Smith & Wollensky Lease AgmtSITE NAME: SOUTH POINTE PARK RF~'I'AURANT FACILITY
LEASE DATE:
LESSOR:
CITY OF MIAMI BEACH
LESSEE:
SPE~-a~LTY RESTAURANT CORPORATION
RFP NO. 13~.-8~
llql~X (Continued)
20. BANKRUPTCY OR INSOLVENCY
25. SUBLEASE AND ASSIGNMENT
26. INSPECTION OF PREMISES
27. NOTICES
28. ATTORNEY FEES
29. WAIVER
30. TIME OF ESSENCE
31. TERMS BINDING ON SUCCESSORS
32. SIGNS
3.t. FEDERAL APPROVAL
30. AUTOMOBILE PARKING
32. FORCE MA2EURE
This lease Is executed on February 8 , 19 85 ,
between THE CITY OF MIAMI BEACH, a Municipal CorpOration of the State of FI'~'~
whose principal office is located at 1700 Convention Center Drive, Miami Beach,
Florida 33139, as LESSOR, and SPECIALTY RESTAURANT5 CORPORATION; as LESSEE.
IT IS AGREED AS FOLLOWS:
DESCRIPTION OF THE PREMISES:
For and in consideration of the mutual promises herein contained, Lessor hereby leases
to Lessee, and Lessee hereby leases from Lessor certain real property (hereinafter
referred to as the Premises) described in '~xhibit A-I" signed by the parties hereto
and incorporated by reference.
TERM:
The '~erm shall be twenty (20) years commencing six mc~ths after the date Lessor
notifies Lessee in writing that Lessor's work (as hereinafter defined) is completed, or
the date Lessee commences business, whichever occurs first. This lease agreement
shall have two (2), ten-year options for renewal provided that the Lessee will request
each option from the Lessor by writing the City Manager at least one (I) year prior to
the expiration of the term preceding the term o! the requested option.
3. CONDITIONS SUBSEQUENT:
Liquor License: Lessee shall promptly apply for a liquor license from the appropriate
governmental authorities. Lessee shall use every reasonable e/fort and due diligence
to obtain a liquor license permitting only the dispensing and sale of alcoholic
beverages on the premises tot consumption on the premises. It is understood and
agreed that the Lessee shall obtain a liquor license within one hundred twenty (120)
days from the execution of this contract. If for a bona fide reason, not the fault of
the Lessee, the Lessee does not obtain a liquor license for the premises; then this lease
shall immediately terminate and Lessee's rent deposit shall be refunded. The Lessee
shall be required to use its best efforts and shall use due diligence in obtaining a liquor
license from the appropriate governmental authorities.
Upon termination of this lease for any cause whatsoever, the licenses, including the
liquor license, shall become the property of the City o! Miami Beach, its successors or
assigns and the Lessee shall fully cooperate in gratuitously tranferring the licenses to
the Lessor.
USE:
Lessee shall use the Premises for the sole purpose of constructing, equipping,
furnishing, and operating a dining facility, cocktail lounge, and/or banquet facility, as
herein defined, and for purposes incidental thereto, and for no other purpose
whatsoever', the latter subject to the written approval of the City Manager.
IMPROVEMENTS OF LESSOR;
Lessor agrees to commence construction and installation on the Premises of the
following improvements and pursue said work with due diligence:
To the Site
City to provide the following installations up to the site:
(1) Roads with landscaping and street lighting
(2) Electricity (not transformer)
(3) Water supply
Sanitary sewer
Gas
(&) Telephone
IMPROVEMENTS OF LESSEE:
Within ninety (90) days after Lessor notifies Lessee in writing of Lessor's approval of
final working drawings and specifications, Lessee shall commence construction and
installation on the Premises of the following improvements and pursue said work with
due diligence:
(1)
The LESSEE offers to enter into an agreement with the City of Miami Beach,
Florida for the exclusive development, construction and operation of a first-
class, 200-seat (minimum), restaurant whose quality of food, service,
atmosphere, personnel and equipment shall be comparable to other first-class
restaurants in Dade and Broward Counties for South Pointe Park, per the
specifications of the bid proposal found in RFP No.
(2)
Item I shall consist of a restaurant of not less than 16,000 to 18,000 square feet
with not less than 200-person dining capacity and cocktail lounges, serving not
less than 200-seated guests.
(3)
Within thirty (30) days after the lease agreement is signed, the Lessee shall
submit to the Lessor schematic design plans. Thirty (30) days after approval by
the City Manager o! the schematic plans, design development plans shall be
submitted. Final working drawings, specifications and construction contract
documents shall be submitted ninety (90) days after the City Manager's approval
of the preliminary plans. After approval by the City Manager of working
drawings, sixty (60) days will be allowed for the receiving of bids and thirty (30)
days to award same and commence construction. Upon award of bid, the Lessee
shall be permitted nine (9) months for the construction of the above-mentioned
facilities.
(~)
The Lessee shall be solely responsible for complete utility service of the facility.
All improvements of Lessee shall be solely at Lessee's cost and expense and shall
be performed in a good workmanlike manner in accordance with sound
construction practices. Lessee shall keep the Premises and said improvements
free and clear of liens for labor and material and shall hold Lessor harmless from
any responsibility in respect thereto.
The total cost of Lessee's Improvements on the Premises shall not be less than
one million seven hundred thousand dollars ($1,700,000).
7. CONSTRUCTION BOND:
10.
Lessee shall, prior to commencement of construction on the Premises by Lessee,
furnish Lessor a surety bond from a company duly authorized to do business in Florida
naming Lessor and Lessee as the principals and owners~ covering 100% of the cost o!
constructing the improvements, including labor and material.
OWNERSHIP OF IMPROVEMENTS:
All improvements, furnishings, and equipment constructed or installed on the Premises
by the Lessee, shall be personal property and Lessee shall have legal tide thereto
during the term of this lease. Upon the expiration or termination of this lease, title to
all permanent improvements constructed on the Premises shall vest in Lessor. Title to
all supplies, furnishings, inventories, and removable equipment and other personal
property shall remain in Lessee, and Lessee shall have the right to remove such items,
excepting licenses, from the Premises without damaging the Premises unless Lessee is
in default hereunder.
PLEDGE OF LEASEHOLD INTEREST:
Lessee may from time to time pledge this leasehold interest as security for any
bona fide loan or loans from rep.table lenders or lending institutions, but not beyond
the original lease term. Leasehold interest shall not include public land. Copies of all
agreements and legal instruments pertaining thereto involving the pledge o! the
leasehold interest as security, as contained in this Paragraph, shall be furnished to the
City Manager o! the Lessor whose approval must be obtained prior to their execution.
RENT:
(1)
Minimum Monthly Rent: During the term of this lease, Lessee shall pay Lessor
as minimum monthly rent, two thousand five hundred dollars ($2,500) per month
payable in ~dvance at the address of Lessor on the first day o! each month
beginning on the day Lessee commences business or two hundred forty (240) days
from the date Lessor notifies Lessee of Lessor's approval of final working
drawings and specifications, whichever date occurs first. If rent begins in the
middle of the month, rent for such month shall be prorated and paid in advance.
If the restaurant facility in the future becomes subject to real property or
possessory interest taxes, the Lessee will be responsible for said taxes.
(2) PercentaRe Rent: The Lessee shall Pay Lessor as percentage rent, in accordance
with the following:
2½% to $2,500,000
3% $2,500,001 - StGgO0,O00
3½% over $t~,800,000
or two thousand five hundred dollars ($2,500)
per month minimum guarantee, whichever is the greater
11. RENT DEPOSITS:
On the date this lease is executed, Lessee shall pay to Lessor the sum o! fifteen
thousand dollars ($15,000) as advance payment of the first six (6) months minimum
monthly rent due hereunder. The bid security of fi!teen hundred dollars ($1,500) shall
be credited to the rent deposit . In the event the Lessee defaults, the Lessor shall be
entitled to retain the rent deposit as liquidated damages.
RFP NO. 13q-gq
12. GROSS RECEIPTS~
13.
The term "gross receipts" as used herein shall include all receipts, whether collected
or accrued, derived by Lessee or any licensee, concessionaire, or tenant of Lessee,
from all business conducted upon or from the Premises, including but not limited to
receipts from sale of food, beverages, alcoholic beverages, merchandise, and rental of
space, or from any source whatsoever. The following items are excluded from gross
receipts, however:
(1) Receipts from the sale of waste or scrap materials resulting from Lessor's
operations on the Premises.
(2) Receipts from the sale or trade-in value of any furniture, fixtures, or equipment
used on the Premises.
(3) The cost or value of meals or discounts given to employees of Lessee.
The cost or value of food and beverage used for entertainment and business
promotion purposes by officers and employees of Lessee. No trade outs may be
deducted from gross sales under this provision.
RECORDS~ ACCOUNTS~ STATEMENTS AND AUDITS:
Lessee shall keep on the Premises, or such other place within Dade County, Florida
approved by Lessor, true, accurate, and complete records and accounts of all sales,
rentals, and business being transacted upon or from the Premises and shall give Lessor
or Lessor's representative access during reasonable business hours to examine and
audit such records and accounts.
Within thirty (30) days after each month of the term hereof, Lessee shall deliver to
Lessor a written monthly statement of the gross receipts for such month certified by
Lessee to be true, accurate, and complete.
Within sixty (&0) days after each fiscal year, Lessee shall deliver to Lessor a written
annual statement of the gross receipts for such fiscal year. Said statement shall be
certified as true, accurate, and complete by Lessee, by and through a duly authorized
officer of Lessee. The City's Auditor or his designee shall have the right, during
regular business hours and upon the City's written request to Lessee to audit, inspect,
examine and copy the Lessee's fiscal and financial records, books, ledgers, statements,
reports, tax returns and documents relating to this agreement and the Lessee's
revenues thereunder throughout the term(s) of this agreement and for three (3) years
following its expiration or cancellation. The Lessee agrees to have such audit(s)
conducted at such locations within Dade County, Florida as are mutually convenient
to the parties.
PROPERTY TAXES:
During the term hereof, Lessee shall pay all taxes of whatever nature lawfully levied
upon or assessed against the Premises and improvements, property, sales, rentals or
operations thereon, including but not limited to, ad valorem sales and use taxes.
LICENSES AND PERMITS:
Lessee shall nay for all li~n~ n~rrn|t~: anti
16. MANNER OF OPERATION.'
(l)
Lessee shall keep the restaurant and cocktail lounge reasonably stocked with
food and beverage and reasonably staffed to serve the patrons thereof, and
Lessee shall maintain a standard o! quality o! food and beverage at least equal to
similar operations in the area at reasonably comparable prices.
(:,)
The facilities to be constructed by the Lessee shall be open seven (7) days a
week, with the exception of Christmas Eve, or such other days that are approved
in writing by the City Manager.
(3) Minimum hours of operation.
Lunch and Dinner, five (5) days a week - 11:00 a.m. to 11:00 p.m.
Dinner two additional days a week - 5:00 p.m. to 11:00 p.m.
Any changes in hours of operation are subject to approval ol the City Manager.
Nothing herein contained shall be construed to authorize hours contrary to the
laws governing such operations.
17. CONFORMITY TO LAW:
18.
19.
Lessee shall comply with all laws, ordinances, regulations, and orders of Federal,
State, County and Municipal authorities pertaining to the Premises and Lessee's
improvements and operations thereon.
That the Lessee covenants and agrees that there will be no discrimination as to race,
color, creed or national origin in the use of the demised Premises.
MAINTENANCE AND REPAIRS:
During the term hereof, Lessee, at Lessee's expense, shall, to the satisfaction of the
Lessor, keep and maintain the Premises and all improvements thereon in good and
sanitary order, condition, and repair, consistent with the operation of a first-class
quality restaurant in the Dade and Broward County area. Upon expiration or
termination hereof, Lessee shall surrender and deliver up to Lessor the Premises and
all permanent improvements thereon in good and usable condition, ordinary wear and
tear excepted.
DESTRUCTION:
In the event the Premises shall be destroyed or so damaged or injured by fire or other
casualty during the life of this agreement whereby the same shall be rendered
untenantable, then the Lessee shall render said Premises tenantable by repairs within
two hundred torty (2~0) days therefrom, or such additional period of time as agreed to
by Lessor's City Manager in writing. Rent shall abate during the time the premises are
untenantable, provided, however that if the period of untenability shall exceed two
hundred forty (2~0) days the City shall have the sole option o! cancelling or
renegotiating this agreement, at its discretion.
In the event the Premises are substantially destroyed or so damaged or injured by fire
or other casualty that the Premises cannot be rendered tenantable or that Lessee
elects not to replace within the two hundred forty (2qO) day period as set forth above,
or such additional period of time as as, reed to by the Lessor's City Manager, then the
20.
21.
INDEMNIFICATION:
Lessee shall indemnify and hold harmless Lessor, its employees, and officials from
claims, causes, demands, suits, actions, damages and liabilities arising from liens or
claims of any kind or nature whatsoever resulting from the use, activities, and
operations of Lessee on or about the Premises and shall pay all judgments (including
costs, interest and attorney's fees) which may be rendered thereon.
INSURANCE:
At all times during the term hereof, Lessee shall maintain in full force and effect the
following described insurance covering the Premises and Lessee's improvements and
operations thereon:
(1) Public Liability IncludinR Products Liability Insurance:
Not less than one million dollars ($1,000,000) for death of, or injury to, any one
person in any one occurrence.
Not less than one million dollars ($1,000,000) for death of, or injury to, two or
more persons in any one occurrence.
Not less than one million dollars ($1,000,000) property damage.
(2) Fire and Extended CoveraRe:
Ninety percent (9096) of replacement value of all improvements. Certificates of
such insurance shall be delivered to Lessor prior to the beginning of any
construction by Lessee; such policies shall name Lessor as additional insured and
shall provide that Lessor's Insurance Manager be given at least thirty (30) days
advance written notice of cancellation or material modification. All
Certificates of Insurance shall be filed with the City Insurance Department of
the City of Miami Beach, Florida.
The insurance provided for herein shall be written by a company who is rated A:X or
better in Bestas Key Rating Guide (latest edition) who is authorized to do business in
the State of Florida and countersigned through an agent authorized to do business in
the State of Florida. The insurance company and the amount of coverage shall be
subject to the approval of the Lessor's City Manager, and the proceeds payable under
section (2) hereof shall be assignable to the City of Miami Beach pursuant to
paragraph 19 of this lease.
22. UTILITIES:
Lessee shall promptly pay for charges for water, gas, sewer, electricity, telephone,
and all other charges for utilities which may be furnished to the Premises during the
term hereof.
23. DEFAULT~
(i)
(2)
(3)
If Lessee abandons or vacates the Premises prior to the expiration of the term
hereof, or
If Lessee fails to make the rent payments as set forth herein and said payment is
not made within 1~ days after written notice is given to Lessee, or
If Lessee fails to perform in accorc~nce with any of the other terms and
conditions herein contained, and such default is not cured within thirty (30) days
after written notice is given to Lessee then Lessor, at Lessor~s option and
without further notice or demand to Lessee, may enter into possession of the
Premises and all improvements thereon and remove all persons therefrom and
may either take possession of all furniture, equipment, and other personal
property of Lessee found on the Premises or remove such property or any part of
it and store it at Lessee's expense. Lessor may then either terminate this lease
or re-let the Premises without prejudice to Lessor's lawful rights and remedies
against Lessee. In the event Lessor elects to re-let the Premises for such rent
and upon such terms as Lessor may be able to obtain, Lessee shall continue to
pay any difference between the rent obtained by such re-letting and the rent due
hereunder.
24. BANKRUPTCY OR INSOLVENCY:
If Lessee is adjudicated a bankrupt or makes an assignment for the benefit o!
creditors, or if the leasehold interest is sold under a legal order, or judgment, Lessor
shall have the right to immediately terminate this lease and re-enter the Premises
without notice or demand.
27. SUBLEASE AND ASSIGNMENT:
26.
Lessee shall not sublease the Premises or any part thereof nor assign this lease to any
other person or firm without first obtaining City Commission approval therefor.
INSPECTION OF PREMISES:
For the purpose of inspection, Lessor hereby reserves the right to enter upon any part
of the Premises at any time during the period the business is to be open under the
terms o! this lease.
27. NOTICES:
AU notices and rental
LESSOR:
LESSEE:
payments shall be sent to the parties at the following addresses:
The City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Specialty Restaurants Corporation
President
2977 Redondo Avenue
Long Beach, CA 90806
27.
2g.
29.
30.
31.
32.
NOTICES: (Continued)
Lessor and Lessee may change such addresses at any time upon giving the other party
written notification.
All notices under this lease must be in writing and shall be deemed to be served when
delivered to the address of the addressee. All notices served by mail shall be
registered mail, return-receipt requested.
Lessee may designate additional persons for notification of default.
ATTORNEY FEES:
Lessee agrees to pay the cost of collection and twenty percent (20%) attorneys' fees
on any part of said rental that may be collected by suit or by attorney after the same
is past due.
WAIVER:
No waiver by Lessor at anytime of any of the terms or conditions of the lease shall be
deemed a waiver at any time thereafter of the same or any other terms or conditions
hereof.
TIME OF ESSENCE:
Time shall be of the essence of this lease.
TERMS BINDING ON SUCCESSORS:
All of the terms and conditions of this lease shall insurz to the benefit of and be
binding upon the successors and assigns of the parties hereto.
SIGNS:
No signs whatsoever, including advertising signs, shall be erected or permitted upon
the Premises until the plans therefor have first been submitted to the City Manager of
the City of Miami Beach, and he shall approve said plans for the design and
construction thereof in writing.
33. FEDERAL APPROVAL:
The parties to this agreement recognize that this agreement shall be subject to
receiving written approval from the Federal Agencies having jurisdiction over
development, construction and operation of the South Pointe Park. This Lease shall not
be effective until Lessee has been notified by registered mail that all applicable
Federal Agency approvals have been granted.
34.
AUTOMOBILE PARKING,.
Lessor warrants that adequate automobile parking space adjacent to the p~emises for
Lessee's patrons and employees shall be made available by Lessor, In the event that
Lessor charges a parking fee, Lessor agrees to refund any parking fees to the patrons
of the restaurant upon presentation of n validated restaurant parking ticket.
FORCE MAJEURE:
The performance of any act by Lessor or Lessee hereunder may be delayed or
suspended at any time while, but only so long as, either party is hindered in or
prevented from performance by acts of God, the elements, war, rebellion, strikes,
lockouts, or any other cause beyond the reasonable control of such party, providing,
however that if the eondition of foree majeure exceeds a period of two hundred forty
days (240) days the City may at its sole option and discretion, eancel or renegotiate
this lease.
IN ~/ITNESS WHEREOF, the parties have executed this lease on the date tirst above
written.
LESSOR: By:
By.'
CITY OF MIAMI BEACH
CITY CLERK
LESSEE:
SPECIALTY RESTAURANTS CORPORATION
NAME
Type Name: CHARLES E. 1~:HITE, EXECUTIVE VICE PRESIDENT
By:
By:
DAVID C. TALLICHET, JR., PRESIDENT
Attest:
OP, N~ APt~ROVLD
LEGAL D£ET.
(CORPORATE SEAL)
STATE OF
CALIFORNIA
COUNTY OF
LOS ANGELES
ON JANUARY 30, , 19 85 , before me the
undersigned Notary Public in and for said County and State, personally appeared
DAVID C. TALLICHET, JR.,PRESIDENT
CHARLES E. WHITE, EXECUTIVE VICE PRES. known to me to be the person(s) whose
name(s) is(are) subscribed to the attached instrument and acknowledged that he (they)
executed the same.
WITNESS my hand and official seal
' NOTARY PUBLIC in and for said County and State
CAROLE M. COUILLARD
EIOm~IT NA-I~
DP..SCRIFTION OF PROPERTY
^ 100' x l&0' parcel of land within South Pointe Park located ~0 feet north of Government
Cut and adjacent to the Amphitheater structure which is west of the Coastal Construction
Line.
oo -~
avo o% o°~ ,
0
O0