY'S COMPLETION
OF THE LANDLORD IMPROVEMENTS, WITH TWO (2) RENEWAL TERMS OF
TWO (2) YEARS EACH, TO BE EXERCISED UPON MUTUAL AGREEMENT OF
CITY AND TENANT; PROVIDING FOR THE LEASE TO BE SUBJECT TO AND
CONTINGENT UPON (1) AN APPROPRIATION OF FUNDING FOR THE
LANDLORD IMPROVEMENTS; (2) ANY AMENDMENTS, AS MAY BE REQUIRED
TO THE CITY OF MIAMI BEACH CODE OF ORDINANCES, THE CITY'S LAND
DEVELOPMENT REGULATIONS AND COMPREHENSIVE 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 THE ADMINISTRATION, SUBJECT TO
REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY.
WHEREAS, at the April 26, 2017 City Commission meeting, Commissioner Arriola
placed a discussion item on the agenda regarding the possibility of bringing the "Wynwood Yard"
concept to a location in North Beach, as part of the Mayor and City Commission's efforts to
revitalize and activate the City's North Beach area; and
WHEREAS, launched in 2015, the "Wynwood Yard" is a culinary incubator and
community hub for local entrepreneurs situated on five (5) previously vacant lots in the Wynwood
area of Miami, Florida, a concept created to attract startups and which, just a few years following
its inception, has transformed those five former vacant lots to feature food trucks, niche
restaurants, a large organic garden, and entertainment space; and
WHEREAS, the proposal from North Beach Yard, LLC ("Tenant"), a Florida limited
liability company created by two of the principals of the Wynwood Yard concept, Danielle ("Della")
Heiman and Kenneth Lyon, is for the City to lease to the Tenant the City-owned property located
at 8100-8140 Collins Avenue, Miami Beach, Florida (the "Premises"), currently used for a
neuter/spay program, with the Premises consisting of up to 52,500 square feet, for use as an open
air food, beverage and entertainment pavilion, including retail and other vendors, and for
cultural/community programming and entertainment offerings; and
WHEREAS, on June 30, 2017, the proposed lease terms were presented to the Finance
and Citywide Projects Committee ("Finance Committee") for its review, in accordance with the
requirements of Section 82-37 of the City Code, and at that meeting, the Finance Committee
favorably recommended moving forward with the proposed lease for consideration by the City
Commission; and
WHEREAS, the City's proposed lease agreement, in substantial form, is incorporated
herein by reference and attached as Exhibit "A" to this Resolution (the "Lease"); and
WHEREAS, at the Finance Committee's June 16, 2017 budget briefing, the Finance
Committee recommended that $553,000 be earmarked for the City to undertake certain capital
improvements to the Premises, with such amounts subject to approval by the City Commission as
part of the FY2017/18 budget process.
WHEREAS, the Lease provides for the City to design and construct certain
improvements identified in Exhibit "C" to the Lease (the "Landlord Improvements"), provided,
however, that the City's maximum financial contribution for the design and construction of the
Landlord Improvements is specified in the Lease, and this funding commitment is subject to and
contingent upon an appropriation as part of the City's FY2017/2018 budget process; and
WHEREAS, the Lease is for an initial term of five (5) years, commencing following the
City's completion of the Landlord Improvements, with two (2) renewal terms of two (2) years each,
with such renewal terms to be exercised on mutual agreement of the City and Tenant;
WHEREAS, the Lease is further subject to and contingent upon any amendments, as
may be required to the City of Miami Beach Code of Ordinances, the City's Land Development
Regulations and Comprehensive Plan, and any final non-appealable approvals from the applicable
City land use boards; and
WHEREAS, based on the Mayor and City Commission's desire to activate the area in
the vicinity of the Premises, the City Commission finds
WHEREAS, based on the foregoing, if the City Commission approves the proposed
Lease, in substantial form, the Administration recommends that the City Commission authorize the
Mayor and City Clerk to execute final negotiated lease upon conclusion of successful negotiations
by the Administration, subject to review and form approval by the City Attorney.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, following a duly advertised public
hearing, hereby accept 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 ("Lease"), between
the City and North Beach Yard, LLC (Tenant), involving the use of the City-owned property,
located at 8100-8140 Collins Avenue, Miami Beach, Florida, with the leased premises consisting of
up to 52,500 square feet, for use as a food, beverage and entertainment pavilion, including retail
and other vendors, and for cultural/community programming and entertainment offerings; provide
for the City to design and construct certain landlord improvements identified in the lease (the
"Landlord Improvements"); provide an initial term of five (5) years, commencing following the City's
completion of the Landlord Improvements, with two (2) renewal terms of two (2) years each, to be
exercised upon mutual agreement of City and Tenant; provide for the Lease to be subject to and
contingent upon (1) an appropriation of funding for the Landlord Improvements; (2) any
amendments, as may be required to the City of Miami Beach Code of Ordinances, the City's Land
Development Regulations and Comprehensive Plan, and (3) any final non-appealable approvals
from the applicable City land use boards; and further authorize the Mayor And City Clerk to
execute the final negotiated lease upon conclusion of successful negotiations by the
Administration, subject to review and form approval by the City Attorney.
PASSED and ADOPTED this A day of 17ff 2017.
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MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 26, 2017
2:30 p.m. Public Hearing
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, FOLLOWING A DULY ADVERTISED PUBLIC HEARING,
ACCEPTING 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; APPROVING, IN SUBSTANTIAL FORM, THE LEASE AGREEMENT
ATTACHED TO THIS RESOLUTION ("LEASE"), BETWEEN THE CITY AND
NORTH BEACH YARD, LLC (TENANT), INVOLVING THE USE OF THE CITY-
OWNED
ITYOWNED PROPERTY, LOCATED AT 8100-8140 COLLINS AVENUE, MIAMI BEACH,
FLORIDA, WITH THE LEASED PREMISES CONSISTING OF UP TO 52,500
SQUARE FEET, FOR USE AS A FOOD, BEVERAGE AND ENTERTAINMENT
PAVILION, INCLUDING RETAIL AND OTHER VENDORS, AND FOR
CULTURAL/COMMUNITY PROGRAMMING AND ENTERTAINMENT OFFERINGS;
PROVIDING FOR CITY TO DESIGN AND CONSTRUCT CERTAIN LANDLORD
IMPROVEMENTS IDENTIFIED IN THE LEASE (THE "LANDLORD
IMPROVEMENTS"); PROVIDING AN INITIAL TERM OF FIVE (5) YEARS,
COMMENCING FOLLOWING THE CITY'S COMPLETION OF THE LANDLORD
IMPROVEMENTS, WITH TWO (2) RENEWAL TERMS OF TWO (2) YEARS EACH,
TO BE EXERCISED UPON MUTUAL AGREEMENT OF CITY AND TENANT;
PROVIDING FOR THE LEASE TO BE SUBJECT TO AND CONTINGENT UPON
(1)AN APPROPRIATION OF FUNDING FOR THE LANDLORD IMPROVEMENTS;
(2)ANY AMENDMENTS, AS MAY BE REQUIRED TO THE CITY OF MIAMI BEACH
CODE OF ORDINANCES, THE CITY'S LAND DEVELOPMENT REGULATIONS
AND COMPREHENSIVE 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 THE ADMINISTRATION, SUBJECT TO REVIEW AND FORM
APPROVAL BY THE CITYATTORNEY.
ANALYSIS
See Memorandum attached.
Page 1755 of 2856
Legislative Tracking
Tourism, Culture and Economic Development
Sponsor
Vice-Mayor Ricky Arriola
ATTACHMENTS:
Description
❑ Memorandum
❑ Resolution
• Lease
D Capital Budget
o Rental Structure
❑ Revenue and Expense Overview
D Capital Budget Descriptions
❑ Ad
Page 1756 of 2856
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMITTEE MEMORANDUM
TO: Mayor Philip Levine and Members of The City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 26, 2017
SUBJECT: 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 (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; APPROVING, IN SUBSTANTIAL
FORM, THE LEASE AGREEMENT ATTACHED TO THIS RESOLUTION
("LEASE"), BETWEEN THE CITY AND NORTH BEACH YARD, LLC
(TENANT), INVOLVING THE USE OF THE CITY-OWNED PROPERTY,
LOCATED AT 8100-8140 COLLINS AVENUE, MIAMI BEACH,
FLORIDA, WITH THE LEASED PREMISES CONSISTING OF UP TO
52,500 SQUARE FEET, FOR USE AS A FOOD, BEVERAGE AND
ENTERTAINMENT PAVILION, INCLUDING RETAIL AND OTHER
VENDORS, AND FOR CULTURAL/COMMUNITY PROGRAMMING AND
ENTERTAINMENT OFFERINGS; PROVIDING FOR CITY TO DESIGN
AND CONSTRUCT CERTAIN LANDLORD IMPROVEMENTS
IDENTIFIED IN THE LEASE (THE "LANDLORD IMPROVEMENTS");
PROVIDING AN INITIAL TERM OF FIVE (5) YEARS, COMMENCING
FOLLOWING THE CITY'S COMPLETION OF THE LANDLORD
IMPROVEMENTS, WITH TWO (2) RENEWAL TERMS OF TWO (2)
YEARS EACH, TO BE EXERCISED UPON MUTUAL AGREEMENT OF
CITY AND TENANT; PROVIDING FOR THE LEASE TO BE SUBJECT
TO AND CONTINGENT UPON (1) AN APPROPRIATION OF FUNDING
FOR THE LANDLORD IMPROVEMENTS; (2) ANY AMENDMENTS, AS
MAY BE REQUIRED TO THE CITY OF MIAMI BEACH CODE OF
ORDINANCES, THE CITY'S LAND DEVELOPMENT REGULATIONS
AND COMPREHENSIVE 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 THE
ADMINISTRATION, SUBJECT TO REVIEW AND FORM APPROVAL BY
THE CITY ATTORNEY.
Page 1757 of 2856
BACKGROUND
At the April 26, 2017 City Commission meeting, Commissioner Arriola placed a discussion item
on the agenda regarding the possibility of bringing the Wynwood Yard concept to North Beach,
as part of the Mayor and City Commission's efforts to revitalize and activate the City's North
Beach area.
Launched in 2015, the "Wynwood Yard" is a culinary incubator and community hub for local
entrepreneurs. Situated on five previously vacant lots in Wynwood, the concept was created
with the intent to attract restaurant startups and community members that could collaborate and
enjoy a space that allowed them to flourish. Now, just two years later, those five former vacant
lots feature food trucks, niche restaurants, a large organic garden, and entertainment space.
Wynwood Yard prides itself on being able to highlight sixteen (16) local entrepreneurs that are
building their local businesses while engaging the local community in unique, fresh concepts.
The North Beach Yard, LLC (the "Tenant") is a Florida limited liability company created by Della
Heiman and Ken Lyon, two of the principal operators of the Wynwood Yard concept. The
Tenant's proposal is for the City to lease to the Tenant the City-owned property located at 8100-
8140 Collins Avenue, Miami Beach, Florida (the "Premises"), with the Premises consisting of up
to 52,500 square feet, which would be used in a manner similar to the operation of the
Wynwood Yard, as an open air food, beverage and entertainment pavilion, including retail and
other vendors, and community/cultural programming such as yoga, music, performances, family
friendly activities, and other community based programming. The Tenant's proposed uses
require regulatory approvals, which are discussed more fully below.
As a result of the discussion at the April 26, 2017 Commission meeting, the City Commission
decided on a triple referral of the item to the Land Use and Development Committee (LUDC),
the Finance and Citywide Project Committee (Finance Committee), and the Planning Board.
The referral item received favorable recommendations from the LUDC at its May 10, 2017
meeting and from the Planning Board at its May 23, 2017 meeting.
At the June 16, 2017 Budget Briefing, the Finance Committee recommended that $553,000 be
earmarked for capital improvements to the Premises that the City would agree to undertake in
connection with the Premises (the "Landlord Improvements"), with such amounts subject to
approval by the City Commission as part of the FY2017/18 budget process. The proposed
capital improvements are summarized more fully below.
On June 30, 2017 the proposed lease terms were presented to the Finance Committee for its
review, and at that meeting, the Finance Committee directed the Administration to continue to
negotiate the lease terms, and favorably recommended moving forward with the proposed lease
for consideration by the City Commission (without any further action required by the Finance
Committee).
ANALYSIS
The Administration has worked with the Tenant to develop and agree upon a Lease, in
substantial form, attached hereto and incorporated by reference herein as Attachment 1; to
evaluate and refine the proposed management structure; rent structure; and revenue projection,
including estimated resort tax revenue and potential parking revenue generated as a result of
the operation of the North Beach Yard (if the Commission decides to implement parking fees
after 6 P.M. in the vicinity of the Premises).
Page 1758 of 2856
A summary of pertinent Lease terms is included below and in the Lease Summary set forth in
pages 2 through 5 of the Lease (Attachment 1). In addition, the analysis below identifies
several factors and issues to consider in evaluating the "North Beach Yard" concept and the
Lease, including the following:
Rent
Base Rent (minimum fixed rent) and Percentage Rent is summarized in the Lease Summary on
pages 2 — 5 of the proposed Lease. The Percentage Rent, if any, payable to the City is based
on the rental income the Tenant will charge to operators at the Premises, and does not include
any percentage of sales of food and beverage operations at the Premises.
Term
The initial term of the Lease is for a period of five (5) years, commencing following the City's
completion of the Landlord Improvements discussed further below. The Lease includes two (2)
renewal terms of two (2) years each, subject to mutual agreement of the City and the Tenant.
Except in the event any environmental site conditions are discovered on the Premises, or in the
event the costs for the City to complete the proposed Landlord Improvements exceeds available
funding and the Tenant and City cannot agree to scope reductions, the Lease may only be
terminated for convenience during a Renewal Term, on nine (9) months advance written notice.
The Log Cabin Building
As drafted, the Lease currently excludes from the definition of the Premises the Log Cabin
building that is currently located on the site (identified in Exhibit "A" to the Lease as the "Log
Cabin"), as the building is not in occupancy condition and a City Commission determination as
to the status or disposition of the Log Cabin is necessary in order to proceed with finalizing the
lease and the Tenant's site plans.
Commission direction regarding the Log Cabin is a separate Commission item slated for
discussion at the July 26, 2017 meeting. Once the City Commission provides direction with
regard to the Log Cabin, the pertinent Lease provisions will be modified accordingly. The
Tenant has stated that it will respect any policy decision made by the City Commission
regarding the Log Cabin.
Importantly, at this time there is no funding currently proposed in the FY2017/2018
budget for restoration/rebuilding of the Log Cabin.
Proposed Capital Improvements for the Premises
A proposed Capital Budget for NBY was provided by the Tenant (see Attachment 2 - NBY
Capital Budget), which includes the Tenant's preliminary estimate of the costs of necessary
infrastructure improvements to make the site viable for the type of use proposed. As outlined in
the proposed capital budget, the Tenant has estimated that the Landlord Improvements will cost
the City$750,000, excluding any costs for renovation or restoration of the Log Cabin.
City's estimates for the Landlord Improvements are likely to be significantly higher than
Tenant's estimates. The City's CIP Department is working on preliminary estimates of the
costs for the Landlord Improvements based on proposed plans recently provided by the Tenant.
Preliminary estimates indicate that the City's costs for the Landlord Improvements could be
significantly higher than the $553,000 currently earmarked for approval as part of the Fiscal
Year 2017/18 Budget, and would exceed the $750,000 estimates in the NBY Capital Budget as
provided by the Tenant. CIP continues to refine its estimates for City costs, and will report
further on its findings at the Commission meeting.
Page 1759 of 2856
Attachment 5 outlines a list of the proposed Landlord Improvements that Tenant has requested
be undertaken by the City, including: grading, clearing, and debris removal; perimeter
landscaping and fencing; interior landscaping and fencing; interior landscaping and mosquito
mitigation; ground surface work (grass astro turf, stones, pavers, etc.); electrical; lighting;
speakers; plumbing; grease trap; bathroom renovation; trash areas; roof top pavilion (if
structurally feasible); and entrance gates.
As proposed in the Lease, the City's obligation is limited to the not-to-exceed amount specified
in the Lease. In the event that the City's estimated costs for the Landlord Improvements
ultimately exceeds the City's budgeted appropriation, the Tenant may either (1) identify
additional funding to cover the funding shortfalls; (2) work with the City to adjust the project
scope, as necessary, to complete the Landlord Improvements within the City's budget and any
additional funding that may be identified by Tenant. If sufficient funding for the Landlord
Improvements is not identified, or if the City and Tenant cannot agree on project scope
reductions sufficient for the purposes of opening the North Beach Yard to the public, then either
City or Tenant may terminate this Lease for their convenience.
Additionally, the Tenant's proposed capital budget includes a contractual commitment for the
Tenant to spend a minimum of $1,750,000 on Tenant-related improvements. The City and the
Tenant are further discussing the possibility of additional improvements in the amount of
$320,000 for sustainability/renewable energy systems which may be provided by private
sponsors and phased into the project over the Term.
Tenant's Responsibility for Operating Expenses and Tenant Improvements
The Lease provides for the Tenant to be responsible for all operating expenses including real
estate taxes, insurance, maintenance costs, and utilities for the Premises. Additionally, the
Tenant would be responsible for design, permitting and construction/installation of Tenant
improvements required for the operations of the Premises (all improvements other than the
proposed Landlord Improvements). All improvements shall be subject to approval by the
applicable regulatory boards, such as the Design Review Board, and by the City Commission in
its proprietary capacity as the owner of the Premises.
Community Programming
Tenant has agreed to execute a minimum of seven (7) cultural and community events each
week, which shall be offered to the general public at no charge, including gardening/urban
farming classes, live local music, non-profit events, cooking workshops, fitness classes, and the
like. In addition, Tenant will offer at least five (5) additional classes, activities or events each
week at moderate prices, with the price schedule for the events or activities to be subject to the
advance written approval of the City Manager. Miami Beach residents will receive a discount of
fifteen percent (15%) and U.S. Armed Forces veterans a discount of 25% off the regular price
for the classes, activities, or events.
Due Diligence/Financial Review
City staff is conducting a due diligence review to verify that the proposed NBY financial
projections are in line with currently operational expenses and revenues at Wynwood Yard.
Staff is reviewing profit and loss statements at the Wynwood Yard to verify that the Tenant's
proposed expense vs. revenue estimates for North Beach Yard aligns with the current
operational expense vs. revenue percentages at Wynwood Yard. This review is intended to
provide an understanding of the significant expenses identified by the Tenant in association with
this type of business model. This provides further support for adopting a different rent structure
than other City commercial lease agreements with for-profit entities. As this review is ongoing,
Page 1760 of 2856
City staff will report further on their findings at the Commission meeting. The proposed rental
structure is attached hereto as Attachment 3, and the NBY Revenue and Expense overview is
attached hereto as Attachment 4.
Pending Regulatory Code Changes Required for the Lease
The Lease is subject to and contingent upon a number of regulatory approvals required to
permit an outdoor entertainment establishment on the premises, including:
1. A change in the current Future Land Use Map (FLUM) category from RM-1 to Public
Facility (PF) for properties fronting Collins Avenue between 79th Street and 87th Street,
as well as a modification to the Public Facility (PF) portion of the Comprehensive Plan to
allow for commercial uses as a permitted use.
2. An amendment to Sec. 142-425(d) of the Land Development Regulations of the City
Code to give the City Commission the ability to grant waivers of development regulations
for private uses approved by the City Commission for a period of 10 years or less,
except for the historic preservation and design review processes.
3. An amendment to Sec. 122-5 of the Land Development Regulations of the City Code to
give the City Commission the ability, be separate Resolution, to waive the concurrency
requirements of the City Code for uses located on lots with a GU zoning designation
fronting Collins Avenue between 79th Street and 87th Street.
Operating Hours and Noise
The proposed operating hours are Monday through Sunday, no earlier than 7 A.M. each day,
except for the "Morning Glory" coffee shop, which may open no earlier than 6 A.M. each day.
On Sunday through Wednesday, Tenant must cease all sales (including, without limitation, food,
beverages, alcoholic beverages, and retail items) no later than 11 P.M. and close no later than
11:30 P.M. On Thursday, Friday and Saturday, Tenant must cease all sales (including, without
limitation, food, beverages, alcoholic beverages, and retail items) no later than midnight and
close no later than 1 A.M.
The hours established in the Lease shall be further subject to modification by the City pursuant
to any Conditional Use Approval that may be required for the Premises, unless such
requirements are waived by the City Commission, at its sole discretion.
In addition, the Lease provides Tenant with the ability to request the City Manger's approval of
an extension of the normal operating hours outlined above, for up to six (6) days per Lease Year
(with any such extended hours solely applying on a Thursday, Friday or Saturday), to permit
Tenant to cease all sales no later than 1:00 A.M., and to close no later than 2 A.M. on such
dates, if approved by the Landlord's City Manager.
With respect to the potential for noise issues, and as the occupancy loads for the premises have
not yet been determined, and could potentially include a capacity ranging from 1,000 to 2,000
people, the Lease includes stringent requirements to ensure compliance with the provisions of
current City code and noise ordinances
CONCLUSION
For the past four years, the Mayor and City Commission have placed a strong emphasis on re-
investing in North Beach to improve the quality of life for our residents and create important economic
Page 1761 of 2856
activity for the area. In order to jumpstart some of these activities and programs, the City has been
willing to provide incentives and subsidies, such as waiving fees for sidewalk cafes in North Beach
and subsidizing the 0 Cinema at the Byron-Carlyle. Unlike South of Fifth or the City Center, this area
has not benefitted from a CRA that would have required funds generated there to be reinvested in
that community. Consequently, the City has utilized other methods to provide an impetus to quality
activity in North Beach.
As such, in evaluating the merits of this project and arriving at a recommendation, I have not
analyzed this like a commercial lease for retail space on Lincoln Road or Washington Avenue. The
lot in question is not prime retail space. In fact, as far as we know, this lot has only been used by a
non-profit as a nursery or the city for temporary offices. But now we do have the opportunity to utilize
this lot to bring a concept to North Beach that has been wildly successful in Wynwood, and that, from
my personal experience, provides a family friendly environment in a cutting edge setting. Staff has
negotiated a lease that we believe provides the Tenant a fair opportunity to achieve success while
also offering community programming. The City's investment in infrastructure at this location is no
different than the significant investments made by the City in infrastructure on Lincoln Road,
Espanola Way, Ocean Drive or other commercial corridors. These investments benefit both the
businesses located there and provide the amenities our residents and visitors enjoy. The hope is that
this investment will do the same in North Beach.
As for the issue of competitive procurement, there is no question that the City could achieve a larger
payment if we were to lease or sell the land to a developer looking to build condos or commercial
buildings. But I believe that the City Commission is trying to achieve something different than highest
and best use. The goal is to create a catalyst for activity that is high caliber but also community
friendly. Wynwood Yards has done precisely that in Miami. One could make the argument that there
may be other entities that could create the same concept. But we do know that this operator has the
track record, the contacts and relationships, and the vision to move this forward. As such, I
recommend that the City Commission waive, by 517th vote, the competitive bidding requirement,
deeming it to be in the City's best interest, and approve the Lease, in substantial form. , and authorize
the Mayor and City Clerk to execute the final negotiated lease agreement, upon conclusion of
successful negotiations by the Administration, subject to review and form approval by the City Attorney.
Attachments:
1. Attachment 1: Lease in substantial Form
2. Attachment 2: Capital Budget
3. Attachment 3: Rental Structure
4. Attachment 4: Revenue and Expense Overview
5. Attachment 5: Capital Budget Descriptions
JLM/KGB/ES
Page 1762 of 2856
LANDLORD: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: NORTH BEACH YARD LLC
DATE OF EXECUTION:
LEASE AGREEMENT FOR THE OPERATION OF THE
"NORTH BEACH YARD"
AT
8108-8140 COLLINS AVENUE
1
LEASE SUMMARY
The following is a summary of basic lease provisions with respect to the Lease. It is an integral part of
the Lease, and terms defined or dollar amounts specified in this Summary shall have the meanings or amounts
as stated, unless expanded upon in the text of the Lease and its Exhibits, which are attached to and made a part
of this Summary.
1. Date of Lease Execution: , 2017
2. "Landlord": The City of Miami Beach
3. Landlord 's Address: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Asset Manager
with a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney's Office
4. "Tenant": North Beach Yard, LLC
5. Tenant's Address:
6. Premises(Section 1.1(b)): 8108-8140 Collins Avenue, Miami Beach, Florida
with a legal description as more particularly described in
Exhibit "A," and specifically excluding the square
foot building identified as the "Log Cabin" in Exhibit "A"
(the "Premises"). [PREMISES DESCRIPTION TO BE
UPDATED ONCE CITY COMMISSION MAKES
POLICY DECISION AS TO STATUS/DISPOSITION OF
LOG CABIN SITE.]'
7. Gross Rentable Area of
Premises
(Section 1.1): Approximately, but not more than, 52,500 square
feet[NEED TO UPDATE FINAL SQUARE FOOTAGE
BASED ON CITY COMMISSION POLICY DECISION
AS TO LOG CABIN SITE]
8. Permitted Use of Premises
(Section 3.1): The Premises shall solely be used as an open air food
and beverage and entertainment pavilion, to include (i)
All items noted in brackets [] herein are subject to final negotations.
2
up to 20 stationary food trucks (whether in truck, trailer,
or "container" format); (ii) up to four (4) container
restaurants other than food trucks/trailers; (iii) a main
bar pavilion for the sale of alcoholic beverages (subject
to Tenant obtaining, and maintaining in full force and
effect throughout the Term, all licenses and/or
governmental approvals necessary to sell and serve
alcoholic beverages at the Premises; (iv) a main stage
for music and other performances; (v) an organic
garden; (vi) a farmer's market; (vii) up to 20 market
stalls to include food/beverage or retail vendors, such
as, [without limitation], sundries, flowers, holistic/beauty
products or essential oils, artisanal or handmade
products, locally sourced products, boutique/local
clothing products, or similar retail uses focusing on
locally sourced or sustainable products; and (viii) a
venue for cultural/community programming or
entertainment offerings, such as, without limitation,
fitness classes, workshops, music, art classes and other
programming for the general public. Any other use,
[which materially deviates from the foregoing], shall be
subject to the prior written approval of the City
Commission, at its sole discretion, and all of the
foregoing shall be further subject to the prohibited uses
described in Section 3.6 of the Lease.
9. Term of Lease (Section 1.1(c)): The initial term of this Lease is for a period of five (5)
years, commencing on the Commencement Date (as
specified herein)and expiring on the Expiration Date (as
specified herein).
"Commencement Date": The earlier of (i) the date of
issuance of a Building Permit to Tenant (or its
contractor) for the Premises, for the construction of the
Tenant's Work, following the issuance of a Temporary
Certificate of Occupancy for the Landlord
Improvements; or (ii) 60 days following issuance of a
Temporary Certificate of Occupancy for the Landlord
Improvements.
"Rent Commencement Date": The earlier of(i) 30 days
from the issuance by the City of a Temporary Certificate
of Occupancy (TCO) for the Tenant's Work (as defined
in Article 5 of this Lease); (ii) Tenant opening for
business; or (iii) 240 days following the Commencement
Date.
"Expiration Date": Five years after the
"Commencement Date."
"Renewal Options": Two (2) renewal options, for a
period of two (2) years for each renewal term (each, a
"Renewal Term"). Any renewal shall be in accordance
with the notice provisions set forth in Section 1.1(c) of
3
this Lease and at Landlord's option, and provided that
Tenant is in good standing and free of any defaults
under the Lease. The financial terms of any such
Renewal Term shall be subject to negotiation and
mutual agreement of the Landlord and Tenant.
10. "Base Rent" (Section 2.2):
QUARTERLY PAYMENT
LEASE YEAR ANNUAL BASE RENT* (PLUS SALES TAX)
1 $ 1.00
2 $71,656.00
3 $75,188.00
4 $78,912.00
5 $81,771.00
11. Additional Rent: See Item 16 of this Lease Summary, entitled "Cost
Pass-
Throughs".
12. Percentage Rent(Sections 2.3 and 3.15) : 5% of Rental Income (as defined in Section 2.3)and 7%
of Buyout Income for Private/Corporate Events (as
defined in Section 3.15).
13. First Month's Rent: See Item 9 hereof, "Rent Commencement Date".
14. Security Deposit(Section 2.7): $17,914.00, due upon the Effective Date.
15. Construction Deposit(Section 5.2(n)): [$ to be deposited in Escrow Account to be held as
security for Tenant's construction obligations, and to be
deposited, distributed, and otherwise governed in
accordance with the terms and conditions of the Escrow
Agreement executed between Landlord and Tenant,
and attached and incorporated as Exhibit "F" to the
Lease.] [City and Tenant, as part of final
negotations, to agree upon escrow or alternate form
of security, such as a performance bond or
irrevocable unconditional letter of credit in favor of
City, as further noted in section 5.2(n). Final
language shall include security for Tenant's
performance obligations, and shall be subject to
review and approval by City Manager and City
Attorney]
4
16. Cost Pass-Throughs (Sections 2.4 and 2.5): Property Taxes and any expenses incurred by City, as
specified in Section 2.4
17. Comprehensive General
Liability Insurance (Section 6.1): $1,000,000.00 per occurrence, $2,000,000 aggregate
Liquor Liability Insurance(Section 6.1): $2,000,000 per occurrence, $5,000,000 aggregate
18. Broker(s) (Section 14.12): No brokers utilized for this Lease.
19. Estimated Completion Date for Tenant's Work
(Exhibit"F," Escrow Agreement,
Article I, Section 5): [Six months following Commencement Date.]
20. Trade Name (Section 3.1): North Beach Yard
21. Tenant's Parking (Section 3.13): Tenant's employees (and employees of Vendors
working at the Premises, as defined in Section 3.9) shall
be permitted to purchase monthly parking permits from
the City at prevailing rates, to be used solely for
employee parking purposes. The location of any
designated parking areas for Tenant, if any, shall be
determined by the City's Parking Director, at his or her
sole discretion.
22. Lease Contingencies: (Section 1.1(a)) The Lease shall be subject to and contingent upon
Tenant obtaining the following: (a) approval of a waiver
of the competitive bidding requirements by a 5/7th vote
of City Commission; (b) compliance and/or waiver of
applicable requirements of Sections 82-37 through 82-
40 of the City of Miami Beach Code of Ordinance ("City
Code"); and (c) any and all approvals as required in the
Lease, including, without limitation, any approvals
required by the City in its proprietary capacity, as Owner
of the Property); and in the City's regulatory capacity
(e.g., including, without limitation, any and all
amendments, as may be required to the City Code, the
City's Land Development Regulations and
Comprehensive Plan, and any final non-appealable
approvals from the applicable City land use boards).
5
THIS LEASE (the"Lease"), dated the day of , 2017, is made and entered into between
City of Miami Beach, Florida, a municipal corporation of the State of Florida (the "City" or "Landlord"), and
NORTH BEACH YARD LLC, a Florida limited liability company (the"Tenant") (each, a "Party" and collectively,
the"Parties").
RECITALS:
A. The Landlord is the fee simple owner of that certain real property located at 8108-8140 Collins
Avenue, City of Miami Beach, Miami-Dade County, Florida,with a legal description as more particularly described in
Exhibit"A" attached hereto and made a part hereof (collectively, the land and facilities thereon, excluding the
square foot building identified as the"Log Cabin" in Exhibit A, shall be referred to herein as the"Premises").
[Need City Commission direction re:status/disposition of Log Cabin]
B. Landlord and Tenant desire to enter into this Lease for the Premises, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
ARTICLE I. GRANT OF LEASE; TERM
1.1 Lease Contingencies; Grant of Lease; Term.
(a) This Lease shall be effective as of the date executed by Landlord and Tenant (the"Effective
Date"), subject to and contingent upon Tenant obtaining the following: (a)approval of a waiver of the competitive
bidding requirements by a 517th vote of City Commission; (b) compliance and/or waiver of applicable
requirements of Sections 82-37 through 82-40 of the City Code; and (c) any and all approvals as required in the
Lease, including, without limitation, any approvals required by the City in its proprietary capacity as Landlord);
and in the City's regulatory capacity (e.g., including, without limitation, any and all amendments, as may be
required to the City Code, the City's Land Development Regulations and Comprehensive Plan, and any final
non-appealable approvals from the applicable City land use boards). If any of the foregoing Lease contingencies
specified herein are not satisfied, this Lease shall be deemed null and void, and Landlord and Tenant shall have
no further obligations or liabilities of any kind or nature whatsoever hereunder.
(b) In consideration of the performance by Tenant of its obligations under this Lease, Landlord,
as of the Commencement Date as specified in the Lease Summary, demises and leases to Tenant, and Tenant
leases and takes possession from Landlord, for the Term, the Premises. A site plan showing the description and
location of the Premises and the Tenant's proposed retail, food and beverage and other facilities thereon, is
attached hereto and made a part hereof as Exhibit"B"respectively.
(c) The "Term" of the Lease is the period from the Commencement Date as specified in the
Lease Summary, through the Expiration Date, as specified in the Lease Summary. Landlord shall have two (2)
options to extend the Term of the Lease for an additional period of two years (each, a"Renewal Term"), provided
that Tenant is in good standing and free of any defaults under the Lease. At least twelve (12) months prior to the
expiration of the initial Term, Landlord shall provide Tenant with written notice of its intent to renew, along with
the Landlord's proposed Base Rent, Percentage Rent, and other proposed financial terms for the Renewal Term.
At least six (6) months prior to the end of the first Renewal Term, if any, Landlord shall provide Tenant with
written notice of its intent to renew for a second Renewal Term, along with the Landlord's proposed Base Rent,
Percentage Rent, and other proposed financial terms for the second Renewal Term.The financial terms of the
Lease for each Renewal Term, including, without limitation, the Rent (as that term is defined in Article II hereof),
shall be subject to negotiation and mutual agreement of the Landlord and Tenant. For all purposes in this Lease,
references to the "Term" shall include any Renewal Term, if any such Renewal Term is agreed upon by both
Tenant and Landlord.
6
(d) Within thirty (30) days following the Commencement Date, Landlord and Tenant shall
execute a commencement date memorandum in such form as will enable them to be recorded among the Public
Records of Miami-Dade County, in each case, setting forth the Commencement Date and the Expiration Date,
determined according to this Lease, and recording any such other documents as may be required under this
Lease.
1.2. No Representation or Warranties By Landlord. Tenant acknowledges and agrees that it has
been given the opportunity to perform all inspections and investigations concerning the Premises to its
satisfaction, and that Landlord shall further provide Tenant with the additional opportunity to conduct any such
additional inspections or investigations concerning the Premises that Tenant may desire to perform prior to the
Commencement Date. Landlord shall provide the Tenant with a copy of the environmental Phase I site
investigation report for the Premises (or any Phase 2 report, if any is required to be undertaken pursuant to the
results of the Phase I Site Investigation Report). Except as specifically provided in this Lease, Tenant
acknowledges and agrees that (i) Landlord is not making and has not made any representations or warranties,
express or implied, of any kind whatsoever with respect to the Premises, including any representation or warranty
of any kind with respect to title, survey, physical condition, suitability or fitness for any particular purpose, the
financial performance or financial prospects of the Tenant's or any Vendor's operations at the Premises, its
value, or any other economic benefit that can be realized or expected from the use or operation of the Premises,
the presence or absence of Hazardous Substances, the tenants and occupants thereof, the zoning or other
Governmental Requirements applicable thereto, taxes, the use that may be made of the Premises, or any other
matters with respect to this transaction or Lease); (ii) Tenant has relied on no such representations, statements
or warranties, and (iii) Landlord will in no event whatsoever be liable for any latent or patent defects in the
Premises(including any subsurface conditions).
Tenant further acknowledges and agrees that it is accepting possession of the Premises in its AS-IS WHERE-IS
condition and that, except as otherwise expressly hereinafter set forth with respect to certain improvements the
Landlord has agreed to undertake, as described more fully in Exhibit "C" attached hereto (the "Landlord
Improvements") subject to the provisions of Article 5 of this Lease, Landlord has no other obligation to furnish,
render, or supply any money, work, labor, material, fixture, equipment, or decoration with respect to the
Premises.
Notwithstanding anything to the contrary herein, Landlord hereby represents and warrants that it is the fee simple
owner of the Premises and, except as otherwise expressly set forth herein, it has all requiste powers and
approvals necessary to enter into this Lease.
1.3. Log Cabin Building Excluded from this Lease. As referenced in Section 6 of the Lease
Summary, and the Recitals to this Lease, each of which are incorporated by reference as if fully set forth herein,
the Premises, as defined in this Lease, specifically excludes the square foot building identified in Exhibit B
as the Log Cabin (the"Log Cabin"). Tenant shall have no right to use or access the Log Cabin at any time or for
any purpose. Landlord is in the process of evaluating whether the Log Cabin may be relocated to another City-
owned property without adversely affecting the building's structural integrity. Any determination with respect to
the Log Cabin shall be made by the City Commission, in its absolute and sole discretion. Throughout the Term,
Tenant shall provide the Landlord with any access to the Log Cabin that it may require. If the City Commission
ultimately relocates the Log Cabin and Tenant desires to add the land located thereon as part of the Premises,
any such addition to the Premises shall be subject to approval by Landlord and Tenant, and memorialized in a
duly executed amendment to this Lease.
[Provision to be updated with City Commission policy decision as to status/disposition of Log
Cabin]
ARTICLE II. RENT.
7
2.1 Covenant to Pay. Tenant shall pay to Landlord all sums due hereunder from time to time from
the Rent Commencement Date without prior demand, together with all applicable Florida sales tax thereon;
however, unless otherwise provided in this Lease, payments other than Tenant's regular monthly payments of
Base Rent shall be payable by Tenant to Landlord within five (5) business days following demand. All Base Rent
or other charges that are required to be paid by Tenant to Landlord shall be payable at Landlord's address
indicated on the Lease Summary. Base Rent and all sums payable to Landlord under this Lease other than
Base Rent, including, without limitation, Additional Rent as defined in Sections 2.4 and 2.5 below, and
Percentage Rent as defined in Section 2.3 below(collectively, the"Rent")for any"Lease Year"consisting of less
than twelve (12) months shall be prorated on a per diem basis, based upon a period of 365 days. "Lease Year"
means the twelve(12)full calendar months commencing on the Commencement Date. However, the final Lease
Year may contain less than twelve (12) months due to expiration or sooner termination of the Term. Tenant
agrees that its covenant to pay Rent and all other sums under this Lease is an independent covenant and that all
such amounts are payable without counterclaim, set-off, deduction, abatement, or reduction whatsoever, except
as expressly provided for in this Lease.
2.2 Base Rent. Subject to any escalation which may be provided for in this Lease, Tenant shall pay
Base Rent for the Term in the initial amount specified in the Lease Summary, which, except for the first
installment, shall be payable throughout the Term in equal quarterly installments in advance on the first day of
January, April, July, and October of each Lease Year, such quarterly installments to be in the amounts (subject
to escalation) specified in the Lease Summary. The first quarterly installment of the Base Rent shall be due on
the date specified in Item 10 of the Lease Summary. If the Rent Commencement Date is not the first day of
January, April, July, and October, then the Base Rent shall be prorated from the Rent Commencement Date until
the first day of the following quarter on a per diem basis, and Tenant shall pay Landlord such prorated
installment of the Base Rent on the Rent Commencement Date. The Base Rent described above shall be
adjusted during the Term of this Lease as provided in the Lease Summary. It is also agreed and understood that
the applicable Florida State Sales and Use Tax shall be added to Tenant's payment of Base Rent and forwarded
to Landlord as part of said payments. It is the intent of Landlord that it is to receive Base Rent, and any other
additional rental amounts due, as net, free and clear of all costs and charges arising from, or relating to, the
Premises.
2.3. Percentage Rent.
(a) Commencing with the second Lease Year, and for each Lease Year thereafter, in the event that the
amount equal to five (5%) percent of the Rental Income, as defined herein (the "Percentage Rent") exceeds the
Base Rent applicable for that Lease Year, then Tenant shall also pay to the Landlord the difference between the
Percentage Rent amount for that Lease Year and the Base Rent applicable for that Lease Year, which payment
shall be received no later than sixty(60) days after the end of each Lease Year.
The term "Rental Income" means all revenue, payments, income received, rental and operating cost
reimbursements (including any reimbursements for operating expenses or common area maintenance for the
use and occupancy of the Premises) reserved under any lease, sublease, license, concession, or other
arrangement related to (i) the privilege of use or rental of the Premises, including, without limitation, any such
revenue, payments, income received, rental and operating cost reimbursements received from Vendors,
Affiliate(s) (as defined below) or any person or entity engaged in any commercial activity on the Premises; and
(ii) event rentals, venue arrangements, or exhibitor or sponsorship arrangements, where any such arrangements
involve the use or rental of the Premises, and, and provided, however, that if any space in the Premises is used
by Tenant or any Affiliate(s) (as defined herein), at a rental which is less than fair market rental value of such
space, the rent shall be increased by an amount equal to the difference between the rent being paid and the fair
market value rental.
The term "Affiliate(s)"for purposes herein, means any individual(s) or entity or entities of any kind that, directly or
indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with,
Tenant or any principal, director, officer, member or person or entity with any ownership interest thereof,
8
including Ms. Della Heiman and Mr. Ken Lyon, and shall specifically include any person or entity operating the
establishments at the Premises described in Exhibit "B" as The Bar, The Morning Glory Café, Charcoal, Della's
Bowls, and Catering, and any successors-in-interest thereof. Tenant shall not charge rent to any Affiliate,
including with respect to the operations of The Bar, The Morning Glory Café, Charcoal, Della's Bowls, or
Catering (or successors thereof) at any amount that is less than the amounts specified for such establishments
in Exhibit"_".[See Attachment 3 to Commission Memorandum]
(b) In addition to the Base Rent and any Percentage Rent pursuant to Section 2.3(a) or other amounts due
to Landlord under this Lease, commencing as of the Rent Commencement Date, Tenant shall pay Landlord, as
additional Rent hereunder, an amount equal to seven percent (7%) of all of the Buyout Income (as defined in
Section 3.15)for Private/Corporate Events (as defined in Section 3.15), on the Premises.
Notwithstanding anything to the contrary herein, the term "Rental Income" shall specifically exclude all
gross revenues Tenant or any Vendor or operator derives from food and beverage, alcoholic beverage,
retail sales, catering receipts, valet parking sales, advertising, and sponsorship revenues at the
Premises.
[City Administration to confirm approach, if any, re: differential rent structure for the items in Notes 1-3 of the
Tenant's 07/18/17 excel proposal]
2.4 Operating Expenses. Tenant shall pay for all maintenance expenses, utilities charges,
insurance premiums, and operating expenses incurred in connection with the use or operation of the Premises.
Tenant shall remit to the Landlord, together with regular monthly payments of Base Rent and other Rent,
payment for all such expenses or cost pass-throughs if incurred by the Landlord, as additional rent ("Additional
Rent"), it being expressly understood and agreed that Landlord does not anticipate incurring expenses with
respect to maintenance or insurance premiums, and accordingly, no such cost-pass throughs will be charged to
Tenant to the extent Tenant directly pays for such maintenance expenses and insurance premiums, as otherwise
required by this Lease.
2.5 Payment of Taxes and Other Public Charges. In addition to the Base Rent and all other Rent
due to Landlord hereunder, Tenant covenants and agrees timely to pay and discharge, as Additional Rent,
before any fine, penalty, interest or cost may be added, all real and personal property taxes, all ad valorem real
property taxes, all taxes on Rents payable hereunder and under subleases, licenses or use agreements, sales
taxes, City resort taxes, all taxes attributable to the personal property, trade fixtures, business, occupancy, or
sales of Tenant or any other occupant of the Premises or related to the use of the Premises by Tenant or such
other occupant, and public assessments (including, without limitation, permit fees, impact fees, special
assessments, and other public charges). Tenant shall provide Landlord with copies of Tenant's sales tax reports
provided to the State of Florida, as and when such reports are provided to the State.
2.6 Rent Past Due. If any payment due from Tenant shall be overdue more than five(5) business
days, a late charge of three (3%) percent of the delinquent sum may be charged by Landlord. If any payment
due from Tenant shall remain overdue for more than fifteen (15) days, an additional late charge in an amount
equal to the lesser of the highest rate permitted by law or one and one-half(1 1/2%) percent per month
(eighteen (18%) percent per annum) of the delinquent amount may be charged by Landlord, such charge to be
computed for the entire period for which the amount is overdue and which shall be in addition to and not in lieu of
the three (3%) percent late charge or any other remedy available to Landlord.
2.7 Security Deposit. Landlord acknowledges receipt of a security deposit in the amount specified on
the Lease Summary to be held by Landlord, without any liability for interest thereon, as security for the
performance by Tenant of all its obligations under this Lease. Landlord shall be entitled to commingle the
security deposit with Landlord's other funds. If Tenant defaults in any of its obligations under this Lease,
Landlord may at its option, but without prejudice to any other rights which Landlord may have, apply all or part of
the security deposit to compensate Landlord for any loss, damage, or expense sustained by Landlord as a result
9
of such default. If all or any part of the security deposit is so applied, Tenant shall restore the security deposit to
its original amount on demand of Landlord. Within thirty(30) days following termination or expiration of this
Lease, if Tenant is not then in default of the terms herein, the security deposit will be returned by Landlord to
Tenant
Notwithstanding the foregoing, for purposes of the security deposit described in the Lease Summary and
the above paragraph, Tenant, at its option, shall have the right to post an irrevocable, unconditional, and
transferable Letter of Credit, in such form as shall reasonably be approved by Landlord's City Manager. If
Tenant delivers the Letter of Credit to Landlord, and provided Landlord's City Manager approves the form of
such Letter of Credit, then Landlord will return the cash security deposit promptly after Landlord's receipt of the
Letter of Credit.
2.8 Landlord's Lien. To secure the payment of all Rent and other sums of money due and to
become due hereunder and the faithful performance of this Lease by Tenant, Tenant hereby gives to Landlord
an express first and prior contract lien and security interest on all property now or hereafter acquired (including
fixtures, equipment, chattels, and merchandise) which may be placed in the Premises and also upon all
proceeds of any insurance which may accrue to Tenant by reason of destruction of or damage to any such
property. Such property shall not be removed therefrom without the written consent of Landlord's City Manager
until all sums of money then due to Landlord hereunder shall first have been paid; provided, Tenant may operate
its business in the ordinary course and the removal of merchandise from the Premises by customers of Tenant
shall not be a default under this section. All exemption laws are hereby waived in favor of said lien and security
interest. This lien and security interest is given in addition to Landlord's statutory lien and shall be cumulative
thereto. Landlord shall, in addition to all of its rights hereunder, also have all of the rights and remedies of a
secured party under the Uniform Commercial Code as adopted in the State in which the Premises are located.
To the extent permitted by law, this Lease shall constitute a security agreement under Article 9 of the Florida
Uniform Commercial Code. [As part of final negotiations, City and Tenant to negotiate final language to the
limited extent necessary to permit Tenant to secure equipment lease/financing, subject to City Manager
and City Attorney approval].
ARTICLE III. USE OF PREMISES.
3.1 Permitted Use(s). The Premises shall be used and occupied solely and exclusively for the
purposes specified in the Lease Summary. The business of Tenant in the Premises shall be carried on under
the name specified in the Lease Summary and under no other name unless first approved by Landlord's City
Manager in writing. Tenant shall carry on its business on the Premises in a commercially reasonable manner and
shall not do, omit, permit, or suffer to be done or exist upon the Premises anything which shall result in a
nuisance, hazard, excessive noise, excessive vibration or other disturbance in violation of any applicable
provision of the City Code, or bring about a breach of any provision of this Lease or any applicable municipal or
other (i.e. federal, State, or County) governmental law or regulation, or would otherwise be inconsistent with a
open-air entertainment and food and beverage pavilion. Tenant shall observe all reasonable rules and
regulations reasonably established by Landlord from time to time for the Premises. The rules and regulations in
effect as of the date hereof are attached to and made a part of this Lease as Exhibit"E." Landlord will provide a
copy of any amendments to the rules and regulations at least seven (7) business days prior to the effective date
of any such amendments. Tenant shall display the name "North Beach Yard" or any such other name as
Landlord may from time to time approve for the Premises, and in material which is given, visible, or available to
customers of Tenant. Tenant shall promote such name in any advertisements or promotional material published
or initiated by Tenant in regard to its business from the Premises. The name for the Premises shall be used by
Tenant only in association with the business carried on in the Premises during the Term and Tenant's use
thereof shall be subject to such reasonable regulation as Landlord may from time to time reasonably impose.
3.2 Compliance with Laws and Licensing Requirements. Tenant shall use and occupy the Premises
in a safe, careful, and proper manner so as not to contravene any applicable present or future laws, rules,
regulations, constitutions, orders, ordinances, charters, statutes, codes, executive orders, and requirements of all
10
governmental authorities having jurisdiction over the Premises, or any street, road, avenue, or sidewalk comprising
a part of, or lying in front of, the Premises (including, without limitation, parking, the local building codes, and the
laws, rules, regulations, orders, ordinances, statutes, codes, and requirements of any applicable Fire Rating Bureau
or other body exercising similar functions);the temporary and/or permanent Certificates of Occupancy issued for the
Premises as then in force; and any and all provisions and requirements of any property, casualty, or other insurance
policy required to be carried by Tenant under this Lease. If due to Tenant's use of the Premises, repairs,
improvements, or alterations are necessary to comply with any of the foregoing, Tenant shall pay the entire cost
thereof.
(a) Without limiting the foregoing, Tenant shall, at all times during the Term, strictly comply with, and
cause all Vendors to comply with, all laws and governmental requirements involving the sale or service of alcoholic
beverages, and food safety and handling requirements, as applicable to Tenant or any Vendor's use of the
Premises. Tenant represents and warrants to Landlord that Tenant (and all Vendors involved in the sale or
service of food) shall comply with all mandated food service and handling laws, and further represents and
warrants Tenant (and all Vendors serving or selling alcoholic beverages at the Premises), shall comply with the
Florida Beverage Law and all federal, state, and local, laws, and ordinances involving the sale or service of
alcoholic beverages. Tenant shall annually provide training to its employees and Vendors, consistent with the
requirements of the Florida vendor qualification act contained in § 561.705, Florida Statutes.
(b) Prior to the Commencement Date, Tenant shall obtain and pay for, and/or cause any Vendor(as
applicable to its services on the Premises), to obtain any pay for, all licenses, permits and approvals that may be
required by any governmental authority in connection with its use, operation of, or activities on the Premises,
including without limitation, (i) any license required by the State of Florida with respect to the sale or service of
alcoholic beverages; (ii) any license that may be required for the sale or service of food; (iii) City of Miami Beach
and Miami-Dade County Business Tax Receipt; and (iv) all licenses required by any performing arts societies
such as ASCAP, BMI and SESAC for music or other copyrighted works to be performed or otherwise
broadcasted or exhibited on the Premises.
(c) Tenant shall defend, indemnify and hold harmless Landlord from any and all claims, fees,
expenses, costs or damages, including reasonable attorneys' fees and court costs, suffered or incurred by
Landlord in connection with any breach of this paragraph.
3.3 Signs. Tenant, at Tenant's expense, shall erect and maintain identification signage within the
Premises, including, without limitation, temporary banners and exterior signage. The design and specification of
such signage shall be subject to Landlord's sign criteria as adopted from time to time and such design and
specification (including camera-ready artwork) shall be submitted for review and approval by the City's Planning
and Zoning Department and the Landlord's City Manager or designee. All signage shall be consistent in type,
composed of flush mounted non-plastic, individual letters and shall require a separate permit. Tenant's sponsors
shall be prohibited from placing any promotional or other materials on the Premises (or on websites or other
promotional formats or platforms) implying any endorsement by the City of the sponsor's products or services.
Any sponsorship names recognized in Tenant's signage shall be subject to approval as required by the City's
Naming Ordinance, as codified in Chapter 82, Article VI, Sections 82-501 through 82-505 of the City Code, as
shall be amended from time to time. In no event may any approved interior or exterior signage include the
names of any company selling the following types of products: guns, tobacco products, casinos, medical
marijuana. Except with the prior written consent of Landlord's City Manager, Tenant shall not erect, install,
display, inscribe, paint, or affix any signs, lettering, or advertising medium upon or above any exterior portion of
the Premises. [Any signs, lettering or advertisement medium erected within the Premises shall not require
consent from the City, nor a separate permit, so long as such complies with the remainder of the foregoing.]
[need to discuss with Admin and Planning Dept]
3.4 Environmental Provisions.
(a) Tenant shall not knowingly incorporate into, use, or otherwise place or dispose of at the
Premises (or allow others to incorporate into, use, or otherwise place or dispose of at the Premises) any
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Hazardous Materials, as hereinafter defined, unless (i) such Hazardous Materials are for use in the ordinary
course of business (i.e., as with cleaning supplies), (ii) notice of and a copy of the current material safety data
sheet is provided to Landlord for each such Hazardous Material (except for Hazardous Materials used by Tenant
in the ordinary course of business (i.e., as with cleaning supplies)), and (iii) such materials are handled and
disposed of in accordance with all applicable governmental laws, rules, and regulations. If Landlord or Tenant
ever has [actual] knowledge of the presence at the Premises of Hazardous Materials which affect the Premises,
and/or the Facility, such party shall notify the other thereof in writing promptly after obtaining such knowledge.
For purposes of this Lease, "Hazardous Materials" shall mean: (a) petroleum and its constituents; (b) radon gas,
asbestos in any form which is or could become friable, urea-formaldehyde (also known as urea methanol),
transformers or other equipment or products which contain dielectric fluid containing levels of polychlorinated
biphenyls in excess of federal, state or local safety guidelines,whichever are more stringent; (c)any substance, gas,
material or chemical which is or may hereafter be defined as or included in the definition of"hazardous substances,"
"hazardous materials," "hazardous wastes," "pollutants or contaminants," "solid wastes," or words of similar import
under any applicable governmental laws, rules, and regulations including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §9061 et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq.; the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. §6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
§ 1251, et seq.; and Florida Statutes, Chapters 376 and 403; and (d)any other chemical, material, gas, or
substance, the exposure to or release of which is regulated by any governmental or quasi-governmental entity
having jurisdiction over the Premises,the Retail Space, and/or the Facility, or the operations thereon.
(b) If Tenant or its employees, agents, contractors, or assigns shall ever violate the
provisions of subsection (a), above, then Tenant shall clean-up, remove, and dispose of the Hazardous Material
causing the violation, in compliance with all applicable governmental standards, laws, rules, and regulations and
repair any damage to the Premises within such period of time as may be reasonable under the circumstances
after written notice by Landlord, provided that such work shall commence not later than thirty(30)days from such
notice and be diligently and continuously carried to completion by Tenant or Tenant's designated contractors.
Tenant shall notify Landlord of its method, time, and procedure for any clean-up or removal of Hazardous
Materials under this provision; and Landlord shall have the right to require reasonable changes in such method,
time, or procedure or to require the same to be done after normal business hours or when the Premises is
otherwise closed (i.e., holidays) if reasonably required for the protection of other occupants or invitees at the
Premises.
(c) Tenant agrees to defend, indemnify and hold harmless Landlord against any and all
claims, costs, expenses, damages, liability, and the like, which Landlord may hereafter be liable for, suffer, incur,
or pay arising under any applicable environmental laws, rules, and regulations and resulting from or arising out of
any breach of the covenants contained in this Section 3.4, or out of any act, activity, or violation of any applicable
environmental laws, rules, and regulations on the part of Tenant, its employees, agents, contractors, or assigns.
Tenant's liability under this Section 3.4 shall survive the expiration or any termination of this Lease.
(d) In the event(i)the results of the environmental Phase I report or other site investigations
undertaken with respect to the Premises are unsatisfactory to Landlord or Tenant for any reason whatsoever,
then either Landlord or Tenant may terminate this Lease for their convenience, at either Party's sole discretion.
In the event of any such termination for convenience pursuant to this Section 3.4(d), neither Party shall have or
owe any further obligation or liability to the other Party.
3.5 Hours; Continued Occupancy. During the Term, Tenant shall conduct its business in and on the
Premises, at a minimum, on all days and during all hours [reasonably] established by Landlord's City Manager
from time to time. However, except as specified herein for the portion of the Premises that will consist of the
"Morning Glory" coffee shop operation, as depicted more fully in Exhibit "B" hereof, Tenant shall generally open
for business Monday through Sunday, no earlier than 7 A.M. each day. Tenant shall be permitted to open the
portion of the Premises identified in Exhibit "B" for the "Morning Glory" coffee shop no earlier than 6 A.M. each
day. Tenant shall cease all sales (including, without limitation, food, beverages, alcoholic beverages, and retail
items) no later than 11 P.M. on Sunday through Wednesday and shall close no later than 11:30 P.M on Sunday
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through Wednesday, and shall cease all sales (including, without limitation, food, beverages, alcoholic
beverages, and retail items) no later than midnight on Thursday, Friday, and Saturday, and shall close no later
than 1 A.M. on Thursday, Friday and Saturday. The hours established herein shall be further subject to
modification by the City pursuant to any Conditional Use Approval that may be required for the Premises (or
waiver thereof by the City Commission, at its sole discretion).
(a) Notwithstanding the foregoing, and subject to the approval of the Landlord's City
Manager at his or her sole discretion, Tenant may request an extension of the normal operating hours specified
in Section 3.5, for up to six (6) days per Lease Year (with any such extended hours solely applying on a
Thursday, Friday or Saturday), to permit Tenant to cease all sales (including, without limitation, food, beverages,
alcoholic beverages, and retail items) no later than 1:00 A.M., and to close no later than 2 A.M., on such dates.
(b) Tenant shall open the whole of the Premises for business to the public, reasonably
fixtured, stocked, and staffed, and shall continuously, actively, and diligently carry on the business specified in
Section 3.1 on the whole of the Premises during the Term, during such hours and upon such days as are herein
required, except when prevented from doing so by force majeure (as the term is described in Section 14.1).
Tenant acknowledges that its continued occupancy of the Premises and the regular conduct of its business
therein are of utmost importance to Landlord, as the activation of the area in the vicinity of the Premises is
integral to this Lease. Tenant shall, at a minimum, at all times during the Term, maintain in operation at least
one (1) restaurant establishment, one (1) bar establishment; [four(4)]food trucks, trainers or containers; at least
one (1)weekly entertainment offering; and the community programming required pursuant to Section 3.11 of this
Lease. Tenant acknowledges that Landlord is executing this Lease in reliance thereupon and that the same is a
material element inducing Landlord to execute this Lease. Tenant shall ship and receive supplies, fixtures,
equipment, furnishings, wares, and merchandise only through the appropriate service and delivery loading areas
or zones provided by Landlord, and shall not park its trucks or other delivery vehicles or allow suppliers or others
making deliveries to or receiving shipments from the Premises, except in those parts thereof as may from time to
time be allocated by Landlord for such purpose. Tenant shall maintain available a reasonable stock of goods,
wares, and merchandise adequate to ensure successful operation of Tenant's business, and shall employ and
maintain sales and other personnel sufficient at all times for proper service to customers.
(c) Tenant further agrees that, during the Term, neither Tenant, or any Affiliateparent, or
subsidiary of Tenant, shall own, lease, or operate another restaurant, bakery, or bar/cafe located within one (1)
mile of any point in the Premises within the geographical boundaries of the City of Miami Beach, conducting any
of the same businesses and/or operations as described in Item 8 of the Lease Summary.
3.6 Prohibited Uses. The restrictive covenants contained in paragraphs (A) —(Z) of this Section 3.6
are intended and designed to bind Landlord and Tenant and their respective successors and assigns, and be
binding upon and run with the Premises throughout the Term. Notwithstanding any other provisions of this
Lease, Tenant shall not use the Premises nor permit them to be used for any of the following purposes
("Prohibited Uses"): (A)for the sale by Tenant, as its principal business purpose, of any merchandise which
Tenant, in the course of its normal business practice, purchases at manufacturers' clearances or purchases of
ends-of-runs, bankruptcy stock, seconds, or other similar merchandise; (B)for the sale of insurance salvage
stock, fire sale stock, merchandise damaged by or held out to be damaged by fire; ; (C)for a bankruptcy sale or
going-out-of-business sale or liquidation sale or any similar sale, unless Tenant is in fact in bankruptcy or is
going out of business or is in liquidation, in which case such sale shall not continue beyond thirty(30) days; (D)
for the sale of medical marijuana or paraphernalia incidental thereto; (E)for any business in which Tenant is
engaged in intentionally deceptive or fraudulent advertising or selling practices or any other act or business
practice contrary to honest retail practices; (F) for coinbox entertainment (pinball, video games, moving pictures
operated by coins); (G) casino gambling or games of chance or reward; (H) any unlawful or illegal business, use
or purpose, or for any business, use or purpose which is immoral or disreputable (including "adult entertainment
establishments" and "adult" bookstores) or extra-hazardous, or in such manner as to constitute a nuisance of any
kind (public or private), or for any purpose or in any way in violation of Tenant's Certificate(s) of Occupancy (or
other similar approvals of applicable governmental authorities); (I) movie theatre as a primary business; (J)
medical facilities and offices; (K) check cashing facilities; (L) pawn shops; (M) the sale of firearms; (N) tatoo
parlors, fortune tellers, psychics, palm readers, body piercing shops; (0) the sale of religious artifacts and
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religious books; (P) places of worship; (Q) political offices; (R) military recruiting; (S) consular, legation or any
other offices of foreign governments; (T) tire sales; (U) the sale of animals or birds of any kind and/or products of
a nature typically sold in pet shops; (V) offices for the practice of veterinary medicine; (W) the sale of major
appliances as a primary business; (X) housing or sleeping quarters; (Y) grocery stores (other than specialty
gourmet or "artisanal" products); or (Z) in any manner that will violate any Conditional Use Approval, Certificate
of Occupancy or Certificate of Use for the Premises, or which will violate any laws, ordinances, or other rules or
regulations applicable to the Premises.
Immediately upon its discovery of any Prohibited Use, Tenant shall take all reasonable necessary steps,
legal and equitable, to compel discontinuance of such business or use including, if necessary, the removal from
the Premises of any subtenants, licensees, invitees or concessionaires.
3.7 Exclusive Use. So long as Tenant is (1) in actual occupancy of the Premises, (2) in good
standing and free of any defaults under this Lease, and (3) using the Premises for the permitted use(s) set forth
in the Lease Summary, Landlord agrees not to enter into any leases for space in the Premises until the
expiration or earlier termination of this Lease.
3.8 Noise. Tenant shall not cause or produce or permit to be produced on or in the Premises any
noises, sound, amplification, vibration, resonance levels that (i) is in excess of any levels permitted under, or
otherwise fails to comply with, any provision or requirement of the City Code, as same may be amended from
time to time, including, without limitation, Chapter 46 of the City Code (provided, however, that in the event of any
conflict between the provisions of Section 46-152(b) of the City Code and Section 3.8(a) of this Lease, the
provisions of Section 3.8(a) of this Lease shall control); or (ii) creates any other form of disturbance in or on the
Premises which is, or is likely to be, considered a nuisance to residents of adjacent or neighboring properties in
the vicinity of the Premises.
(a) In accordance with the City Code, outdoor entertainment shall cease no later than 10:00 p.m. on
Sundays through Thursdays, and midnight on Fridays and Saturdays. Outdoor entertainment shall be limited
to string instruments, solo vocalists, or disk jockeys playing recorded music, and provided, that amplified sound
shall not exceed ambient, background levels. In addition to the foregoing, Tenant further agrees to minimize
amplified sound at the Premises by regularly incorporating "silent disco" programming whereby, as an alternative
to the use of loudspeakers, sound or music is broadcast via wireless headphone receivers worn by invitees at
the Premises. In the event the Tenant receives more than one (1) notice from Landlord that noise on the
Premises exceeds ambient, background levels for the outdoor entertainment areas at the Premises, such an
incident shall be deemed to be a violation of this Section 3.8(a) of this Lease.
(b) In addition to any other rights or remedies that may be available to the Landlord under any
applicable law(either in the Landlord's proprietary capacity as owner of the Premises, or in its regulatory capacity
with respect to enforcement of the City Code), the issuance of more than one (1) notice of violation pursuant to
Section 46-158 of the City Code shall constitute an event of default of this Lease, provided, however, that if the
notice of violation is appealed, the notice of violation shall be deemed an event of default under the Lease if a
special master finds that a violation has occurred. Tenant shall provide a copy to Landlord's designee of any
notice of violation issued to Tenant.
(c) Tenant acknowledges that Landlord would not enter into this Lease unless Tenant
assured Landlord that under no circumstances will Tenant fail to comply with the requirements set forth
herein or otherwise contained in the City Code with respect to noise and the non-disturbance of
residents in the vicinity of the Premises.
3.9 Vendors Selling Goods, Food/Beverages, or Services at the Premises. Tenant shall select the
vendors that will operate and engage in the sale of goods, food/beverages, services or any other commercial
activities at the Premises, with a focus on small business operators (entities with less than 25 employees, small
brands/non-franchised) ([together with the Affiliates], collectively the "Vendors"). With respect to the selection of
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Vendors at the Premises, Tenant shall provide first priority for Miami Beach-based businesses (or owners
residing in Miami Beach), and shall exercise good-faith diligent efforts for at least 25% of all retail/food Vendors
to be Miami Beach-based businesses/owners (other than Affiliates). All Vendors must have all licenses required
for their respective operations (state licenses, local Business Tax Receipts, and any other governmental
approval that may be required in connection with that Vendor's operations). All Vendors shall be of first rate
quality and comparable to quality and pricing of goods and services provided by an affiliate of the Tenant at the
Wynwood Yard.
3.10 Operation of Premises. Tenant shall be responsible for the management, operation and
programming at the Premises in accordance with the approved uses set forth in this Lease. Tenant shall
coordinate and supervise all Vendor and event/entertainment curation and activities at the Premises; maintain
and provide for the day-to-day maintenance and housekeeping for the Premises; supervise and direct all
employees, personnel and Vendors consistent with the provisions of this Lease; maintain and supervise detailed,
accurate and complete financial and other records of all its activities under this Lease in accordance with
generally accepted accounting principles. Tenant shall provide and maintain, at its sole cost and expense, all
labor, personnel, materials, equipment, and furnishings, as reasonably required, to operate the Premises in
accordance with the approved uses set forth herein.
3.11 Community Programming. Tenant agrees to execute a minimum of seven (7) cultural and
community events each week, which shall be offered to the general public at no charge, including
gardening/urban farming classes, live local music, non-profit events, cooking workshops,fitness classes, and the
like. In addition, Tenant will offer at least five (5) additional classes, activities or events each week at moderate
prices, with the price schedule for the events or activities (or changes in the programming offerings)to be subject
to the advance written approval of the City Manager. Tenant shall offer Miami Beach residents a discount of
fifteen percent(15%) (and residents must show proof of Miami Beach residency prior to participation in activity or
event) and U.S. Armed Forces veterans a discount of 25% off the regular price for the classes, activities, or
events. At the end of each Lease Year, Tenant shall provide the City Manager or his designee a detailed report
reasonably summarizing community activities that took place throughout the year (including attendance figures
and, wherever possible, attendance by Miami Beach residents), and outlining its programmatic plan for the
upcoming Lease Year, detailing the then-known (planned) uses, activities, events, and operations, and the
number of participants expended to attend and benefit from such activities. [Parties to discuss details re:
contents of reports and process, including timing for submissions and approvals]]
3.11 Tenant Improvements. Except for the City Improvements referenced in Section 5.1(b) of this
Lease, Tenant, at Tenant's sole cost and expense, shall build-out the entire Premises in order to make the
Premises usable for its intended purpose, which will include, without limitation, design, permitting and
construction/installation of all temporary or permanent facilities for operation of the Premises at its sole expense,
including lighting, electricity, flooring, and life safety systems (i.e. sprinklers) as required by the Landlord, subject
to City's approval of the concept, design and plans and specifications, and pursuant to all requisite governmental
approvals (including without limitation, any City regulatory boards and agencies having jurisdiction).
3.12 Flood Panels. Tenant acknowledges that in the event that Landlord's City Manager determines,
in his/her sole and reasonable discretion, that a condition arises that requires the installation of flood panels on
the Premises, then Tenant will assume sole responsibility for installation of same in a commercially reasonable
timeframe. Once Landlord's City Manager determines (also in his/her sole and reasonable discretion) that the
condition necessitating the installation has passed, Tenant shall also assume sole responsibility for removal and
storage of the flood panels in a commercially reasonable timeframe.
3.13 Parking. Tenant's employees (and employees of Vendors working at the Premises) shall be
permitted to purchase monthly parking permits from the City at prevailing rates, to be used solely for employee
parking purposes. The location of any designated parking areas for Tenant, if any, shall be determined by the
City's Parking Director, at his or her sole discretion.
3.14. Security. Tenant shall be responsible for and provide reasonable security measures which may
15
be required to protect the Premises and any of the materials, equipment, and furnishings thereon. Under no
circumstances shall the City be responsible for any stolen or damaged materials, equipment, and furnishings,
nor shall the City be responsible for any stolen or damaged personal property of Tenant's employees,
contractors, patrons, guests, invitees, and/or other third parties.
3.15. "Buy Out" of Premises for Private/Corporate Events. If Tenant desires to suspend the regular
operations of the Premises for the purpose of using the Premises for ticketed/hosted events, functions, including
private or corporate events, for a period not-to-exceed a total of six (6) days per each Lease Year
("Private/Corporate Events"), any such use shall be subject to the advance written approval of the City Manager,
at his sole discretion. At least 2 months prior to the proposed event, Tenant shall provide the Landlord with all
pertinent details concerning the activities and activation contemplated for such event. If the City Manager
approves any such event, Tenant shall pay Landlord, as provided in Section 2.3(b), as additional Rent (and
without any deduction against Base Rent, Percentage Rent or any other amount due to Landlord hereunder),an
amount equal to seven percent (7%) of all the revenue, payments, income received, rental and operating cost
reimbursements (including any reimbursements for operating expenses or common area maintenance for the
use and occupancy of the Premises) recieved under any lease, sublease, license, concession, or other
arrangement related to the privilege of use or rental of the Premises with respect to the Private/Corporate
Events (the"Buyout Income").
ARTICLE IV. ACCESS AND ENTRY.
4.1 Right of Examination. Landlord, through its City Manager and/or such other individuals as he/she
may designate, in his/her reasonable discretion, from time to time, shall be entitled at all reasonable times and
upon reasonable notice (but no notice is required in emergencies) to enter the Premises to examine them if
Landlord reasonably believes that Tenant is not complying with any of its obligations hereunder; to make such
repairs, alterations, or improvements thereto as Landlord considers necessary or reasonably desirable pursuant
to the terms herein; to have access to underfloor facilities and access panels to mechanical shafts and to check,
calibrate, adjust, and balance controls and other systems at the Premises. Landlord reserves to itself(and others
acting on behalf of Landlord including, without limitation, Landlord's City Manager and/or such individuals as
he/she may designate, in his/her reasonable discretion, from time to time) the right to install, maintain, use, and
repair pipes, ducts, conduits, vents, wires, and other installations leading in, through, over, or under the
Premises and for this purpose, Landlord may take all material into and upon the Premises which is required
therefor. Tenant shall not unduly obstruct any pipes, conduits, or mechanical or other electrical equipment so as
to prevent reasonable access thereto. Landlord reserves the right to use all exterior walls and roof area of any
buildings located on the Premises. Landlord shall exercise its rights under this section, to the extent possible in
the circumstances, in such manner so as to minimize interference with Tenant's use and enjoyment of the
Premises.
4.2 Right to Show Premises. Landlord and its agents (including, without limitation, Landlord's City
Manager and such other individuals as he/she may designate, in his/her reasonable discretion, from time to time)
shall have the right to enter the Premises at all reasonable times and upon reasonable notice to show them to
prospective purchasers, lenders, or anyone having a prospective interest in the Premises and, during the last
six(6) months of the Term, to show them to prospective tenants. Landlord shall exercise its rights under this
section, to the extent possible in the circumstances, in such manner so as to minimize interference with Tenant's
use and enjoyment of the Premises.
ARTICLE V. CONSTRUCTION; MAINTENANCE, REPAIRS,AND ALTERATIONS.
5.1 Improvements.
(a) Tenant Investment. As an added inducement to have City enter into this Lease, Tenant
covenants and agrees that it will invest, or cause to be invested, no less than $1,750,000 in improvements it
requires for the operation of the Premises, including, without limitation, the fixed, non-removable improvements,
16
set forth in Exhibit "D" to this Lease. As a condition of the City of Miami Beach's issuance of a Temporary
Certificate of Occupancy (TCO) for the Premises, Tenant shall first certify, in writing, to Landlord that it has, in
fact, expended, or has caused to be expended, not less than the required aforestated amount(s) in improvement
costs for the operation of the Premises.
(b) Landlord Improvements. Subject to and contingent upon an appropriation of funds by the City
Commission, Landlord agrees to fund the improvements specified in Exhibit "C" attached hereto (the "Landlord
Improvements"), [not less than], and up to the maximum not-to-exceed amount of, $553,000.00 (the "Landlord's
Not to Exceed Amount"), and to design and construct the Landlord Improvements, subject to the Landlord's Not
to Exceed Amount or other available funding, if any, as specified herein. [As noted in Commission
Memorandum, final funding is subject to further discussion and appropriation of funds as part of City
budget process]. Except as to the Landlord's obligations for the Landlord Improvements up to the Landlord's
Not to Exceed Amount, Tenant shall be responsible for funding and completing all other temporary or permanent
improvements that may be required in connection with the operation of the Premises, including but not limited to
the Tenant's Work specified in Exhibit"D" attached hereto and as delineated more fully below, and any amounts
in excess of the Landlord's Not to Exceed Amount that may be required for the operation of the Premises. In no
event shall Landlord have any obligation to fund or pay any amounts in excess of the Landlord's Not to Exceed
Amount.
1. In the event the Landlord's estimates to design/construct the Landlord Improvements exceed the
Landlord's Not to Exceed Amount, or in the event cost overruns with respect to the Project Costs are anticipated
or experienced during the construction of the Landlord Improvements (and such cost overruns are not due to the
Landlord's negligence or the negligence or intentional misconduct of Landlord's contractors), Landlord shall
inform Tenant of the estimated additional costs with respect to the Landlord Improvements, and Tenant may
elect to either (1) identify the funding sufficient to cover all such amounts in excess of the Landlord's Not to
Exceed Amount, or (2) work with the Landlord to adjust the project scope, as necessary, to complete the
Landlord Improvements within the Landlord's Not to Exceed Amount and any additional funding that may be
identified by Tenant. If sufficient funding to design and construct the Landlord Improvements is not identified as
contemplated herein, or if the Landlord and Tenant cannot agree on project scope reductions sufficient for the
purposes of opening the North Beach Yard to the public, then either Landlord or Tenant may terminate this
Lease for their convenience, and neither Party shall have or owe any further obligation or liability to the other
Party.
2. Landlord shall have no obligation to proceed with any Landlord Improvements prior to Tenant
obtaining all regulatory approvals required under this Lease and until Tenant has reasonably demonstrated that it
has obtained the funding or financing required for the Tenant's Work (or paid the Construction Deposit to the
Escrow Agent as specified in Section 5.2(n), as applicable).
5.2 Tenant's Construction Obligations.
(a) Except for the construction of the City Improvements and subject to the provisions
hereof, Tenant shall, at its sole cost and expense, cause the construction and installation of any and all
improvements, alterations and/or repairs to the Premises in accordance with Tenant's Plans, as hereinafter
defined, and as necessary to permit Tenant to occupy same and conduct normal business operations (such
improvements being referred to herein as "Tenant's Work"). City agrees to waive land use permit fees
associated with land use approvals for the Tenant's Work, up to the maximum amount of [$ 1,
provided that any waiver of concurrency fees, if any, shall be at the City Commission's sole discretion. All other
fees and charges imposed by agencies having jurisdiction (including, without limitation, the Miami Beach
Building Department fees and Miami Beach Fire Department fees) shall apply at standard rates.
(b) Tenant, at Tenant's expense, agrees to furnish to Landlord's City Manager or his/her
designee, who, for purposes of this Article, shall be the City's Asset Manager, a preliminary schedule of finishes
and values, as well as a conceptual plan for any improvements and/or alterations to the Premises ("Concept
Plan"). Landlord's City Manager(or his/her designee), acting in the City's proprietary capacity as Landlord, shall
17
notify Tenant in writing of its acceptance or of its reasonable objections to the preliminary schedule of finishes
and Concept Plan within ten (10) business days after such preliminary schedule and Concept Plan has been
provided to him/her. Should Tenant fail to submit the preliminary schedule of finishes and Concept Plan within
the time period set forth above, or should Tenant fail to make any reasonable modifications Landlord' City
Manager(or his/her designee) may require, within five (5) business days of notice thereof,then either such event
shall be deemed to be a default under this Lease. The Concept Plan shall be subject to regulatory review and
approval by the City's Design Review Board, and any other City land use board and agencies having jurisdiction
over the Premises. Following approval by the Design Review Board and any other applicable board or agency
having jurisdiction, the preliminary schedule of finishes and values, as well as the Concept Plan, shall be subject
to the City Commission's final approval, at its sole discretion.
(c) Following the City Commission's approval of the Concept Plan, the Tenant, at Tenant's
expense, agrees to furnish to Landlord' City Manager (or his/her designee) a set of schematic drawings
(including an initial space plan) plan for any improvements and/or alterations to the Premises, which shall also
include as an attachment a schedule of finishes and Tenant's proposed construction budget (the"Schematic
Drawings") for Tenant's Work. The construction budget shall include detailed descriptions of the scope of work
and provide for a minimum expenditure for Tenant's Work. The Schematic Drawings shall be consistent with the
Concept Plan approved by the City Commission, and shall be subject to Landlord's City Manager's (or his/her
designee) review and approval, in its proprietary capacity as Landlord, with such approval not to be
unreasonably withheld or delayed. Landlord's City Manager (or his/her designee) shall notify Tenant in writing of
its acceptance or of its objections to the Schematic Drawings. Should Tenant fail to submit the Schematic
Drawings within the time period set forth above, or should Tenant fail to make any reasonable modifications
Landlord may require within ten (10) business days of notice thereof, then either such event shall be deemed to
be a default under this Lease. Tenant acknowledges that submission of satisfactory Schematic Drawings is a
condition to Landlord's entering into this Lease with Tenant, and that if Tenant fails to furnish Schematic
Drawings reasonably acceptable to Landlord within the time periods set forth herein, then, in such event, Tenant
shall be in default under this Lease. The Schematic Drawings, as approved by Landlord's City Manager (or
his/her designee) in his or her reasonable discretion, shall be incorporated herein by reference and made part of
this Lease.
(d) Within ten (10) business days after the date Landlord's City Manager (or his/her
designee) has approved the Schematic Drawings, Tenant, at Tenant's expense, agrees to furnish to Landlord's
City Manager (or his/her designee) a complete, detailed set of plans and specifications through the design
development stage ("Tenant's Plans") for Tenant's Work, which shall include, without limitation, all working
drawings, elevations, finish selections, and signage schematics, along with a separate schedule detailing
Tenant's estimated expenditures in connection with Tenant's Work (based on the construction budget described
above as supplemented to reflect the approved Schematic Drawings) and a list of the proposed architect and
engineer(s), interior design team, general contractor, and subcontractors. Tenant's Plans shall be based on the
approved Schematic Drawings and shall be in a form sufficient to obtain a building permit from the City of Miami
Beach. Tenant's Plans shall be prepared by Tenant's architect and engineer(s), which architect and engineer(s)
shall be subject to Landlord's City Manager's (or his/her designee's) prior written approval, which shall not be
unreasonably withheld or delayed. Tenant's Plans shall be subject to Landlord's City Manager's (or his/her
designee's) reasonable review and approval, which approval shall not be unreasonably withheld or delayed.
Landlord's City Manager (or his/her designee) shall notify Tenant in writing of its acceptance or of its objections
to Tenant's Plans within ten (10) business days after the Tenant's Plans have been provided to Landlord.
Should Tenant fail to submit Tenant's Plans within the time period set forth above, or should Tenant fail to make
any reasonable modifications Landlord may require within ten (10) business days of notice thereof, then either
such event shall be deemed to be a default under this lease. Notwithstanding Landlord's City Manager's (or
his/her designee's) review and approval of Tenant's Plans, Landlord assumes no responsibility whatsoever, and
shall not be liable, for the manufacturer's, architect's, or engineer's design or performance of any of Tenant's
Work or any structural, mechanical, electrical, or plumbing systems or equipment of Tenant. JFinal negotiated
language to be modified to reflect approach re: Tenant's pre-fabricated container elementsl
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(e) Once Landlord approves Tenant's Plans, Tenant shall, within five (5) business days,
provide Landlord's City Manager (or his/her designee) with two (2) sets of Tenant's Plans (and any changes to
Tenant's Plans and/or the approved construction budget shall be made only by written addendum signed by both
parties). Tenant's Plans, as approved by Landlord's City Manager (or his/her designee), shall be incorporated
herein by reference and made part of this Lease.
(f) Within ten (10) business days after the date Landlord's City Manager (or his/her
designee) has approved Tenant's Plans, Tenant, at Tenant's expense, agrees to furnish to Landlord's City
Manager (or his/her designee) a complete and detailed set of construction documents in AIA form, including all
exhibits ("Tenant's Construction Documents") for Tenant's Work, which shall be prepared by Tenant's architects.
Tenant's Construction Documents shall be subject to Landlord's City Manager's (or his/her designee's) prior
written approval, which approval shall not be unreasonably withheld or delayed, and Tenant shall receive written
notification of Landlord's approval or objections to Tenant's Construction Documents. Should Tenant fail to
submit Tenant's Construction Documents with the period set forth above or should Tenant fail to make any
reasonable modifications, Landlord may request within ten (10) business days of notice hereof, then either such
event shall be deemed a default under this Lease. Notwithstanding Landlord's review of Tenant's Construction
Documents, Landlord assumes no responsibility whatsoever and shall not be liable with respect to any item
contained therein.
(g) Once Landlord's City Manager (or his/her designee) approves Tenant's Construction
Documents, Tenant shall, within five (5) days, provide Landlord's City Manager (or his/her designee's) with
two(2) sets of Tenant's Construction Documents (and any changes to Tenant's Construction Documents and/or
the approved construction budget shall be made only by written addendum signed by both parties).
(h) Tenant shall use only experienced contractors and subcontractors holding all of the
requisite licenses that may be required in the State of Florida to construct the Tenant's Work, provided such
contractors are approved, in writing, by Landlord's City Manager (or his/her designee) to complete the
construction and installation of Tenant's Work, which approval shall not be unreasonably withheld or delayed.
Within ten (10) business days after the date hereof, Tenant shall provide to Landlord's City Manager (or his/her
designee) certificates of insurance evidencing that Tenant has the required comprehensive general liability
insurance required of Tenant under the Lease. In addition, Tenant shall provide to Landlord's City Manager (or
his/her designee) certificates of insurance evidencing that Tenant's general contractor has in effect (and shall
maintain at all times during the course of the work hereunder) workers' compensation insurance to cover full
liability under workers' compensation laws of the State of Florida with employers' liability coverage;
comprehensive general liability and builder's risk insurance for the hazards of operations, independent
contractors, products and completed operations (for two (2) years after the date of acceptance of the work by
Landlord and Tenant); and contractual liability specifically covering the indemnification provision in the
construction contract, such comprehensive general liability to include broad form property damage and afford
coverage for explosion, collapse and underground hazards, and "personal injury" liability insurance and an
endorsement providing that the insurance afforded under the contractor's policy is primary insurance as respects
Landlord and Tenant and that any other insurance maintained by Landlord (if any) or Tenant is excess and non-
contributing with the insurance required hereunder, provided that such insurance may be written through primary
or umbrella insurance policies with a minimum policy limit of $1,000,000.00. Landlord and Tenant are to be
included as an additional insured for insurance coverages required of the general contractor. Tenant shall inform
its contractor, subcontractors, and material suppliers that Landlord's interest in the Premises shall not be subject
to any lien to secure payment for work done or materials supplied to the Premises on Tenant's behalf, and
Tenant shall cause for the general contractor to (i) indemnify the Landlord for its negligent or willful misconduct in
connection with the performance of the Tenant's Work, and (ii) to secure a Performance Bond and Payment
Bond in a penal sum sufficient to cover the full contract valued of the Tenant's Work, with such Performance
Bond and Payment Bond to name the Tenant and the Landlord as co-obligees. All inspections and approvals
necessary and appropriate to complete Tenant's Work in accordance with Tenant's Plans and as necessary to
obtain a certificate of use and occupancy as hereinafter provided are the responsibility of Tenant and its general
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contractor. Tenant shall arrange a meeting prior to the commencement of construction between Landlord and
Tenant's contractors for the purpose of organizing and coordinating the completion of Tenant's Work.
(i) Once Tenant's Plans have been approved by Landlord's City Manager (or his/her
designee), Tenant shall diligently pursue the issuance of a full building permit therefor. Tenant shall commence
Tenant's Work (and shall be required to diligently pursue same) upon receipt of the full building permit. If Tenant
has not achieved Substantial Completion of Tenant's Work in accordance with Tenant's Plans, as approved by
Landlord's City Manager (or his/her designee), by the date that is [ten (10)] months after the Commencement
Date, then, in such event, Tenant shall be in default under this Lease, and Landlord shall have the option to
declare this Lease null and void and exercise any remedies available under this Lease, [unless the Tenant is
utilizing good faith efforts to diligently pursue Substantial Completion of the Tenant's Work and Tenant's
negligence or intentional misconduct is not the cause of such delay; in such case, the deadline for Substantial
Completion of Tenant's Work shall be extended until a commercially reasonable date][parties to modify to
provide City with final outside date, but one that provides Tenant sufficient flexibility to account for delays etc].
Should this Lease be declared null and void pursuant to this paragraph, Tenant shall forfeit all rights to any
deposits, advance Rent, and any other payments made under this Lease, and Landlord shall have no further
liability to Tenant under this Lease. "Substantial Completion" of Tenant's Work shall mean that Tenant's Work
has been materially completed in accordance with the approved Tenant's Plans and that the Premises are
approved for use and occupancy by the appropriate governmental authorities and are in suitable condition for the
operation of Tenant's business.
(j) All of Tenant's Work shall be completed in a good and workmanlike manner and shall be
in conformity with all requirements of the City Code and the Florida Building Code, and in accordance with
Landlord's construction rules and regulations pertaining to contractors. Upon completion of Tenant's Work,
Tenant shall furnish Landlord's City Manager(or his/her designee):
(1) a certificate of use and/or occupancy issued by the City and other evidence
satisfactory to Landlord's City Manager (or his/her designee) that Tenant has obtained the governmental
approvals necessary to permit occupancy; and
(2) a notarized affidavit from Tenant's contractor(s) that all amounts due for work
done and materials furnished in completing Tenant's Work have been paid; and
(3) releases of lien from any subcontractor or material supplier that has given
Landlord a Notice to Owner pursuant to Florida law; and
(4) as-built drawings of the Premises, with a list and description of all work
performed by the contractors, subcontractors, and material suppliers.
(k) Any damage to the existing finishes of the Premises or any portion thereof shall be
patched and repaired by Tenant [within a commerically reasonable timeframe], at its expense, and all such work
shall be done to Landlord's reasonable satisfaction. If any patched and painted area does not match the original
surface, then the entire surface shall be repainted at Tenant's expense. Tenant agrees to indemnify and hold
harmless Landlord, its employees, contractors, and agents, from and against any and all costs, expenses,
damage, loss, or liability, including, but not limited to, reasonable attorneys'fees and costs, which arise out of, is
occasioned by, or is in any way attributable to the build-out of the Premises or any subsequent improvements or
alterations by Tenant pursuant to this Lease. Tenant, at its expense, shall be responsible for the [reasonable]
maintenance, repair, and replacement of any and all items constructed by Tenant's contractor.
(I) Tenant shall not alter the Log Cabin building [This provision to be revised once City
Commission makes determination of status/disposition of Log Cabin], or the existing fire alarm system in
the building located on the Premises, or [Final negotiated language to include any additional items/areas
that are not to be altered]. Tenant's Plans shall include detailed drawings and specifications for the design and
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installation of Tenant's fire alarm (and security) system(s) for the Premises. Such system(s) shall meet all
appropriate building code requirements, and the fire alarm system shall, at Tenant's expense, be integrated into
Landlord's fire alarm system for the existing facility located at the Premises. Landlord's electrical contractor
and/or fire alarm contractor shall, at Tenant's expense, make all final connections between Tenant's and
Landlord's fire alarm systems. Tenant shall insure that all work performed on the fire alarm system shall be
coordinated at the job site with the Landlord's representative.
(m) the above requirements for submission of plans and the use of specific contractors shall
not apply to maintenance or repairs which do not exceed $2,500.00, provided that the work is not structural, and
provided that it is permitted by applicable law.
(n) Construction Deposit:
Landlord has requested, and Tenant has agreed, to secure Tenant's construction obligations under this Lease in
an amount and upon the terms and conditions hereinafter set forth. On or before the Commencement Date,
Tenant shall deposit with its attorney as Escrow Agent ("Escrow Agent"), a cash construction deposit in the sum
of Dollars ($ ) ("Construction Deposit"). The Construction Deposit shall be
deposited as follows: $ upon execution by the Parties of the Escrow Agreement referenced below
and attached and incorporated as Exhibit "F" hereto; and the remaining $ to be deposited within
forty five (45) calendar days from execution of the Escrow Agreement. Tenant's failure to deposit the
Construction Deposit within the aforestated time periods shall be deemed a default by Tenant under this Lease,
entitling the City to immediately terminate this Lease, without notice or penalty of any kind whatsoever. The
Construction Deposit shall be held as security for Tenant's construction obligations under this Lease including,
but not limited to, Tenant's obligation to commence and complete construction of the Tenant's Work within the
time and in the manner herein set forth. The Construction Deposit shall be deposited, distributed and otherwise
governed pursuant to this paragraph (n) and the terms and conditions of the Escrow Agreement executed
between Landlord and Tenant (and attached and incorporated as Exhibit "F" hereto). Tenant shall only use a
licensed and insured general contractor. Tenant shall have the right to draw against the Construction Deposit for
hard construction costs only, based upon draw requests executed by Tenant's architect and certifying to
Landlord that the work set forth in the draw request has been substantially completed. The draw request shall be
accompanied by lien waivers or releases of lien from the persons or entities performing the work or furnishing the
materials referred to therein. In no event shall the Construction Deposit be reduced to less than $50,000 until
such time as the Tenant' Work has been substantially completed, as determined by Landlord, in its sole and
reasonable discretion. The Construction Deposit shall be released upon issuance by the City of a final
Certificate of Occupancy (CO), with proof that all permits have been closed, together with final lien waivers and
contractor's affidavit reflecting that all contractors, subcontractors, laborers and materialmen have been paid in
full. In the event Tenant fails to substantially complete Tenant's Work in accordance with the final plans and as
required herein, such failure shall constitute a default. In the event of default and in addition to any and all other
rights of the Landlord hereunder, Escrow Agent shall deliver the Construction Deposit to the Landlord who shall
have the right, in addition to and not in limitation of any and all rights of Landlord hereunder, to retain such
Construction Deposit in the same manner as in the case of the Security Deposit. Further, in the event Tenant
fails or refuses to deliver to Escrow Agent, the Construction Deposit simultaneously with the delivery of
possession of the Premises, Tenant shall be deemed in default hereunder and in addition to all other rights and
remedies of Landlord hereunder, In such event, Tenant shall not be entitled to retain possession of the Premises
and Landlord shall retain the Security Deposit as partial consideration for the damages sustained by Landlord
resulting from such default. [NOTE: TO CONFIRM, IF LETTER OF CREDIT IS IN PLACE, THIS PRCOEDURE
IS NOT APPLICABLE]
[City and Tenant, as part of final negotations,to agree upon escrow or alternate form of security,such as
a performance bond or irrevocable unconditional letter of credit in favor of City, to guarantee Tenant's
performance obligations. Parties need to discuss further based on final approach re: Tenant's purchase
of the pre-fabricated "container" elements. Any equipment lease/financing, if any is ultimately approved,
must be in a form acceptable to the City Manager and City Attorney]
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The parties agree and acknowledge that the foregoing conditions are intended to be conditions subsequent to
Landlord's approval of this Lease. Accordingly, in the event that Tenant does not satisfy the aforestated, then
Landlord's City Manager may immediately, without further demand or notice, terminate this Lease without being
prejudiced as to any remedies which may be available to him/her for breach of contract.
(o) Tenant's Work shall be completed no later than ten (10) months following the Commencement
Date. In the event Tenant has failed to achieve substantial completion of the Tenant's Work and obtain a
temporary certificate of occupancy no later than (10) months following the Commencement Date, Landlord may,
at its sole option and discretion, terminate this Lease without liability or penalty of any kind whatsoever.
5.3 Maintenance and Repairs by Tenant. It is hereby acknowledged and agreed that Tenant is
solely responsible to maintain and repair the whole of the Premises and each of the facilities thereon (excluding
the Log Cabin building), at its sole cost and expense, including roof, structural, mechanical, plumbing, electrical
and general maintenance and upkeep. Tenant shall [promply][utilize commercially reasonable efforts] make any
repairs required to correct any code violations or notices of violation issued by any agency having jurisdiction
over the Premises, the Tenant, or any Vendor. Tenant will notify Landlord in writing of any necessary repairs that
it is undertaking on the Premises that exceed a cost amount of [$ 1. Landlord shall not be responsible
for any damages caused to Tenant by reason of failure of any equipment or facilities serving the Premises or
delays in the performance of any work for which the Landlord is responsible to perform pursuant to this Lease.
Notwithstanding any other provisions of this Lease, if any part of the Premises is damaged or destroyed or
requires repair, replacement, or alteration as a result of the act or omission of Tenant, its employees, agents,
invitees, licensees, or contractors, Landlord shall have the right to perform same and the cost of such repairs,
replacement, or alterations shall be paid by Tenant to Landlord within five (5) business days after Tenant's
receipt of demand form Landlord. In addition, if, in an emergency, it shall become necessary to make promptly
any repairs or replacements required to be made by Tenant, Landlord may re-enter the Premises and proceed
forthwith to have the repairs or replacements made and pay the costs thereof. Within ten (10) days after written
demand, Tenant shall reimburse Landlord for the cost of making the repairs. All repair and maintenance
performed by Tenant shall be performed by contractors or workmen designated or approved by Landlord's City
Manager, which approval shall not be unreasonably withheld or delayed. At the expiration or earlier termination
of the Term, Tenant shall surrender the Premises to Landlord in as good condition and repair as Tenant is
required to maintain the Premises throughout the Term, reasonable wear and tear excepted. Tenant shall be
responsible for all trash removal for its business operations, including, without limitation, that Tenant shall keep
all wet garbage under refrigeration. [City Admin to confirm if any other revisions are required.]
5.4 Approval of Tenant's Alterations. No [material] alterations (including, without limitation,
improvements, additions, or modifications to the Premises) shall be made by Tenant to the Premises without
Landlord's prior written approval, which,[as to exterior or structural alterations may/shall not be withheld in
Landlord's sole discretion]. Any alterations by Tenant shall be performed at the sole cost of Tenant, by
contractors and workmen approved by Landlord's City Manager, which approval shall not be unreasonably
withheld or delayed, in a good and workmanlike manner, and in accordance with all applicable laws and
regulations. Notwithstanding the foregoing, nonstructural alterations which do not require a building permit may
be made without Landlord's City Manager's consent, but Tenant shall notify Landlord's City Manager in writing
prior to making any such alterations.
5.5 Removal of Improvements and Fixtures. All leasehold improvements and fixtures (other than
unattached, movable trade fixtures installed by Tenant which can be removed without damage to the Premises)
shall at the expiration or earlier termination of this Lease become Landlord's property. Following the Rent
Commencement Date, Tenant and Landlord shall execute a memorandum listing the unattached, movable trade
fixtures installed by the Tenant. Tenant may, during the Term, in the usual course of its business, remove its
trade fixtures, provided that Tenant is not in default under this Lease; and Tenant shall, at the expiration or
earlier termination of the Term, at its sole cost, remove such of the leasehold improvements (except for
improvements installed by Landlord prior to the Commencement Date) and trade fixtures in the Premises as
Landlord shall require to be removed and restore the Premises to the condition existing prior to such removal.
Tenant shall at its own expense reasonably repair any damage caused to the Premises by such removal. If
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Tenant does not remove its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures
shall, at the option of Landlord, become the property of Landlord and may be removed from the Premises and
sold or disposed of by Landlord in such manner as it deems advisable without any accounting to Tenant.
5.6 No Liens or Encumbrances.
(a) The right, title and interest of the Landlord in the Premises shall not be subject to liens or claims
of liens for improvements made by Tenant. Tenant shall promptly pay for all materials supplied and work done in
respect of the Premises so as to ensure that no lien or encumbrance of any kind is recorded or filed against the
Premises or any portion thereof, or against Landlord's or Tenant's respective interests therein. If a lien is so
recorded, Tenant shall discharge it promptly by payment or bonding. If any such lien against the Premises is
recorded and not discharged by Tenant as above required within thirty(30) days following written notice to
Tenant, Landlord shall have the right to remove such lien by bonding or payment and the cost thereof shall be
paid immediately from Tenant to Landlord. Landlord and Tenant expressly agree and acknowledge that no
interest of Landlord in the Premises shall be subject to any lien for improvements made by Tenant in or for the
Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant, such liability being
expressly prohibited by the terms of this Lease. Tenant hereby agrees to inform all contractors and material
suppliers performing work in or for or supplying materials to the Premises of the requirements of this Section.
(b) In no event shall Tenant create, incur, secure or allow any leasehold mortgage or other
encumbrance affecting the Premises or any portion thereof, or otherwise pledge Tenant's interest in the
Premises for any purpose whatsoever, including, without limitation, any debt or other financing.
(c) Any purported encumbrance that is not in accordance with this Lease shall be, to the fullest
extent permitted by law, null and void.
5.7 Utilities and Other Expenses Related to Operation of Premises. Tenant shall be solely
responsible for, and shall directly pay for, or pay to Landlord (or as Landlord directs), all gas, electricity, water,
heating, cooling, sewer, telephone, as separately metered, and other charges and expenses associated with the
operation of the Premises. In addition, Tenant's electrical equipment and lighting shall be restricted to that
equipment and lighting which individually does not have a rated capacity and/or design load greater than the
rated capacity and/or design load of the Premises. If Tenant's consumption of electrical services exceeds either
the rated capacity and/or design load of the Premises, then Tenant shall remove the equipment and/or lighting to
achieve compliance within ten (10) days after receiving written notice from Landlord, or such equipment and/or
lighting may remain in the Premises, so long as (a) Tenant shall pay for all costs of installation and maintenance
of submeters, wiring, air-conditioning, and other items required by Landlord, in Landlord's City Manager's
reasonable discretion, to accommodate Tenant's excess design loads and capacities; and (b) Tenant shall pay
to Landlord, within thirty(30) days after rendition of a bill, the cost of the excess consumption of electrical service
at the rates charged to Landlord by Florida Power& Light, which shall be in accordance with any applicable laws.
5.8. General Maintenance/Cleaning. Tenant shall maintain the Premises in a [commerically
reasonably] neat, clean, orderly, sanitary and presentable condition which, at a minimum, satisfies the
cleanliness standards set forth in Exhibit "G."[specific standards to be finalized] Tenant shall, at its sole cost
and expense, be responsible for janitorial services, and storing, disposition, and daily removal from the Premises
of all trash, litter, debris and refuse which might accumulate and arise from the use of the Premises. Tenant
shall provide its own garbage receptacles and shall be solely responsible for all arrangements and costs related
to dumping. Tenant shall promply undertake any maintenance or cleaning required to correct any code
violations or notices of violation issued by any agency having jurisdiction over the Premises, the Tenant, or any
Vendor at the Premises. Tenant shall be solely responsible for all industrial wastes on the Premises caused or
produced by Tenant, its Vendors, licensees, invitees, or third-parties operating on the Premises, and shall be
responsible for the proper disposal thereof, in accordance with applicable laws and governmental requirements.
An annual assessment of the condition of the Premises shall be undertaken by Landlord, with Tenant's
participation and cooperation, to identify any necessary repairs or improvements that Tenant may need to
undertake during the Term. Tenant further agrees that while Landlord has made available certain air-
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conditioning unit(s) at facilities located within the Premises, Tenant shall obtain, and continuously maintain in
good standing, at Tenant's expense, throughout the Term, a maintenance and repair contract, approved by the
Landlord, with a service company previously approved in writing by the City, providing for the preventative
maintenance and repair of all air conditioning units servicing the Premises. Tenant shall provide the Landlord, in
writing, within ten (10) business days, the name(s) and telephone number(s) of service company(ies) for
Landlord'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 Landlord's approval of
the service company, as proof of Tenant's compliance with this Section.
5.9. Failure of Tenant to Maintain/Repair Premises. If Tenant has failed to properly clean, remove
trash and debris, maintain, repair, replace and refurbish the Premises as required by this Article V, Landlord shall
provide to the Tenant a written list of deficiencies, reflecting the amount of time to be reasonably allowed for the
Tenant to correct same. If the Tenant fails to correct or commence to correct such deficiencies within the time
allowed, then Tenant shall be in default under this Lease, and Landlord shall have the option to either terminate
this Lease pursuant to Article IX, or correct any or all of such deficiencies, in which case, the Landlord shall give
Tenant five (5) days further written notice of its intention to do so, and if the Tenant has not corrected or
commenced to correct the same within such additional five (5) day period, the Landlord may enter upon the
Premises and perform all work, which, in the reasonable judgment of the Landlord, is necessary and the
Landlord shall add the cost of such work, plus twenty-five percent(25%)for administrative costs, to the Rent due
hereunder on the first day of the month following the date of such work, and such cost shall be and constitute a
part of the Rent.
5.10. Penalties in Lieu of Default. Notwithstanding Landlord's right to declare Tenant in default pursuant
to this Lease, as an alternative means of ensuring compliance with certain non-monetary terms of this Lease for
which the Tenant hereby agrees and acknowledges that the cure period provided for defaults herein is an
inadequate remedy, the Landlord's City Manager or designee may issue a fine to the Tenant for violations of the
items listed in Exhibit"H" attached hereto, and in the amounts specified therein for each violation.
ARTICLE VI. INSURANCE; LIMITATION OF LIABILITY; AND INDEMNITY.
6.1 Tenant's Insurance. Tenant shall, throughout the Term (and any other period when Tenant is in
possession of the Premises), maintain at its sole cost the following insurance:
(A) All risks property insurance, containing a waiver of subrogation rights which Tenant's
insurers may have against Landlord and against those for whom Landlord is in law responsible including, without
limitation, its directors, officers, agents, and employees, and (except with respect to Tenant's chattels)
incorporating a standard Florida mortgagee endorsement (without contribution). Such insurance shall insure
property of every kind owned by Tenant in an amount not less than the full replacement cost thereof(new), with
such cost to be adjusted no less than annually. Such policy shall include Landlord as an additional insured.
(B) Comprehensive general liability insurance. Such policy shall contain inclusive limits per
occurrence of not less than the amount specified in the Lease Summary; provide for severability of interests; and
include Landlord as an additional insured.
(C) Worker's compensation and employer's liability insurance in compliance with applicable
legal requirements.
(D) Automobile Liability Insurance, covering owned, non-owned, leased or hired
automobiles,with a minimum combined single limit of$1,000,000 Each Accident;
(E) Liquor Liability Insurance with minimum limits of $2,000,000 per occurrence and
$5,000,000 in the aggregate.
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(F) Any other form of insurance which Landlord, acting reasonably, requires from time to time in form, in
amounts, and for risks against which a prudent tenant would insure, but in any event not less than that carried by
comparable restaurant establishments in Miami-Dade County, Florida.
All policies referred to above shall: (i) be taken out with insurers licensed to do business in Florida and
reasonably acceptable to Landlord's City Manager; (ii) be in a form reasonably satisfactory to Landlord's City
Manager; (iii) be non-contributing with, and shall apply only as primary and not as excess to any other insurance
available to Landlord; (iv) contain an undertaking by the insurers to notify Landlord by certified mail not less than
thirty(30) days prior to any material change, cancellation, or termination, and (v)with respect to subsection (A),
contain replacement cost, demolition cost, and increased cost of construction endorsements. Certificates of
insurance on Landlord's standard form or, if required by Landlord's City Manager, copies of such insurance
policies certified by an authorized officer of Tenant's insurer as being complete and current, shall be delivered to
Landlord's City Manager promptly upon request. If Tenant fails to take out or to keep in force any insurance
referred to in this Section 6.1, or should any such insurance not be approved by Landlord, and Tenant does not
commence and continue to diligently cure such default within five (5) business days after written notice by
Landlord to Tenant specifying the nature of such default, then Landlord has the right, without assuming any
obligation in connection therewith, to effect such insurance at the sole cost of Tenant and all outlays by Landlord
shall be paid by Tenant to Landlord as Additional Rent without prejudice to any other rights or remedies of
Landlord under this Lease. Tenant shall not keep or use in the Premises any article which may be prohibited by
any fire or casualty insurance policy in force from time to time covering the Premises, or the Facility.
6.2 Loss or Damage. Tenant acknowledges that the Tenant will be performing any maintenance and
repairs required hereunder. Landlord shall not be liable for any death, injury or property damage arising from or
out of any occurrence in, upon, at, or relating to the Premises, or damage to property of Tenant or of others
located in the Premises, nor shall it be responsible for any loss of or damage to any property of Tenant or others
from any cause, unless such death, injury, loss, or damage results from the gross negligence or willful
misconduct of Landlord. Without limiting the generality of the foregoing, Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling plaster, falling ceiling tile, falling
fixtures, steam, gas, electricity, water, rain, flood, or leaks from any part of the Premises or from the pipes,
sprinklers, appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of the Premises, or
from the street or any other place or by dampness, or by any other cause whatsoever, unless resulting from the
gross negligence or willful misconduct of Landlord. Tenant agrees to indemnify Landlord and hold it harmless
from and against any and all loss(including loss of any Rent payable in respect to the Premises), claims, actions,
damages, liability, and expense of any kind whatsoever(including attorneys'fees and costs at all tribunal levels),
unless caused by the gross negligence or willful misconduct of Landlord, arising from any occurrence in, upon, or
at the Premises, or the occupancy, use, or improvement by Tenant or its agents or invitees of the Premises, or
occasioned wholly or in part by any act or omission of Tenant its agents, employees, and invitees or by anyone
permitted to be in the Premises by Tenant.
6.3 Waiver of Subrogation. Landlord 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 Premises, or any improvements thereto or the
Facility, or any improvements to any of the aforestated, 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. Tenant shall obtain from its insurers,
under all policies of fire, theft, public liability, worker's compensation, and other insurance maintained by it at any
time during the Term hereof insuring or covering the Premises or any portion thereof or operations therein, a
waiver of all rights of subrogation which the insurer of Tenant have against the Landlord, and Tenant shall
indemnify, defend, and hold harmless Landlord against any loss or expense, including reasonable attorneys'fees
(appellate or otherwise) resulting from the failure to obtain such waiver.
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6.4. Limitation of Landlord's Liability. Landlord desires to enter into this Lease only if in so doing the
Landlord can place a limit on its liability for any cause of action for money damages due to an alleged breach by
the Landlord of this Lease, so that its liability for any such breach never exceeds the sum of[$10,000]. 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. Accordingly, and notwithstanding
any other term or condition of this Lease, Tenant hereby agrees that the Landlord shall not be liable to the
Tenant for damages in an amount in excess of$10,000, which amount shall be reduced by the amount actually
paid by the Landlord to Tenant pursuant to this Lease, for any action or claim for breach of contract arising out of
the performance or non-performance of any obligations imposed upon the Landlord by this Lease. Nothing
contained in this paragraph 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 Section 768.28, Florida Statutes
6.5. Indemnity Against Costs and Charges. Tenant shall be liable to Landlord for all costs and
charges, expenses, 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. As provided in Section 2.8 of this Lease,
any sums due the Landlord under the provisions of this item shall constitute a lien against the interest of the
Tenant and the 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. Tenant agrees to pay all
damages to the Premises if caused by the Tenant or any employee, guest, or invitee of the Tenant. If Tenant
shall at any time be in default hereunder, and if the Landlord shall deem it necessary to engage an attorney to
enforce the Landlord's rights and Tenant's obligations hereunder, the 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.
6.6 Indemnification Against Claims. Tenant shall indemnify, defend and save the City harmless from
and against any and all claims or causes of action by or on behalf of any person, firm, or corporation, for
personal injury or property damage occurring upon the Premises or upon any other land or other facility or
appurtenance used in connection with the Premises, occasioned in whole or in part by any of the following: (i)
any act or omission on the part of the Tenant, or any employee, agent, contractor, invitee, guest, assignee, sub-
tenant or subcontractor of the Tenant; (ii) any misuse, neglect, or unlawful use of the Premises by Tenant, or any
employee, agent, contractor, invitee, guest, assignee, sub-tenant or subcontractor of the Tenant, but not to
include trespassers upon the Premises; (iii) any breach, violation, or non-performance of any undertaking of the
Tenant under this Lease; or(iv)Any event arising out of the use or occupancy of the Premises by the Tenant.
ARTICLE VII. DAMAGE AND DESTRUCTION.
7.1 Damage to Premises. Tenant acknowledges that if the Premises are partially or totally destroyed
due to fire or other casualty, any repairs to or rebuilding of the damaged portions of the Premises will be performed
by Landlord but, in any event, only to the extent that Landlord is required to repair or rebuild the Premises to the
condition Landlord was required to turn over the Premises to Tenant as of the Commencement Date. If Landlord
repairs or rebuilds, Base Rent shall abate proportionately to the portion of the Premises, if any, rendered
untenantable from the date of destruction or damage until the repairs have been substantially completed. Upon
being notified that the repairs have been substantially completed, Tenant shall diligently perform all other work
required to fully restore the Premises for use in Tenant's business, in every case at Tenant's cost and without
any contribution to such cost by Landlord. Tenant agrees that during any period of reconstruction or repair of the
Premises, it will continue the operation of its business within the Premises to the extent practicable. If all or any
part of the Premises shall be damaged by fire or other casualty and the fire or other casualty is caused by the
fault or neglect of Tenant or Tenant's employees, contractors, agents, guest, or invitees, Rent and all other
charges shall not abate.
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7.2 Termination for Damage. Notwithstanding Section 7.1, if damage or destruction which has
occurred to the Premises is such that, in the sole reasonable opinion of Landlord's City Manager, such
reconstruction or repair cannot be completed within one hundred twenty(120) days of the happening of the
damage or destruction, Landlord may, at its sole option, terminate this Lease on notice to Tenant given within
thirty(30) days after such damage or destruction and Tenant shall immediately deliver vacant possession of the
Premises in accordance with the terms of this Lease.
In addition, if Landlord undertakes the reconstruction or repair, and does not complete same within
nine (9) months after the date of the fire or other casualty (subject to the time required to prepare plans for
reconstruction, to obtain building permits, to receive distribution of insurance proceeds, and to complete the likely
contract bidding process and all other relevant factors, but not to exceed an additional ninety(90) days), then
Tenant shall have the right to terminate this Lease by written notice to Landlord's City Manager delivered within
thirty(30) days after the expiration of such nine (9) month period (or as extended), whereupon both parties shall
be relieved of all further obligations hereunder, except as otherwise expressly set forth herein.
ARTICLE VIII. ASSIGNMENT, LEASES,AND TRANSFERS.
8.1 Transfer by Tenant. Tenant shall not enter into, consent to, or permit any Transfer, as hereinafter
defined, without the prior written consent of Landlord in each instance, which consent may be granted or withheld
in Landlord's sole and absolute discretion for any reason or for no reason. For purposes of this Lease,
"Transfer" means an assignment of this Lease in whole or in part; any transaction whereby the rights of Tenant
under this Lease or to the Premises are transferred to another; any mortgage or encumbrance of this Lease or
the Premises or any part thereof or other arrangement under which either this Lease or the Premises become
security for any indebtedness or other obligations; and if Tenant is a corporation or a partnership, the transfer of
a controlling interest in the stock of the corporation or partnership interests, as applicable. If there is a permitted
Transfer, Landlord may collect Rent or other payments from the transferee and apply the net amount collected to
the Rent or other payments required to be paid pursuant to this Lease, but no acceptance by Landlord of any
payments by a transferee shall be deemed a waiver of any provisions hereof regarding Tenant. Notwithstanding
any Transfer, Tenant shall not be released from any of its obligations under this Lease. Landlord's consent to
any Transfer shall be subject to the further condition that if the Rent pursuant to such Transfer exceeds the Rent
payable under this Lease, the amount of such excess shall be paid to Landlord. If, pursuant to a permitted
Transfer, Tenant receives from the transferee, either directly or indirectly, any consideration other than Rent for
such Transfer, either in the form of cash, goods, or services, Tenant shall, upon receipt thereof, pay to Landlord
an amount equivalent to such consideration. [Final negotiated language may be modified to reflect process for
approvals of sublicenses and ensure Vendors are acceptable and no leasehold interest or other interest in and
to the Premises is transferred to any Vendors. Final language to reviewed with Planning Dept, to ensure
consistent with any regulatory requirements.]
In addition, Tenant shall not grant any purchase money security interest in its furniture, fixtures, and
equipment in the Premises,without prior written consent of the Landlord's City Manager.
ARTICLE IX. DEFAULT AND TERMINATION.
9.1 Defaults. A default by Tenant shall be deemed to have occurred hereunder, if and whenever:
(i) any Base Rent or Percentage Rent is not paid within five (5) days after it's due whether or not any notice or
demand for payment has been made by Landlord; (ii) any other Additional Rent or Rent is in arrears and is not
paid within five (5) days after written demand by Landlord; (iii)Tenant has breached any of its obligations in this
Lease (other than the payment of Rent) and Tenant fails to remedy such breach within fifteen (15) days (or such
shorter period as may be provided in this Lease), or if such breach cannot reasonably be remedied within
fifteen (15) days (or such shorter period), then if Tenant fails to immediately commence to remedy and thereafter
proceed diligently to remedy such breach, in each case after notice in writing from Landlord; (iv) Tenant becomes
bankrupt or insolvent; (v) Tenant fails to maintain any of the insurance required under this Lease, and fails to
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remedy such breach within the time period specified in Section 9.1(iii), or if any of Landlord's policies of
insurance (if any) with respect to the Premises are canceled or adversely changed as a result of Tenant's use or
occupancy of the Premises; (vi)the business operated by Tenant in the Premises shall be closed by
governmental or court order for any reason; (vii) Tenant fails to obtain a Temporary Certificate of Occupance for
Tenant's Work no later than ten (10) months following the Commencement Date; (viii) Tenant fails to open the
North Beach Yard to the general public no later than eleven (11) months following the Commencement Date; (ix)
Tenant conducts any business or other activity on the Premises that is not expressly permitted under this Lease;
(x) Tenant fails to maintain the Premises or meet any of its obligations in Article V, including, without limitation,
with respect to the Cleanliness Standards in Exhibit "G", and fails to remedy such breach within the time period
specified in Section 9.1(iii) herein; (xi) If Tenant fails to resolve any code violations issued by any governmental
entity jurisdiction over the Premises, including, without limitation, any health-related violations, within a
commercially reasonable time period; (xii) Tenant is generally not paying its debts, as such debts become due,
and fails to remedy such breach within the time specified in Section 9.1(iii); or (xiii) Tenant fails to continuously
operate the Premises. [Further, if the Tenant shall have defaulted in the performance of any(but not necessarily
the same) term or condition of this Lease for three or more times during any twelve month period during the
Term hereof, then such conduct shall, at the election of the Landlord, represent a separate event of default
which cannot be cured by the Tenant. Tenant acknowledges that the purpose of this provision is to prevent
repetitive defaults by the Tenant under the Lease, which work a hardship upon the Landlord, and deprive the
Landlord of the timely performance by the Tenant hereunder.]
9.2 Remedies. In the event of any default hereunder by Tenant, then without prejudice to any other
rights which it has pursuant to this Lease or at law or in equity, Landlord, through its City Manager, shall have the
following rights and remedies, which are cumulative and not alternative:
(A) Landlord may cancel this Lease by notice to Tenant and retake possession of the
Premises for Landlord's account, or may terminate Tenant's right to possession of the Premises without
terminating this Lease. In either event, Tenant shall then quit and surrender the Premises to Landlord. If
Landlord terminates Tenant's right to possession of the Premises without terminating this Lease, Tenant's liability
under all of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any
re-entry, repossession, or disposition hereunder.
(B) Landlord may enter the Premises as agent of Tenant to take possession of any property
of Tenant on the Premises, to store such property at the expense and risk of Tenant or to sell or otherwise
dispose of such property in such manner as Landlord may see fit without notice to Tenant. Re-entry and removal
may be effectuated by summary dispossess proceedings, by any suitable action or proceeding, or otherwise.
Landlord shall not be liable in any way in connection with its actions pursuant to this section, to the extent that its
actions are in accordance with law.
(C) If Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under subsection (A) above, Tenant shall remain liable (in addition to accrued liabilities) to the extent
legally permissible for all Rent and all of the charges Tenant would have been required to pay until the date this
Lease would have expired had such cancellation not occurred. Tenant's liability for Rent shall continue
notwithstanding re-entry or repossession of the Premises by Landlord. In addition to the foregoing, Tenant shall
pay to Landlord such sums as the court which has jurisdiction thereof may adjudge as reasonable attorneys'fees
with respect to any successful lawsuit or action instituted by Landlord to enforce the provisions of this Lease.
(D) Landlord may relet all or any part of the Premises for all or any part of the unexpired
portion of the Term of this Lease or for any longer period, and may accept any Rent then attainable; grant any
concessions of Rent, and agree to paint or make any special repairs, alterations, and decorations for any new
tenant as it may deem advisable, in its sole and absolute discretion. Landlord shall be under no obligation to
relet or to attempt to relet the Premises, except as expressly set forth below.
(E) If Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under subsection (A) above, and Landlord so elects, the Rent hereunder shall be accelerated and
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Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the
remainder of the Term (reduced to present value using a discount factor equal to the stated prime lending rate
on the date of Tenant's default. Prior to or following payment in full by Tenant of such discounted sum promptly
upon demand, Landlord shall use good faith efforts to relet the Premises. If Landlord receives consideration as
a result of a reletting of the Premises relating to the same time period for which Tenant has paid accelerated
Rent, such consideration actually received by Landlord, less any and all of Landlord 's reasonable cost of
repairs, alterations, additions, redecorating, and other expenses in connection with such reletting of the
Premises, shall be a credit against such discounted sum, and such discounted sum shall be reduced if not yet
paid by Tenant as called for herein, or if Tenant has paid such discounted sum, such credited amount shall be
repaid to Tenant by Landlord (provided said credit shall not exceed the accelerated amount).
(F) Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the
account of Tenant and to enter upon the Premises for such purposes. No notice of Landlord's intention to
perform such covenants need be given Tenant unless expressly required by this Lease. Landlord shall not be
liable to Tenant for any loss or damage caused by the reasonable acts of Landlord in remedying or attempting to
remedy such default and Tenant shall pay to Landlord all expenses incurred by Landlord in connection with
remedying or attempting to remedy such default. Any expenses incurred by Landlord shall accrue interest from
the date of payment by Landlord until repaid by Tenant at the highest rate permitted by law.
9.3 Costs. Tenant shall pay to Landlord on demand all costs incurred by Landlord, including
attorneys' fees and costs at all tribunal levels, incurred by Landlord in enforcing any of the obligations of Tenant
under this Lease. In addition, upon any default by Tenant, Tenant shall be also liable to Landlord for the
expenses to which Landlord may be put in re-entering the Premises; repossessing the Premises; painting,
altering, or dividing the Premises; re-configuring the Premises (including, without limitation, subdividing the
Premises) for any new tenant; putting the Premises in proper repair; protecting and preserving the Premises by
placing watchmen and caretakers therein; reletting the Premises (including attorneys' fees and disbursements,
marshall's fees, and brokerage fees, in so doing); and any other expenses reasonably incurred by Landlord.
9.4 Additional Remedies; Waiver. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereinafter provided by law. All rights and remedies shall be
cumulative and non-exclusive of each other. No delay or omission by Landlord in exercising a right or remedy
shall exhaust or impair the same or constitute a waiver of, or acquiescence to a default.
9.5 Default by Landlord. In the event of any default by Landlord, Tenant's exclusive remedy shall be
an action for damages or injunction, but prior to any such action Tenant will give Landlord's City Manager written
notice specifying such default with particularity, and Landlord shall have a period of fifteen (15) days following
the date of such notice in which to cure such default (provided, however, that if such default reasonably requires
more than fifteen (15) days to cure, Landlord shall have a reasonable time to cure such default, provided
Landlord commences to cure within such fifteen (15) day period and thereafter diligently prosecutes such cure to
completion). Notwithstanding any provision of this Lease, Landlord shall not at any time have any personal
liability under this Lease, and Landlord's maximum liability shall be as provided for in Section 6.4 of this Lease.
It is expressly understood that the obligations of Landlord under this Lease are solely corporate obligations, and
that, except for conversion, fraud, or willful misconduct, no personal liability will attach to, or is or shall be
incurred by, the officers, directors, or employees, as such, of the Landlord, or of any successor corporation, or
any of them, under or by reason of the obligations, covenants, or agreements of Landlord contained in this Lease
or implied therefrom; and, except for conversion, fraud, or willful misconduct, that any and all such personal
liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims
against, every such officer, director, or employee, as such, or under or by reason of the obligations, covenants or
agreements contained in this Lease or implied therefrom are expressly waived and released as a condition of,
and as a consideration for, the execution of this Lease.
9.6. Landlord's Termination for Convenience.
(a) During the initial Term, Landlord shall have the right to terminate this Lease for its convenience,
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solely to the limited extent provided in (i) Section 3.4 of this Lease, in the event the results of the environmental
Phase I report or other site investigations undertaken with respect to the Premises are unsatisfactory to Landlord
or, if environmental remediation is required for the Premises, or (ii) Section 5.1 of this Lease, in the event the
costs for the Landlord Improvements exceeds the Landlord's Not To Exceed Amount, and sufficient funding (or
project scope reductions)cannot be identified to complete the Landlord Improvements.
(b)Notwithstanding any other provision of this Article IX, Landlord, by and through the City
Commission, may also terminate this Lease for its convenience during any Renewal Term and without cause,
upon the furnishing of nine(9) months prior written notice to Tenant.
(c)In the event of termination for convenience by Landlord pursuant to this Section 9.6, Tenant
herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind
or nature, against the Landlord, 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) and in no event shall the Landlord be liable to Tenant for any indirect, incidental, special, lost profits
or consequential damages arising from or related to such termination.
9.7. Tenant's Termination for Convenience.
(a) Tenant shall have the right to terminate the Lease for its convenience, at any time prior to issuance
of a building permit to Landlord for the Landlord Improvements if Tenant determines, at its discretion, that (1)the
regulatory requirements associated with the operation of the Premises render such operations economically
unfeasible; (2) as provided in Section 3.4 of this Lease, the results of the environmental Phase I report or other
site investigations undertaken with respect to the Premises are unsatisfactory to Tenant or, if environmental
remediation is required for the Premises; or(3) as provided in Section 5.1, in the event the costs for the Landlord
Improvements exceeds the Landlord's Not To Exceed Amount, and sufficient funding (or project scope
reductions) cannot be identified to complete the Landlord Improvements. In such event, Landlord and Tenant
shall bear their own costs and fees, and neither Tenant nor Landlord shall have or owe any further obligation or
liability to the other with regard to this Lease.
(b) In the event Tenant otherwise terminates this Lease following Landlord's commencement of the
Landlord Improvements, Tenant shall reimburse the Landlord, as liquidated damages, an amount equal to:
(i) 100% of the Landlord Improvements costs specified in Section 5.1(a), if Tenant terminates the
Lease prior to the end of the first year of the Term;
(ii) 66% of the Landlord Improvements costs specified in Section 5.1(a), if Tenant terminates prior to
the conclusion of the second year of the Term; or
(iii) 33% of the Landlord Improvements costs specified in Section 5.1(a), if Tenant terminates prior to the
conclusion of the third year of the Term.
ARTICLE X. ESTOPPEL CERTIFICATE; SUBORDINATION.
10.1 Estoppel Certificate. Within ten (10) days after written request by Landlord's City Manager,
Tenant shall deliver in a form supplied by Landlord, an estoppel certificate to Landlord as to the status of this
Lease, including whether this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified and identifying the modification agreements);
the amount of Base Rent and other Rent then being paid and the dates to which same have been paid; whether
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or not there is any existing or alleged default by either party with respect to which a notice of default has been
served, or any facts exist which, with the passing of time or giving of notice, would constitute a default and, if
there is any such default or facts, specifying the nature and extent thereof; and any other matters pertaining to
this Lease as to which Landlord shall request such certificate. Landlord, and any prospective purchaser, lender,
or ground lessor shall have the right to rely on such certificate.
10.2 Subordination; Attornment. This Lease and all rights of Tenant shall be subject and subordinate
to any and all agreements or security instruments resulting from any financing, refinancing, or collateral financing
(including renewals or extensions thereof), of Landlord's interests in all or any part of the Premises, from time to
time in existence against the Premises, whether now existing or hereafter created. Such subordination shall not
require any further instrument to evidence such subordination. However, on request, Tenant shall further
evidence its agreement to subordinate this Lease and its rights under this Lease to any and all documents and to
all advances made under such documents. The form of such subordination shall be made as reasonably
required by Landlord's City Manager. Tenant shall, if requested by Landlord, automatically attorn to and become
the tenant of Landlord or any subsequent owner, purchaser, or successor-in-interest, of the Premises, without
any change in the terms or other provisions of this Lease; provided, however, that Landlord, said owner,
purchaser, or successor shall not be bound by(a) any payment of Rent for more than one (1) month in advance,
or(b)any security deposit or the like not actually received by Landlord, [such owner, or purchaser, or successor,]
or (c) any amendment or modification in this Lease made without the consent of Landlord, such owner,
purchaser, or successor, or [(d) any construction obligation, free rent, or other concession or monetary
allowance, or (e) any set-off, counterclaim, or the like otherwise available against Landlord, or (f) any act or
omission of any prior landlord (including Landlord).] Upon request by Landlord, said owner, or purchaser, or
successor, Tenant shall execute and deliver an instrument or instruments confirming its attornment.
Notwithstanding the foregoing, any such subordination of this Lease shall be conditioned on the
Landlord obtaining a nondisturbance agreement in favor of Tenant from any party providing any financing,
refinancing or collateral financing as noted above, and no subordination shall be effective without a
corresponding nondisturbance agreement.
ARTICLE XI. ALTERATIONS BY LANDLORD.
11.1 Landlord may (but shall not be obligated to) (i) alter, add to, subtract from, construct
improvements on, re-arrange, and construct additional facilities adjoining, or proximate to the Premises; (ii) do
such things on or in the Premises as required to comply with any laws, by-laws, regulations, orders, or directives
of the City Commission or agencies having jurisdiction affecting the Premises; and (iii) do such other things on or
in the Premises as Landlord, in the use of good business judgment determines to be advisable, provided that
notwithstanding anything contained in this Section 11.1, access to the Premises shall be available at all times.
Landlord shall not be in breach of its covenants for quiet enjoyment or liable for any loss, costs, or damages,
whether direct or indirect, incurred by Tenant due to any of the foregoing; provided, Landlord shall exercise its
rights under this section in a commercially reasonable manner so as to minimize any disruption or interference
with the operation of Tenant's business and property.
ARTICLE XII. CONDEMNATION.
12.1 Total or Partial Taking. If a material portion of the Premises, or such portion thereof as will make
the Premises unusable for the purposes leased hereunder, shall be taken by any public authority under the
power of eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease
as of the day possession or title shall be taken by such public authority, whichever is earlier ("Taking Date"),
whereupon the Rent and all other charges shall be paid up to the Taking Date with a proportionate refund by
Landlord of any Rent and all other charges paid for a period subsequent to the Taking Date. If less than the a
material portion of the Premises, or less than such portion thereof as will make the Premises unusable for the
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purposes leased hereunder, the Term shall cease only as to the part so taken as of the Taking Date, and Tenant
shall pay Rent and other charges up to the Taking Date, with appropriate credit by Landlord (toward the next
installment of Rent due from Tenant) of any Rent or charges paid for a period subsequent to the Taking Date.
Base Rent and other charges payable to Landlord shall be reduced in proportion to the amount of the Premises
taken.
12.2 Award. All compensation awarded or paid upon a total or partial taking of the Premises
including the value of the leasehold estate created hereby shall belong to and be the property of Landlord
without any participation by Tenant; Tenant shall have no claim to any such award based on Tenants leasehold
interest. However, nothing contained herein shall be construed to preclude Tenant, at its cost, from
independently prosecuting any claim directly against the condemning authority in such condemnation proceeding
for damage to, or cost of removal of, stock, trade fixtures, furniture, and other personal property belonging to
Tenant and for Tenants moving expenses; provided, however, that no such claim shall diminish or otherwise
adversely affect Landlord's award or the award of any mortgagee and Tenant may not prosecute any claim for
leasehold value.
ARTICLE XIII. SALE OR USE OF EXPANDED POLYSTYRENE
13.1 Prohibition 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 selling, using, providing food in, or offering the use of expanded polystyrene food service
articles by City contractors or special event permittees in City facilities or on City property. Additionally, pursuant
to Section 82-385 (p) 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.
(a) 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).
(b) Expanded polystyrene food service articles means plates, bowls, cups, containers, lids, trays,
coolers, ice chests, and all similar articles that consist of expanded polystyrene.
13.2 Tenant agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food service
articles at the Premises or in connection with this Lease. Tenant shall ensure that all Vendors operating in the
Premises abide by the restrictions contained in this section *. 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 my 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.
ARTICLE XIV. GENERAL PROVISIONS.
14.1 Delay. Whenever a period of time is herein prescribed for the taking of any action by Landlord
or Tenant, as applicable, Landlord or Tenant, as applicable, shall not be liable or responsible for, 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 Landlord or Tenant, as applicable. The
foregoing shall not apply to any payments of money due under this Lease, unless foregoing events have a
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materially adverse effect on the ability to transact and/or transfer monies.
14.2 Holding Over. If Tenant remains in possession of the Premises after the end of the Term without
having executed and delivered a new lease or an agreement extending the Term, there shall be no tacit renewal
of this Lease or the Term, and Tenant shall be deemed to be occupying the Premises as a Tenant from month to
month at a monthly Rent payable in advance on the first day of each month equal to twice the monthly amount of
Rent payable during the last month of the Term, and otherwise upon the same terms as are set forth in this
Lease, so far as they are applicable to a monthly tenancy.
14.3 Waiver; Partial Invalidity. If Landlord excuses or condones any default by Tenant of any
obligation under this Lease, this shall not be a waiver of such obligation in respect of any continuing or
subsequent default and no such waiver shall be implied. All of the provisions of this Lease are to be construed
as covenants even though not expressed as such. If any provision of this Lease is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Lease and the remaining provisions of
this Lease shall remain in force and bind the parties as though the illegal or unenforceable provision had never
been included in this Lease.
14.4 Recording. Neither Tenant nor anyone claiming under Tenant shall record this Lease or any
memorandum hereof in any public records without the prior written consent of Landlord.
14.5 Notices. Any notice, consent, or other instrument required or permitted to be given under this
Lease shall be in writing and shall be delivered in person, or sent by certified mail, return receipt requested, or
overnight express mail courier, postage prepaid, addressed (i) if to Landlord, at the address: set forth in the
Lease Summary; and (ii) if to Tenant, at the Premises or, prior to Tenant's occupancy of the Premises, at the
address set forth on the Lease Summary. Any such notice or other instruments shall be deemed to have been
given and received on the day upon which personal delivery is made or, if mailed, then forty-eight(48) hours
following the date of mailing. Either party may give notice to the other of any change of address and after the
giving of such notice, the address therein specified is deemed to be the address of such party for the giving of
notices. If postal service is interrupted or substantially delayed, all notices or other instruments shall be
delivered in person or by overnight express mail courier.
14.6 Successors; Joint and Several Liability. The rights and liabilities created by this Lease extend to
and bind the successors and assigns of Landlord and the heirs, executors, administrators, and permitted
successors and assigns of Tenant. No rights, however, shall inure to the benefit of any transferee unless such
Transfer complies with the provisions of Article VIII. If there is at any time more than one Tenant or more than
one person constituting Tenant, their covenants shall be considered to be joint and several and shall apply to
each and every one of them.
14.7 Captions and Section Numbers. The captions, section numbers, article numbers, and table of
contents appearing in this Lease are inserted only as a matter of convenience and in no way affect the
substance of this Lease.
14.8 Extended Meanings. The words"hereof,""hereto," "hereunder," and similar expressions used in
this Lease relate to the whole of this Lease and not only to the provisions in which such expressions appear.
This Lease shall be read with all changes in number and gender as may be appropriate or required by the
context. Any reference to Tenant includes, when the context allows, the employees, agents, invitees, and
licensees of Tenant and all others over whom Tenant might reasonably be expected to exercise control. This
Lease has been fully reviewed and negotiated by each party and their counsel and shall not be more strictly
construed against either party.
14.9 Entire Agreement; Governing Law; Time. This Lease and the Exhibits and Riders, if any,
attached hereto are incorporated herein and set forth the entire agreement between Landlord and Tenant
concerning the Premises and there are no other agreements or understandings between them. This Lease and
33
its Exhibits and Riders may not be modified except by agreement in writing executed by Landlord and Tenant.
This Lease shall be construed in accordance with and governed by the laws of the State of Florida. Time is of
the essence of this Lease.
14.10 No Partnership. The parties hereby acknowledge that it is not their intention under this Lease to
create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership, or
agency relationship. Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this
Lease, whether based on the calculation of rental or otherwise, shall be construed or deemed to create, or to
express an intent to create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or
agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this section
shall survive expiration of the Term.
14.11 Quiet Enjoyment. If Tenant pays Rent and other charges and fully observes and performs all of
its obligations under this Lease, Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the
Term without interruption or interference by Landlord or any person claiming through Landlord.
14.12 Brokerage. Landlord and Tenant each represent and warrant one to the other that neither of
them has employed any broker in connection with the negotiations of the terms of this Lease or the execution
thereof. Tenant hereby agrees to indemnify and to hold harmless Landlord against any loss, expense, or liability
with respect to any claims for commissions or brokerage fees arising from or out of any breach of the foregoing
representation and warranty.
14.13 Radon Notice. Chapter 88-285, Laws of Florida, requires the following notice to be provided with
respect to the contract for sale and purchase of any building, or a rental agreement for any building:
"RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over 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."
14.14 Inspection and Audit. Tenant shall maintain its financial records pertaining to its operation
pursuant to this Lease, and records with respect to the community programming required pursuant to Section
3.11 for a period of three (3) years after the conclusion of the 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, upon
ten (10) business days'written notice from the City Manager or his designee that the City desires to review said
records. Tenant shall maintain its records relating to the operation of the Premises within Miami-Dade County,
Florida.
14.15 Execution. This Lease has been submitted for discussion purposes only and shall not be
deemed an offer by either party to the other to enter into this Lease unless and until this Lease shall have been
executed by both parties, indicating their acceptance of the terms and conditions contained herein.
14.16 WAIVER OF TRIAL BY JURY. LANDLORD 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 AGREEMENT.
14.17 Reference to"Approvals" or"Consent," etc. Except when expressly provided otherwise, all
references in this Lease to the terms "approval," "consent," and words of similar import shall mean "reasonable
written approval" or"reasonable written consent."
14.18 Citv's Governmental Capacity. In all respects hereunder, City's obligations and its performance
as the Landlord under this Lease is pursuant to its position as the owner of the Premises acting in its proprietary
capacity. In the event City exercises its regulatory authority as a governmental body, the exercise of such
34
regulatory authority and the enforcement of any rules, regulations, laws and ordinances (including through the
exercise of the City's building, fire, code enforcement, police department or otherwise) shall be deemed to have
occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any
manner to City as a party to this Lease or in any way be deemed in conflict with, or a default under, the City's
obligations hereunder, or to otherwise restrict or limit the City in the exercise of its regulatory, police or other
governmental powers.
14.19. City Manager's Delegated Authority. Notwithstanding any provision to the contrary in this Lease,
nothing herein shall preclude the City Manager from seeking direction from or electing to have the City
Commission determine any matter arising out of or related to this Lease, including, without limitation, any
approval contemplated under this Lease, any proposed amendment or modification to this Lease, or any
separate agreement relating to the Premises or otherwise referenced in this Lease.
14.20. Nondiscrimination. Tenant shall not discriminate against any employee, applicant for
employment, Vendor, or invitee because of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status, age, disability, ancestry, height,
weight, domestic partner status, labor organization membership, familial situation, or political affiliation. Further,
Tenant shall comply with the City of Miami Beach Human Rights Ordinance, set forth in Chapter 62 of the City
Code, as may be amended from time to time, prohibiting discrimination in employment, housing, public
accommodations, and public services on account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status, age, disability, ancestry, height,
weight, domestic partner status, labor organization membership, familial situation, or political affiliation.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
EXECUTED as of the day and year first above written.
WITNESSES: LANDLORD:
City of Miami Beach
By:
Name:
Title:
TENANT:
NORTH BEACH YARD LLC
By:
Name:
Title:
EXHIBITS:
35
Exhibit"A": Legal Description and Survey of Premises
Exhibit"B": Tenant's Site Plan
Exhibit"C": Landlord Improvements
Exhibit"D" Tenant's Work
Exhibit"E": Rules and Regulations
Exhibit"F": Construction Escrow Agreement
Exhibit"G" Cleanliness Standards
Exhibit"H" Penalties in Lieu of Default
EXHIBIT"A"
Legal Description and Survey of Premises
36
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EXHIBIT"B"
Tenant's Site Plan for Premises and Location of
Operations/Establishments within the Premises
[Pending City Commission determination as to Log Cabin site; site plan to be included in final agreement]
EXHIBIT"C"
Landlord Improvements
[See Attachment 5 to Commission Memorandum. Subject to final negotiation/appropriation].
EXHIBIT"D"
Tenant's Work
[Summary of Tenant's Work to be finalized as part of final negotiations]
EXHIBIT"E"
Rules and Regulations
1. Security. Landlord may from time to time adopt appropriate systems and procedures for the
security or safety of the Premises, any persons occupying, using, or entering the same, or any equipment,
furnishings, or contents thereof, and Tenant shall comply with Landlord's reasonable requirements relative
thereto.
2. Return of Keys. At the end of the Term, Tenant shall promptly return to Landlord all keys for the
Premises which are in the possession of Tenant. In the event any Tenant fails to return keys, Landlord may
retain $100.00 of Tenants security deposit for locksmith work and administration.
3. Repair, Maintenance, Alterations, and Improvements. Tenant shall carry out Tenant's repair,
maintenance, alterations, and improvements in the Premises only during times agreed to in advance by
Landlord.
4. Water Fixtures. Tenant shall not use water fixtures for any purpose for which they are not
intended, nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting from such
misuse by Tenant shall be paid for by Tenant.
5. Personal Use of Premises. The Premises shall not be used or permitted to be used for
residential, lodging, or sleeping purposes or for the storage of personal effects or property not required for
business purposes.
6. [Bicycles, Animals. Tenant shall not bring any animals or birds into the Premises, and shall not
permit bicycles or other vehicles inside or on the sidewalks outside the Premises except in areas designated
from time to time by Landlord for such purposes] [Parties to discuss/confirm with Planning].
7. Deliveries. Tenant shall ensure that deliveries of supplies, fixtures, equipment, furnishings,
wares, and merchandise to the Premises are made through such entrances, corridors and at such times as may
from time to time be designated by Landlord, and shall promptly pay or cause to be paid to Landlord the cost of
repairing any damage in the Premises, caused by any person making improper deliveries.
8. Solicitations. Landlord reserves the right to restrict or prohibit canvassing, soliciting, or peddling
in the Premises.
9. Refuse. Tenant shall place all refuse in proper receptacles provided by Tenant at its expense in
the Premises or in receptacles (if any) provided by Landlord for the Premises, and shall keep sidewalks and
driveways outside the Premises, and lobbies, corridors, stairwells, ducts, and shafts of the Premises, free of all
refuse.
10. Obstructions. Tenant shall not obstruct or place anything in or on the sidewalks or driveways
outside the Premises or in the lobbies, corridors, stairwells, or other common areas, or use such locations for any
purpose except access to and exit from the Premises without Landlord's prior written consent. Landlord may
remove at Tenant's expense any such obstruction or thing caused or placed by Tenant (and unauthorized by
Landlord)without notice or obligation to Tenant.
11. Proper Conduct. Tenant shall not conduct itself in any manner which is inconsistent with the
character of the Premises as a first quality entertainment pavilion or which will impair the comfort and
convenience of other patrons in the Premises.
12. Employees, Aqents, and Invitees. In these Rules and Regulations, "Tenant" includes the
employees, agents, invitees, and licensees of Tenant and others permitted by Tenant to use or occupy the
Premises.
13. Pest Control. In order to maintain satisfactory and uniform pest control throughout the Facility,
Tenant shall engage for the Premises and at its sole cost, a qualified pest extermination contractor either
designated or approved by Landlord, who shall perform pest control and extermination services in the Premises
at such intervals as reasonably required or as may be directed by Landlord.
14. 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. 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 furniture specifically shown on the approved site plan shall be allowed on the
Premises;
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 Premises;
f. No storage of dishes, silverware or other similar restaurant equipment shall be allowed on any public
right-of-way, or outside the structural confines of the Premises;
g. No food displays shall be permitted on the Premises;
h. 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;
i. Upon written or verbal notification by the City Manager or his designee 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 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 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. [Administration to
review]
EXHIBIT"F"
Construction Escrow Agreement
EXHIBIT"G"
Cleanliness Standards
[TO BE INCLUDED AS PART OF FINAL NEGOTIATIONS]
Exhibit"H"
Penalties in Lieu of Default
Failure to properly remove debris, litter or garbage, or otherwise satisfy the Cleanliness Standards: $ per
violation;
Failure to comply with any alcoholic beverage law, food service or handling requirement: $_per violation;
Failure to comply with Landlord's expanded polystyrene prohibition: $_per violation;
Failure to promptly correct or resolve any code violation or notice of violation issued by any agency having
jurisdiction over the Premises, the Tenant, or any Vendor or operator on the Premises: $_per violation;
Failure to maintain any copyright license as required under the Lease: $ per violation;
Failure to comply with Landlord's signage requirements: $_per violation;
Failure to properly store or maintain hazardous materials: $_per violation;
Failure to provide any Miami-Beach based business with priority status as a Vendor: $_per violation;
Failure to adhere to Rules and Regulations set forth in Exhibit E: $_per violation;
Failure to report any matter to Landlord as required under Lease: $_per violation
[As part of final negotations, City Administration to specify additional items and confirm amounts]
l. EQUITY PRIVATELY
CITY OF MIAMIINVESTMENT/ FUNDED
NORTH'BEACH YARD CAPITAL BUDGET BEACH .;, °DEBT FINANCING (OPERATORS)
GRADING,CLEARING,DEBRIS REMOVAL $ 25,000.00
PERIMETER LANDSCAPING&FENCING $ 40,000.00
INTERIOR LANDSCAPING&MOSQUITO MITIGATION $ 50,000.00
GROUND SURFACE;GRASS,ASTRO TURF,STONES,PAVERS,ETC $ 75,000.00
ELECTRICAL,[1,200 linear feet of trenches] $ 60,000.00
LIGHTING[at entrances,exits,and general lighting] $ 40,000.00
PLUMBING[1,200 linear feet] $ 75,000.00
GREASE TRAP[large enough for all trucks,2 restaurants,etc] $ 40,000.00
CLASSROOM /BATHROOM RENOVATIONS $ 70,000.00
TRASH ROOM AND ENCLOSURE $ 20,000.00
ROOF TOP ACCESS[exterior stairs,elevator] $ 60,000.00
ROOF TOP[wood decking,parapet railing,canopy cover] $ 60,000.00
ENTRANCE GATES $ 30,000.00
LOG CABIN RENOVATION[removal] $ -
WI Fl/LOW VOLTAGE CABLING $ 25,000.00
CAMERAS/SECURITY $ 15,000.00
GARDEN INSTALLATION $ 40,000.00
ALLEE $ 20,000.00
GARDEN PLANTING $ 20,000.00
SOUND SYSTEM $ 50,000.00
STAGE&LIGHTING $ 50,000.00
TENTS/COVERINGS $ 40,000.00
PAVILLIONS/KIOSKS $ 45,000.00
MARKET CONTAINERS $ 450,000.00
SHARED BOH IN EXISTING BUILDING $ 50,000.00
CHARCOAL CONTAINERS;DINNING CONSERVATORY,PORCH,BAR $ 450,000.00
DTK CONTAINERS;30'X8'KITCHEN+30'X16'OPEN AIR PAVILLION $ 300,000.00
FURNITURE,SEATING,CABANAS $ 60,000.00
BAR;STRUCTURE,REFRIGERATION,BACK BAR,ETC $ 75,000.00
BAR;OPENING INVENTORY $ 25,000.00
PRE-OPENING PR,MARKETING,OPENING EVENTS $ 50,000.00
MEP PLANNING $ 20,000.00
DESIGN FEES,ARCHITECTURAL[TBD] $ 40,000.00
PREOPENING MANAGEMENT LABOR $ 60,000.00
LIFE GUARD STANDS $ 5,000.00 $ -
SIGNAGE $ 20,000.00
CONTINGENCY $ 50,000.00 $ 50,000.00
TOTAL $ 750,000.00 % 7.+ $ 1,155,000.00 $ 750,000.00 $ 2,975,000.00
25.21% 10.76% 38.82% 25.21%
NORTH BEACH YARD 2018
OCCUPANCY RATE MONTHLY COMMISSIONABLE
OR FREQUENCY REVENUES
FOOD TRUCK VENDORS 10 $4,000 90.00% $ 36,000 $ 432,000 105.00%
THE BAR @ NBY 1 $8,000 100.00% $ 8,000 $ 96,000 110.00%
MORNING GLORY 1 $4,000 100.00% $ 4,000 $ 48,000 105.00%
DELLA BOWLS 1 $4,000 100.00% $ 4,000 $ 48,000 105.00%
CHARCOAL 1 $5,000 100.00% $ 5,000 $ 60,000 105.00%
MARKET VENDORS[8'X10'] 8 $1,800 85.00% $ 12,240 $ 146,880 105.00%
RETAIL KIOSKS[8'X12'] 3 $3,500 90.00% $ 9,450 $ 113,400 104.00%
RETAIL VENDORS 3 $3,500 90.00% $ 9,450 $ 113,400 104.00%
MARKET VENDORS[12'X16] 2 $4,000 90.00% $ 7,200 $ 86,400 104.00%
FITNESS CONTAINER 1 $2,000 100.00% $ 2,000 $ 24,000 101.00%
CABANA RENTALS 3 $250 12 $ 9,000 $ 108,000 104.00%
SMALL EVENT RENTALS 1 $500 15 $ 7,500 $ 90,000 104.00%
SUB TOTAL/RENT REVENUE BASE $ 113,840 $ 1,366,080
SUB TOTAL/BASE RENT 5.00%OF RENTAL INCOME $ 1.00
FESTIVAL INCOME 1 $ 50,000
7.00%OF RENTAL INCOME $ 3,500
TOTAL $ 3,501
NOTES
1.THE TEST KITCHEN/KITCHEN CLASSROOM IS NOT FIGURED IN THESE CALCULATIONS BECAUSE THE PURPOSE OF THAT UNIT IS TO TEACH COOKING CLASSES-IT I:
2.THE ROOF-TOP PAVILLION IS NOT FIGURED INTO THESE CALCULATIONS SINCE(A),IT IS UNKNOWN IF THE PAVILLION IS FEASIBLE AND(B),IF IT DOES GET BUILT,
3.THE FITNESS CENTER RENT ESTIMATE HAS BEEN LOWERED,AS THE ORIGINAL NUMBER($4K)WAS PROBABLY EXCESSIVE. IF,AFTER THE FIRST YEAR,IT CAN BE E!
2019 2020 2021 2022
COMMISSIONABLE COMMISSIONABLE COMMISSIONABLE COMMISSIONABLE
REVENUES REVENUES REVENUES REVENUES
YEAR 2 YEAR 3 YEAR 4 YEAR 5
$ 453,600 105.00% $ 476,280 105.00% $ 500,094 102.00% $ 510,096
$ 105,600 110.00% $ 116,160 110.00% $ 127,776 105.00% $ 134,165
$ 50,400 105.00% $ 52,920 105.00% $ 55,566 105.00% $ 58,344
$ 50,400 105.00% $ 52,920 105.00% $ 55,566 105.00% $ 58,344
$ 63,000 105.00% $ 66,150 105.00% $ 69,458 105.00% $ 72,930
$ 154,224 105.00% $ 161,935 105.00% $ 170,032 105.00% $ 178,534
$ 117,936 104.00% $ 122,653 104.00% $ 127,560 104.00% $ 132,662
$ 117,936 104.00% $ 122,653 104.00% $ 127,560 104.00% $ 132,662
$ 89,856 104.00% $ 93,450 104.00% $ 97,188 104.00% $ 101,076
$ 24,240 101.00% $ 24,482 101.00% $ 24,727 101.00% $ 24,974
$ 112,320 104.00% $ 116,813 104.00% $ 121,485 104.00% $ 126,345
$ 93,600 104.00% $ 97,344 104.00% $ 101,238 104.00% $ 105,287
$ 1,433,112 $ 1,503,762 $ 1,578,249 $ 1,635,419
$ 71,656 $ 75,188 $ 78,912 $ 81,771
$ 100,000 $ 150,000 $ 150,000 $ 150,000
$ 7,000 $ 10,500 $ 10,500 $ 10,500
$ 78,656 $ 85,688 $ 89,412 $ 92,271 I$ 349,528 I
S NOT PROGRAMMED AS A TYPICAL COMMERCIAL ARM OF THE COMPLEX
4 DIFFERENT RATE WILL NEED TO BE CONSIDERED.
;TABLISHED THAT THE FITNESS CENTER CAN PAY MORE,WE WILL INCREASE THE RENT. 8
ESTIMATED F&B OPERATORS EXPENSES
REVENUES EXPENSES PROFIT
FOOD TRUCKS [AVERAGE] $ 8,000,000 94.00% $ 7,520,000 $ 480,000 6.00%
BAR $ 2,500,000 80.00% $ 2,000,000 $ 500,000 20.00%
24-HOUR CAFE $ 1,250,000 92.00% $ 1,150,000 $ 100,000 8.00%
DELLA BOWLS $ 1,500,000 94.00% $ 1,410,000 $ 90,000 600%
CHARCOAL $ 2,250,000 89.00% $ 2,002,500 $ 247,500 11.00%
$ 15,500,000 $ 1,417,500 9.15% ONE YEAR
$ 77,500,000 $ 7,087,500 9.15% FIVE YEARS
NORTH BEACH YARD/ INFRASTRUCTURE NEEDS
1. GRADING,CLEARING,DEBRIS REMOVAL I $00.00
NBY expects the CMB to clear and prepare the property-at the city's cost-prior to NBY taking possession. This shall include;removing all structures
other than the classroom,clearing all concrete and other pavers from the property,removing all fences(other than the perimeter fence),tents and
other items. The site preparation is considered outside of the CMB expenditure for the NBY.
2. PERIMETER LANDSCAPING&FENCING I $40,000.00
There are certain, basic landscaping costs the NBY wants the CMB to manage; including;relocating small trees on site,adding new trees(moved
from other City-owned property),adding hedges along the perimeter,and irrigation system for watering,etc. The existing fence has been found to
be more than suitable—however,the fence may need some gates and/or other enclosures fabricated for practical purposes(trash area,truck in/
out,etc). NBY would like the CMB to pay for these alterations to the existing perimeter fence. The NBY will sub-contract directly for the edible
organic garden,including containers,irrigation system,plants and regular upkeep.
3. INTERIOR LANDSCAPING&MOSQUITO MITIGATION I $50,000.00
To mitigate mosquitos,and more importantly Zika,NBY would request that CMB install a similar system to what has been installed at The Wynwood
Yard,MosquitoNix. The system sprays a fine mist of an all-natural repellent on an automated clock as well as having a remote control for manual
spray activation. The company is one of the leaders in the field and is effective. In addition,NBY desires the CMB to assist in planting and maintaining
interior landscaping(other than the edible garden).
4. GROUND SURFACE;GRASS,ASTRO TURF,STONES,PAVERS,ETC I $85,000.00
NBY asks that the CMB install all ground surfaces in the NBY,including;concrete pads under the food trucks and along the path in front of the trucks,
all tumbled-cobbles for the main walk-ways throughout the site,all astro-turf in the stage/audience area,wooden or faux wood decks between
some of the containers,crushed limestone-sand-mix in other areas.
5. ELECTRICAL,[overhead installation] I $75,000.00
Based on the charrette at DPZ,it is thought that by implementing an overhead grid of electrical wires,we can save a reasonable amount of money
and have infinitely more flexibility as it relates to tying into buildings/trucks/containers. We estimate to need about 1,000 liner feet of wires,not
counting the connections to each unit. The existing classroom building is already connected electrically, the potential need for some electrical
upgrade is possible,but we will not know the extent of that until the engineers report is produced.
6. LIGHTING,SPEAKERS,[overhead installation] I $40,000.00
Like the electrical grid detailed above,we envision an overhead grid(same poles,lower wires)to distribute low voltage lighting strands,as well as
speakers for sound. An additional 1,000—2,000 feet of wiring is required.
7. PLUMBING I $75,000.00
There are 2 main plumbing areas on this project;first is the existing classroom building;we propose to expand toilet capacity to accommodate public
restrooms for the entire Yard,this upgrade will consist of half the building(appx) being converted for this use, resulting in about 24 toilets, plus
urinals,and hand washing stations. DPZ has preliminary drawings for the proposed revision.Also in this structure,a catering pantry will be needed
—and this will require hand washing,pot and pan washing(3-comp sink),machine dishwashing,prep sinks,etc.
The second plumbing need is to tie in all food trucks,the three restaurants,the test kitchen as well as some minor needs for the market vendors
(hand sinks only)..The food truck plumbing lines will be installed in a'trough'with stub ups in regular intervals.This trough will run under the food
trucks and allow for multiple positioning by stubbing up in more locations than actual trucks—this allows for varying lengths of trucks/trailers/
containers. Trough length;about 150 feet. Stub ups;about 15. The additional needs are to connect(water and sewer)the additional'wet'units;
24-hout café,Della Bowls,Charcoal,Test kitchen and hand sinks in all market stalls(+/-12),etc.This is about 500 linear feet.
8. GREASE TRAP I$40,000.00
The Wynwood Yard currently uses a Schier GB250 grease interceptor. This is an in-ground unit. Based on the capacity we are currently processing
in Wynwood,and based on MY back of envelope calculations(engineer report forthcoming),we would expect to more than double the capacity to
a Schier GGI-750 gallon unit.
9. CLASSROOM/BATHROOM RENOVATIONS I $70,000.00
Plumbing for bathrooms are discussed in the plumbing section.The cost,estimated above,is for partiions,tile,fixtures,lighting,etc. In addition,
this includes similar cost for catering pantry,which needs:tile floor,tile walls,washable ceiling,plumbing(already discussed),electrical upgrades,
lighting(about 600 feet of space),PLUS the remainder of the space is to be used for offices and some storage.
10. TRASH AREA I $20,000.00
NBY will schedule 7-day per week trash removal. If the large composting container is acquired,the trash removal will be significantly reduced. In
either case, a dedicated area will need to be constructed on the northwest corner of the site. This area will need to have space for dumpsters,
recycling bins and the composter.
11. ROOF TOP PAVILION I $120,000.00
The rooftop pavilion is based on three phases;(1)canvas cover and infrastructure,(2),wood or faux wood decking and potential support,if required,
and(3)the external mounted staircase and elevator.
(1) The canvas cover will be quoted from EventStar,the premier tenting company. However,we expect that quotation to be way over budget,
therefore we are gathering information to build a simpler—albeit a similar—structure from steel columns mounted in concrete footers,
plus a typical pole-type frame with stretched canvas top,tied with string that can be cut to remove the top under high winds.
(2) The decking needs to cover the entire roof to allow for public walking. An inspection will be required by our engineer to determine if any
additional supporting will be required to install the decking.
(3) External metal staircase(self-supporting)needs to be installed to allow for public egress from the ground level to the rooftop pavilion. In
addition,an externally located(northeast area),self-supporting elevator needs to be installed to allow for alternative egress to the rooftop
pavilion,as well as an additional stop on a mezzanine level for access to the Pilates studio.
12. GATES,FENCES,ETC. ( $30,000.00
The perimeter fence is well made and desirable,however there are several sections that will need to be adjusted;main entrance,delivery gates,
sliding alley gates,etc. The green skirting
13. SHARED BOH I $50,00.00
Separate from the plumbing and partition work needed for the classroom,a working pantry needs to be outfitted in the same space. Items include;
ice machines,refrigeration,sinks,floor troughs,work tables,cabinets,etc.
14. LIFE GUARD STANDS I$5,000.00
NBY would like to install 2 Miami Beach life guard stands,to use as(a)a DJ booth,and(b)a light and sound booth for the stage. In both caes,these
structures will not be permitted to the general public.
15. CONTINGENCY I $50,000.00
MINA6K610.CO 91tITi 1 `iTimi fCF1la I From rhe front ge/ ( $A.
INWIItNttAt0.00At Local&State ur.
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IIAC H
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARINGS
JULY 26,2017
NOTICE IS HEREBY given that the.following Public Hearings watt be held by the Mayor and City
Commissioners of the City of Miami Beach,Florida.In the Commission Chamber,Third Floor,City Nall.
1700 Convention Center Drive,Miami Beach.Florkla,on July 26,2017,at the times listed,or as soon
thereafter an the matter can be heard:
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 (AS SET FORTH IN THE CITY COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION), AND WAIVING, BY 517TH VOTE,THE
COMPETITIVE BIDDING.REQUIREMENT,FINDING SUCH WAIVER TO BE IN THE BEST INTEREST
OF THE CITY;APPROVING,IN SUBSTANTIAL FORM,THE LEASE AGREEMENT ATTACHED TO
THIS RESOLUTION("LEASE"),BETWEEN THE CITY AND NORTH BEACH YARD,1..1.0(TENANT),
INVOLVING THE.USE OF THE CITY-OWNED PROPERTY,LOCATED AT 8100-8140 COLLINS AVENUE,
MIAMI BEACH,FLORIDA,WITH THE LEASED PREMISES CONSISTING OF UP TO 52,500 SQUARE
FEET,FOR USE AS A FOOD,BEVERAGE AND ENTERTAINMENT PAVILION,INCLUDING RETAIL AND
OTHER VENDORS,AND FOR CULTURAL7COMMUNITY PROGRAMMING AND ENTERTAINMENT
OFFERINGS; PROVIDING. FOR CITY TO DESIGN AND CONSTRUCT CERTAIN LANDLORD
IMPROVEMENTS IDENTIFIED IN THE LEASE(THE 'LANDLORD IMPROVEMENTS"):PROVIDING
AN INITIAL TERM OF FIVE(5)YEARS, COMMENCING FOLLOWING THE CITY'S COMPLETION
OF THE LANDLORD IMPROVEMENTS,WITH TWO(2) RENEWAL TERMS OF TWO(2)YEARS
EACH,TO BE EXERCISED UPON MUTUAL AGREEMENT OF CITY AND TENANT:PROVIDING FOR
THE LEASE TO BE SUBJECT TO AND CONTINGENT UPON(1)AN APPROPRIATION OF FUNDING
FOR THE LANDLORD IMPROVEMENTS; (2)ANY AMENDMENTS, AS MAY BE REQUIRED TO
THE CITY OF MIAMI BEACH CODE OF ORDINANCES, THE CITY'S LAND DEVELOPMENT
REGULATIONS.AND COMPREHENSIVE PLAN,AND(3)ANY FINAL NON-APPEALABLE APPROVALS
FROM THE APPLICABLE CITY LANDUSE BOARDS;AND FURTHER AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE THE FINAL NEGOTIATED LEASE UPON CONCLUSION OF SUCCESSFUL.
NEGOTIATIONS BY THE ADMINISTRATION. SUBJECT TO REVIEW AND FORM APPROVAL BY
THE CITY ATTORNEY.This Resvkit;on is boing heard pursuant to SeU.bn§76x041 F S.Inquf/es moo
Se airectad to the rou,1sm.Culture&Ecenomtc Development Dana/to-opt at 255 672.7577.
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,THE 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;INCLUDING AN ADJOINING OUTDOOR SEATING AREA,
HAVING APPROXIMATELY 507 SQUARE FEE f,FOR USE AS A GAEL;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 MANAGERS SOLE DISCRETION:AND PROVIDING,
IN MATERIAL PART,THAT TENANT WILL PROVIDE CITY EMPLOYEES HEALTHY FOOD CHOICES
AT A FORTY PERCENT (40%)DISCOUNT,WITH TFIE CITY REIMBURSING TASTE.BAKERY FOR
EMPLOYEE DISCOUNTS.IN AN AMOUNT NOT TO EXCEED 5200,000 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.
This Resolutkn is being heard pursuant to Seddon§165041 F.5 Ingo/?es may Se directed to the
tourism,,Culture 6 Lc°nomtc Davelrlpment Department at 305.673.7577 or Me Procurement Department
-a t 306:67 3.7490.
INTERESTED PARTIES are Inched to appear at this meeting,or be represented by an agent,or to
express their News in writing addressed to the City Commission,Go the City Clerk,1700 Convention
Center Drive,1"Floor,City Hall,Miami Beach,Florida 33139.Copies of these gamsareavailable.
for public Inspection during normal husktess hours in the(Mice of the City Clerk,1700 Convention
Center Drive,1aFloor,City Hall,Miami Beach,Florida 33139.This meeting,or any item herein,maybe
continued,and under such circumstances,additional legal notice need not be provided.
Pursuant to Section 286.0105,Fla.Slat.,the City hereby advises the public that 1 a person deckle&
to appeal any decision made by the City Commission with respect to any matter considered at its
meeting or Its hearing,.such person oust ensure thata verbatim record of the proceedings Is made,
which recon]Includes the testimony and evidence upon Which the appeal Is to be based.This notice
does not constitute consent by the City for the Mroductlon or admission 01 otherwise Inadmissible or
irrelevant evidence,nor does it authorizechallenges or appeals not otherwise allowed by lax.
To request this material in alternate formal,sign language Interpreter(fle-day notice required),
Information on minimal or persons with disabilities,and/or any accommodation to revlew anydocumem
or participate in any City-sponsored proceedngs,cal 305.604.2489 and select T for English or 2for
Spanish,then option 6;TTY users may cal via 711(Florida Relay Service)..
Rafael E.Granedo,City Clerk
City of M IamI Beach
Ad 1375