Lease Agreement with Colony Theater Cafe, Inc. GCT - zgg3L
LEASE AGREEMENT
THIS LEASE AGREEMENT, (also referred to as the "Lease" or "Agreement"),
made as of the 2-S day of l iA7 , 2018, by and between the CITY OF MIAMI
BEACH, FLORIDA, a Florida municipal corporation (hereinafter referred to as "City" or
"Landlord"), and COLONY THEATER CAFE, INC., a Florida corporation, d/b/a
SEGAFREDO ZANETTI ESPRESSO (hereinafter referred to as"Tenant").
1. Demised Premises: Use of the Colony Theater Lobby Area; Use of Dumpster/Storage
Area.
1.1 The City owns in fee simple that certain land and the property thereon
known as the Colony Theatre Condominium (the "Building"), located at 1040
Lincoln Road, Miami Beach, Florida 33139, which Building includes
approximately 820 square feet of rentable ground floor area of restaurant
space (the "Restaurant Space," "Unit 1"), approximately 272 square feet of
rentable ground floor area of concession space with storage unit
(collectively, the "Concession Area," "Unit 2"), and approximately 12,113
square feet of rentable area of theater space (the "Theater Space," "Unit
3"). The City also owns a surface parking lot, in close proximity to the
Building, containing a building having approximately 348 square feet (the
"Dumpster/Storage Area"), having a street address of 1100 Lincoln Road.
The City, in consideration of the rentals hereinafter reserved to be paid, and
of the covenants, conditions and agreements to be kept and performed by
the Tenant, hereby leases, lets and demises to Tenant, and Tenant hereby
leases and hires from the City, the Restaurant Space and the Concession
Area (collectively, the "Demised Premises") more particularly described as
follows:
Unit 1 and Unit 2, of Colony Theatre Condominium, a
Condominium according to the Declaration thereof, as
recorded in Official Records Book 30872, at Page 1216, of
the Public Records of Miami-Dade County, Florida, as
amended pursuant to that certain Amendment to Declaration
of Condominium dated April 23, 2018, as recorded in
Official Records Book 30952, at Page 721, of the Public
Records of Miami-Dade County, Florida.
The Demised Premises are further described in Exhibit 1, incorporated
herein by reference and attached hereto.
1.2 Use of the Colony Theater Lobby Area. Tenant shares the use of the lobby
area of the Colony Theatre Condominium with Miami New Drama, Inc. d/b/a
Miami New Drama, (the "Theater Manager") for the Colony Theatre, which
occupies the majority of the Building, for the purpose of accessing the
Concession Area and the Lobby Restroom (as defined herein), as permitted
under this Lease. While Colony Theatre performances, events or shows are
in session (collectively, "Colony Theatre Events"), the restroom located in
the lobby of the Colony Theatre (the "Lobby Restroom") may only be used
by the patrons of the Colony Theatre; however, during times when Colony
Theatre events are not in session, Tenant's employees and patrons shall be
permitted to use, on a non-exclusive basis, the Lobby Restroom in
connection with Tenant's operation of the Restaurant Space.
1.3 Use of Dumpster/Storage Area. During the term of this Lease, Tenant shall
have the right to use the Dumpster/Storage Area, an ancillary use to the
Demised Premises.
1.4 Tenant also operates a sidewalk café, under a Sidewalk Café Permit issued
pursuant to and in accordance with Sections 82-366 through 82-385 of the
of the City of Miami Beach Code. The sidewalk café area is not part of the
Demised Premises.
2. Term.
2.1 Initial Term.
The Tenant shall be entitled to have and to hold the Demised Premises for a
term of three (3) years, commencing retroactively on March 1, 2018
("Commencement Date"), and ending on February 28, 2021. For purposes
of this Agreement, a "Lease Year" is defined as that certain period
commencing on March 1st and ending on the last calendar day of February.
2.2 Renewal Term.
(i) Provided Tenant is in good standing and free from default(s) hereunder,
and (ii) upon written notice from Tenant, which notice shall be submitted to
the City Manager no earlier than one hundred and twenty (120) days, but in
any case no later than ninety (90) days, prior to the expiration of the initial
term (or any renewal term, as the case may be), the City Manager, in his
sole discretion may approve an extension of the Lease for two (2) additional
three (3) year renewal terms. Any approved renewal terms shall be
memorialized in writing and signed by the parties hereto (with the City
hereby designating the City Manager as the individual authorized to execute
such extension on its behalf).
2.3 Termination for Convenience.
Notwithstanding anything in this subsection or any other term or condition in
this Lease, Landlord reserves the right, through its City Manager, to
terminate this Lease, without cause and without liability to the City, upon
providing Tenant with hundred eighty (180) days prior written notice. In the
event of termination by the City pursuant to this Subsection 2.3, Tenant
herein acknowledges and agrees that it shall not have any claim, demand,
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or cause of action of whatsoever kind of nature, against the City, its agents,
servants and employees (including, but not limited to, claims for any start-up
costs and/or interference in its concession operations). Additionally, in no
event shall the City be liable to Tenant for any indirect, incidental, special,
lost profits or consequential damages.
2.4 Liquor License.
As of the Commencement Date, the Tenant shall obtain and maintain active
and current a liquor license issued to the Colony Theater Cafe, Inc. and
designated for Retail Beverage) for the operation of the Restaurant Space
and Concession Area. Upon termination or non-renewal of this Lease, the
Liquor License shall remain the property of the Tenant, and any and all
liabilities relating to such liquor license shall be the responsibility of the
Tenant.
3. Rent.
3.1 Base Rent.
Base Rent for the Demised Premises shall begin to accrue as of the
Commencement Date.
3.1.1 During the Initial Term of this Lease, the annual Base Rent for the
Demised Premises shall be Two Hundred Nineteen Thousand and
00/100 Dollars ($219,000.00), payable in monthly installments of
Eighteen Thousand Two Hundred Fifty and 00/100 Dollars
($18,250.00).
3.1.2 Rent shall be due and payable on the first day of each month
throughout the Term of this Agreement.
3.1.3 The Base Rent shall be increased annually, on the anniversary of
the Commencement Date of the Lease, including any renewal
terms, by two percent (2%) from the Base Rent payable for the
immediately prior year.
3.1.4 In the event Tenant suffers business impairment to the Demised
Premises as a direct result of the proposed Lincoln Road
renovation ("Business Interruption"), Tenant may request to abate
the monthly Base Rent payment ("Business Interruption Base Rent
Abatement"), which, if approved, shall only commence on the first
day of the month following the initial Business Interruption request,
not to exceed four (4) consecutive months. Tenant's request for
Business Interruption Base Rent Abatement shall be submitted for
consideration and approval by the City Manager, at the City
Manager's sole discretion, along with any additional proof of the
Business Interruption, as may be requested by the City Manager.
Upon submitting the written request, Tenant may defer any future
Base Rent payments until such time as the City Manager has come
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to his/her decision. In the event the City Manager denies Tenants
Business Interruption Base Rent Abatement, all deferred rent
payments shall be due within 5 business days of written notice from
the City. During any approved Business Interruption Base Rent
Abatement period, Tenant shall (i) pay a new monthly Base Rent
("Business Interruption Base Rent") of seven percent (7%) of the
Tenants monthly "gross receipts", as defined in Section 3.42, due
on or before the 30th day of the following month; and (ii) continue to
pay all Additional Rent as defined in Section 3.2. Nothing contained
herein, shall be construed as an abatement of the Percentage Rent
due as defined in Section 3.4. Additionally, any monthly Business
Interruption Base Rent payment shall be considered part of the
annual Base Rent.
Upon Tenant's written request, the City Manager may, at his sole
discretion, approve an extension of the Business Interruption Base
Rent Abatement period.
3.2 Additional Rent.
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also
pay, as Additional Rent, its Proportionate Share (as defined in Subsection
3.2.1) of Property Taxes and Insurance (each of which may be individually
referenced herein as an "Operating Expense" and collectively as "Operating
Expenses") as to the Demised Premises, as well as a use fee in connection
with the use of the Dumpster/Storage Area as more particularly described
herein:
3.2.1 Tenant's Proportionate Share.
Tenant shall remit, together with the monthly payment of Base
Rent, as Additional Rent, a monthly payment equal to 1/12t of
Tenant's Proportionate Share of the estimated Operating Expenses
for the Demised Premises for each Lease year ("Tenant's
Operating Expense Payment"), as determined by Landlord, in its
sole discretion and judgment. Tenant agrees and understands that
Operating Expenses may increase or decrease, and as such,
Tenant's Proportionate Share of Operating Expenses may increase
or decrease accordingly. Subsequent to the expiration of a given
Lease year, Landlord shall provide Tenant with a reconciliation with
respect to the actual total Operating Expenses and Tenant's actual
Proportionate Share of the Operating Expenses for the previous
Lease year. As such, if Tenant's Operating Expense Payment for a
particular Operating Expense is less than Tenant's actual
Proportionate Share (the "Shortage"), Tenant shall remit the
Shortage amount upon receipt of a request for payment from the
Landlord. If Tenant's Operating Expense Payment for a particular
Operating Expense is more than Tenant's actual Proportionate
Share (the "Overage"), Landlord, at its option, may reimburse
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Tenant the Overage amount or apply a credit for the Overage
amount toward any Operating Expense payment due from Tenant
during the next ensuing Lease year. Additionally, based upon the
results of the reconciliation, Landlord, in its sole discretion, may
adjust Tenant's Operating Expense Payment retroactive to the
beginning of the effective Lease year.
Tenant's "Proportionate Share" of Insurance means a fraction, the
numerator of which is the square footage of the Demised Premises,
which as of the date of this Lease is 1,092 square feet, and the
denominator of which is the total rentable area of the Building,
which as of the date of this Lease is 13,205 square feet. Tenant's
Proportionate Share of Property Taxes means payment of any
Property Taxes (as defined in Subsection 3.2.1.2) imposed upon
the Demised Premises.
3.2.1.1 Intentionally Deleted.
3.2.1.2 Property Taxes and Assessments.
For the purposes of this Section and other provisions of
this Agreement:
The Property Tax Payment (as defined hereinafter) shall
be payable by Tenant, in accordance with Section 3.2.1
hereof. The Property Tax Payment for Property Tax Year
2018 is estimated at Zero and 00/100 Dollars ($0.00).
Notwithstanding the preceding sentence, the City makes
no warranty or representation, whether express or
implied, that the Building, the Land, and/or the Demised
Premises will not be subject to ad valorem (or other)
taxes in subsequent years.
The term "Property Taxes" shall mean (i) the real estate
taxes, assessments, and special assessments of any
kind which may be imposed upon the Demised Premises
and (ii) any expenses incurred by Landlord in obtaining a
reduction of any such taxes or assessments.
The term "Property Tax Year' shall mean the period of
twelve (12) calendar months, beginning on January 1st of
each year.
Tenant shall pay, as Additional Rent, Property Taxes
assessed against the Demised Premises for a given
Property Tax Year (the "Property Tax Payment"). A copy
of the tax bill(s) or other evidence of such taxes issued by
the taxing authorities, together with Landlord's
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computation of the Property Tax Payment, will be made
available to Tenant once received from the taxing
authorities, if requested by Tenant. Tenant shall pay any
difference in the amount between the estimated Property
Taxes and the actual Property Tax Payment owed,
immediately upon receipt of request for said payment
from the Landlord. If a Property Tax Year ends after the
expiration or termination of the Term of this Agreement,
the Property Tax Payment therefore shall be prorated to
correspond to that portion of such Property Tax Year
occurring within the Term of this Agreement.
3.2.1.3 Insurance.
The Additional Rent shall also include Tenants
Proportionate Share of the insurance costs for the
Building, as determined by the Landlord, in its sole
discretion and judgment, to be sufficient to insure and/or
self-insure the Building for hazard, flood, windstorm, and
liability insurance for the following calendar year. Tenant
acknowledges that Landlord may choose to self-insure
for any or all of Landlord's Insurance coverage's,
including without limitation liability insurance. Tenant's
Initial Insurance cost shall be One Thousand Seventeen
and 60/100 Dollars ($1,017.60), payable in monthly
installments of Eighty-Four and 80/100 Dollars ($84.80).
The Insurance cost may be adjusted periodically, at the
City's sole discretion, from time to time.
This insurance coverage is in addition to the insurance
required pursuant to Section 11, which shall be obtained
at Tenant's sole expense and responsibility.
3.2.2 Use Fee (Dumpster/Storaqe Area).
Tenant shall pay, as Additional Rent, a use fee, in the amount of
Seven Thousand Six Hundred Fifty and 00/100 Dollars ($7,650.00),
payable in monthly installments of Six Hundred Thirty-Seven and
50/100 Dollars ($637.50) in connection with the use of the
Dumpster/Storage Area.
3.2.3 Tenant Responsibilities for Utilities and Services.
Tenant is solely responsible for, and shall promptly pay when due,
all charges and fees (including, without limitation, all hook-up and
impact fees) for utility services for the Demised Premises (including
without limitation, cable, gas, telephone, janitorial, garbage removal
and any other utility services provided to the Demised Premises);
provided, however, that Tenant shall pay 50% of the water
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consumption of the Colony Theatre Building on a monthly basis, as
invoiced by the City.
In addition to other rights and remedies hereinafter reserved to the
City, upon the failure of Tenant to pay for any utility services when
due, the City may elect, at its sole option, to pay same, whereby
Tenant agrees to promptly reimburse the City upon demand. In no
event, however, shall the City be liable, whether to Tenant and/or
third parties, for an interruption or failure in the supply of any
utilities or services to the Demised Premises.
In connection with Tenant's use of the Lobby Restroom, Tenant
shall continue to provide janitorial services and stock supplies in the
Lobby Restroom every morning seven days a week, and in the
evening on Thursday, Friday, Saturday, and Sunday. This
responsibility is in addition to the Theater Manager's responsibility
for cleaning the Lobby Restroom following each Colony Theatre
Event.
3.3 Sales Tax.
Concurrent with payment of the monthly installment of Base Rent, and
Additional Rent, as provided herein, Tenant shall also include any and all
additional sums for all applicable sales and use tax, as now or hereafter
prescribed by State, Federal or local law.
3.4 Percentage of Gross (PG) vs. Base Rent.
3.4.1 In addition to monthly Base Rent, at the end of each Lease Year,
Tenant shall pay Landlord a percentage of gross receipts, in the
amount of seven percent (7.0%) of Tenant's gross receipts for such
Lease Year, less the total paid annual Base Rent amount for such
Lease Year("PG").
3.4.2 No later than 60 days following the end of each Lease Year during
the Term, concurrent with delivery to the City of the Annual
Statement of Gross Receipts (pursuant to Section 5 of this
Agreement), Tenant will pay in full to Landlord the additional
amount, if any, equal to the difference between PG for the
preceding Lease Year and the annual Base Rent for such Lease
Year.
3.4.3 The term "gross receipts" is understood to mean all income
received by the Tenant from all sales made by Tenant of food,
beverages and merchandise, in, on, or from the Demised Premises,
inclusive of the receipts generated by the sidewalk café (less
returns and refunds), excluding amounts of any Federal, State, or
City sales tax, or other tax, governmental imposition, assessment,
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charge or expense of any kind, collected by the Tenant from
customers and required by law to be remitted to the taxing or other
governmental authority.
Notwithstanding the foregoing, "gross receipts" shall also not
include any of the following:
(a) gratuities to employees paid by Tenant's patrons or customers
(even if included in the check to the patron or customer);
(b) food and beverages served to employees of Tenant at no
cost;
(c) food and beverages provided by way of promotions or promo
checks; or
(d) a walkout (i.e. a meal served but not paid for).
3.5 Tenant agrees to pay the Base Rent, Additional Rent, and any other sum
due under this Lease at the time and in the manner aforesaid, and should
said rents and/or other amounts herein provided at any time remain due and
unpaid for a period of fifteen (15) days after the same shall become due, the
Landlord may exercise any or all options available to it hereunder, which
options may be exercised concurrently or separately, or the Landlord may
pursue any other remedies enforced by law.
3.6 All rents or other payments due hereunder shall be paid to the City of Miami
Beach at the following address:
City of Miami Beach
Finance Department
1700 Convention Center Drive
Miami Beach, Florida 33139
4. Maintenance and Examination of Records.
Tenant shall maintain current, accurate, and complete financial records on an
accrual basis of accounting related to its operations pursuant to this Agreement.
Systems and procedures used to maintain these records shall include a system of
internal controls and all accounting records shall be maintained in accordance with
generally accepted accounting principles and shall be open to inspection and audit
by the City Manager or his designee upon reasonable prior request and during
normal business hours. Such records and accounts shall include a breakdown of
gross receipts, expenses, and profit and loss statements.
5. Inspection and Audit/Annual Statement of Gross Receipts.
Tenant shall maintain its financial records pertaining to its operations for a period of
three (3) years after the conclusion of any Lease Year and such records shall be
open and available to the City Manager or his designee, as deemed necessary by
the City Manager. Tenant shall maintain all such records at its principal office,
currently located at 1000 NW 54th Street, Miami, Florida 33127, or, if moved to
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another location, all such records shall be relocated, at Tenant's expense, to a
location in Miami Beach, within ten (10) days' written notice from the City Manager.
The City Manager or his designee shall be entitled to audit Tenant's records
pertaining to its operations as often as it deems reasonably necessary throughout
the Term of this Agreement. The City shall be responsible for paying all costs
associated with such audits, unless the audit(s) reveals a deficiency of five (5%)
percent or more in Tenant's statement of gross receipts for any year or years
audited, in which case the Tenant shall pay to the City, within thirty (30) days of the
audit being deemed final (as specified below), the cost of the audit and a sum
equal to the amount of the deficiency revealed by the audit, plus interest; provided,
however, the audit shall not be deemed final until Tenant has received the audit
and has had a reasonable opportunity to review the audit and discuss the audit
with the City. These audits are in addition to periodic audits by the City of Resort
Tax collections and payments, which are performed separately. Nothing contained
within this Section or in this Agreement shall preclude the City's audit rights for
Resort Tax collection purposes.
Tenant shall submit at the end of each Lease Year, and in any event no later than
60 days following the end of the Lease Year, an Annual Statement of Gross
Receipts, in a form consistent with generally accepted accounting principles.
Additionally, such Statement shall be accompanied by a report from an
independent CPA firm.
6. Parking.
Intentionally Omitted.
7. Security.
7.1 Concurrent with its execution of this Lease, Tenant shall provide an
Irrevocable Letter of Credit, in the amount of $50,187.51, guaranteeing
Tenant's faithful performance of the terms and conditions of this Agreement.
The form of the Irrevocable Letter of Credit shall be as required and
approved by the City Manager or his designee. Tenant shall be required to
maintain said Irrevocable Letter of Credit (as approved by City Manager or
his designee) in full force and effect throughout the Term. In the event that
Tenant defaults in respect to any of the terms, provisions, covenants and
conditions of this Agreement, including but not limited to, the payment of any
rent and other amounts due hereunder, the Landlord may use, apply or
retain the whole or any part of the Irrevocable Letter of Credit for the
payment of such rentals and/or other amounts in default, or any other sum
which the Landlord may expend or be required to expend by reason of the
Tenant's default, including any damages or deficiency in the re-letting of all
or any portion of the Demised Premises, whether such damages or
deficiency may accrue or after summary proceedings or other re-entry by
Landlord.
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7.2 In the event that the Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Agreement, the
Irrevocable Letter of Credit shall be returned to the Tenant, upon the
expiration of this Agreement and peaceful surrender of the Demised
Premises.
8. Use and Possession of Demised Premises.
8.1 The Tenant shall use the Demised Premises solely as follows:
(a) The Restaurant Space shall be open to the public daily, with minimum
hours of operation on Sunday through Thursday, from 11:00 a.m. to
2:00 a.m., and Friday through Saturday, from 11:00 a.m. to 3:00 a.m.
Upon request of renters of the Theater Space ("Renters"), the Tenant
will provide green room catering with the items identified on its
restaurant menu or a catering menu provided by Tenant; and
(b) The Concession Area may provide food and beverage sales and
service exclusively to Colony Theatre patrons. Tenant shall have the
exclusive right to provide food and beverage sales and service to
Colony Theatre patrons inside the Theater Space; provided, however,
that should a Renter have an event sponsor which commercially
produces a particular food or beverage, distribution or service of such
food or beverage is permitted, on a complimentary basis, in the lobby
or the adjacent area at the entrance to the main Theatre. The
Concession Area shall only be open and operate on days of
performances or events in the Colony Theatre, beginning one hour
prior to advertised curtain time, and closing one half hour after end of
performance. Notwithstanding the above, Tenant shall also have the
right to open and operate the Concession Area, and provide food and
beverage service for parties or gatherings originating from the
Restaurant Space, so long as Tenant does not do so more than five (5)
times per Lease Year; and
(c) The Dumpster/Storage Area is solely for use by the Tenant to support
operations of the Restaurant Space and Concession Area for storage
and the disposal of waste and is available as needed by the Tenant.
The uses, and days and hours of operation set forth above, shall not
otherwise be modified without prior written approval of the City Manager
which shall not be unreasonably withheld. Nothing herein contained shall be
construed to authorize hours contrary to the laws governing such
operations.
8.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant only for the purposes set forth in this Lease, and for no other
purposes or uses whatsoever. Tenant will not make or permit any use of
the Demised Premises that, directly or indirectly, is forbidden by law,
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ordinance or government regulation, or that may be dangerous to life, limb
or property. Tenant may not commit waste on the Demised Premises, use
the Demised Premises for any illegal purpose, or commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised
Premises for any purposes not expressly permitted herein, then the
Landlord may declare this Agreement in default and/or, without notice to
Tenant, restrain such improper use by injunction or other legal action.
8.3 The Concession Area shall not be used for storage of sidewalk café
fumiture, but may be used for dry storage. All cafe / restaurant materials
must be stored in the Restaurant Space, behind the bar, or in the
Dumpster/Storage Area.
8.3.1 Renters shall not be permitted to utilize any portion of the
Concession Area. Renters may only utilize the lobby or the
adjacent area at the entrance to the main Theatre (as permitted by
the Theatre Manager).
8.3.2 Only the Tenant may serve alcohol, including complimentary
alcohol provided by Renters to Theatre patrons. In the case of
alcohol provided by Renters, the Tenant has the right to payment of
a corkage fee (which shall be determined by Tenant according to
industry standards, but also approved by the City Manager).
8.3.3 Notwithstanding anything in this Lease to the contrary, in no event
shall Tenant be liable for any damage or injury caused by any
Renters.
8.4 At all times during the Term, Tenant must maintain the Liquor License
referenced in Section 2.4 in good standing and in full force and effect.
8.5 The parties acknowledge and agree that the Restaurant Space and
Concession Area are intended to and shall be operated, maintained and
repaired in a first class manner and otherwise consistent with the standard
of the historic design of the Building. The operations shall be of a level of
quality equal to or greater than the Industry Standard for a first class
restaurant. All food and beverages dispensed by Tenant shall be of high
quality, and prepared and presented in a professional manner. No imitation,
adulterated or misbranded article or items shall be sold or kept for sale and
all food and beverages shall be stored and handled by Tenant in a manner
consistent with standards of sanitation, preservation and purity.
8.6 From one hour prior to the advertised curtain time through duration, and up
to conclusion of a performance or event in the Theatre, the sound system in
the Restaurant Space must be at an ambient level.
8.7 Noise.
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Tenant shall not cause or produce or permit to be produced on or in the
Demised 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 8.7.1 of this
Lease, the provisions of Section 8.7.1 of this Lease shall control); or (ii)
creates any other form of disturbance in or on the Demised Premises which
is, or is likely to be, considered a nuisance to residents of adjacent or
neighboring properties in the vicinity of the Demised Premises.
8.7.1. 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
Demised 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
Demised Premises exceeds ambient, background levels for the
outdoor entertainment areas at the Demised Premises, such an
incident shall be deemed to be a violation of this Section 8.7.1.
8.7.2. 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 Demised 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.
8.7.3. 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 Demised Premises.
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9. Improvements.
9.1 Tenant accepts the Demised Premises in their present "AS IS" condition and
may construct or cause to be constructed, such interior and exterior
improvements to the Demised Premises, as reasonably necessary for it to
carry on its permitted use(s); provided, however, that any plans for such
improvements shall be first submitted to the City Manager for his prior
received written approval, which approval, if granted at all, shall be at the
City Manager's sole and absolute discretion. Additionally, any and all
approved improvements shall be made at Tenant's sole cost and expense.
All permanent (fixed) improvements to the Demised Premises shall remain
the property of the City upon termination and/or expiration of this
Agreement. Upon termination and/or expiration of this Agreement, all
personal property and non-permanent trade fixtures may be removed by the
Tenant from the Demised Premises, provided that they can be (and are)
removed without damage to the Demised Premises. Tenant will permit no
liens to attach to the Demised Premises arising from, connected with, or
related to the design and construction of any improvements. Moreover, such
construction shall be accomplished through the use of licensed, reputable
contractors who are acceptable to the City Manager. Any and all permits
and or licenses required for the construction and/or installation of
improvements shall be the sole cost and responsibility of Tenant.
9.2 Notwithstanding Subsection 9.1, upon termination and/or expiration of this
Agreement, and at the City Manager's sole option and discretion, any or all
alterations or additions made by Tenant to or in the Demised Premises
shall, upon written demand by the City Manager, be promptly removed by
Tenant, at its cost and expense, and Tenant further hereby agrees, in such
event, to restore the Demised Premises to their original condition prior to the
Commencement Date of this Agreement.
9.3 The City Manager's approval shall not be required as to improvements
(which term, for purposes of this Subsection 9.3 only, shall also include
improvements as necessary for Tenant's maintenance and repair of the
Demised Premises) which do not exceed One Thousand ($1,000.00)
Dollars, provided that the work is not structural, and provided that it is
permitted by applicable law.
10. Landlord's Right of Entry.
10.1 The City Manager, or his authorized agent or agents, shall have the right to
enter upon the Demised Premises at all reasonable times for the purpose of
inspecting same, preventing waste, making such repairs as the Landlord
may consider necessary, and for the purpose of preventing fire, theft or
vandalism. However, Landlord agrees that, whenever possible, the City
Manager shall provide reasonable notice (whether written or verbal) to
Tenant, unless the need to enter the Demised Premises is deemed an
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emergency by the City Manager, in his sole discretion, which if not
immediately addressed could cause property damage, loss of life or limb, or
other injury to persons. Nothing herein shall imply any duty or obligation on
the part of the Landlord to do any work that under any provisions of this
Agreement the Tenant may be required to perform, and the performance
thereof by the Landlord shall not constitute a waiver of the Tenant's default.
10.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at any time, for any reason, and any entry thereon
shall be necessary or permissible, the City Manager, or his authorized
agents, may enter the Demised Premises by master key, or may forcibly
enter the Demised Premises without rendering the Landlord or such agents
liable therefore.
10.3 Tenant shall furnish the City Manager with duplicate keys to all locks
including exterior and interior doors upon the Commencement Date of this
Agreement. Tenant shall not change the locks to the Demised Premises
without the prior written consent of the City Manager, not to be
unreasonably withheld, and in the event such consent is given, Tenant shall
furnish the City Manager with duplicate keys to said locks in advance of their
installation.
11. Tenant's Insurance.
11.1 Before beginning any work and throughout the term of the Agreement
(including renewal periods), Tenant shall, at its sole cost and expense,
comply with all insurance requirements of the City. It is agreed by the parties
that Tenant shall not occupy the Demised Premises and/or use the
Dumpster/Storage Area until proof of the following insurance coverage has
been reviewed and approved by the City's Risk Manager. All insurance
policies required below shall be issued by companies authorized to do
business under the laws of the State of Florida. Provider shall indicate that
insurance coverage has been obtained which meets the requirements as
outlined below by submitting original certificates of insurance to the City's
Risk Manager and Asset Manager respectively:
11.1.1 Worker's Compensation for all employees of the provider as
required by Florida Statute 440 and Employer's Liability coverage
in accordance with the Florida Statutory requirements and
Employer's Liability Insurance in an amount not less than
$1,000,000.
11.1.2 Commercial General Liability on a comprehensive basis in an
amount not less than $2,000,000 combined single limit per
occurrence, for bodily injury and property damage (including as to
the Dumpster/Storage Area). City of Miami Beach must be shown
as an additional insured with respect to this coverage.
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11.1.2.1 The following entity must also be included as an
additional insured:
Miami New Drama, Inc.
1040 Lincoln Road
Miami Beach, FL 33139
11.1.3 Intentionally Omitted
11.1.4 All-Risk property and casualty insurance, written at a minimum of
eighty (80%) percent of replacement cost value and with
replacement cost endorsement, covering all leasehold
improvements installed in the Demised Premises and in the
Dumpster/Storage Area by or on behalf of Tenant and including
without limitation all of Tenant's personal property in the Demised
Premises (including, without limitation, inventory, trade fixtures,
floor coverings, furniture, and other property removable by Tenant
under the provisions of this Agreement) and in the
Dumpster/Storage Area.
11.1.5 Intentionally Omitted.
11.1.6 If beer, wine, liquor, or any other alcohol is being served at any
time during the Lease term within the Demised Premises, Liquor
liability insurance is required. Such policy shall contain inclusive
limits per occurrence of not less than $1,000,000 per occurrence;
$2,000,000 general aggregate; provide for severability of interests;
and include as additional insureds, the Landlord, its affiliates, and
any mortgagee of Landlord in connection with the Building.
11.1.7 The insurance coverage required shall include those classifications,
as listed in standard liability insurance manuals, which most nearly
reflect the operations of the provider.
11.1.8 Any insurance coverage required above must include a waiver of
subrogation in favor of the City.
11.1.9 The company must be rated no less than "B+" as to management,
and no less than "Class VII" as to financial strength, by the latest
edition of Best's Insurance Guide, published by A.M. Best
Company, Oldwick, New Jersey, or its equivalent, subject to the
approval of the City Risk Management Division.
11.1.9.1 CERTIFICATE HOLDER MUST READ:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
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11.1.10 Updated COI must be submitted via email to the following
addresses:
1. Andrew Bejel at AndrewBejel@miamibeachfl.gov
2. Febe Perez at febeperez@miamibeachfl.gov
11.2 Compliance with the foregoing requirements shall not relieve the vendor of
his liability and obligation under this section or under any other section of
this Agreement
11.3 City reserves the right to impose additional reasonable insurance
requirements as the City may deem necessary or in accordance with
common practice
12. Assignment and Subletting.
Tenant shall not have the right to sublet the Demised Premises, in whole or in part.
Tenant shall not have the right to assign the Demised Premises, in whole or in part,
without the prior written consent of the City, through its Mayor and City
Commission, and which consent, if given at all, shall be at the sole discretion of the
City Commission.
13. Maintenance and Repair.
13.1 Tenant shall maintain the Demised Premises and the fixtures and
appurtenances therein, at its sole cost and expense, to the satisfaction of
the Landlord, in good and sanitary order, proper working condition and
repair, and consistent with the operation of a first-class quality restaurant in
the Miami-Dade County area. Tenant shall make all repairs thereto as and
when needed to preserve fixtures and appurtenances in good working order
and condition. Landlord shall be responsible for the maintenance of the roof,
the exterior of the building, the structural, electrical and plumbing (other than
plumbing surrounding any sink within the Demised Premises), and the
chilled water supply system. Tenant shall also be responsible for all interior
walls and the interior and exterior of all windows and doors, as well as
immediate replacement of any and all plate glass or other glass in the
Demised Premises which may become broken (using glass of the same or
better quality) at its sole cost and expense.
13.2 All damage or injury of any kind to the Demised Premises and/or to its
fixtures, glass, appurtenances, and equipment, except damage caused by
the willful misconduct or gross negligence of the Landlord, shall be the
obligation of Tenant, and shall be repaired, restored or replaced promptly by
Tenant at its sole cost and expense to the satisfaction of the City Manager.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality
and class equal to the original work or installations and shall be done in
good and workmanlike manner.
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13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the Landlord, at the expense of Tenant, and all sums
spent and expenses incurred by Landlord shall be collectable as Additional
Rent and shall be paid by Tenant within ten (10) days after rendition of a bill
or statement thereof.
13.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or
improvements made by Tenant to the Demised Premises comply with all
applicable building codes and life safety codes of governmental authorities
having jurisdiction.
13.6 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION.
14. Laws.
14.1 Governmental Regulations.
The Tenant covenants and agrees to fulfill and comply with all statutes,
ordinances, rules, orders, regulations, and requirements of any and all
governmental bodies, including but not limited to Federal, State, Miami-
Dade County, and City governments, and any and all of their departments
and bureaus applicable to the Demised Premises and shall also comply with
and fulfill all rules, orders, and regulations for the prevention of fire, all at
Tenant's own cost and expense. The Tenant shall pay all costs, expenses,
claims, fines, penalties, and damages that may be imposed because of
Tenant's failure to comply with this Section, and shall indemnify and hold
harmless the Landlord from all liability arising from each incident of non-
compliance.
14.2 No Discrimination.
In connection with its operations, Tenant shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on
the grounds of race, color, national origin, sex, age, disability, religion,
income or family status.
Additionally, Tenant shall comply with City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended
from time to time, prohibiting discrimination in employment, housing, public
accommodations, or public services, on the basis of actual or perceived
race, color, national origin, religion, sex, intersexuality, sexual orientation,
gender identity, familial and marital status, age, ancestry, height, weight,
domestic partner status, labor organization membership, familial situation,
political affiliation, or disability.
15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
17
against the Demised Premises or improvements for any labor or materials to
Tenant or claimed to have been furnished to Tenant's agents, contractors, or sub-
tenants, in connection with work of any character performed or claimed to have
performed on said premises, or improvements by or at the direction or sufferance
of the Tenant, provided however, Tenant shall have the right to contest the validity
or amount of any such lien or claimed lien. In the event of such contest, Tenant
shall give the Landlord reasonable security as may be demanded by Landlord to
insure payment thereof and prevent sale, foreclosure, or forfeiture of the premises
or improvements by reasons of such non-payment. Such security need not exceed
one and one half (1 ''/z) times the amount of such lien or such claim of lien. Such
security shall be posted by Tenant within ten (10) days of written notice from
Landlord, or Tenant may "bond off' the lien according to statutory procedures.
Tenant will immediately pay any judgment rendered with all proper cost and
charges and shall have such lien released or judgment satisfied at Tenant's own
expense. Tenant shall not have the right to pledge the Demised Premises and/or
leasehold interest thereon as security or collateral for any loan, mortgage, lien,
and/or other indenture which would affect the Demised Premises, and/or the
Building, and/other Land.
16. Enforcement.
Intentionally Omitted.
17. Condemnation.
17.1 If at any time during the Term, all or any material part or portion of the
Building in which the Demised Premises are located, is taken, appropriated,
or condemned by reason of Eminent Domain proceedings (except if the
Eminent Domain proceedings are initiated by the City of Miami Beach), then
this Agreement shall be terminated as of the date of such taking, and shall
thereafter be completely null and void, and neither of the parties hereto shall
thereafter have any rights against the other by reason of this Agreement or
anything contained therein, except that any rent prepaid beyond the date of
such taking shall be prorated to such date, and the Tenant shall pay any
and all rents, additional rents, utility charges, or other costs including excess
taxes for which it is liable under the terms of this Agreement, up to the date
of such taking.
17.2 Except as hereunder provided, Tenant shall not be entitled to participate in
the proceeds of any award made to the Landlord in any such Eminent
Domain proceeding, excepting, however, the Tenant shall have the right to
claim and recover from the condemning authority, but not from the Landlord,
such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right on account of any and all damage to Tenant's
business by reasons of the condemnation and for or on account of any cost
or loss which Tenant might incur in removing Tenant's furniture and fixtures.
18. Default.
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18.1 Default by Tenant.
At the Landlord's option, any of the following shall constitute an Event of
Default under this Agreement:
18.1.1 The Base Rent, Additional Rent, or any installment thereof is not
paid promptly when and where due within fifteen (15) days of due
date and if Tenant shall not cure such failure within five (5) days
after receipt of written notice from Landlord specifying such default;
18.12 Any other payment provided for under this Agreement is not paid
promptly when and where due and if Tenant shall not cure such
failure within five (5) days after receipt of written notice from
Landlord specifying such default;
18.1.3 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.4 The Tenant shall fail to comply with any material term, provision,
condition or covenant contained herein other than the payment of
rent and shall not cure such failure within thirty (30) days after the
receipt of written notice from Landlord specifying any such default;
or such longer period of time acceptable to Landlord, at its sole
discretion;
18.1.5 Receipt of notice of violation (including, without limitation, a
violation issued pursuant to Tenant's sidewalk cafe Permit) from
any governmental authority having jurisdiction dealing with a code,
regulation, ordinance or the like, and such violation remains
uncured within the time specified in such notice of violation. In the
case of an uncured violation, an event of default shall be deemed
to have occurred if (following the expiration of the cure period in the
notice of violation) Tenant still fails to cure within five (5) days from
receipt of written notice from Landlord advising Tenant that the
violation remains uncured.
18.1.6 Any petition is filed by or against Tenant under any section or
chapter of the Bankruptcy Act, as amended, which remains
pending for more than sixty (60) days, or any other proceedings
now or hereafter authorized by the laws of the United States or of
any state for the purpose of discharging or extending the time for
payment of debts;
18.1.7 Tenant shall become insolvent; Tenant shall make an assignment
for benefit of creditors;
18.1.8 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter;
18.1.9 The leasehold interest is levied on under execution; or
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18.1.10 Tenant shall fail to take out or to keep in force any insurance
referred to in Section 11 of the Agreement.
18.2 Repetitive Default. 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.
19. Rights on Default.
19.1 Landlord's Rights on Default:
In the event of any default by Tenant as provided herein, Landlord shall
have the option to do any of the following in addition to and not in limitation
of any other remedy permitted by law or by this Agreement;
19.1.1 Terminate this Agreement, in which event Tenant shall immediately
surrender the Demised Premises to Landlord, but if Tenant shall fail
to do so Landlord may, without further notice, and without prejudice
to any other remedy Landlord may have for possession or
arrearages in rent or damages for breach of contract, enter upon
Demised Premises and expel or remove Tenant and his effects in
accordance with law, without being liable for prosecution or any
claim for damages therefore, and Tenant agrees to indemnify and
hold harmless Landlord for all loss and damage which Landlord
may suffer by reasons of such Agreement termination, whether
through inability to re-let the Demised Premises, or through
decrease in rent, or otherwise.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
Term to be due and payable immediately, in which event Tenant
agrees to pay the same at once, together with all rents therefore
due, at the address of Landlord, as provided in the Notices section
of this Agreement; provided, however, that such payment shall not
constitute a penalty, forfeiture, or liquidated damage, but shall
merely constitute payment in advance of the rents for the
remainder of said term and such payment shall be considered,
construed and taken to be a debt provable in bankruptcy or
receivership.
19.13 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for
20
damages therefore, remove Tenant's property there from, and re-
let the Demised Premises, or portions thereof, for such terms and
upon such conditions which Landlord deems, in its sole discretion,
desirable, and to receive the rents therefore, and Tenant shall pay
Landlord any deficiency that may arise by reason of such re-letting,
on demand at any time and from time to time at the office of
Landlord; and for the purpose of re-letting, Landlord may (i) make
any repairs, changes, alterations or additions in or to said Demised
Premises that may be necessary or convenient; (ii) pay all costs
and expenses therefore from rents resulting from re-letting; and (iii)
Tenant shall pay Landlord any deficiency as aforesaid.
19.1.4 Take possession of any personal property owned by Tenant on
said Demised Premises and sell the same at public or private sale,
and apply same to the payment of rent due, holding the Tenant
liable for the deficiency, if any.
19.1.5 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the provisions of
this Agreement which shall not be paid when due shall bear interest
at the maximum legal rate of interest per annum then prevailing in
Florida from the date when the same was payable by the terms
hereof, until the same shall be paid by Tenant. Any failure on
Landlord's behalf to enforce this Section shall not constitute a
waiver of this provision with respect to future accruals of past due
rent. No interest will be charged for payments made within the
grace period, such grace period to be defined as within fifteen (15)
days of the due date. In addition, there will be a late charge of
$50.00 for any payments submitted after the grace period.
19.1.6 Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, Landlord
may pay such expense but Landlord shall not be obligated to do so.
Tenant upon Landlord's paying such expense shall be obligated to
forthwith reimburse Landlord for the amount thereof. All sums of
money payable by Tenant to Landlord hereunder shall be deemed
as rent for use of the Demised Premises and collectable by
Landlord from Tenant as rent, and shall be due from Tenant to
Landlord on the first day of the month following the payment of the
expense by Landlord.
19.1.7 Rights of the Landlord under this Agreement shall be cumulative
but not restrictive to those given by law and failure on the part of
the Landlord to exercise promptly any rights given hereunder shall
not operate to waive or to forfeit any of the said rights.
19.2 Default by Landlord:
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The failure of Landlord to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed by Landlord and
the continuance of such failure for a period of thirty (30) days after notice
thereof in writing from Tenant to Landlord (which notice shall specify the
respects in which Tenant contends that Landlord failed to perform any such
covenant, conditions and agreements) shall constitute a default by Landlord,
unless such default is one which cannot be cured within thirty (30) days
because of circumstances beyond Landlord's control, and Landlord within
such thirty (30) day period shall have commenced and thereafter shall
continue diligently to prosecute ail actions necessary to cure such defaults.
19.2.1 However, in the event Landlord fails to perform within the initial 30
day period provided above, and such failure to perform prevents
Tenant from operating its business in a customary manner and
causes an undue hardship for the Tenant, then such failure to
perform (regardless of circumstances beyond its control) as
indicated above, shall constitute a default by Landlord.
19.3 Tenant's Rights on Default:
If an event of Landlord's default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right and option to terminate this Lease and
all of its obligations hereunder by giving written notice of such election to
Landlord, and shall further have the right to pursue any actions at law or
suits in equity to obtain damages resulting from Landlord's default; provided
however, that Tenant expressly acknowledges and agrees that any recovery
by tenant shall be limited to the amount set forth in Section 32 of this Lease.
Notwithstanding anything in this Section 19.3 or the Agreement, in the event
of a default by Landlord, Tenant hereby agrees and acknowledges that in no
event shall Landlord be liable for any incidental, indirect, special or
consequential damages, including without limitation loss of revenue and lost
profits, of Tenant which may be alleged as a result of Landlord's default.
20. Indemnity Against Costs and Charges.
20.1 The Tenant shall be liable to the Landlord for all costs and charges,
expenses, reasonable attorney's fees, and damages which may be incurred
or sustained by the Landlord, by reason of the Tenant's breach of any of the
provisions of this Agreement. Any sums due the Landlord under the
provisions of this item shall constitute a lien against the interest of the
Tenant and the Demised Premises and all of Tenant's property situated
thereon to the same extent and on the same conditions as delinquent rent
would constitute a lien on said Premises and property.
20.2 If Tenant shall at any time be in default hereunder, and if Landlord shall
deem it necessary to engage an attorney to enforce Landlord's rights and
Tenant's obligations hereunder, the Tenant will reimburse the Landlord for
the reasonable expenses incurred thereby, including, but not limited to,
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court costs and reasonable attomeys fees, whether suit be brought or not
and if suit be brought, then Tenant shall be liable for expenses incurred at
both the trial and appellate levels.
21. Indemnification Against Claims.
21.1 The Tenant shall indemnify and save the Landlord harmless from and
against any and all claims or causes of action (whether groundless or
otherwise) by or on behalf of any person, firm, or corporation, for personal
injury or property damage occurring upon the Demised Premises,
occasioned in whole or in part by any of the following:
21.1.1 An act or omission on the part of the Tenant, or any employee,
agent, invitee, or guest, or assignee of the Tenant;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or
the building in which the Demised Premises is located or any of its
facilities by Tenant, or any employee, agent, invitee, or guest, or
assignee of the Tenant, but not to include trespassers upon the
Demised Premises;
21.1.3 Any breach, violation, or non-performance of any undertaking of the
Tenant under this Agreement;
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by the Tenant or anyone holding or claiming to hold
through or under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises or other
facilities used in connection therewith, caused by the Tenant or any
employee, guest, or invitee of the Tenant.
21.3 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action,
Landlord or Tenant, as applicable, shall not be liable or responsible for, and
therefore 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 bonafide 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.
22. Signs and Advertising.
Without the prior written consent of Landlord, Tenant shall not permit the painting
and display of any signs, plaques, lettering or advertising material of any kind on or
near the Demised Premises, with the exception of current signage as approved by
the City Manager during prior tenancy. All signage shall comply with signage
23
standards established by Landlord and comply with all applicable building codes,
and any other Municipal, County, State and Federal laws.
23. Damage to the Demised Premises.
23.1 If the Demised Premises or the Restaurant Space shall be damaged by the
elements, fire, or other casualty, not due to Tenant's negligence (hereinafter
referred to as "such occurrence"), but are not thereby rendered
untenantable, in whole or in part, as determined by the City Manager, in his
sole reasonable judgment and discretion, and such damage is covered by
the proceeds from Landlord's insurance (if any), Landlord shall, as soon as
possible after such occurrence, utilize the insurance proceeds (if any) to
cause such damage to be repaired, and the rent shall not be abated. If, by
reason of such occurrence, the Demised Premises or Restaurant Space
shall be rendered untenantable, but only in part, as determined by the City
Manager in his sole reasonable judgment and discretion, and such damage
is covered by the proceeds from Landlord's insurance (if any), Landlord
shall, as soon as possible, utilize the insurance proceeds (if any) to cause
the damage to be repaired, and the rent meanwhile shall be abated
proportionately as to the portion of the Demised Premises or Restaurant
Space rendered untenantable; provided however, if the Demised Premises
or Restaurant Space, are by reason of such occurrence, rendered more
than fifty (50%) percent but less than one hundred (100%) percent
untenantable, as determined by the City Manager, in his sole reasonable
judgment and discretion, Landlord shall promptly obtain a good faith
estimate of the time required to render the damaged premises tenantable.
Notwithstanding anything contained in this Subsection 23.1 or in the
Agreement, if the time to repair the damaged premises to render them
tenantable exceeds one hundred and twenty (120) days, the Tenant shall
have the option of canceling this Agreement, which option shall be
exercised by Tenant in writing within ten (10) days of receipt of notice of
same from Landlord, and the rent shall be adjusted accordingly.
23.2 If the Demised Premises, or the Restaurant Space, shall be rendered wholly
untenantable by reason of such occurrence, and such damage is covered
by the proceeds from Landlord's insurance (if any), the Landlord shall utilize
the insurance proceeds (if any) to cause such damage to be repaired, and
the rent meanwhile shall be abated in whole; provided, however, that
notwithstanding anything in this Section 23 including, without limitation, any
duty of Landlord to repair, either the City Manager or Tenant shall have the
right, to be exercised by notice in writing delivered to the other party within
sixty (60) days from and after such occurrence, to elect to terminate the
Lease and, in that event, this Agreement and the tenancy hereby created
shall cease as of the date of said notice, and the rent shall be adjusted
accordingly as of such date.
Notwithstanding any clause contained in this Section 23, if the damage is
24
not covered by the City's insurance, then the City shall have no obligation to
repair the damage, but the City shall advise Tenant in writing within thirty
(30) days of its decision not to repair, and the Tenant may, at any time
thereafter, elect to terminate this Lease, and the Rent shall be adjusted
accordingly.
24. Quiet Eniovment.
The Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Tenant
complies with the terms of this Agreement.
25. Waiver.
25.1 The Parties mutually covenant and agree that the failure of Landlord to insist
upon the strict performance of any of the conditions, covenants, terms or
provisions of this Agreement, or to exercise any option herein conferred, will
not be considered or construed as a waiver or relinquishment in the future of
any such conditions, covenants, terms, provisions or options but the same
shall continue and remain in full force and effect.
25.2 A waiver of any term expressed herein shall not be implied by any neglect of
Landlord to declare a forfeiture on account of the violation of such term if
such violation by continued or repeated subsequently and any express
waiver shall not affect any term other than the one specified in such waiver
and that one only for the time and in the manner specifically stated.
25.3 The receipt of any sum paid by Tenant to Landlord after breach of any
condition, covenant, term or provision herein contained shall not be deemed
a waiver of such breach, but shall be taken, considered and construed as
payment for use and occupation, and not as rent, unless such breach be
expressly waived in writing by Landlord.
26. Notices.
The addresses for all notices required under this Agreement shall be as follows, or
at such other address as either party shall be in writing, notify the other:
LANDLORD: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to: Asset Manager
City of Miami Beach
1755 Meridian Avenue
Miami Beach, Florida 33139
TENANT: Colony Theater Cafe, Inc.
25
1000 NW 54th Street,
Miami, Florida 33127
Attn: Graziano Sbroggio
All notices shall be hand delivered and a receipt requested, or by certified mail with
return receipt requested, and shall be effective upon receipt.
27. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it
may not be modified in any manner other than by agreement in writing signed by
both parties hereto or their successors in interest. The terms, covenants and
conditions contained herein shall inure to the benefit of and be binding upon
Landlord and Tenant and their respective successors and assigns, except as may
be otherwise expressly provided in this Agreement.
28. Provisions Severable.
If any term or provision of this Agreement, or the application thereof, to any person
or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
29. Captions.
The captions contained herein are for convenience and reference only and shall
not be deemed as part of this Agreement or construed as in any manner limiting or
amplifying the terms and provisions of this Agreement to which they relate.
30. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural
shall include the singular, and the use of one gender shall include all genders.
31. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of
the State of Florida.
32. Limitation of Liability.
The Landlord desires to enter into this Agreement only if in so doing the Landlord
can place a limit on Landlord's liability, for any cause of action for damages due to
a breach by the Landlord of this Agreement, in an amount not exceeding fifty
thousand ($50,000.00) dollars. Tenant hereby expresses its willingness to enter
into this Agreement with its recovery from the Landlord for any action for breach of
contract limited to a maximum of$50,000.00. Accordingly, and notwithstanding any
other term or condition of this Agreement, Tenant agrees that Landlord shall not be
liable to Tenant for damage in an amount in excess of$50,000.00 for any action or
claim for breach of contract arising out of the performance or non-performance of
any obligations imposed upon the Landlord by this Agreement. Nothing contained
26
in this Section or elsewhere in this Agreement is in anyway intended to be a waiver
of the limitation placed upon Landlord's liability as set forth in Florida Statutes,
Section 76828.
33. Surrender of the Demised Premises.
The Tenant shall, on or before the last day of the term herein demised, or the
sooner termination thereof, peaceably and quietly leave, surrender and yield upon
to the Landlord the Demised Premises, together with any and all equipment,
fixtures, furnishings, appliances or other tangible personal property, if any, located
at or on the Demised Premises and used by Tenant in the maintenance,
management or operation of the Demised Premises (excluding any trade fixtures or
personal property, if any, which can be removed without material injury to the
Demised Premises), free of all liens, claims and encumbrances and rights of others
or broom-clean, together with all structural changes, alterations, additions, and
improvements which may have been made upon the Demised Premises, in good
order, condition and repair, reasonable wear and tear excepted, subject, however,
to the subsequent provisions of this Section. Any property which pursuant to the
provisions of this Section is removable by Tenant on or at the Demised Premises
upon the termination of this Agreement and is not so removed may, at the option of
the Landlord, be deemed abandoned by the Tenant, and either may be retained by
the Landlord as its property or may be removed and disposed of at the sole cost of
the Tenant in such manner as the Landlord may see fit. If the Demised Premises
and personal property, if any, be not surrendered at the end of the term as
provided in this Section, the Tenant shall make good the Landlord all damages
which the Landlord shall suffer by reason thereof, and shall indemnify and hold
harmless the Landlord against all claims made by any succeeding tenant or
purchaser, so far as such delay is occasioned by the failure of the Tenant to
surrender the Demised Premises as and when herein required.
34. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
35. Venue.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any term or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami-
Dade County, Florida.
LANDLORD AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
THAT THE LANDLORD AND TENANT MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF
OR RELATED TO THIS AGREEMENT.
36. Effect of Conveyance.
27
The term "City" and/or "Landlord" as used in the Lease means only the owner for
the time being of the land and Building containing the Demised Premises, so that in
the event of any sale of said land and Building, or in the event of a lease of said
Building, the City shall be and hereby is entirely freed and relieved of all covenants
and obligations of the City hereunder, and it shall be deemed and construed
without further agreement between the parties, or between the parties and the
purchaser at such sale, or the lease of this Building, that the purchaser or Tenant
has assumed and agreed to carry out all covenants and obligations of the City
hereunder.
37. Radon Notice.
As required by Section 404.056 of Florida Statutes the following warning is given:
38. 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.
38. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or
use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any kind,
or any substance or thing prohibited in the standard policies of fire insurance
companies in the State of Florida. Any such substances or materials found within
the Demised Premises shall be immediately removed.
Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by Tenant of
any "hazardous substance" or "petroleum products" on, in or upon the Demised
Premises as those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations promulgated thereunder.
The provisions of this Section 38 shall survive the termination or earlier expiration
of this Lease.
39. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES OR PLASTIC STRAWS.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time,
effective August 2, 2014, the City has prohibited the use of expanded polystyrene
food service articles by City Contractors, in connection with any City contract,
lease, concession agreement or Special event permit. Additionally, pursuant to
Section 82-385 of the City Code, as may be amended from time to time, no
polystyrene food service articles will be allowed in the right-of-way, and no
polystyrene food service articles can be provided to sidewalk café patrons.
28
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam.
Expanded polystyrene is more particularly defined as blown polystyrene and
expanded and extruded foams that are thermoplastic petrochemical materials
utilizing a styrene monomer and processed by any number of techniques including,
but not limited to, fusion of polymer spheres (expandable bead foam), injection
molding, foam molding, and extrusion-blown molding (extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers,
lids, trays, coolers, ice chests, and all similar articles that consist of expanded
polystyrene.
Tenant agrees not to sell, use, provide food in, or offer the use of expanded
polystyrene food service articles at the Demised Premises or in connection with
this Lease. Tenant shall ensure that all vendors operating in the Demised Premises
abide by the restrictions contained in this Section 37. A violation of this section
shall be deemed a default under the terms of this Lease. This subsection shall not
apply to expanded polystyrene food service articles used for prepackaged food that
have been filled and sealed prior to receipt by the Tenant or its vendors.
Additionally, Tenant agrees to comply (and ensure compliance by its vendors) with
Section 46-92 (c) of the City Code, which states that it is unlawful for any person to
carry any expanded polystyrene product onto any beach or into any park within the
City or for any business to provide plastic straws with the service or delivery of any
beverage to patrons on the beach.
40. FLORIDA PUBLIC RECORDS LAW.
40.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
40.2 The term "public records' shall have the meaning set forth in Section 119.011(12),
which means all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or received
pursuant to law or ordinance or in connection with the transaction of official
business of the City.
40.3 Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets the
definition of"Contractor" as defined in Section 119.0701(1)(a), the Tenant shall:
40.3.1 Keep and maintain public records required by the City to perform the
service;
40.3.2 Upon request from the City's custodian of public records, provide the
City with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not
29
exceed the cost provided in Chapter 119, Florida Statutes or as
otherwise provided by law;
40.3.3 Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed, except
as authorized by law, for the duration of the contract term and
following completion of the Agreement if the Tenant does not transfer
the records to the City;
40.3.4 Upon completion of the Agreement, transfer, at no cost to the City, all
public records in possession of the Tenant or keep and maintain
public records required by the City to perform the service. If the
Tenant transfers all public records to the City upon completion of the
Agreement, the Tenant shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements. If the Tenant keeps and maintains public records upon
completion of the Agreement, the Tenant shall meet all applicable
requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the
City's custodian of public records, in a format that is compatible with
the information technology systems of the City.
40.4 REQUEST FOR RECORDS; NONCOMPLIANCE.
40.4.1 A request to inspect or copy public records relating to the City's
contract for services must be made directly to the City. If the City does
not possess the requested records, the City shall immediately notify
the Tenant of the request, and the Tenant must provide the records to
the City or allow the records to be inspected or copied within a
reasonable time.
40.4.2 Tenant's failure to comply with the City's request for records shall
constitute a breach of this Agreement, and the City, at its sole
discretion, may: (1) unilaterally terminate the Agreement; (2) avail
itself of the remedies set forth under the Agreement; and/or (3) avail
itself of any available remedies at law or in equity.
40.4.3 A Contractor who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
40.5 CIVIL ACTION.
40.5.1 If a civil action is filed against Tenant to compel production of public
records relating to the City's contract for services, the court shall
assess and award against the Tenant the reasonable costs of
enforcement, including reasonable attorney fees, if:
30
40.5.1.1 The court determines that the Tenant unlawfully refused to
comply with the public records request within a
reasonable time; and
40.5.1.2 At least 8 business days before filing the action, the
plaintiff provided written notice of the public records
request, including a statement that the Tenant has not
complied with the request, to the City and to the Tenant.
40.5.1.3 A notice complies with subparagraph (1)(b) if it is sent to
the City's custodian of public records and to the Tenant at
the Tenant's address listed on its contract with the City or
the Tenant's registered agent. Such notices must be sent
by common carrier delivery service or by registered,
Global Express Guaranteed, or certified mail, with postage
or shipping paid by the sender and with evidence of
delivery, which may be in an electronic format.
40.5.1.4 A Contractor who complies with a public records request
within 8 business days after the notice is sent is not liable
for the reasonable costs of enforcement.
40.6 IF THE TENANT HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE TENANTS DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
31
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed
by the respective duly authorized officers and the respective corporate seals to be
affixed this 2,5 day of rim, , 2018.
LANDLORD:
CITY OF MIAMI BEACH, FLORIDIA
,c
DAN GELBER, MAYOR
ATTEST:
By. i�/i1; ��_RAF/C7
E. GRANADO, CITY CLERK e.f g Es-A r�
Gtkrick D. G ..vnn'� + Rt�GR^r� R .T 1 r
Print Name
Date: 5/25448 �ICH 26
TENANT:
COLONY THEATER CAFÉ, INC. d/b/a
SEGAFREDO ZANETTI ESPRESSO
ATTEST: ---
L/ ,.
By: - 6 ‘ni
MARK-SOY,P SIDENT
3Fc ) Pg24\r,NA]
Print Name
41—
d /1 /0/a jliofeo
Prin ame ,�
AP'"= "3', AS TO
Date: V) 711,0g F' - NGUAGE
ELUTION
II aigr.
Gam' y //�/�$
AtfonK+ � f
32
limak
EXHIBIT 1
Unit 1
"Restaurant Space"
�aec - SCALE 1':10'
I �
UNIT #1
RESTAURANT
820 S F.
91.
Klrcre.
54:.
16.80'
FREEZER
10 X'
,.(Es1Ans
GRAPHIC SCALE
1 20
(IN FEET)
1 inch = 10 ft
F.R. Alerlan And Associates, Inc. LB /6785 DATE: 1219(17
Consulting Engineers and Surveyors SCALE: 1 :10
10305 NW 41ST STREET, SUITE 200 JZR.AL.EMAN DRAWN: J.D.
MIAMI . FLORIDA 33178
33
EXHIBIT 1
Unit 2
"Concession Area"
(Concession/Storage Unit)
SCALE 1':10'
9 50' 8.85'
.9. I-
STORAGE " o
I o � b
UNIT;2
2.05'
272 ST.
GRA2} C SCALE
t0 0
(IN FEET)
1 Inch = 10 ft
F.R. /demon And Associates, Inc. LB f6785 DATE; 12<'19<'17
Consulting Engineers and Surveyors SCALE: 1 :10
10305 NW 41ST STREET, SUITE 200 R� AMMAN
MIAMI FLORIDA 33178 R.AB•C/111/11 V DRAWN: J.O.
34
EXHIBIT 2
"Dumpster Storage Area"
s. R
hl
.77- ill
1 1
lb I a-
w
•i
i 1
�.
_. ,.� `
I 11
i .
. i a"
N i ^
} i
D P
a
•
WC
r
,JFIN3AV XJNiI O I
0
l
C\ • /
.I \
35