Resolution 2022-32427 - -
RESOLUTION NO. 2022-32427
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, PURSUANT TO A PUBLIC HEARING, ACCEPTING
THE RECOMMENDATION OF THE FINANCE AND ECONOMIC RESILIENCY
COMMITTEE OF THE CITY, AND APPROVING, IN SUBSTANTIAL FORM, (1) A
LEASE AGREEMENT BETWEEN THE CITY(LANDLORD) AND TASTE BAKERY
CAFE, LLC (TENANT) FOR USE OF APPROXIMATELY 734 SQUARE FEET OF
GROUND FLOOR RETAIL SPACE LOCATED IN UNIT 4 OF 1701 MERIDIAN
BUILDING CONDOMINIUM A/K/A 773 171." STREET (DEMISED PREMISES), FOR
AN INITIAL TERM OF FIVE (5) YEARS, WITH ONE (1) ADDITIONAL RENEWAL
TERM OF FOUR (4) YEARS AND THREE HUNDRED SIXTY-FOUR (364),DAYS,
AT THE CITY'S OPTION, FOR THE OPERATION OF AN EMPLOYEE CAFE THAT
ALSO SERVES THE GENERAL PUBLIC; AND 2) A CONCESSION AGREEMENT
BETWEEN THE CITY AND TASTE BAKERY CAFE, LLC (CONCESSIONAIRE),
FOR USE OF AN OUTDOOR SEATING AREA, HAVING APPROXIMATELY 507
SQUARE FEET, LOCATED ADJACENT TO THE DEMISED PREMISES, AS AN
ANCILLARY USE FOR THE DEMISED PREMISES DURING THE TERM OF THE
LEASE; AND FURTHER AUTHORIZING THE CITY MANAGER TO FINALIZE AND
EXECUTE THE AGREEMENTS.
WHEREAS, the City owns the 1701 Meridian Building Condominium (Condominium),
comprised of ground floor retail spaces (Units 1-4), each having their own physical address, and a
four story office building (Units 5-8, with each floor representing one unit), having a physical address
of 1701 Meridian Avenue; and
WHEREAS, on May 17, 2017, the Mayor and City Commission adopted Resolution No.
2017-29866, approving a Lease Agreement (2017 Lease Agreement) between the City and Taste
Bakery Café, LLC. (Tenant) for the use of the eastern 2/3rds of Unit 4 of the Condominium a/k/a
773 17th Street, having approximately 734 square feet of ground floor (Demised Premises), and a
Concession Agreement (2017 Concession Agreement) allowing Tenant to use an outdoor seating
area adjacent to the Demised Premises, having approximately 507 square feet(Concession Area);
said Agreements having a term of three (3) years commencing on November 1, 2017, and ending
on October 31, 2020, with two renewal terms of one (1) year each (collectively, the 2017
Agreements); and
WHEREAS, both renewal options have been approved by the City Manager and the 2017
Agreements are set to expire on October 31, 2022 ; and
WHEREAS, on April 29, 2022, the City issued Invitation to Negotiate (ITN) No. 2022-060-
WG, seeking responses from interested parties to establish a new agreement for the operation of
an employee café; However, no formal responses to the ITN were received; and
WHEREAS, on August 5, 2022, LTC#377-2022 was issued advising the Mayor and the City
Commission that the ITN had been closed, and the cone of silence had terminated; and
WHEREAS, on September 14, 2022, the Mayor and City Commission approved the
extension of City-awarded contracts, which included extending the term of the 2017 Agreements,
on a month to month basis, for 120 days, until February 28, 2023; and
WHEREAS, the Administration reviewed options and conducted its own search for qualified
tenants, including considering Tenant, for the operation of the employee café concept under a new
agreement; and
WHEREAS, at the September 14, 2022 City Commission meeting, Item C4 O was presented
as a referral to the Finance and Economic Resiliency Committee (FERC) to discuss a new
agreement for an employee café at 773 17th Street; and
WHEREAS, at the October 31, 2022 Finance and Economic Resiliency Committee (FERC)
meeting, the Administration presented the terms and conditions agreed upon by the City and Tenant
and the FERC recommended in favor of approving a new Lease Agreement and related Concession
Agreement with Taste Bakery Café, LLC, based upon the terms and conditions presented at the
FERC meeting, which included, among others, the following essential business terms:
Lease Term: The term of this Lease shall be for a period of five (5) Years;
Renewal Option: One (1) renewal option for four (4) years and three-sixty-four (364)
days, at the City Manager's sole option;
Commencement Dates: The Lease Commencement and Rent Commencement Date shall be
the earlier of: 1) March 1, 2023 or 2) the date Tenant and Landlord
execute the new Lease Agreement;
Minimum Base Rent Initial Term
Schedule:
Year(s) Annual Annual
Rent/SF Rent
1 $41.00 $30,094.00, plus
applicable sales tax
Rent to increase 3% per year during the Lease Term.
Security Deposit: The amount of $5,000.00, which is currently being held by the City •
from Tenant under the 2017 Lease Agreement shall be transferred to
the new Lease Agreement;
Operating Expenses: Tenant shall pay its pro rata share of Real Property Taxes, Property
Insurance and Common Area Maintenance expenses, which are
currently estimated to be $12.85 per square foot. Operating
Expenses will be effective on the Rent Commencement Date;
Concession Area: Tenant shall be required to execute a Concession Agreement
coterminous with the Lease Agreement, at no additional cost to
Tenant, which are the same terms that exist under the 2017
Concession Agreement in connection with the use of the Concession
Area;
Delivery Conditions: Tenant shall accept the Premises in"As-Is" condition with no Landlord
Work or tenant allowance. Tenant shall be responsible for the costs
of any building permits, licenses, impact fees and any other costs
associated with Tenant's use;
Permitted Use: The Demised Premises shall be used by Tenant solely for the
purpose(s) of operating a cafe, with the primary objective being to
provide the City of Miami Beach employees with healthy food choices
at a price which is discounted by forty percent(40%)off the approved
price schedule and menu options, attached to the City Commission
Memorandum accompanying this Resolution as Exhibit B
("Menu/Price Schedule"), while also permitted to sell to the general
public;
Additional Services: Tenant shall provide:
• A forty percent (40%) discount on the purchase price
of all food and beverages from any Taste Bakery Café
location, within the City of Miami Beach to City employees
with an active and verified City of Miami Beach issued
employee identification ("Employee ID"); whether the
purchase was made onsite or ordered for delivery.
• Tenant will also provide a free coffee or tea with the purchase
of any item.
• Tenant will include City employees as part of their Rewards
program to be eligible for a ten ($10) dollar credit to be used
exclusively on the employee's birthday week at any Taste
Bakery Café location.
• Tenant will provide healthy conscious food, fruits and quick
snacks.
• The City will reimburse Tenant a maximum of Two Hundred
Thousand and 00/100 Dollars ($200,000.00) * per contract
year towards the City Employee Discount at the following
rates:
Annual City Maximum Annual Reimbursement
Employee Purchases Reimbursement Rate
$0-$422,400 $ 168,960.00 40%
$422,400-$629,333.33 $ 31,040.00 20%
Greater than $629,333.33 $0.00 0%
*The Maximum reimbursement will be revisited on an annual basis in
connection with the approval of the Lease option term to determine if
the City Manager, at the City Manager's discretion, will approve a cost
of living increase.
Once the Maximum reimbursement amount is reached, Tenant will
continue to provide the City Employee Discount without
reimbursement from the City;
Hours of Operation:
Mon-Fri: 7AM-5PM
Weekends: 8AM-2PM
Tenant may consider opening in,the evening until 9pm or 10pm, if
there is enough demand from City Employees who work in the
evening that want to eat at Taste; and
Guarantor(s): Full personal guaranty shall be required by all owners and spouses;
and
WHEREAS, the City Manager recommends approving, in substantial form, a new Lease
Agreement, a copy of which is attached to the City Commission Memorandum accompanying this
Resolution as Exhibit"C"; and approving, in substantial form, a new Concession Agreement, a copy
of which is attached to the City Commission Memorandum accompanying this Resolution as Exhibit
"D"; and further authorizing the City Manager to finalize and execute the Agreements.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission,
pursuant to a public hearing, hereby accept the recommendation of the Finance and Economic
Resiliency Committee, and approve, in substantial form, (1) a Lease Agreement between the City
(Landlord)and Taste Bakery Café, LLC(Tenant)for use of approximately 734 square feet of ground
floor retail space located in Unit 4 of 1701 Meridian Building Condominium a/k/a 773 17th Street
(Demised Premises), for an initial term of five (5) years, with one (1) additional renewal term of four
(4) years and three hundred sixty-four (364) days, at the City's option, for the operation of an
employee café that also serves the general public; and 2) a Concession Agreement between the
City and Taste Bakery Café, LLC (Concessionaire), for use of an outdoor seating area, having
approximately 507 square feet, located adjacent to the Demised Premises, as an ancillary use for
the Demised Premises during the term of the Lease Agreement; and further authorize the City
Manager to finalize and execute the Agreements.
PASSED and ADOPTED this /(1 day of Decernbec 2022.
ATTEST: DEC 1 6 2a22 .
Rafael E. Gra ado, ity Clerk =--� '„ Dan Gelber, Mayor
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Resolutions -C7 D
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: December 14,2022
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, PURSUANT TO A PUBLIC HEARING,
ACCEPTING THE RECOMMENDATION OF THE FINANCE AND ECONOMIC
RESILIENCY COMMITTEE OF THE CITY, AND APPROVING, IN
SUBSTANTIAL FORM, (1) A LEASE AGREEMENT BETWEEN THE CITY
(LANDLORD) AND TASTE BAKERY CAFE, LLC (TENANT) FOR USE OF
APPROXIMATELY 734 SQUARE FEET OF GROUND FLOOR RETAIL SPACE
LOCATED IN UNIT 4 OF 1701 MERIDIAN BUILDING CONDOMINIUM A/K/A
773 17TH STREET (DEMISED PREMISES), FOR AN INITIAL TERM OF FIVE
(5) YEARS, WITH ONE (1) ADDITIONAL RENEWAL TERM OF FOUR (4)
YEARS AND THREE HUNDRED SIXTY-FOUR (364) DAYS, AT THE CITY'S
OPTION, FOR THE OPERATION OF AN EMPLOYEE CAFE THAT ALSO
SERVES THE GENERAL PUBLIC; AND 2) A CONCESSION
AGREEMENT BETWEEN THE CITY AND TASTE BAKERY CAFE, LLC
(CONCESSIONAIRE), FOR USE OF AN OUTDOOR SEATING AREA, HAVING
APPROXIMATELY 507 SQUARE FEET, LOCATED ADJACENT TO THE
DEMISED PREMISES, AS AN ANCILLARY USE FOR THE DEMISED
PREMISES DURING THE TERM OF THE LEASE; AND FURTHER
AUTHORIZING THE CITY MANAGER TO FINALIZE AND EXECUTE THE
AGREEMENTS.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission adopt the Resolution.
BACKGROUND/HISTORY
The City owns the 1701 Meridian Building Condominium (Condominium, comprised of ground floc
retail spaces (Units 1-4), each having their own physical address, and a four-story office building (Unit
5-8,with each floor representing one unit), having a physical address of 1701 Meridian Avenue.
On May 17, 2017, the Mayor and City Commission adopted Resolution No. 2017-29866, approving
Lease Agreement (2017 Lease Agreement) between the City and Taste Bakery Café, LLC. (Tenn'
for the use of the eastern 2/3rds of Unit 4 of the Condominium a/k/a 773 17th Street, havini
approximately 734 square feet of ground floor retail space (Demised Premises), and a Concessio
Agreement (2017 Concession Agreement) allowing Tenant to use an outdoor seating area adjacent fi
the Demised Premises, having approximately 507 square feet (Concession Area); said Agreement
Page 275 of 952
having a term of three (3)years commencing on November 1, 2017, and ending on October 31, 202C
with two renewal terms of one (1) year each (collectively, the 2017 Agreements). Both renewal option
have been approved by the City Manager and the 2017 Agreements are set to expire on October 31
2022.
On April 29, 2022, the City issued an Invitation to Negotiate (ITN) No. 2022-060-WG seeking
responses from interested parties to establish a subsequent agreement for the operation of a
employee café. However, no formal responses to the ITN were received.
On August 5, 2022, LTC# 377-2022 was issued advising the Mayor and the City Commission that th
ITN had been closed, and the cone of silence had terminated. On September 14, 2022, the Mayor any
City Commission approved the extension of City-awarded contracts, which included extending th+
current term of the 2017 Agreements on a month-to-month basis, for 120 days until February 28, 202;:
Consequently, the Administration reviewed options and conducted its own search for qualified tenants
including considering Tenant,for the operation of the employee café concept under a new agreement.
At the September 14, 2022, City Commission meeting, Item C4 0 was presented as a referral to thi
Finance and Economic Resiliency Committee (FERC) to discuss a new agreement for an employe
café at 773 17th Street.
ANALYSIS
The Administration reached out to several cafe/restaurant operators who would be viable candidates fc
an employee café, but there was no interest in the space, predominantly due to the location and size c
the Premises. In addition, staff consulted with City employees in various departments who expresser
interest in Taste Bakery remaining as their café of choice. The replacement of the existing caf€
downtime, and loss of revenue was also taken into consideration. Staff proceeded to meet with th
current Tenant (Taste Bakery Café)to review the existing concept, rental structure, menu and negotiate
a new agreement for the continued operation of an employee café.
Taste Bakery Café, LLC (Tenant)has proven to be a successful operator in implementing and developing th
employee café concept since 2017. The Tenant is interested in continuing with the employee café concer
and will refresh the interior design of the space, streamline the customer ordering experience, and upgrad•
the menu to include a variety of healthy food options containing nutritional information.
After further consideration and negotiations, the Administration has selected Taste Bakery Cafe, LLC
continue as the Tenant for the employee café concept. Attached hereto as Exhibit A is the Letter
Intent(LOI), containing the below basic terms and conditions of the proposal:
Lease Term: The term of this Lease shall be for a period of five (5)Years.
Renewal Option: One (1) renewal option for four (4) years and three-sixty-four (364)
days,at the City's option.
Commencement The Lease Commencement and Rent Commencement Date shall
Dates: be the earlier of: 1) March 1, 2023, or 2) the date Tenant and
Landlord execute the new Lease Agreement.
Minimum Base I Initial Term
Page 276 of 952
Rent Year(s) Annual Annual
Schedule: Rent/SF Rent
1 $41.00 $30,094.00, plus
applicable sales tax
Rent to increase 3% per year during the Lease Term.
Security Deposit: The amount of $5,000.00, which is currently being held by the City
from Tenant under the 2017 Lease Agreement shall be transferred to
the new Lease Agreement.
Operating Tenant shall pay its pro rata share of Real Property Taxes, Property
Expenses: Insurance and Common Area Maintenance expenses, which are
currently estimated to be $12.85 per square foot. Operating
Expenses will be effective on the Rent Commencement Date.
Concession Area: Tenant shall be required to execute a Concession Agreement co-
terminus with the Lease Agreement, at no additional cost to Tenant,
which are the same terms that exist under the 2017 Concession
Agreement in connection with the use of the Concession Area.
Permitted Use: The Demised Premises shall be used by Tenant solely for the
purpose(s) of operating a cafe, with the primary objective being to
provide the City of Miami Beach employees with healthy food
choices at a price which is discounted by forty percent (40%) off the
approved price schedule and menu options, attached to the City
Commission Memorandum accompanying this Resolution as
Exhibit B ("Menu/Price Schedule"), while also permitted to sell to
the general public.
Additional Tenant shall provide:
Services:
• A forty percent(40%)discount on the purchase price
of all food and beverages from any Taste Bakery Café location,
within the City of Miami Beach to City employees with an active
and verified City of Miami Beach issued employee
identification.("Employee ID");whether the purchase was made
onsite or ordered for delivery.
• Tenant will also provide a free coffee or tea with the purchase
of any item.
• Tenant will include City employees as part of their Rewards
program to be eligible for a ten ($10) dollar credit to be used
exclusively on the employee's birthday week at any Taste
Bakery Café location.
• Tenant will provide healthy conscious food, fruits and quick
Page 277 of 952
snacks.
The City will reimburse Tenant a maximum of Two Hundred
Thousand and 00/100 Dollars ($200,000.00) * per contract year
towards the City Employee Discount at the following rates:
Annual City Maximum Annual Reimbursement
Employee Purchases Reimbursement Rate
$0-$422,400 $ 168,960.00 40%
$422,400-$629,333.33 $31,040.00 20%
Greater than$629,333.33 $0.00 0%
*The Maximum reimbursement will be revisited at the Lease option
term to determine cost of living increases.
Once the Maximum reimbursement amount is reached, Tenant will
continue to provide the City Employee Discount without
reimbursement from the City.
Mon-Fri: 7AM-5PM
Weekends: 8AM-2PM
Hours Of Tenant may consider opening in the evening until 9pm or 10pm, if
Operation: there is enough demand from City Employees who work in the
evening that want to eat at Taste.
Guarantor(s): Full personal guaranty shall be required by all owners and spouses.
FINANCE AND ECONOMIC RESILIENCY COMMITTEE RECOMMENDATION
At the October 31, 2022, Finance and Economic Resiliency Committee (FERC) meeting, the
Administration presented the terms and conditions set forth above. The FERC recommended in
favor of approving a new Lease Agreement with Taste Bakery Café, LLC, for a period of five (5)
years, with one renewal option of four(4)years and three hundred and sixty-four(364)days at the
City's option.
SUPPORTING SURVEY DMA
n/a
FINANCIAL INFORMATION
n/a
CONCLUSION
Based upon the foregoing, the City Manager recommends that the Mayor and City Commission
Page 278 of 952
accept the recommendation of the Finance and Economic Resiliency Committee, and approve in
substantial form a new Lease Agreement and Concession Agreement with Taste Bakery Café,
LLC, a copy of which are attached hereto as Exhibit C and Exhibit D respectively, to bring an
employee café concept to City employees, while continuing to serve the general public at the City-
owned property located at 1701 Meridian Avenue, Unit 4 (a/k/a 773 17th Street) for a term of five
(5) years, with one (1) additional renewal term of four(4) years and three hundred sixty-four (364)
days, at the City's option.
Exhibits
Resolution
A- Letter of Intent(LOI)
B- Menu
C- Lease Agreement— Draft form
D- Concession Agreement—Draft form
Applicable Area
South Beach
Is this a"Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
No No
Legislative Tracking
Facilities and Fleet Management
ATTACHMENTS:
Description
o Exhibit A
▪ Exhibit B
o Exhibit C
o Exhibit D
o Resolution
Page 279 of 952
Exhibit A
Cify of Miami Beach, 1700 Convention Center Drive,Miami Beach,FL 33139,www.miamibeachfl.gov
FACILITIES AND FLEET MANAGEMENT DEPARTMENT
Asset Management Division
Tel:305-673-7193
September 29, 2022
Aditaya Thakore
773 17 Street
Miami Beach, FL 33139
RE: Taste Bakery Café, 773-17 Street, Miami Beach, FL
Dear Mr. Thakore:
I wish to take this opportunity to convey the interest of the City of Miami Beach (Landlord), in
leasing the retail space referenced above at the 777 Building to Taste Bakery Cafe (Tenant).
This letter summarizes our recent discussions to lease the above property; it is not intended to be
contractual in nature, and only expresses the basis upon which we wish to continue discussions.
This letter is intended to outline initial terms for consideration only and is no manner intended to
obligate any party contractually and no such obligation shall arise unless/until a mutually
satisfactory lease agreement is fully executed by, and delivered to, all parties.
Subject to final approval of the Landlord and execution of a mutually agreed upon Lease, I believe
the Landlord would be willing to continue discussions under the following terms and conditions:
Landlord: City of Miami Beach
Tenant: Entity name: TASTE BAKERY MB CITY HALL LLC
DBA: Taste Bakery Café
Premises: Approximately 734 square feet of City-owned property, located at 1701
Meridian Avenue, Unit 2 (a/k/a 773 17th Street), Miami Beach, Florida
Lease Term: The term of this Lease shall be for a period of five (5)Years.
Renewal Option: One (1) renewal option for Four (4) years and 364 Days, at the City
Manager's sole discretion.
Commencement
Date: The Lease Commencement and Tender date will be the date Tenant and
Landlord execute the new Lease Agreement.
Minimum Rent Initial Term
Schedule:
Year(s) Annual Annual
Rent/SF Rent
1 $41.00 $30,094.00
Rent to increase 3% per year during the Lease Term.
Page 280 of 952
Sales Tax: Tenant shall pay the applicable sales tax currently equivalent to 6.5% in
Miami Dade County.
Prepaid Rent: N/A
Security
Deposit: The amount of $5,000.00, which is currently being held by the City
of Miami Beach from Tenant's current Lease Agreement shall
be transferred to the new Lease.
NNN: Tenant shall pay its pro rata share of Real Property Taxes, Property
Insurance and Common Area Maintenance for the Project. Tenant's pro
rata share shall be determined based upon the ratio of Tenant's floor area
to the total floor area of all the retail space in Landlord's Parcel (to be
further clarified in the Lease). Current estimate for NNN Costs are
$12.85 per square foot. Operating expenses will be effective on the Rent
Commencement Date.
Concession
Area: Tenant shall be required to execute a Concession Agreement co-
terminus with the License Agreement, at no additional cost to Tenant,
which are the same terms that exist under the existing Concession
Agreement in connection with the use of the Concession Area.
Utilities: Tenant shall pay for all utilities within the Premises.
Delivery
Conditions: Tenant shall accept the Premises in "As-Is" condition with no Landlord
Work. Tenant shall be responsible for the costs of any building permits,
licenses, impact fees and any other costs associated with Tenant's use.
Tenant
Improvement
Allowance: N/A
Tenant's Work: Tenant will refresh the location with some new furniture, decorations,
update some cabinetry, and paint. Possible change of the layout of the
space slightly, if necessary, to accommodate for increased sales,
including a larger prep area for the kitchen. All work performed by Tenant
for space improvements is at Tenant's cost and expense. Tenants work
is subject to Landlord's review and approval of Tenants plan and
specifications, which shall be drawn by a licensed architect if a building
permit is required. All of Tenants works shall be performed by licensed
contractors and in accordance with all applicable codes.
Maintenance& Landlord shall be responsible for all repairs to the foundations and for all
Repair: structural components of the Project. Tenant's obligation for repairs,
replacements and maintenance shall include, but not be limited to, its
equipment; fixtures; improvements; floor covering; the exterior and
interior portions of all doors, door locks, security gates, and windows;
plumbing and sewage facilities not Landlord's obligation; walls; ceilings;
and all plate glass; all electrical systems and equipment; plumbing,
mechanical equipment; heating, ventilating and air-conditioning
Page 281 of 952
machinery. Additionally, Tenant shall maintain and keep in good repair,
all heating and air-conditioning equipment. Tenant further agrees to
regularly service said machinery and change the filters in the air-
conditioning system in the Premises through a monthly filter and
equipment service contract.
Assignment& Tenant shall not assign the lease or sublet the Premises without the
Subletting: prior written consent of Landlord, which consent may be withheld at the
sole and absolute discretion of the Landlord.
Permitted Use: The Demised Premises shall be used by Tenant solely for the purpose(s)
of operating a cafe, with the primary objective being to provide the City
of Miami Beach employees with healthy food choices at a price which is
discounted by forty percent (40%) off the approved price schedule.
Tenant shall cook, prepare, or cause to be prepared, for sale within the
Demised Premises, such cooked, prepared, and/or prepackaged foods,
and such non-alcoholic beverages. Any subsequent changes to the
menu must be approved in writing by the City Manager or his/her
designee.
Exclusive Use: N/A
Additional
Services: , Tenant shall provide:
• A forty percent (40%) discount on the purchase price
of all food and beverages from any Taste Bakery Cafe location,
within the City of Miami Beach (a "Separate Taste Bakery
Location"), to City employees with an active and verified City of
Miami Beach issued employee identification ("Employee ID");
whether the purchase was made onsite or ordered for delivery
("City Employee Discount"). Notwithstanding the foregoing, the
Employee Discount shall not be applied to any delivery charges.
• Tenant will also provide a free coffee or tea with the purchase of
any item.
• Tenant will include City employees as part of their Rewards
program to be eligible for a ten $10 dollar credit to be used
exclusively on the employee's birthday week at any Taste Café
location.
• The City may choose to impose additional requirements, such as
a card reader, in order to ensure the integrity of the City
Employee Discount. The term "City Employee Purchases" Is
understood to mean the sales price of any purchases to which a
City Employee Discount is applied, inclusive of the City
Employee Discount amount. It does not include the price of any
other discounts Tenant may offer to City employees or
customers in general.
• Tenant will provide healthy conscious food, fruits and quick
snacks.
• Tenant will provide a takeaway menu and/or have QR codes
and online menus available.
The City will reimburse Tenant a maximum of Two Hundred Thousand
and 00/100 Dollars ($200,000.00)* per contract year towards the City
Page 282 of 952
Employee Discount at the following rates:
Annual City Employee Purchases Reimbursement Reimbursement Rate
Maximum
From To
$0.00 $422,400.00 $168,960.00 40%of City Employee
Purchases
$422,400.01 $629,333.33 $31,040.00 20%of City Employee
Purchases
Greater Than $629,333.33 $0.00 0%of City Employee
Purchases
*The Maximum reimbursement will be revisited at the Lease option term
to determine cost of living increases.
Thereafter, Tenant will continue to provide the City Employee Discount
regardless of any reimbursement amount. City reserves the right to notify
Tenant, in advance of any purchases, of City's objection to provide the
City Employee Discount to any particular City employee, thereafter
authorizing Tenant to deny the City Employee Discount to said employee.
City will not reimburse Tenant for: 1)any amounts discounted above 40%
of the purchase price, 2) unauthorized employees as Tenant has been
Notified by the City, or 3)persons without an active Employee ID. Along
with any reimbursement request, Tenant shall provide a Daily Sales
Summary Report in a digital spreadsheet format (such as Excel) which
includes, Employee ID numbers, and categories for City Employee
Discounted Sales,from each store location as well as the Gross Receipts
from the Demised Premises.Tenant shall also provide Special Summary
Reports for any period(s) upon request by the City. Any Summary
Reports provided from any Taste Bakery location shall not be
intermingled with any other location. Tenant may request a
reimbursement, by providing an Invoice along with any documents and
files which may reasonably be requested by the City Manager or his
designee, no more than once a month. The City shall have thirty (30)
days to pay the reimbursement.
Hours of
Operation: Mon-Fri: 7AM-5PM
Weekends: 8AM-2PM
Tenant may consider opening in the evening until 9pm or 10pm, if there
is enough demand from City Employees who work in the evening that
want to eat at Taste.
Percentage
Rent: N/A
Sales
Reporting: Within fifteen (15)days after the end of each month, Tenant shall submit
to Landlord a written statement showing the gross sales of all
merchandise sold and/or services rendered in or from the Leased
Premises for such month, and year, as applicable.
Operations: Tenant agrees that on Rent Commencement Date, it will open and
continuously operate the entire Premises to the public, fully fixtured,
staffed and stocked.
Page 283 of 952
Tenant's
Signaue: Per Shopping Center's Sign Criteria and approval of all necessary
Governmental agencies.
Tenant
Financials: This proposal is subject to Landlord's review and approval of Tenant's
financial statements.
Guarantorfsj:
Full personal guaranty shall be required by all owners and spouses.
The provisions of this letter are for discussion purposes only. This letter is not a contract or a
promise to perform, and the parties acknowledge that they have not set forth the essential terms
of an agreed-upon transaction. The parties hereto shall not be bound by the terms of this letter,
and no liabilities or obligations shall arise pursuant hereto, and no party has the right to
detrimentally rely on the statements set forth herein or on the verbal and written negotiation
conducted herewith, it being intended that only a subsequent formal agreement, which
specifically states its binding intent,if duly executed by both parties, will bind the parties on any
matter described herein. Furthermore, prior to entering into a formal agreement, appropriate
governmental regulatory,corporate and senior management approvals must first be obtained by
all parties hereto,including but not limited to approvals of legal counsel.
Tenant agrees that during the negotiation of this transaction, Tenant will negotiate in good faith
and will not engage in negotiations with other Landlord's for other Premises. Landlord will not
give up its rights to negotiate with other prospects until a lease is executed.
Should this proposal be acceptable to Tenant, please execute where indicated below and return
the fully executed copy to my attention. Please feel free to contact me if you have any
questions or comments.
Sincerely,
Ozzie Dominguez, Division Director
Asset Management Division
1833 Bay Road
Miami Beach,FL 33139
AGREED AND ACCEPTED
TENANT
PLEASE PROVIDE TENANT EN1TiY
BY: 411-yet_
DATE: (9 L 1- 1 n Z71.
•
Page 284 of 952
Exhibit B
[DRAFT]
Our Menu
Below you will find our menu,which contains the full menu for Taste Bakery Cafe. Our menu is also
available for viewing online on our website at www.taste-bakery.com. You may also follow us on
Instagram for more pictures at @tastebakerycafe. We have also attached a couple of pictures of the
food that we serve.
Taste Famous All Day Breakfast
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The Barnhouse<--'"'" The Luchaelor The Mediterranean Breakfast , . . ' WSW V Aiiii.arovendehiwitE
pipa stinnuside eggs•applewormlbacon•ay- sunninicle eggs•Vegan Impossible egg whites•spinach•basil•sun- ' chimed Frosts&
ocaclo•moraine•tomato•hone;dijon ground meat•pepperjach cheese dried tomatoes•peeto•black olives I' OA=9 Steel-micas mintalidtk
•ketchup•mar•american cheese e Iota veggies•cilantro•lime•avocado
•fete cheese•humans
12 •jalapeeo•cilantro lime ranch dressing
15
13
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l almond mak
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The Call Energizer The Salami Eggvocado
egg whites•cheddar cheese•avocado TiNti Bilated smoked salmon•avocado•rczazahled i LI i•I i 1 111 ,
•spinach•tomatoes•turkey breast• eggs•cucumber.•spinach•balsamic
honey ton sauce glaze•nigilla seeds - .
15 liteitosintemAppisi
w. apples•cinnamon•agave swap•granola
A'All, The Chieni Steak dr Eggs ""
Th.Protein--'"'" •medjool dates•almonds
slap sirloin steak•scrambled eggs egg whites•chicken breast•applewood
•roasted red peppers'cheddar cheese bacon•chicken apple sausage•spinach YestadnmMICKsaisis
•chimichurri sauce 15 •red onions•cheddar cheese•ranch
15
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TASTE OPEN smonegits cacao nibs•almond butter•almonds
•bananas•granola•coconut•hones
Everything's Peach
peaches.mango•raspberro•walnuts
Available an our Bagels or SuiciwiTh options in Step I •bananas 0 granola•agave swop•chin seeds
Power thogry
I..
The Lox The Bruschefta Avocarko'r The Green Dragon The Vacation protein powder•strawberries•blueberries•peanut
IMO cream cheese•smoked haw-made bnuchetta•ave- 'anal"egg,•eciamame peanut butter•Lamm' hotter s bananas•granola•peanuts•honey I
t
ga salmon'•tomatoes• nada•fresh mozzarella•hal- •avocado•jedapeio •cacao ray;•strawberries
capers•onion' Walk glaze•chin leech •bacon•Nig&seeds •granola•walnuts•chin IiinaBsech 1
•lemon 13 •Iota cheese•sprouts seeds•agave sump piseapple•mangoes•banana•coconut•anomie
13 12 •agave quip•cilia seeds
Page 285 of 952
13
Taste Entrees
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orstonts•absilla seeds *•vsallabt•lsomeg pima•basil•bell- •pickles•=stud =also'•shared I gin•jelaptika I
.: •nuked tomato I &get&wily; oak vimigette ' •magoessii• parmesan Amos• 1 dislat luso•marl-j
basil wiaaignii• 1 14 &Mina ; •micas•Java* sulk croutons• i can cheese•twin j
•97Gai1
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m 6 bletie it....3 •Spina E =staid&amiss clresriag j
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Page 286 of 952
14
Taste Beverages
FRESH JIJICE BAR TASTE
Made Fresh to Order-Served by the 2Ooz-9
Citrus Splash Detoz on the Roz Miami Mojito E LIFIE SHOTS
pineapple•1 range cucumber$•green pineapple•cu- = 3 502 Bi SIIOt served with an
• ginger•lemon app ea•beets• cumber•mint = g
•mint celery _•lemon = orange wedge chaser
a ree Orange Blush. Herbal Zinger - The Ginger Shot
Machine oranges•strawber- green apples - ginger•lemon•honey
kal@•celery•green ries•greea.apples •lemon•ginger _ 5
apples• gm on•Cu- •basil
.. cumbers =_ The Super Shot
Fruit Punch Power Hour ���� � Heart Beet ginger•lemon• turmeric
pineapple•green green apple•tur- grange•carrot• _ •black pepper•honey
apple•oranges meric•carrot• beets•ginger•
• strawberries lemon•black pepper kale = 5 50
_ - The Immunity Shot
FRSEI
I
:I 0
Singer•lemon•honey•cayenne
•apple
Made to Order with Soda Water&Sweetened with Agave Nectar = 5
Served by the 200:with Ice-5 The Hulk Shot
Miami Sunset Mangoals Yacht Party Blue Lagoon ginger•lemon•honey•spirulina
ginger•lemon• ginger•lemon• pineapple• blueberry• •chia seeds•orange juice
•basil•straw- mango•mint lemon•cucumber lemon•ginger 5.50
berry•peach •mint •basil
00' a STAB SWEET
ICED FRAPPE i
I Regular 16or•10 Large 20or•11.50 _ Served r�hot or iced
Madsen Blue Blast Ocean Acai Date a'Almo `1- 11oz 16oz lit Shot snot Single Coibte -
1 st
MaOg° lad ! C -''''' e 2 250 Espresso 2 350 Toppe�[ahi i[hywhipped creamk
[ mango•bonaaa blueberries•banana mat•blueberries• i bananas•coed °D
i•pineapple.corn- •strawberries banana•vanilla ire 1 dater•toaetedal- `_ Cale latte 3 350 f•Tww 0 Macehiato 250 350 16ot•6 20or T30
ant water •coconut water cream•coconut water j marls•almond = cele Mocha 4 450 Cartedito ) 350
1 butter.almond milk' Choi latte 4 450 Cain, 250 350 Mocks
Chip
(_r agate sgtnp _ esD . 5 5.50
bail thhMO 111WIPIP =espresso•cn ••amo ate quip
Inland Bland SoBe Swei Pesch..11 Greet, Masela Beach = cafe Anerieaam 250 3 •vanilla ice cream
t.
pineapple•baaace raspherrg•applea pearls,'•apinacb atrawbe[riea = Organic Lamas 250 3
•coconut.'walla •vanilla keeream• •banana•agpveagruP• •baaaaas•h••L ff.
teeClean•cacoant lemaa•agave agrup cmconnt water•combo& juke 13mwCoffee 350 4 _ '( p�lpTil
wale[ .oat milk °del __ ` A 1J =apra o•caramel•vanilla ice deem
TASTE - fly C6ei
iTheAnti-AgiiiJ aii l 1 Peanut Biest':`' Served ho iced 12or•5 - I6m•6 'c4aai•cor mom•cardamom•vanilla
pineapple•banana.• N � IN.s ;bananas o akawber-I ' is seem
.turmeric•canna-; a 71�a�6 _ .rive.pmmet batter = � Peel Good Teo Green
The Fat
1 s gauger•chia i Mi eg i 1 ••almond milk•• Late Lot water•• Green Tea Burner =
1 seeds•Loney•co-1 dtl,1� i ? hoeeg i •cbai•ginger ginger•lemon matcLagreen . Lot water•greens Hacks Gomm'Do
•
conml milk i ldie,nS.oIL'e M . i- •cardamom •cinnamon•tor- tea•Lmaeg o tea•bong•gin- metvha green tea
.arctic*of milk mane•Lameg chmtce of milk ger.mint•lemon •vanilla ice Mama
Page 287 of 952
15
Exhibit C
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this day of , 2022 ("Lease" or
"Lease Agreement"), by and between the CITY OF MIAMI BEACH, a Florida municipal
corporation, (hereinafter referred to as"City"or"Landlord"), and TASTE BAKERY CAFE, LLC,
a Florida Limited Liability Company, (hereinafter referred to as "Tenant").
1. Demised Premises.
the City owns the 1701 Meridian Building Condominium (the "Condominium"),
comprised of ground floor retail spaces (Units 1-4), each having their own
physical address, and a four story office building (Units 5-8), with each floor
representing one unit), having a physical address of 1701 Meridian Avenue (the
"Building"). Unit 4 of the Condominium has 1,269 square(feet of space
located on the ground floor, and as more specifically delineated in Exhibit
1 a, attached hereto and incorporated herein by reference.
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, lts and demises to the Tenant,
and Tenant hereby leases and hires from the City, that certain ground floor
retail space (the "Demised Premises"), located in Unit 4 of the
Condominium, having approximately 734 square feet (inclusive of one (1)
bathroom), as depicted in Exhibit 1, attached hereto and incorporated
herein by reference, and as more fully described as follows:
The easterly 734 square feet of Unit 4, of 1701 Meridian Building
Condominium, a Condominium, according to the Declaration thereof, as
recorded in Officii ( Records Book 25724, at Page 1183, of the Public
Records of Mianrf-Dade County, Florida a/k/a 773 17th Street. Exhibit 1.1
1.1. The City arI1 Tenant are parties to a concession agreement dated
2022 (the "Concession Agreement"), relating to a concession area depicted in
Exhibit 1.1, for 507 square feet of outdoor space adjacent to and east of the
Decilised Premises (the "Concession Area").
1.2. The Concession Area and Demised Premises are more specifically delineated in
Exhibit 1 ("Layout"), attached hereto and incorporated herein.
2. Term.
2.1. Tenant shall be entitled to have and to hold the Demised Premises for an initial
term of five (5) years, commencing on the 1st day of March 2023 (the
"Commencement Date"), and ending on the 28th day of February 2028. For
purposes of this Lease Agreement, and including, without limitation, Subsection
Page 288 of 952
2.2 herein, a "Contract Year" shall be defined as that certain period commencing
on the 1st day of January, and ending on the 31 st day of December.
2.2. Provided Tenant is in good standing and free from default(s) under Section 18
hereof, and upon written notice from Tenant, which notice shall be submitted to
the City Manager no earlier than one hundred eighty (180) days, but in any case
no later than one hundred twenty (120) days prior to the expiration of the initial
term (or prior to the expiration of the first renewal term, as the case may be), this
Lease may be extended, at the City Manager's sole and reasonable discretion,
for one (1), four(4) year and 364 days renewal term. Any extension, if approved,
shall be memorialized in writing and signed by the parties hereto (with the City
hereby designating the City Manager as the individual authorized to execute such
extensions on its behalf).
In the event that the City Manager determines, in his/her sole and reasonable
discretion, not to extend this Lease Agreement (upon expiration of the initial
term), the City Manager shall notify Tenant of same in writing, which notice shall
be provided to Tenant within thirty (30) business days of the City Manager's
receipt of Tenant's written notice.
2.3. Notwithstanding anything in this subsection, or any other term or condition in this
Lease Agreement, the City reserves the right, through its City Manager, to
terminate this Lease Agreement, without cause and without liability to the City,
upon providing Tenant with one hundred eighty (180) days prior written notice.
2.4. Tenant may take possession of the Demised Premises and Concession Area
prior to the Commencement Date upon execution of the Lease Agreement by all
parties hereto and by providing written Notice to Landlord of Tenant's intent to
occupy the Demised Premises. Any additional time provided to Tenant shall be
added to the initial Contract Year and as such, any and all amounts of Rent,
Additional Rent, Reimbursements, due to, or proffered by the Landlord, shall be
prorated accordingly for the additional days.
3. Rent.
3.1. Base Rent:
Tenant's payment of Rent, as defined in this Section 3, shall commence on March
1, 2023 (the "Rent Commencement Date") and, thereafter, on each first day of
subsequent months.
The Base Rent for the Demised Premises shall be for Thirty Thousand and Ninety-four
Dollars ($30,094.00) per year, payable in monthly installments of Two Thousand, Five
Hundred and Seven 83/100 ($2,507.83), with annual three percent (3%) escalations on
the anniversary date of the rent commencement date and throughout the entire term of
the Lease.
Page 2y of 952
3.2. Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also pay the
following Additional Rent as provided below:
3.2.1. Operating Expenses. Property Taxes; Insurance; and Common Area
Maintenance (CAM):
Tenant shall remit together with regular monthly payments of Minimum
Rent, its proportionate share of estimated Operating Expenses for the
Premises as additional rent, as determined by Landlord, in its sole
discretion and judgment, including Property Taxes, Insurance, and CAM,
and as more particularly described hereinafter.
Tenant's Proportionate Share means a fraction, the numerator of which is
the square footage of the Demised Premise occupied by the Tenant, and
the denominator of which is the total Rentable Area of the Building or Unit,
as applicable. Landlord may also implement and choose a more
appropriate method to calculate Tenant's Proportionate Share for different
Operating Expenses, such as, but not limited to, Proportionate Share of
replacement value for insurance, Proportionate Share of Rentable Area
for Cam, Proportionate Share of Unit for property taxes, individual or sub-
metering for utilities, individual assessments if Tenant is solely
responsible, or any other method which the Landlord, in its sole discretion
and judgment, may reasonably deem more appropriate in assessing
Tenant's share of Operating Expenses.
Tenant agrees and understands that the costs incurred for Operating
Expenses may increase or decrease from time to as Operating expenses
are increased to the Landlord and, as such, Tenant's Proportionate Share
of Operating Expenses shall increase or decrease accordingly from time
to time.
3.2.1.1. Common Area Maintenance("CAM"):
During the first Contract Year, the Operating Expenses for the
Demised Premises shall be Two Thousand, Nine Hundred and
Thirty-six and 04/100 Dollars ($2,936.04) per year, payable in
monthly installments of Two Hundred Forty-four and 67/100 Dollars
($244.67), for its proportionate share of CAM which is defined as
follows:
"Common Area Maintenance" shall mean the following costs and
expenses incurred in operating, repairing, and maintaining the
Common Facilities (as hereinafter defined) and shall include,
without limitation, water service to the Building, sewer service to the
Building, trash removal from the Building, costs incurred for
gardening and landscaping, repairing and maintaining elevator(s),
painting, janitorial services (except for areas within the Demised
Premises), lighting, cleaning, striping, policing, removing garbage
Page 2%0 of 952
and other refuse and trash, removing ice and snow, repairing and
maintaining sprinkler systems, water pipes, air-conditioning
systems, temperature control systems, and security systems, fire
alarm repair and maintenance and other equipment in the common
areas and the exterior and structural portions of the Building, paving
and repairing, patching and maintaining the parking areas and
walkways, and cleaning adjacent areas, management fees and the
City's employment expenses to employees furnishing and
rendering any services to the common areas, together with an
additional administration charge equal to fifteen percent (15%) of
all other expenses included in the annual common area expenses,
provided by the City for the common or joint use and/or benefit of
the occupants of the Building, their employees, agents, servants,
customers and other invitees.
"Common Facilities" shall mean all Building areas, spaces,
equipment, as well as certain services, available for use by or for
the benefit of Tenant and/or its employees, agents, servants,
volunteers, customers, guests and/or invitees.
Tenant agrees and understands that the costs incurred for
Operating Expenses may increase or decrease and, as such,
Tenant's pro-rata share of Operating Expenses shall increase or
decrease accordingly.
3.2.1.2. Property Taxes:
The Property Tax Payment shall be payable by Tenant, in
accordance with Section 11 herein. The estimated Property Tax
Payment for the first Contract Year shall be based upon the 2016
Property Tax Payment, in the total sum of Four Thousand Nine
Hundred Sixty-Four and 88/100 Dollars ($4,964.88), payable in
monthly installments of Four Hundred Thirteen and 74/100 Dollars
($413.74). Notwithstanding the preceding, Tenant shall be
responsible for paying any difference in the amount between the
estimated Property Tax Payment and the actual property taxes.
Tenant shall pay, as Additional Rent pursuant to this Subsection,
for such Property Tax Year an amount ("Property Tax Payment")
equal to Tenant's pro-rata share of Property Taxes (if any)for such
Property Tax Year; said pro-rata share is currently determined by
the City based upon the ratio of the Demised Premises to the tax
lot. 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. The Property Tax
Payment shall be payable by Tenant immediately upon receipt of
. notice from the City. A copy of the tax bill(s) or other evidence of
Page 21 of 952
such taxes issued by the taxing authorities, together with the City's
computation of the Property Tax Payment, will be made available
to Tenant once received from the taxing authorities, if requested by
Tenant. Tenant shall pay any difference in the amount between the
estimated property taxes and the actual property taxes to the City
immediately, upon receipt of request for said payment from the City.
For the purposes of this Section and other provisions of this
Agreement:
The term "Property Taxes" shall mean (i) real estate taxes,
assessments, and special assessments of any kind which may be
imposed upon the Demised Premises, and (ii) any expenses
incurred by the City in obtaining a reduction of any such taxes or
assessments.
The term "Property Tax Year" shall mean the period of twelve (12)
calendar months, beginning on January 1st of each year.
3.2.1.3. Insurance:
The Additional Rent shalt also include Tenant's 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 Facility 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 Five Hundred Thirty-three and 95/100 Dollars
($1,533.95), payable in monthly installments of One Hundred
Twenty-seven and 83/100 Dollars ($127.83). The Insurance cost
may be adjusted from time to time, in the City's sole discretion.
This insurance coverage is in addition to the insurance required
pursuant to Section 10, which shall be obtained at Tenant's sole
expense and responsibility.
3.3. Additional Services:
In consideration for the reduced rent for the Demised Premises and Concession
Area, Tenant shall provide a 40% discount on all purchases from any Taste
Bakery eatery location within the City of Miami Beach, by City employees with an
active and verified City of Miami Beach issued employee ID ("Employee ID");
whether the purchase was made onsite or ordered for delivery ("City Employee
Discount"). City may choose to impose additional requirements, such as a card
reader in order to ensure the integrity of the City Employee Discount.
The Term "City Employee Purchase" is understood to mean the sales price of
Page 2%2 of 952
any purchases applied a City Employee Discount, inclusive of the City Employee
Discount amount. It does not include the price of any other discounts Tenant may
proffer to City employees or customers in general.
City will reimburse Tenant a maximum of Two Hundred Thousand and 00/100
Dollars ($200,000.00) per Contract Year for a portion of the City Employee
Discount at the following rates;
Annual City Employee Purchases Reimbursement Reimbursement Rate
Maximum
From To
$ - $ 422,400.00 $ 168,960.00 40%of City Employee Purchases
$ 422,400.01 $ 629,333.33 $ 31,040.00 20%of City Employee Purchases
Greater Than $ 629,333.34 $ - 0%of City Employee Purchases
Thereafter, Tenant will continue to provide the City Employee Discount
regardless of any reimbursement amount.
City reserves the right to Notify Tenant, in advance of any purchases, of City's
objection to provide the City Employee Discount to any particular City employee,
thereafter authorizing Tenant to deny the City Employee Discount to said
employee. City will not reimburse Tenant for any amounts discounted above 40%
of the purchase price, unauthorized employees as Tenant has been Notified by
City, and persons without an active Employee ID.
Along with any reimbursement request, Tenant shall provide a Daily Sales
Summary Report in a digital spreadsheet format (such as excel) which includes,
Employee ID's numbers, and categories for City Employee Discounted Sales,
from each store location as well as the Gross Receipts from the Demised
Premises. Tenant shall also provide Summary Reports for any period(s) upon
request by the City. Any Summary Reports provided from any Taste Bakery
location shall not be intermingled with any other location.
3.4. Sales Reporting:
On or before the fifteenth (15th) day of each calendar month during the Lease
Term, Tenant shall prepare and provide to landlord a copy of Tenant's Sales and
Use Tax Return (Form DR-15CS or DR-15EZ) filed with the Florida Department
of Revenue Reporting Gross Sales made from the Premises during the preceding
calendar month. In addition, within sixty(60)days after the expiration date of each
calendar year and within sixty (60) days after the termination of this Lease if this
Lease should not terminate at the end of a calendar year, Tenant shall prepare
and provide to landlord a payable Statement of Gross Sales made from the
premises during the preceding calendar year, (or partial calendar year), certified
to be correct by Tenant's Chief Financial Officer. Tenant shall furnish a similar
statement for its licenses, concessionaires and subtenants, if any.
The term "Gross Receipts" is understood to mean all income collected or
Page 2%3 of 952
accrued, derived by Tenant under the privileges granted by this Lease
Agreement, excluding amounts of any Federal, State, or City sales tax, or other
tax, governmental imposition, assessment, charge or expense of any kind,
collected by Tenant from customers and required by law to be remitted to the
taxing or other governmental authority.
3.4.1. Maintenance and Examination of Records.
Tenant shall maintain current, accurate, and complete financial records on
an accrual basis of accounting related to its operations pursuant to this
Lease 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, but not
photocopying, by the City Manager or his designee upon reasonable prior
request and during normal business hours. Such records and accounts
shall include a breakdown of Gross Receipts, expenses, and profit and
loss statements, and such records shall be maintained as would be
required by an independent CPA in order to audit a statement of annual
Gross Receipts and profit and loss statement pursuant to generally
accepted accounting principles.
3.4.2. Inspection and Audit for Demised Premises .
Tenant shall maintain its financial records pertaining to its operations for
a period of three (3) years after the conclusion of any contract year and
such records shall be open and available to the City Manager or his
designee, as deemed necessary by them. Tenant shall maintain all such
records at its principal office, currently located at 773 17th Street, Miami
Beach, Florida 33139, or, if moved to 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.
The City Manager or his designee shall be entitled to audit Tenant's
records pertaining to its operations as often as the City deems reasonably
necessary throughout the Term of this Lease Agreement, and three (3)
times within the three (3) year period following termination of this Lease
Agreement, (regardless of whether such termination results from the
natural expiration of the term or for any other reason). 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
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. 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.
Page 294 of 952
Nothing contained within this Section shall preclude the City's audit rights
for Resort Tax collection purposes.
3.4.2.1. Tenant shall submit at the end of each contract year, an annual
statement of Gross Receipts, in a form consistent with generally
accepted accounting principles. Additionally, such statement shall
be accompanied by a report from an independent CPA firm which
shall perform certain agreed upon procedures, as described in the
attached Exhibit 6.
3.4.2.2. It is Tenant's intent to stay informed of comments and suggestions
by the City regarding Tenant's performance under this Lease
Agreement. Within thirty (30) days after the end of each contract
year, Tenant and the City Manager or his designee may meet to
review Tenant's performance under this Lease Agreement for the
previous contract year. At the meeting, Tenant and City may
discuss quality, operational, maintenance and any other issues
regarding Tenant's performance under this Lease Agreement.
3.5. Sales Taxes.
Concurrent with the payment of the Base Rent and Additional Rent as provided
herein, Tenant shall also pay any and all sums for all applicable tax(es), including
without limitation, sales and use taxes and Property Taxes, imposed, levied or
assessed against the Demised Premises, or any other charge or payment
required by any governmental authority having jurisdiction there over, even
though the taxing statute or ordinance may purport to impose such tax against
the City.
3.6. Enforcement.
Tenant agrees to pay the Base Rent, Additional Rent, and any other amounts as
may be due and payable by Tenant under this Agreement, at the time and in the
manner provided herein, and should said rents and/or other additional amounts
due herein provided, at any time remain due and unpaid for a period of fifteen
(15) days after the same shall become due, the City may exercise any or all
options available to it hereunder, which options may be exercised concurrently or
separately, or the City may pursue any other remedies enforced by law.
3.7 Inspector General Audit Rights
(A)Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis,
perform reviews, audits, inspections and investigations on all City contracts,
throughout the duration of said contracts. This random audit is separate and
distinct from any other audit performed by or on behalf of the City.
(B)The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts,
Page 2%5 of 952
records, contracts and transactions. In addition, the Inspector General has the
power to subpoena witnesses, administer oaths, require the production of
witnesses and monitor City projects and programs. Monitoring of an existing City
project or program may include a report concerning whether the project is on
time, within budget and in conformance with. the contract documents and
applicable law. The Inspector General shall have the power to audit, investigate,
monitor, oversee, inspect and review operations, activities, performance and
procurement process including but not limited to project design, bid
specifications, (bid/proposal) submittals, activities of the Tenant, its officers,
agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption.
Pursuant to Section 2-378 of the City Code,the City is allocating a percentage of
its overall annual contract expenditures to fund the activities and operations of
the Office of Inspector General.
(C)Upon, ten (10) days written notice to the Tenant, the Tenant shall make all
requested records and documents available to the Inspector General for
inspection and copying. The Inspector General is empowered to retain the
services of independent private sector auditors to audit, investigate, monitor,
oversee, inspect and review operations activities, performance and procurement
process including but not limited to project design, bid specifications,
(bid/proposal) submittals, activities of the Tenant its officers, agents and
employees, lobbyists, City staff and elected officials to ensure compliance with
the contract documents and to detect fraud and corruption.
(D)The Inspector General shall have the right to inspect and copy all documents and
records in the Tenant's possession, custody'or control which in the Inspector
General's sole judgment, pertain to performance Of the contract, including, but
not limited to original estimate files, change order estimate files, worksheets,
proposals and agreements from. and with successful subcontractors and
suppliers, all project-related correspondence, memoranda, instructions, financial
documents, construction documents, (bid/proposal) and contract documents,
back-change documents, all documents and records which involve cash, trade or
volume discounts, insurance proceeds, rebates, or dividends received, payroll
and personnel records and supporting documentation for the aforesaid
documents and records.
(E)The Tenant shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid_preparation) and
performance of this Agreement,for examination, audit,or reproduction, until three
(3) years after final payment under this Agreement or for any longer period
required by statute or by other clauses of this Agreement. In addition:
i. If this Agreement is completely or partially terminated, the Tenant shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
Page 2 of 952
ii. The Tenant shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such
appeals, litigation, or claims are finally resolved.
(F)The provisions in this section shall apply to the Tenant, its officers, agents,
employees, subcontractors and suppliers. The Tenant shall incorporate the
provisions in this section in all subcontracts and all other agreements executed
by the Tenant in connection with the performance of this Agreement.
(G)Nothing in this section shall impair any independent right to the City to conduct
audits or investigative activities. The provisions of this section are neither
intended nor shall they be construed to impose any liability on the City by the
Tenant or third parties.
4. Location for Payments.
All rents or other payments due hereunder shall be paid to the City at the following
address:
City of Miami Beach
Finance Department
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in writing.
5. Parking.
Tenant may request, at Tenant's cost, from the City's Parking Department, the use of
no more than Four(4) parking spaces, if available, within the Municipal Parking Garage
at the prevailing rates, plus applicable sales and use tax per space. Rates for said
spaces are subject to change.
6. Security Deposit.
Upon execution of this Agreement, the amount withheld from Tenant's current lease
shall Transfer to this Agreement as a Security Deposit, in the amount of Five Thousand
and 00/100 Dollars ($5,000.00). Said Security Deposit shall serve to secure Tenant's
performance in accordance with the provisions of this Agreement. In the event Tenant
fails to perform in accordance with said provisions, the City may retain said Security
Deposit, as well as pursue any and all other legal remedies provided herein, or as may
be provided by applicable law.
6.1 The parties agree and acknowledge that the foregoing condition is intended to be
a condition subsequent to the City's approval of this Agreement. Accordingly, in
the event that Tenant does not satisfy the aforestated, then the City Manager or
his designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available
Page 219a of 952
to him for breach of contract.
7. Use and Possession of Demised Premises.
7.1 Use of Demised Premises:
The Demised Premises shall be used by the Tenant solely for the purpose(s) of
providing building plan and permit processing services (i.e. certificates of
completion, certificates of occupancy, violation remediation, plan review,
processing and expediting services, inspection management, special and 40 year
inspections, fire and building compliance, permit administration, occupancy load
calculations, special event permitting, and recording services).
Tenant's uses and/or services provided in conjunction with the Demised
Premises may require Tenant to interact, from time to time, with City of Miami
Beach officials and employees, acting in their regulatory capacity.
Notwithstanding the preceding, Tenant hereby represents and warrants to the
City that it shall in no way, whether express or implied, give the impression that
Tenant is in any way acting as an agent and/or representative of the City of Miami
Beach, nor that, by virtue of this Agreement, Tenant derives any special benefit
and/or consideration from the City (acting in its regulatory capacity) with regard
to Tenant's provision of plan and permit processing services to third parties. Any
violation of this Subsection 7.1 by Tenant shall be deemed as an automatic
default under this Agreement and, notwithstanding any other provision set forth
herein, shall entitle the City to automatically terminate this Agreement, without
further notice to Tenant, and without liability to the City.
8. Demised Premises Use:
Demised Premises shall be used by Tenant solely for the purpose(s)of operating a café.
Tenant shall cook, prepare, or cause to be prepared, for sale within the Demised
Premises, such cooked, prepared, and/or prepackaged foods, and such non-alcoholic
beverages as those set forth in "Exhibit 7.1" (Menu), attached hereto and incorporated
herein.
Tenant agrees that prices charged for sales of food and beverage service, and will be
consistent with the price schedule herein submitted by the Tenant and approved by the
City, and incorporated herein as Exhibit 7.1 to this Agreement. All subsequent price
approvals and changes must be approved in writing by the City Manager or his/her
designee. Prices shall be reasonably consistent with those charged for similar items and
services in the general vicinity. The City Manager shall have the final right of approval
for all such prices and changes, but said right shall not be arbitrarily or unreasonably
exercised. The Tenant agrees to refrain from the sale of any item identified as prohibited
by the City and to sell only those items approved by the City.
8.1 The Demised Premises shall be open for operation a minimum of five (5) days a
week, with minimum hours of operation being as follows:
Page 2,,R of 952
Hours of Operation: Monday- Friday: 7:00 AM to 5:00 PM
Saturday and Sunday: 8:00AM to 2:00PM
Nothing herein contained shall be construed to authorize hours contrary to the
laws governing such operations. Any change in the minimum days and/or hours
of operation shall require the prior written consent of the City Manager.
8.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the purposes)/use(s)set forth
in Section 7 hereof, and for no other purpose(s) and/or use(s) whatsoever.
Tenant will not make or permit any use of the Demised Premises that, directly or
indirectly, is forbidden by law, ordinance or government regulation, or that may
be dangerous to life, limb or property. Tenant may not commit(nor permit)waste
on the Demised Premises; nor permit the use of the Demised Premises for any
illegal purposes; nor commit a nuisance on the Demised Premises. In the event
that the Tenant uses the Demised Premises (or otherwise allows the Demised
Premises to be used) for any purpose(s) not expressly permitted herein, or
permits and/or allows any prohibited use(s)as provided herein, then the City may
declare this Agreement in default pursuant to Section 18 or, without notice to
Tenant, restrain such improper use by injunction or other legal action.
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
and maintenance to the Demised Premises, as reasonably necessary for it to
carry on its permitted use(s), as set forth in Section 7; provided, however, that
any plans for such improvements shall be first submitted to the City Manager for
his/her prior written consent, which consent, 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 expense and responsibility. 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. Any and
all permits and or licenses required for the installation of improvements shall be
the sole cost and responsibility of Tenant.
Tenant will refresh the location with some new furniture, decorations, update
some cabinetry, and paint. Possibly change of the layout of the space slightly, if
necessary, to accommodate for increased sales, including a larger prep area for
the kitchen. All work performed by Tenant for space improvements is at Tenant's
Page 21929 of 952
sole cost and expense. Tenant's work is subject to Landlord's review and
approval of Tenant's plan and specifications, which shall be drawn by a licensed
architect if a building permit is required. All of Tenant's works shall be performed
by licensed contractors and in accordance with all applicable codes.
9.2 Notwithstanding Subsection 8.1, upon termination and/or expiration of this
Agreement, and at City's sole option and discretion, any or all alterations or
additions made by Tenant to or in the Demised Premises shall, upon written
demand by the City Manager, be promptly removed by Tenant, at its expense
and responsibility, and Tenant further hereby agrees, in such event, to restore
the Demised Premises to their original condition prior to the Commencement
Date of this Agreement.
9.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 8.3 only, shall also include improvements as necessary for Tenant's
maintenance and repair of the Demised Premises) which do not exceed Five
Hundred ($500.00) Dollars, provided that the work is not structural, and provided
that it is permitted by applicable law.
9.4 Tenant Improvements.
Tenant agrees to make certain improvements(the"Tenant Improvements")to the
Demised Premises (valued by the parties at approximately Seven Thousand and
00/100 Dollars ($7,000), as contained in "Exhibit 8.4" (Tenant Improvements),
attached hereto and incorporated herein. The Tenant Improvements shall be
made in accordance with the following timeline:
• Tenant shall obtain a building permit no later than sixty (60) days from the
Commencement Date of this Agreement;
• Tenant shall commence making the Tenant Improvements no later than
thirty (30) days from the date the building permit is issued (the "Building
Permit Date"); and
• Tenant Improvements shall be completed, and Tenant shall obtain final
approval by the City's Building Department for said Tenant Improvements,
no later than one hundred eighty(180)days from the Building Permit Date.
Failure to comply with the timeline and complete the Tenant Improvements within
the time period specified shall constitute an event of default hereunder. The times
for performance related to the permitting and construction of the Tenant
Improvements, as set forth in this Section 8.4, may be extended for good cause
shown, upon request, in writing, to the City Manager, which extension by the City
Manager (if approved) shall also be in writing and shall not be unreasonably
withheld.
Page 311S of 952
9.4.1 Tenant shall provide the City with proof that the contractor engaged for
the construction of the Tenant Improvements has obtained the requisite
insurance coverage, as set forth on the attached "Exhibit 8.4.1"
(Contractor's Insurance Requirements), listing Tenant and the City as an
additional insured thereunder.
10. City's Right of Entry.
10.1 The City Manager, and/or his/her authorized representatives, shall have the right
to enter upon the Demised Premises at all reasonable times for the purpose of
inspecting same; preventing waste; making such repairs as the City may consider
necessary; and for the purpose of preventing fire, theft or vandalism. The City
agrees that, whenever reasonably possible, it shall use reasonable efforts to
provide notice (whether written or verbal), unless the need to enter the Demised
Premises is an emergency, as deemed by the City Manager, in his/her 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
on the part of the City to do any work that under any provisions of this Agreement
the Tenant may be required to perform, and the performance thereof by the City
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, and/or his/her authorized
representatives, may enter the Demised Premises by master key, or may forcibly
enter the Demised Premises without rendering the City or such agents liable
therefore.
10.3 Tenant shall furnish the City with duplicate keys to all locks including exterior and
interior doors prior to (but no later than by) 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, and in the event such consent is
given, Tenant shall furnish the City with duplicate keys to said locks in advance
of their installation.
11. Tenant's Insurance Requirements.
11.1. Tenant shall maintain throughout the Term, at its sole cost and expense, the following
insurance requirements:
11.1.1 Worker's Compensation Insurance for all employees of the vendor as
required by Florida Statute 440, and Employer Liability Insurance for
bodily injury or disease. Should the Tenant be exempt from this Statute,
the Tenant and each employee shall hold the City harmless from any
injury incurred during performance of the Agreement.The exempt Tenant
shall also submit (i) a written statement detailing the number of
Page 3ip4 of 952
employees and that they are not required to carry Workers'
Compensation insurance .and do not anticipate hiring any additional
employees during the term of this Agreement or(ii)a copy of a Certificate
of Exemption.
11.1.2 Commercial General Liability Insurance on an occurrence basis,
including products and completed operations, property damage, bodily
injury and personal & advertising injury with limits no less than
$1,000,000 per occurrence,-and $2,000,000 general aggregate.
11.1.3 All-Risk property and casualty insurance, written at a minimum of eighty
(80%) percent of replacement cost value and with replacement cost
endorsement, covering all leasehold improvements installed in the
Demised Premises by or on behalf of Tenant and including without
limitation all of Tenant's personal property in the Demised Premises
(including, without limitation, inventory, trade fixtures, floor coverings,
furniture, and other property removable by Tenant under the provisions
of this Agreement).
11.1.4 Business interruption insurance, sufficient to insure Tenant for no less
than one (1)full year of loss of business,with the Landlord named thereon
as loss payee to the extent permitted by applicable law.
11.2 Additional Insured - City of Miami Beach must be included by endorsement as an additional
insured with respect to all liability policies (except Professional Liability and Workers' Compensation)
arising out of work or operations performed on behalf of the Tenant including materials, parts, or
equipment furnished in connection with such work or operations and automobiles owned, leased, hired
or borrowed in the form of an endorsement to the Tenant's insurance.
11.3 Notice of Cancellation - Each insurance policy required above shall provide that coverage shall
not be cancelled, except with notice to the City of Miami Beach do EXIGIS Insurance Compliance
Services.
11.4 Waiver of Subrogation — Tenant agrees to obtain any endorsement that may be necessary to
affect the waiver of subrogation on the coverages required. However, this provision applies regardless
of whether the City has received a waiver of subrogation endorsement from the insurer.
11.5 Acceptability of Insurers—insurance must be placed with insurers with a current A.M. Best rating
of A:VII or higher. If not rated, exceptions may be made for members of the Florida Insurance Funds
(i.e. FWCIGA, FAJUA). Carriers may also be considered if they are licensed and authorized to do
insurance business in the State of Florida.
11.6 Verification of Coverage — Contractor shall furnish the City with original certificates and
amendatory endorsements, or copies of the applicable insurance language,effecting coverage required
by this contract. All certificates and endorsements are to be received and approved by the City before
work commences. However, failure to obtain the required documents prior to the work beginning shall
not waive the Contractor's obligation to provide them. The City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements, required by these
specifications, at any time.
Page Ng of 952
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
do EXIGIS Insurance Compliance Services
P.O. Box 4668—ECM#35050
New York, NY 10163-4668
Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing agent,
EXIGIS, at:
Certificates-miamibeach(c�riskworks.com
11.7 Special Risks or Circumstances -The City of Miami Beach reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or
other special circumstances.
11.8 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.
12. Intentionally Omitted
13. Assignment and Subletting.
Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in
part, without the prior written consent of the City Manager, which consent, if granted at
all shall be at the City Manager's sole and absolute discretion. Such written consent is
not a matter of right and the City is not obligated to give such consent. If granted as
provided herein,the making of any assignment or sublease will not release Tenant from
any of its obligations under this Agreement.
14. Operation, Maintenance and Repair.
14.1 Tenant shall be solely responsible for the operation, maintenance and repair of
the Demised Premises. Tenant shall, at its sole expense and responsibility,
maintain the Demised Premises, and all fixtures and appurtenances therein, and
shall make all repairs thereto, as and when needed, to preserve them in good
working order and condition. Tenant shall be responsible for all interior walls and
the interior and exterior of all windows and doors, as well as immediate
replacement of any and all plate glass or other glass in the Demised Premises
which may become broken, using glass of the same or better quality.
14.1.1 The City shall be responsible for the maintenance of the roof, the exterior
of the Building,the structural electrical and plumbing (other than plumbing
surrounding any sink(s)and/or toilet(s), including such sink(s)and toilet(s)
fixture(s), within the Demised Premises), the common areas and the
chilled water supply system. The City shall maintain and/or repair those
items that it is responsible for, so as to keep same in proper working
condition.
Page Noof 952
14.1.2 If the City provides a separate air-conditioning unit for the Demised
Premises, Tenant agrees and understands that Tenant shall be solely
responsible for the maintenance, repair and replacement of the
heating/ventilation/air-conditioning (HVAC) equipment servicing the
Demised Premises, at Tenant's sole expense.
14.1.3 Tenant further agrees and understands that, if the City provides a
separate HVAC unit for the Demised Premises, the City, at its sole
discretion, may require that Tenant obtain, at any time during the Term of
this Agreement, and continuously maintain in good standing, at Tenant's
expense, throughout the Term of this Agreement, a maintenance and
repair contract, approved by the City, with a service company previously
approved in writing by the City, providing for the preventative
maintenance and repair of all HVAC equipment servicing the Demised
Premises. In the event that the City notifies Tenant that it'will require
Tenant to contract for said maintenance and repair services, Tenant shall
provide to the City, in writing, within ten (10) business days, the name(s)
and telephone number(s) of service company(ies) for the City's review
and approval. Tenant shall provide a copy of a current, enforceable and
fully executed maintenance and repair contract, no later than ten (10)
business days after receipt of the City's approval of the service company,
as proof of Tenant's compliance with this provision.
14.2 All damage or injury of any kind to the Demised Premises, and including without
limitation its fixtures, glass, appurtenances, and equipment (if any), or to the
building fixtures, glass, appurtenances, and equipment, if any, except damage
caused by the gross negligence and/or willful misconduct of the City, shall be the
sole obligation of Tenant, and shall be repaired, restored or replaced promptly by
Tenant, at its sole expense and to the satisfaction of the City.
14.3 All of the aforesaid repairs, restorations and replacements shall be in quality and
class equal to or better than the original work or installations and shall be done
in good and workmanlike manner.
14.4 If Tenant fails to make such repairs or restorations or replacements, the same
may be made by the City, at the expense of Tenant, and all sums spent and
expenses incurred by the City shall be collectable by the City and shall be paid
by Tenant within three (3)days after submittal of a bill or statement therefore.
14.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs and/or improvements made by Tenant to the Demised
Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
14.6 Tenant Responsibilities for Utilities (not included within Operating Expenses).
Tenant is solely responsible for, and shall promptly pay when due all charges for
electricity, gas, cable, telephone, internet, janitorial garage service, pest control
Page 31t of 952
and any other utility service provided to the Demised Premises, including, without
limitation, all hook-up fees and impact fees, NOT included as an Operating
Expense (pursuant to Subsection 3.2.1).
In addition to other rights and remedies hereinafter reserved to the City, upon the
failure of Tenant to pay for such utility services (as contemplated in this
Subsection 13.6)when due,the City may elect, at its sole discretion,to pay same,
whereby Tenant agrees to promptly reimburse the City upon demand.
In no event, however, shall the City be liable,whether to Tenant or to third parties,
for an interruption or failure in the supply of any utilities or services to the Demised
Premises.
14.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE DEMISED
PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS" CONDITION.
15. Governmental Regulations.
Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules,
orders, regulations, and requirements of any and all governmental bodies, including but
not limited to Federal, State, Miami-Dade County, and City governments, and any and
all of their departments and bureaus applicable to the Demised Premises, and shall also
comply with and fulfill all rules, orders, and regulations for the prevention of fire, all at
Tenant's own expense and responsibility. Tenant shall pay all cost, expenses, claims,
fines, penalties, and damages that may be imposed because of the failure of Tenant to
comply with this Section, and shall indemnify and hold harmless the City from all liability
arising from each non-compliance.
16. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand against
the Demised Premises or improvements for any labor or materials to Tenant or claimed
to have been furnished to Tenant's agents, contractors, or sub-tenants, in connection
with work of any character performed or claimed to have performed on said Premises,
or improvements by or at the direction or sufferance of the Tenant; provided however,
Tenant shall have the right to contest the validity or amount of any such lien or claimed
lien. In the event of such contest, Tenant shall give the City reasonable security as may
be demanded by the City to insure payment thereof and prevent sale, foreclosure, or
forfeiture of the Premises or improvements by reasons of such non-payment. Such
security need not exceed one and one half(1%) 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 the City, or Tenant may"bond off'the lien according to statutory procedures.
Tenant will immediately pay any judgment rendered with all proper costs and charges
and shall have such lien released or judgment satisfied at Tenant's own expense.
17. Intentionally Omitted.
18. Condemnation.
Page of 952
18.1 If at any time during the Term of this Agreement (including any renewal term
hereunder) all or any part or portion of the Demised Premises is taken,
appropriated, or condemned by reason of Eminent Domain proceedings, 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 Tenant shall pay any and all rents,
additional rents, utility charges, and/or other costs for which it is liable under the
terms of this Agreement, up to the date of such taking.
18.2 Except as hereunder provided, Tenant shall not be entitled to participate in the
proceeds of any award made to the City in any such Eminent Domain proceeding,
excepting, however, Tenant shall have the right to claim and recover from the
condemning authority, but not from the City, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account
of any and all damage to Tenant's business by reasons of the condemnation and
for or on account of any cost or loss which Tenant might incur in removing
Tenant's furniture and fixtures.
19. Default.
19.1 Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default under
this Agreement:
19.1.1 The Base Rent,Additional Rent, or any other amounts as may be due and
payable by Tenant under this Agreement, or any installment thereof, is
not paid promptly when and where due, and Tenant shall not have cured
such failure within five (5)days after receipt of written notice from the City
specifying such default;
19.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
19.1.3 Tenant shall fail to comply with any material term, provision, condition or
covenant contained herein other than the payment of rent and shall not
cure such failure within thirty (30) days after the receipt of written notice
from the City specifying any such default; or such longer period of time
acceptable to the City, at its sole discretion;
19.1.4 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a law, code, regulation, ordinance or the like,
which remains uncured for a period of thirty (30) days from its issuance,
or such longer period of time as may be acceptable and approved in
writing by the City Manager, at his sole discretion;
19.1.5 Any petition is filed by or against Tenant under any section or chapter of
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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;
19.1.6 Tenant shall become insolvent;
19.1.7 Tenant shall make an assignment for benefit of creditors;
19.1.8 A receiver is appointed for Tenant by any court and shall not be dissolved
within thirty (30) days thereafter; or
19.1.9 The leasehold interest is levied on under execution; or
19.1.10 A default under the Concession Agreement (as such agreement is
referenced in Subsection 1.1 of this Agreement).
20. Rights on Default.
20.1 Rights on Default:
20.1.1 In the event of any default by Tenant as provided herein, City shall have
the option to do any of the following, in addition to and not in limitation of,
any other remedy permitted by law or by this Agreement;
20.1.2 Terminate this Agreement, in which event Tenant shall immediately
surrender the Demised Premises to the City, but if Tenant shall fail to do
so the City may, without further notice, and without prejudice to any other
remedy the City may have for possession or arrearages in rent or
damages for breach of contract, enter upon the Demised Premises and
expel or remove Tenant and its effects in accordance with law, without
being liable for prosecution or any claim for damages therefore, and
Tenant agrees to indemnify and hold harmless the City for all loss and
damage which the City may suffer by reasons of such Agreement
termination, whether through inability to re-let the Demised Premises, or
otherwise.
20.1.3 Declare the entire amount of the Base Rent and Additional Rent which
would become due and payable during the remainder of the term of this
Agreement to be due and payable immediately, in which event Tenant
agrees to pay the same at once, together with all rents therefore due, at
the address of the City, as provided in the Notices section of this
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.
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20.1.4 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for damages
therefore; remove Tenant's property there from; and re-let the Demised
Premises, or portions thereof, for such terms and upon such conditions
which the City deems, in its sole discretion, desirable, and to receive the
rents therefore, and Tenant shall pay the City any deficiency that may
arise by reason of such re-letting, on demand at any time and from time
to time at the office of the City; and for the purpose of re-letting, the City
may (i) make any repairs, changes, alterations or additions in or to said
Demised Premises that may be necessary or convenient; (ii) pay all costs
and expenses therefore from rents resulting from re-letting; and (iii)
Tenant shall pay the City any deficiency as aforesaid.
20.1.5 Take possession of any personal property owned by Tenant on said
Demised Premises and sell the same at public or private sale, and apply
same to the payment of rent due, holding Tenant liable for the deficiency,
if any.
20.1.6 It is expressly agreed and understood by and between the parties hereto
that any installments of rent accruing under the provisions of this
Agreement which shall not be paid when due shall be subject to a late
charge of Fifty and 00/100 ($50.00), plus interest at the rate of eighteen
(18%) percent per annum, or the maximum amount allowable under
Florida law, whichever is lesser, from the due date of payment until such
time as payment is actually received by the City. Any failure on the City's
behalf to enforce this Section shall not constitute a waiver of this provision
with respect to future accruals of past due rent.
20.1.7 tf Tenant shall default in making any payment of monies to any person or
for any purpose as may be required hereunder, the City may pay such
expense but the City shall not be obligated to do so. Tenant, upon the
City's paying such expense, shall be obligated to forthwith reimburse the
City for the amount thereof. All sums of money payable by Tenant to the
City hereunder shall be deemed as rent for use of the Demised Premises
and collectable by the City from Tenant as rent, and shall be due from
Tenant to the City on the first day of the month following the payment of
the expense by the City.
20.1.8 The rights of the City under this Agreement shall be cumulative but not
restrictive to those given by law and failure on the part of the City to
exercise promptly any rights given hereunder shall not operate to waive
or to forfeit any of the said rights.
20.1 Default by City:
The failure of the City to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed by the City and the
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continuance of such failure for a period of thirty (30) days after notice thereof in
writing from Tenant to the City (which notice shall specify the respects in which
Tenant contends that the City failed to perform any such covenant, conditions
and agreements)shall constitute a default by the City, unless such default is one
which cannot be cured within thirty (30) days because of circumstances beyond
the City's control, and the City within such thirty (30) day period shall have
commenced and thereafter shall continue diligently to prosecute all actions
necessary to cure such defaults.
However, in the event the City fails to perform within the initial thirty (30) day
period provided above, and such failure to perform prevents Tenant from
operating its business in a customary manner and causes an undue hardship
for Tenant, then such failure to perform (regardless of circumstances beyond its
control) as indicated above, shall constitute a default by the City.
20.2 Tenant's Rights on Default.
If an event of the City's default shall occur, Tenant, shall have the right to
terminate this Agreement (and all of its obligations hereunder by giving notice of
such election to the City, whereupon this Agreement shall terminate as of the
date of such notice).
21 LAWS.
21.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations (including but not limited to all
applicable environmental City, County, State, and Federal ordinances, statutes,
rules and regulations, as same may be amended from time to time.
21.2 No Discrimination.
Concessionaire hereby agrees hereby agrees to comply with City of Miami Beach
Human Rights Ordinance, as codified in Chapter 62 of the City Code, as may be
amended from time to time, prohibiting discrimination in employment, including
independent contractors, housing, public accommodations, public services, and
in connection with its membership or policies because of actual or perceived race,
color, national origin, religion, sex, intersexuality, sexual orientation, gender
identity, familial and marital status, age, ancestry, height, weight, hair texture and/
or hair style, domestic partner status, labor organization membership, familial
situation, political affiliation, or disability
22 Indemnity Against Costs and Charges.
22.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable
attorney's fees, and damages which may be incurred or sustained by the City, by
reason of Tenant's breach of any of the provisions of this Agreement. Any sums
due the City under the provisions of this item shall constitute a lien against the
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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.
22.2 If Tenant shall at any time be in default hereunder, and if the City shall deem it
necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, Tenant will reimburse the City for the reasonable expenses
incurred thereby, including, but not limited to, court costs and reasonable attorney's
fees, whether suit be brought or not and if suit be brought, then Tenant shall be
liable for expenses incurred at both the trial and appellate levels.
23 Indemnification Against Claims.
23.1 Tenant shall indemnify and save the City harmless from and against any and all
claims or causes of action (whether groundless or otherwise) by or on behalf of any
person, firm, or corporation, for personal injury or property damage occurring upon
the Demised Premises or upon any other land or other facility or appurtenance
used in connection with the Demised Premises, occasioned in whole or in part by
any of the following:
23.1.1 An act or omission on the part of Tenant, or any employee, agent,
contractor, invitee, guest, assignee, sub-tenant or subcontractor of
Tenant;
23.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by
Tenant, or any employee, agent, contractor, invitee, guest, assignee,
sub-tenant or subcontractor of Tenant;.
23.1.3 Any breach, violation, or non-performance of any undertaking of Tenant
under this Agreement;
23.1.4 Anything growing out of the use or occupancy of the Demised Premises
by Tenant or anyone holding or claiming to hold through or under this
Agreement.
23.2 Tenant agrees to pay all damages to the Demised Premises and/or other facilities
used in connection therewith, caused by Tenant or any employee, agent,
contractor, guest, or invitee of Tenant.
24 Signs and Advertising.
Without the prior written consent of the City Manager, which consent, if given at all, shall
be at the City Manager's sole and absolute discretion, Tenant shall not permit the
painting and display of any signs, plaques, lettering or advertising material of any kind
on or near the Demised Premises. All additional signage shall comply with signage
standards established by the City and comply with all applicable building codes, and any
other municipal, County, State and Federal laws.
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25 Effect of Conveyance.
The term "City" and/or "Landlord" as used in the Agreement 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.
26 Damage to the Demised Premises.
26.1 If the Demised Premises shall be damaged by the elements or other casualty not
due to Tenant's negligence, or by fire, but are not thereby rendered untenantable,
as determined by the City Manager, in his sole discretion, in whole or in part, and
such damage is covered by the City's insurance, if any, (hereinafter referred to as
"such occurrence"), the City, shall, as soon as possible after such occurrence,
utilize the insurance proceeds to cause such damage to be repaired and the Rent
(Base Rent and Additional Rent) shall not be abated. If by reason of such
occurrence, the Demised Premises shall be rendered untenantable, as determined
by the City Manager, in his sole discretion, only in part, the City shall as soon as
possible utilize the insurance proceeds to cause the damage to be repaired, and
the Rent meanwhile shall be abated proportionately as to the portion of the
Demised Premises rendered untenantable; provided however, that the City shall
promptly obtain a good faith estimate of the time required to render the Demised
Premises tenantable and if such time exceeds sixty (60) days, either party shall
have the option of canceling this Agreement.
26.2 If the Demised Premises shall be rendered wholly untenantable by reason of such
occurrence, the City shall have the option, but not the obligation, in its sole
discretion, to utilize the insurance proceeds to cause such damage to be repaired
and the Rent meanwhile shall be abated. However,.the City shall have the right, to
be exercised by notice in writing delivered to Tenant within sixty(60)days from and
after said occurrence,to elect not to reconstruct the destroyed Demised Premises,
and in such event, this Agreement and the tenancy hereby created shall cease as
of the date of said occurrence, the Rent to be adjusted as of such date. If the
Demised Premises shall be rendered wholly untenantable, Tenant shall have the
right, to be exercised by notice in writing, delivered to the City within thirty(30)days
from and after said occurrence, to elect to terminate this Agreement, the Rent to
be adjusted accordingly.
Notwithstanding any clause contained in this Section 25, if the damage is not
covered by the City's insurance, then the City shall have no obligation to repair
the damage, but the City shall advise Tenant in writing within thirty (30) days of
the occurrence giving rise to the damage and of its decision not to repair, and the
Tenant may, at any time thereafter, elect to terminate this Agreement, and the
Rent shall be adjusted accordingly.
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27 Quiet Eniovment.
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.
28 Waiver.
28.1 It is mutually covenanted and agreed by and between the parties hereto that the
failure of the City to insist upon the strict performance of any of the conditions,
covenants, terms or provisions of this Agreement, or to exercise any option herein
conferred, will not be considered or construed as a waiver or relinquishment for the
future of any such conditions, covenants, terms, provisions or options but the same
shall continue and remain in full force and effect.
28.2 A waiver of any term expressed herein shall not be implied by any neglect of the
City to declare a forfeiture on account of the violation of such term if such violation
by continued or repeated subsequently and any express waiver shall not affect any
term other than the one specified in such waiver and that one only for the time and
in the manner specifically stated.
28.3 The receipt of any sum paid by Tenant to the City after breach of any condition,
covenant, term or provision herein contained shall not be deemed a waiver of such
breach, but shall be taken, considered and construed as payment for use and
occupation, and not as Rent, unless such breach be expressly waived in writing by
the City.
29 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 copy to: Asset Manager
Facilities and Fleet Management Department
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Rohit Thakore
TASTE BAKERY CAFE, LLC
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773 17th Street
Miami Beach, Florida 33139
All notices shall be hand delivered, emailed, and a receipt requested, or by certified mail
with Return receipt requested, and shall be effective upon receipt.
30 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 all the
parties hereto or their successors in interest. The terms, covenants and conditions
contained herein shall inure to the benefit of and be binding upon the City and Tenant
and their respective successors and assigns, except as may be otherwise expressly
provided in this Agreement.
31 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 be enforced
to the fullest extent permitted by law.
32 Captions.
The captions contained herein are for the convenience and reference only and shall not
be deemed a part of this Agreement or construed as in any manner limiting or amplifying
the terms and provisions of this Agreement to which they relate.
33 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.
34 Limitation of Liability.
The City desires to enter into this Agreement only if in so doing the City can place a limit
on the City's liability for any cause of action for money damages due to an alleged
breach by the City of this Agreement, so that its liability for any such breach never
exceeds the sum of Ten Thousand ($10,000.00) Dollars. Tenant hereby expresses its
willingness to enter into this Agreement with Tenant's recovery from the City for any
damage action for breach of contract to be limited to a maximum amount of$10,000.00.
Accordingly, and notwithstanding any other term or condition of this Agreement, Tenant
hereby agrees that the City shall not be liable to Tenant for damage in an amount in
excess of $10,000.00 for any action or claim for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this Section or elsewhere in this Agreement is in any
way intended to be a waiver of the limitation placed upon the City's liability as set forth
in Florida Statutes, Section 768.28.
35 Surrender of the Demised Premises.
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Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the City
the Demised Premises, together with any and all equipment, fixtures, furnishings,
appliances or other personal property, if any, located at or on the Demised Premises
and used by Tenant in 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 City, be deemed abandoned by Tenant, and either may be retained by the
City as its property or may be removed and disposed of at the sole cost of the Tenant in
such manner as the City may see fit. If the Demised Premises and personal property, if
any, be not surrendered at the end of the Term as provided in this Section, Tenant shall
make good the City all damages which the City shall suffer by reason thereof, and shall
indemnify and hold harmless the City against all claims made by any succeeding tenant
or purchaser, so far as such delay is occasioned by the failure of Tenant to surrender
the Demised Premises as and when herein required.
36 Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay
money is involved.
37 Venue:
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either
party with respect to the enforcement of any and all the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY
AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
38 Radon is a naturally occurring radioactive gas that, when it is accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed Federal and State guidelines have been found in buildings in
Florida. Additional information regarding Radon and Radon testing may be obtained from
your County Public Health Unit.
39 No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or use of
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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 Agreement.
40 PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES OR PLASTIC STRAWS.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time,
effective August 2, 2014, the City has prohibited the use of expanded polystyrene food
service articles by City Contractors, in connection with any City contract, lease,
concession agreement or Special event permit. Additionally, pursuant to Section 82-385
of the City Code, as may be amended from time to time, no polystyrene food service
articles will be allowed in the right-of-way, and no polystyrene food service articles can
be provided to sidewalk café patrons.
"Expanded polystyrene" is a petroleum byproduct commonly known as Styrofoam.
Expanded polystyrene is more particularly defined as blown polystyrene and expanded
and extruded foams that are thermoplastic petrochemical materials utilizing a styrene
monomer and processed by any number of techniques including, but not limited to,
fusion of polymer spheres (expandable bead foam), injection molding, foam molding,
and extrusion-blown molding (extruded foam polystyrene).
"Expanded polystyrene food service articles" means plates, bowls, cups, containers,
lids, trays, coolers, ice chests, and all similar articles that consist of expanded
polystyrene.
Tenant agrees not to sell, use, provide food in, or offer the use of expanded polystyrene
food service articles at the Demised Premises or in connection with this Lease. Tenant
shall ensure that all vendors operating in the Demised Premises abide by the restrictions
contained in this Section 39. A violation of this section shall be deemed a default under
the terms of this Lease. This subsection shall not apply to expanded polystyrene food
service articles used for prepackaged food that have been filled and sealed prior to
receipt by the Tenant or its vendors.
Additionally, Tenant agrees to comply (and ensure compliance by its vendors) with
Section 46-92 (c)of the City Code, which states that it is unlawful for any person to carry
any expanded polystyrene product onto any beach or into any park within the City or for
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any business to provide plastic straws with the service or delivery of any beverage to
patrons on the beach.
41. NON-ALCOHOLIC PRODUCT EXCLUSIVITY.
The City reserves the right to execute exclusive product agreements and/or sponsorship
agreements with third parties from time to time. Concessionaire agrees to be subject to the
terms and conditions of those agreements, even if executed after the date of this Agreement.
The City is in the process of negotiating exclusive pouring rights agreements with Pepsi, as the
exclusive non-alcoholic beverage supplier(excluding energy drinks),and Red Bull for the energy
drink category. Upon execution, Concessionaire will be notified and provided with the
purchasing agent for the exclusive non-alcoholic beverage supplier. Upon receipt of written
notification from the City, which could be pursuant to an e-mail, Concessionaire will not be
permitted to purchase, sample or sell competitive products. Additionally, Concessionaire will be
required to remove any equipment with the logoor name of any competitor of these sponsors.
42. INSPECTOR GENERAL AUDIT RIGHTS
a) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis, perform
reviews, audits, inspections and investigations on all City contracts, throughout the
duration of said contracts. This random audit is separate and distinct from any other
audit performed by or on behalf of the City.
b) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition,the Inspector General has the power to subpoena
witnesses, administer oaths, require the production of witnesses and monitor City
projects and programs. Monitoring of an existing City project or program may include a
report concerning whether the project is on time, within budget and in conformance with
the contract documents and applicable law. The Inspector General shall have the power
to audit, investigate, monitor, oversee, inspect and review operations, activities,
performance and procurement process including but not limited to project design, bid
specifications, (bid/proposal) submittals, activities of the Tenant, its officers, agents and
employees, lobbyists, City staff and elected officials to ensure compliance with the
contract documents and to detect fraud and corruption. Pursuant to Section 2-378 of the
City Code, the City is allocating a percentage of its overall annual contract expenditures
to fund the activities and operations of the Office of Inspector General.
c) Upon ten (10) days written notice to the Tenant, the Tenant shall make all requested
records and documents available to the Inspector General for inspection and copying.
The Inspector General is empowered to retain the services of independent private sector
auditors to audit, investigate, monitor, oversee, inspect and review operations activities,
performance and procurement process including but not limited to project design, bid
specifications, (bid/proposal) submittals, activities of the Tenant its officers, agents and
employees, lobbyists, City staff and elected officials to ensure compliance with the
contract documents and to detect fraud and corruption. -
d) The Inspector General shall have the right to inspect and copy all documents and records
in the Tenant's possession, custody or control which in the Inspector General's sole
judgment, pertain to performance of the contract, including, but not limited to original
Page 3g of 952
estimate files, change order estimate files, worksheets, proposals and agreements from
and with successful subcontractors and suppliers, all project-related correspondence,
memoranda, instructions, financial documents, construction documents, (bid/proposal)
and contract documents, back-change documents, all documents and records which
involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends
received, payroll and personnel records and supporting documentation for the aforesaid
documents and records.
e) The Tenant shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid_preparation) and
performance of this Agreement, for examination, audit, or reproduction, until three (3)
years after final payment under this Agreement or for any longer period required by
statute or by other clauses of this Agreement. In addition:
i. If this Agreement is completely or partially terminated, the Tenant shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
ii. The Tenant shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such
appeals, litigation, or claims are finally resolved.
f) The provisions in this section shall apply to the Tenant, its officers, agents, employees,
subcontractors and suppliers. The Tenant shall incorporate the provisions in this section
in all subcontracts and all other agreements executed by the Tenant in connection with
the performance of this Agreement.
g) Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Tenant or third parties.
43. TENANT'S COMPLIANCE WITH FLORIDA'S PUBLIC RECORDS LAW.
Tenant shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may
be amended from time to time.
(A) 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.
(B) 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:
Keep and maintain public records required by the City to perform the service;
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 exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law;
Page 315 of 952
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;
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.
(C) Request for Records; Noncompliance.
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.
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: 3 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.
A Tenant who fails to provide the public records to the City within a reasonable time may be
subject to penalties under s. 119.10.
(D) Civil Action.
If a civil action is filed against a 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 attorneys'fees, if:
i. The court determines that the Tenant unlawfully refused to comply with the public records
request within a reasonable time; and
ii. 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.
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 to 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.
A Tenant 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.
Page 33 R of 952
(E) If the tenant has questions regarding the application of Chapter 119, Florida Statutes, to
the Tenant's 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
Page 3.12 of 952
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating their agreement.
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Alina T. Hudak, City Manager
Date
FOR TENANT: TASTE BAKERY CAFE, LLC
ATTEST:
By:
Witness Owner Manager
Rohit Thakore
Print Name Print Name
Date
Witness
Print Name
Date
Page 3ig of 952
EXHIBIT 1
Demised Premises and Concession Area Layout
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Page 32 of 952
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AREA UNIT 1=1,326.78 S/F
AREA UNIT 2=1,802.89 S/F =I o Iao zoo
AREA UNIT 3=1,290.59 S/F =21
- AREA UNIT 4=1,268.87 S/F
Gum-Tars NOTE
OE TM!OF 1NIERAR9 WALLS WERE SAUD N ORIGINAL DRAW=MD MST IKOOMId1 MINN FRO/MELD SURVEY
First Floor Plan
Prepared by. 1701 MERIDIAN BUILDING CONDOMINIUM
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.w°Ef 6T9-7 �� Exhibit"B^ I.r C/lT/YA7T
Page ig of 952
Exhibit 3.1
(Pg1 of 2)
AGREED-UPON PROCEDURES
(A) System Utilized by Tenant:
The tenant shall utilize a Point of Sales (POS) system that has the capability of tracking transactions by
revenue centers. This system shall be capable of providing separate detail for each revenue center, as well
as a combined report for the unit in its entirety.
For this lease agreement, it is understood that the POS system can or will:
1. Generate various revenue centers, such as Restaurant, Bar, Catering, Merchandising, etc. as applicable;
2. Each revenue center can report sales by time period (e.g., breakfast, lunch and dinner) and type of sales
(e.g., food, beer wine, liquor, other beverage, coffee/tea), tax calculations, discounts, voids, guest counts,
transaction counts,tips and payments (cash, Visa, MC,Amex,etc.);
• Revenue Center shall also report sales by store location as well as reporting City Employee Purchases
3. All daily transactions entered in the POS system will be archived in the system, providing the capability to
audit transactions.
• City Employee Purchase Transactions shall also record the City Employee ID number.
Furthermore, the tenant's accounting team will treat each revenue center with any different rent requirements
as its own unit by preparing separate journals to capture gross sales, discounts and payments for each (where
applicable).
(B) Aareed-upon procedures will include the followina:
On an annual basis,the tenant shall prepare and deliver to the City,within the time specified in the agreement,
a report prepared by a Certified Public Accountant applying these agreed-upon procedures that reflects their
findings of their review of the tenant's operations.Such review, and report thereof, shall include the following:
1. ANALYSIS OF OPERATION: Inquire of management and obtain and review documentation on the
nature of the tenant's business and the factors that affect sales. Inquire about and document any
major changes made during the period.
a. Review procedures for recording sales within the Demised Premises.
b. Obtain the operating policies and procedures from the tenant.
c. Interview key tenant representatives to determine procedures used.
d. Observe the utilization and effectiveness of the procedures through periodic site visits to the
designated location.
2. ANNUAL STATEMENT OF GROSS RECEIPTS: Obtain the Annual Statement of Gross Receipts
schedule for the year ended, prepared in conformity with the agreement. Recalculate lease fees for the
period based on sales per the schedule and the terms of the agreement.
3. TIMELINESS OF LEASE PAYMENTS: Verify that the payments were remitted timely in adherence to
the due dates designated by the City pursuant to the lease agreement.
Page 3a of 952
Exhibit 3.1
(Pg2 of 2)
AGREED-UPON PROCEDURES
4. TEST OF SALES BY REVENUE CENTER, TIME PERIOD AND TYPE OF SALES: Perform an
analytical test of sales by obtaining a schedule summarizing sales by revenue center, time period, and
type of sales. Obtain or prepare a reconciliation of total sales recorded in the general ledger for the
period to the Annual Statement of Gross Receipts schedule provided to the City of Miami Beach.
Perform the following procedures:
e. Test the analysis by selecting each revenue center and related sub-categories, and compare
the amounts shown with those recorded in the sales schedule. Document the items selected
for testing. Agree the sales schedule balances to the general ledger.
f. Review the analysis, and identify any unusual trends or variations within the period or the prior
period.
g. Obtain sound business reasons for large variations that are unusual in amount or nature
Included in the analysis.
6. TEST OF SALES COMPLETENESS: Perform a test of sales completeness by applying the
following procedures:
a. Using sales documentation or daily POS reports, select 1 (one)day per month throughout the
year, including weekdays and weekends. Document the items selected for testing. Trace a
sample of guest checks(sales documentation-including cash sales and credit card sales)to
the daily POS recaps. Note the proper handling of any credit memos, etc.
b. Agree the summary information on the daily POS recap to proper recording in the general
ledger, as appropriate.
c. Agree a sample of deposits per the daily POS recap to the bank statements.
d. Foot and cross foot a selected number of monthly reports of gross receipts submitted to the
City and other linked documents to verify their accuracy.
e. Compare total sales for selected months to sales tax returns filed with the applicable taxing jurisdictions.
7. VERIFICATION OF TENANT AREA OPERATIONS: Verify the status of operations within the
designated area.
a. Conduct site visits to determine the level of operations.
b. Review provided documents to determine the period of activity.
c. Discuss and document any variances with the tenant for explanation.
(C) City Right to Review
Notwithstanding the foregoing,the City shall retain the right to engage in all or similar reviews delineated
above.Tenant agrees that the City, or their designee, shall be provided all necessary documentation to
perform the tests,verifications and reviews described above.
Page 33 of 952
Exhibit 7.1
Menu
Page 3gg of 952
Exhibit 8.4
(Pg2 of 2)
"TENANT'S REQUIRED IMPROVEMENTS"
Page 3S6 of 952
Exhibit D
TASTE BAKERY
CAFE , LLC
Concession
Agreement
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND
TASTE BAKERY CAFE, LLC
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN THE OUTDOOR SPACE ADJACENT TO 773 17th Street
THIS AGREEMENT made the day of , 2022, between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter
called "City"), having its principal address at 1700 Convention Center Drive, Miami Beach,
Florida, 33139, and TASTE BAKERY CAFE, LLC, a Florida Limited Liability Company,
having its principal place of business at 773 17th Street, Miami Beach, Florida, 33139
(hereinafter called "Concessionaire").
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the rights to maintain, manage, and operate a food and beverage
concession within the Concession Area (as hereinafter defined), in accordance with the
purpose(s) and for the term(s) stated herein, and subject to all the terms and conditions
herein contained.
SECTION 1. TERM.
1.1 This Agreement shall commence on the 1st day of March 2023 (the
"Commencement Date"), and terminate on the 28th day of February 2028
("Term").
For purposes of this Agreement, a "Contract Year" shall be defined as that
certain period commencing on the 1st day of January, and ending on the
31 st day of December.
Provided Concessionaire is in good standing and free from default(s) under
Section 13 hereof, and upon written notice from Concessionaire, which
notice shall be submitted to the City Manager no earlier than one hundred
eighty (180) days, but in any case no later than one hundred twenty (120)
days prior to the expiration of the initial Term, this Agreement may be
extended for one (1), four (4) year and 364 days renewal term. Any
extension, if approved, shall be memorialized in writing and signed by the
parties hereto (with the City hereby designating the City Manager as the
individual authorized to execute such extensions on its behalf).
In the event that the City Manager determines, in his/her sole discretion, not
to extend or renew this Agreement (upon expiration of the initial term or of
the first renewal term), the City Manager shall notify Concessionaire of
same in writing, which notice shall be provided to Concessionaire within
thirty (30) business days of the City Manager's receipt of Concessionaire's
written notice.
2
Page 328 of 952
It is the intent of the parties hereto that, unless otherwise terminated
pursuant to the provisions of this Agreement, the Term of this
Agreement is intended to run concurrent with the term, including any
extensions thereof, of the Lease Agreement, as referenced on Page 1
of this Agreement.
The City shall have the right to terminate this Agreement, without
cause and for convenience, and without any liability to the City, upon
providing thirty (30) days written notice to Concessionaire.
If,at any time during the Term of this Agreement,the Lease Agreement
is terminated or otherwise ceases to be of any legal force and effect,
for whatever reason whatsoever, then this Agreement shall
automatically terminate, and shall be null and void and of no further
force and effect,and the City shall have no further liability with respect
to same.
SECTION 2. CONCESSION AREA.
The City hereby grants to Concessionaire the right, during the Term herein,
to maintain, manage and operate an outdoor seating area in the following
Concession Area:
2.1 Concession Area:
The City and Concessionaire are parties to a Lease Agreement, dated
(the "Lease Agreement") relating to 734 square feet
of restaurant space located at 77317th Street, Miami Beach, Florida 33139
(the "Leased Premises"). The concession area shall consist of 507 square
feet of outdoor space adjacent to and east of the Leased Premises (the
"Concession Area"); which outdoor space is further delineated in "Exhibit
2.1", attached hereto and incorporated herein.
Concessionaire shall have the right to place up to twenty six (26) chairs
(with associated tables) and five (5) umbrellas within the Concession Area,
subject to approval of a site plan by the City, and compliance with applicable
ADA requirements. The proposed site plan is also delineated in Exhibit 2.1.
No material change in the proposed site plan (or in Exhibit 2.1) shall be
permitted without prior written consent of the City Manager or his/her
designee, which consent (if given at all) shall be at the City Manager's (or
his/her designee's) sole and reasonable judgment and discretion.
2.2 Concessionaire hereby agrees and acknowledges that the Concession
Area shall be open and available to all members of the general public
choosing to enjoy Concessionaire's food and beverage services.
3
Page 329 of 952
SECTION 3. USE(S).
3.1 The Concession Area shall be used by the Concessionaire solely as an
outdoor seating area for the patrons and guests of the Leased Premises.
The Concession Area shall have minimum days and hours of operation from
Monday through Friday, commencing at 7:00 AM, and ending at 5:00 PM
and Saturday and Sunday from 8:00AM to 2:00PM. Nothing herein
contained shall be construed to authorize hours contrary to the laws
governing such operations. Any change in the minimum days or hours of
operation shall require the prior written consent of the City Manager. In no
event shall the hours of operation extend earlier than 7:00 AM, or later than
11:00 PM. Notwithstanding the preceding hours of operation, the
Concession Area shall only be open when the Leased Premises are
open for business (and, conversely, shall be closed when the Leased
Premises is closed).
3.2 Concessionaire and the tenant of the Leased Premises shall at all
times throughout the Term of this Agreement be one and the same
and cannot exist independently of each other. Concessionaire
acknowledges and agrees that its use of the Concession Area shall
be, and remain at all times throughout the Term, an ancillary use to
the Leased Premises.
The number of seating in the Concession Area shall be included in the
overall seating count of the Leased Premises. There shall be no bar counter
of any kind as part of the Concession Area and all food served shall be
prepared within the interior kitchen of the Leased Premises. There shall be
no alcoholic beverages permitted on the Concession Area. All tables,
chairs, and umbrellas will be removed and stored each night at close of
business. Any exception to this requirement shall be at the sole and
absolute discretion of the City Manager or his/her designee. Concessionaire
shall further maintain the Concession Area and abide by the conditions set
forth in "Exhibit 3.2" (the "Additional Requirements"), attached hereto and
incorporated herein.
3.2.1. Removal of Concessionaire's Property during Emergency
Situations. The City Manager or his/her designee may direct or require
the Concessionaire to immediately remove, relocate and/or store all or
part of the Concession Area Improvements or any of Concessionaire's
equipment located at the Park ("Concessionaire's Property") for public
safety considerations in emergency situations, including, without
limitation, a threatened tropical storm or hurricane. Upon written and/or
verbal notification by the City Manager of a tropical storm/hurricane
warning or alert, or other major weather event that may adversely impact
the City, or upon the designation by the United States National Weather
Service or National Hurricane Center of a tropical storm/hurricane
warning or alert, whichever occurs first, the Concessionaire shall, within
no more than two hours of same, remove and store all of
4
Page 330 of 952
Concessionaire's Property to secure Concessionaire's Property in
response to the threatened storm or other emergency, and shall take all
other measures which may be necessary for the protection of the public
with respect thereto. The notification by the City Manager of a hurricane
or other major weather event, or the issuance of a hurricane warning,
shall constitute a public emergency situation. The failure of the City to
direct the Concessionaire to remove or safety store Concessionaire's
Property shall not relieve the Concessionaire of its obligation to remove
and store Concessionaire's Property in response to a threatened storm
event as outlined herein.
Should Concessionaire fail to remove Concessionaire's Property within
said two (2) hour period, or in the event the City Manager or his/her
designee determines, at his/her sole discretion, that Concessionaire's
removal, storage and other efforts are otherwise not satisfactory,
Concessionaire shall thereafter be assessed a fee of $50.00 per hour,
until such time as all of Concessionaire's Property have been removed
to the City Manager's satisfaction. In addition, the City Manager, without
any obligation to do so,'may immediately proceed to remove, relocate,
and/or store the Concessionaire's Property that has otherwise not been
removed by the Concessionaire, at the Concessionaire's sole cost and
expense, , with payment to the City for all such costs due within thirty
(30) days of City's invoice to Concessionaire.
Concessionaire shall be solely responsible for any damage to City
property or other property resulting from Concessionaire's failure to
remove and store Concessionaire's property, or otherwise implement
appropriate measures in response to a threatened storm or hurricane.
Concessionaire's failure to comply with this section shall constitute a
default under this Agreement. The remedies identified herein for
Concessionaire's failure to comply with this section are cumulative, and
in addition to, all remedies that may be available to the City at law and
in equity.
3.3 Concessionaire hereby warrants and represents to City that
Concessionaire is the owner of the restaurant at the Leased Premises
and shall,throughout the Term of the Lease Agreement, remain as the
owner of said restaurant, unless any change in ownership is approved
by the City Manager, in writing, prior to such change taking place.
Change of ownership for purposes hereof shall include, without
limitation, a sale, exchange, assignment, transfer or other disposition
by tenant of all or a portion of tenant's interest in the restaurant,
whether by operation of law or otherwise.
3.4 Concessionaire agrees not to place any speakers, or any other device used
to amplify sound, in or around the Concession Area. Concessionaire further
agrees to not attach any televisions, speakers, or any other device used to
5
Page 331 of 952
amplify sound, to the exterior of the Leased Premises. Furthermore,
Concessionaire shall in no manner use the Concession Area, or
Concessionaire's restaurant at the Leased Premises, as an outdoor
entertainment or open air entertainment establishment, and hereby
acknowledges that such uses are prohibited (whether as main or accessory
uses).
3.5 It is understood and agreed that the Concession Area shall be used by the
Concessionaire during the term of this Agreement only for the uses
contemplated herein, and for no other purpose or use whatsoever.
Concessionaire will not make or permit any use of the Concession Area
that, directly or indirectly, is forbidden by public law, ordinance or
government regulation, or that may be dangerous to life, limb or property.
• Concessionaire may not commit waste on the Concession Area, use the
Concession Area for any illegal purpose, or commit a nuisance on the
Concession Area. In the event that the Concessionaire uses the
Concession Area for any purpose not expressly permitted herein, then the
City may declare this Agreement in default pursuant to Section 13, or
without notice to Concessionaire, restrain such improper use by injunction
or other legal action.
3.6 Notwithstanding anything to the contrary contained herein, in the
event of a breach by Concessionaire of any conditions in this Section
3, the City Manager, in his/her sole determination and judgment, shall
have the right to automatically terminate this Agreement, without any
liability to the City; said termination effective upon three (3) days
written notice to Concessionaire. By executing this Agreement,
Concessionaire hereby agrees to this condition, and further
voluntarily and knowingly waives and releases any and all rights now
or hereinafter conferred upon Concessionaire pursuant to Florida
Statutes including, without limitation, the procedures set forth in
Chapter 83, Florida Statutes' for removal in nonresidential tenancies;
the Miami-Dade; and the Miami Beach Code (respectively); to the
extent this and applicable law(s) would have the effect of limiting or
modifying the City's rights to terminate this Agreement pursuant to
this Subsection.
3.7 Concessionaire shall obtain, at its sole expense and responsibility, any
business tax receipts required by the City for the proposed use(s)
contemplated herein.
6
Page 332 of 952
SECTION 4. CONCESSION FEES.
4.1 Intentionally Omitted
4.2 Intentionally Omitted
4.3 Interest for Late Payment.
Any payment which Concessionaire is required to make to the City which is
not paid on or before the respective date provided for in this Agreement
shall be subject to a late charge of Fifty and 00/100 ($50.00), plus interest
at the rate of eighteen (18%) percent per annum, or the maximum amount
allowable under Florida law, whichever is lesser, from the due date of
payment until such time as payment is actually received by the City.
4.4 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part
of said payments. It is the City's intent that it is to receive all payments due
from Concessionaire as net of such Florida State Sales and Use Tax.
SECTION 5. Intentionally Omitted
SECTION 6. Intentionally Omitted
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
Concessionaire agrees and shall pay, before delinquency, all taxes and
assessments of any kind (including, without limitation, ad valorem taxes, if
assessed, and/or Resort Taxes) levied or assessed upon Concessionaire
and/or the Concession Area including, without limitation, any such taxes
and/or assessments that may be levied and/or assessed against
Concessionaire and/or the Concession Area by reason of this Agreement,
or by reason of the business or other operations and/or activities of
Concessionaire upon or in connection with the Concession Area.
Concessionaire will have the right, at its own expense, to contest the
amount or validity, in whole or in part, of any tax and/or assessment by
appropriate proceedings, which Concessionaire shall conduct diligently and
continuously, in good faith. Concessionaire may refrain from paying a tax to
the extent it is contesting the imposition of same in a manner that is in
accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Concessionaire shall be
responsible for such delinquency charges, in addition to payment of the
contested tax (if so ordered).
Concessionaire shall be solely responsible for and shall promptly pay when
due all charges for utility service(s) provided to the Concession Area
(including all hook-up fees and impact fees) for gas, electricity, water,
sewer, cable, telephone, trash collection, etc., if applicable.
7
Page 333 of 952
In addition to other rights and remedies hereinafter reserved to the City,
upon the failure of Concessionaire to pay for such utility services when due,
the City may elect to pay same and Concessionaire shall promptly
reimburse the City upon demand. In no event shall the City be liable,
whether to Concessionaire or to third parties, for an interruption or failure in
the supply of any utilities services to the Concession Area.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such
number of employees and/or independent contractors as is necessary and
appropriate for Concessionaire to satisfy its responsibilities hereunder, and
as necessary to maintain the same levels of service as exist in similar first
class concession facilities and operations. Concessionaire's employees
and/or independent contractors shall be employees and/or independent
contractors of Concessionaire and not of the City, and Concessionaire shall
be solely responsible for their supervision and daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authority
to hire, terminate and discipline any and all personnel and/or contractors
employed or retained by Concessionaire.
8.2 All employees and/or independent contractors shall observe all the graces
of personal grooming. Concessionaire shall hire people to work in its
operation who are neat, clean, well groomed, and comport themselves in a
professional and courteous manner. Concessionaire and any persons hired
and/or retained by Concessionaire shall never have been convicted of a
felony.
Concessionaire shall have an experienced manager or managers
overseeing the concession operations at all times.
SECTION 9. Intentionally Omitted
SECTION 10. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION.
Concessionaire accepts the use of the Concession Area in its "AS IS"
"WHERE IS" condition. Concessionaire assumes sole responsibility and
expense for maintenance of the Concession Area (including all furniture,
fixtures, equipment and any other improvements thereon). This shall
include,without limitation, daily(i.e. 365 days)removal of litter, garbage and
debris. Concessionaire shall also be responsible for all garbage disposal
generated by its operations.
10.1 Improvements.
10.1.1. Any improvements to the Concession Area shall be at Concessionaire's
sole expense and responsibility; provided, however, that any plans for
such improvements shall be submitted to the City Manager or his/her
designee for prior written approval. Upon termination and/or expiration
8
Page 334 of 952
of this Agreement, all personal property and non-permanent trade
fixtures may be removed by Concessionaire without causing damage to
the Concession Area.
All permanent (fixed) improvements to the Concession Area shall
remain the property of the City upon termination and/or expiration of this
Agreement, except as provided in Subsection 10.1.3.
Concessionaire will permit no liens to attach to the Concession Area
arising from, connected with, or related to, the design, construction, and
installation of any improvements.
Construction of any approved improvements shall be diligently
prosecuted to completion and accomplished through the use of licensed,
reputable contractors who are acceptable to the City Manager or his/her
designee. In addition to obtaining the prior approval of the City Manager
or his/her designee (acting on behalf of the City, in a proprietary
capacity), Concessionaire shall also be solely responsible for obtaining,
at its sole cost and expense, any and all permits, licenses, and/or
regulatory approvals; such regulatory approvals which may include,
without limitation, land use board and/or the approvals of other required
regulatory agencies having jurisdiction) required for the construction of
improvements.
10.1.2. Notwithstanding Subsection 10.1.2 hereof, upon termination and/or
expiration of this Agreement, Concessionaire shall immediately remove
any permanent improvements made to the Concession Area during the
Term, at Concessionaire's sole expense and responsibility. In such
event, Concessionaire shall also restore the Concession Area to its
original condition prior to the improvements being made, reasonable
wear and tear excepted.
10.1.3. The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes
of this Subsection 10.1.4 only, shall also include improvements
necessary for Concessionaire's ongoing maintenance and repair of the
Concession Area)which do not exceed Five Hundred ($500.00) Dollars;
provided that the work is not structural, and provided further that it is
permitted by applicable law.
9
Page 335 of 952
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall
provide, at its sole expense, a sufficient number of trash receptacles for its
own use and for the use of its patrons. Determination of the "number" of
receptacles shall at all times be within the City Manager or his/her
designee's sole discretion. Disposal of the contents of said receptacles (and
removal of litter, garbage and debris within the Concession Area), shall be
done on a daily (i.e. 365 days) basis. Any costs for removal of the contents
of said trash receptacles by the City, because of the Concessionaire's
failure to do so, will be assessed to, and become the responsibility of, the
Concessionaire.
The dumping or disposal of any refuse, discards, trash or garbage,
generated by, or as a result of Concessionaire's operations, into any of the
City's trash dumpster shall be prohibited.
10.3 _ Maintenance/Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all
furniture, fixtures, and equipment (FFE) and any other improvements
(whether permanent or not) required to operate the concession. In the
event any FFE and/or other improvement(s) is lost, stolen, or damaged, it
shall be replaced or repaired promptly, at the sole expense of
Concessionaire.
10.3.1. All damage or injury of any kind to the Concession Area, and/or to any
improvements and/or FFE thereon, except damage caused by the willful
misconduct or gross negligence of the City, shall be the sole obligation
of Concessionaire, and shall be repaired, restored and/or replaced
promptly by Concessionaire, at its sole expense, to the satisfaction of
the City Manager or his/her designee.
10.3.2. All of the aforesaid repairs, restoration and replacement shall be in
quality and class equal to or better than the original work (or FFE, as the
case may be) and shall be done in good and workmanlike manner.
10.3.3. If Concessionaire fails to make any repairs, restoration and/or
replacement, the same may be made by the City, at the expense of
Concessionaire, and all sums spent and expenses incurred by the City
shall be collectable by the City and shall be paid by Concessionaire
within ten (10) days after receipt of a. bill or statement thereof.
Notwithstanding that the City may elect to make such repairs,
restoration, and/or replacement, the City shall have no obligation and/or
affirmative duty to do so.
10.3.4. It shall be Concessionaire's sole obligation to ensure that any
renovations, repairs and/or improvements made by Concessionaire to
the Concession Area comply with all applicable permitting, building
codes and life safety codes of governmental authorities having
jurisdiction.
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10.4 No Dangerous Materials.
Concessionaire agrees not to use or permit in the Concession Area the
storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps,
combustible powered electricity producing generators, turpentine, benzene,
naphtha, propane, natural gas, or other similar substances, combustible
materials, or explosives of any kind, or any substance or thing prohibited in
the standard policies of fire insurance companies in the State
of Florida. Any such substances or materials found within the Concession
Area shall be immediately removed.
In consideration of a separate and specific consideration of Ten
($10.00) Dollars and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Concessionaire shall indemnify and hold the City harmless from any
loss, damage, cost, or expense of the City, including, without
limitation, reasonable attorney's fees, incurred as a result of, arising
from, or connected with the placement by Concessionaire of any
"hazardous substance" or "petroleum products" on, under, in or
upon the Concession Area as those terms are defined by applicable
Federal and State statutes, or any environmental rules and
environmental regulations promulgated thereunder. The provisions
of this subsection 10.4 shall survive the termination or earlier
expiration of this Agreement.
10.5 Security.
Concessionaire shall be responsible for and provide such reasonable
security measures as may be required to protect the Concession Area and
any improvements and FFE thereon. Under no circumstances shall the City
be responsible for any stolen or damaged FFE; damage to or loss of any
improvements; or any stolen, lost, or damaged personal property of
Concessionaire's employees, contractors, patrons, guests, invitees, and/or
any other third parties.
10.6 Inspection.
Concessionaire agrees that the Concession Area (and operations thereon)
may be inspected at any time during hours of operation by the City Manager
or his/her designee, or by any other municipal, County or State officer, or
other agency having responsibility and/or jurisdiction for inspection of such
operations. Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference
with the concession operations, whether by the City or by any public agency
or official, in enforcing their respective duties, or enforcing compliance with
any applicable laws, or ordinances, or regulations.
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SECTION 11. Concessionaire's Insurance Requirements.
11.1. Concessionaire shall maintain throughout the term, at its sole cost and expense,
the following insurance requirements:
11.1.1 Worker's Compensation Insurance for all employees of the vendor as required by
Florida Statute 440, and Employer Liability Insurance for bodily injury or disease.
Should the Tenant be exempt from this Statute, the Concessionaire and each
employee shall hold the City harmless from any injury incurred during performance
of the Agreement. The exempt Concessionaire shall also submit (i) a written
statement detailing the number of employees and that they are not required to
carry Workers' Compensation insurance and do not anticipate hiring any additional
employees during the term of this Agreement or (ii) a copy of a Certificate of
Exemption.
11.1.2 Commercial General Liability Insurance on an occurrence basis, including
products and completed operations, property damage, bodily injury and personal
& advertising injury with limits no less than $1,000,000 per occurrence, and
$2,000,000 general aggregate.
11.1.3 All-Risk property and casualty insurance, written at a minimum of eighty (80%)
percent of replacement cost value and with replacement cost endorsement,
covering all leasehold improvements installed in the Demised Premises by or on
behalf of Concessionaire and including without limitation all of Concessionaire's
personal property in the Demised Premises(including,without limitation, inventory,
trade fixtures, floor coverings, furniture, and other property removable by
Concessionaire under the provisions of this Agreement).
11.1.4 Business interruption insurance, sufficient to insure Concessionaire for no less
than one (1) full year of loss of business, with the Landlord named thereon as loss
payee to the extent permitted by applicable law.
11.1.5 Additional Insured - City of Miami Beach must be included by endorsement as an
additional insured with respect to all liability policies (except Professional Liability
and Workers'Compensation)arising out of work or operations performed on behalf
of the Concessionaire including materials, parts, or equipment furnished in
connection with such work or operations and automobiles owned, leased, hired or
borrowed in the form of an endorsement to the Concessionaire's insurance.
11.1.6 Notice of Cancellation - Each insurance policy required above shall provide that
coverage shall not be cancelled, except with notice to the City of Miami Beach do
EXIGIS Insurance Compliance Services.
11.1.7 Waiver of Subrogation — Concessionaire agrees to obtain any endorsement that
may be necessary to affect the waiver of subrogation on the coverages required.
However, this provision applies regardless of whether the City has received a
waiver of subrogation endorsement from the insurer.
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11.1.8 Acceptability of Insurers — Insurance must be placed with insurers with a current
A.M. Best rating of A:VII or higher. If not rated, exceptions may be made for
members of the Florida Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may
also be considered if they are licensed and authorized to do insurance business in
the State of Florida.
11.1.9 Verification of Coverage—Contractor shall furnish the City with original certificates
and amendatory endorsements, or copies of the applicable insurance language,
effecting coverage required by this contract. All certificates and endorsements are
to be received and approved by the City before work commences. However,
failure to obtain the required documents prior to the work beginning shall not waive
the Contractor's obligation to provide them. The City reserves the right to require
complete, certified copies of all required insurance policies, including
endorsements, required by these specifications, at any time.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
do EXIGIS Insurance Compliance Services
P.O. Box 4668 — ECM #35050
New York, NY 10163-4668
Kindly submit all certificates of insurance, endorsements, exemption letters to our
servicing agent, EXIGIS, at:
Certificates-miamibeach@riskworks.com
Special Risks or Circumstances - The City of Miami Beach reserves the right to
modify these requirements, including limits, based on the nature of the risk, prior
experience, insurer, coverage, or other special circumstances.
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.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its officers, employees,
contractors, agents or servants from and against any claim, demand or
cause of action of whatsoever kind or nature arising out of error, omission,
or negligent act of Concessionaire, its officers, employees, contractors,
agents or servants in the performance of services under this Agreement.
12.2 In addition, and in consideration of a separate and specific consideration of
Ten ($10.00) Dollars and other good and valuable consideration the receipt
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and sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its officers, employees,
contractors, agents or servants from and against any claim, demand or
cause of action of whatever kind or nature arising out of any misconduct of
Concessionaire, its officers, employees, contractors, sub concessionaire(s),
agents or servants not included in Subsection 12.1 herein and for which the
City, its officers, employees, contractors, sub concessionaire(s), agents or
servants are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any
such liability, that arises as a result of the willful misconduct or gross
negligence of the City, its officers, employees, contractors, agents or
servants.
12.4 Intentionally Omitted
12.5 Force Maieure.
Whenever a period of time is herein prescribed for the taking of any action
by the City or Concessionaire (as applicable), the City or Concessionaire
(as applicable), shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, or
governmental laws, regulations, or restrictions in the nature of a prohibition
or moratorium, or any bona fide delay beyond the reasonable control of City
or Concessionaire (as applicable). The foregoing shall not apply to any
payments of money due under this Agreement.
12.6 Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss
or damage sustained by the Concessionaire resulting from an event of
Force Majeure (as defined herein), and the Concessionaire hereby
expressly waives all rights, claims, and demands against the City and
forever releases and discharges the City from all demands, claims, actions
and causes of action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.4 shall constitute events of default under this
Agreement. An event of default by Concessionaire shall entitle the City to
exercise any and all remedies described as the City's remedies under this
Agreement, including but not limited to those set forth in Subsection 13.5.
An event of default by the City shall entitle Concessionaire to exercise any
and all remedies described as Concessionaire's remedies under this
Agreement, including but not limited to those set forth in Subsection 13.6.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
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business property shall be appointed and shall not be discharged within
sixty (60) days after appointment, or if either party shall make an
assignment of its property for the benefit of creditors, or shall file a voluntary
petition in bankruptcy, or insolvency, or shall apply for reorganization or
arrangement with its creditors under the bankruptcy or insolvency laws now
in force or hereinafter enacted, Federal, State, or otherwise, or if such
petitions shall be filed against either party and shall not be dismissed within
sixty (60) days after such filing, then the other party may immediately, or at
any time thereafter, and without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be
available to it for breach of contract.
13.2 Default in Payment.
If any payment and accumulated penalties are not received within fifteen
(15) days after the payment due date, and such failure continues three (3)
days after written notice thereof, then the City may, without further demand
or notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract.
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any
of the covenants, terms or provisions under this Agreement, and such
failure continues thirty (30) days after written notice thereof from the other
party hereto, such non-defaulting party may .immediately or at any time
thereafter, and without further demand or notice, terminate this Agreement.
In the event that a default is not reasonably susceptible to being cured within
such period, the defaulting party shall not be considered in default if it shall,
• within such period, commence with due diligence and dispatch to cure such
default and thereafter completes with dispatch and due diligence the curing
of such default, but in no event shall such extended cure period exceed
ninety (90) days from the date of written notice thereof. In the event
Concessionaire cures any default pursuant to this subsection, it shall
promptly provide the City with written notice of same.
13.4 Default Under Lease Agreement.
In the event that Concessionaire is in default under the Lease Agreement
(as referenced in Page 1 of this Agreement) then the City may, without
further demand or notice, terminate this Agreement without being
prejudiced as to any remedies which may be available to it for breach of
contract.
•
13.5 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, shall occur, the
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such default(s) and to compensate
the City for damages resulting from such default(s), including but not limited
to the right to give to Concessionaire a notice of termination of this
Agreement. If such notice is given, the Term of this Agreement shall
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terminate upon the date specified in such notice from the City to
Concessionaire. On the date so specified, Concessionaire shall then quit
and surrender the Concession Area to the City pursuant to the provisions
of Subsection 13.8. Upon the termination of this Agreement by the City, all
rights and interest of Concessionaire in and to the Concession Area and to
this Agreement, and every part thereof, shall cease and terminate and the
City may, in addition to any other rights and remedies it may have, retain all
sums paid to it by Concessionaire under this Agreement, including but not
limited to, beginning procedures to collect the Performance Bond in Section
14 herein.
In addition to the rights set forth above, the City shall have the rights to
pursue any and all of the following:
a. The right to injunction or other similar relief available to it under
Florida law against Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity
or other proper proceedings to obtain damages resulting from
Concessionaire's default.
13.6 Concessionaire's Remedies for Citv's Default.
If an event of default, as set forth in this Section, by the City shall occur,
Concessionaire may, after the expiration of the cure period, terminate this
Agreement upon written notice to the City. Said termination shall become
effective upon receipt of the written notice of termination by the City. On the
date specified in the notice, Concessionaire shall quit and surrender the
Concession Area to the City pursuant to the provisions of Subsection 13.8.
13.7 Termination for Convenience.
13.7.1. Notwithstanding any other provision of this Section 13, this Agreement
may be terminated, in whole or in part, by the City, for convenience and
without cause, upon the furnishing of thirty (30) days prior written notice
to Concessionaire.
13.7.2. In the event of termination by the City pursuant to this subsection,
Concessionaire herein acknowledges and agrees that it shall not have
any claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees (including, but not
limited to, claims for any start-up costs, interference in business or
damages for interruption of'services, or, interference in its concession
operations). In no event shall the City be liable to Concessionaire for any
indirect, incidental, special, lost profits or consequential damages.
13.8 Surrender of Concession Area.
At the expiration of this Agreement,or earlier termination in accordance with
the terms of this Agreement, Concessionaire shall surrender the
Concession Area in the same condition as the Concession Area was prior
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to the Commencement Date of this Agreement, reasonable wear and tear
excepted. Concessionaire shall remove all its personal property, upon forty-
eight (48) hours written notice from the City Manager or his/her designee
unless a longer time period is agreed to by the City. Concessionaire's
obligation to observe or perform this covenant shall survive the expiration
or other termination of this Agreement. Continued occupancy of the
Concession Area after termination of the Agreement shall constitute
trespass by the Concessionaire, and may be prosecuted as such. In
addition, the Concessionaire shall pay to the City One Thousand
($1,000.00) Dollars per day as liquidated damages for such trespass and
holding over.
SECTION 14. Intentionally Omitted
SECTION 15. Intentionally Omitted
SECTION 16. SPECIAL EVENTS /SPONSORSHIPS.
16.1 City Special Events.
Notwithstanding Subsection 16.1 herein, and in the event that the City, at
its sole discretion, deems that it would be in the best interest of the City, the
City reserves the right to displace the Concessionaire for City produced
and/or sponsored special events and/or City produced and/or sponsored
productions.Additionally,the aforestated events may also require additional
time for load-in and load-out of the event. In such cases, the City may
request that Concessionaire cease and desist operations during the term
of, and in the area of, the special event and/or production, and
Concessionaire shall cease and desist during such time. To the extent that
Concessionaire is displaced, and/or required to cease and desist
operations, City shall provide, calculated on a per diem basis for the period
of time the Concession Area is non-operational, a credit against
Concessionaire's Concession Fee, prorated on a per diem basis, to be
calculated by dividing the monthly Concession Fee by 30 and multiplying
said figure by the number of days the Concessionaire was displaced.. If the
Concessionaire is not required to close, or the City Manager or his/her
designee determines that Concessionaire may remain open in such a
manner as prescribed by the City, that will not interfere with the special
event and/or production, Concessionaire shall use its best efforts, in either
case, in cooperating with the City. If Concessionaire is allowed to remain
open during special events and/or productions, Concessionaire may be
allowed to have in operation its normal daily complement of equipment and
staff. "Normal" shall be defined as equipment and staff that the
Concessionaire customarily has available to service its patrons within the
Concession Area on a normal business day(during its hours of operation).
16.2 Sponsorships.
The City reserves unto itself all present and future rights to negotiate all
forms of endorsement and/or sponsorship agreements based on the
marketing value of any City trademark, property, brand, logo and/or
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reputation. Any and all benefits derived from an endorsement and/or
sponsorship agreement based on the marketing value of a City trademark,
property, brand, logo and/or reputation, shall belong exclusively to the City.
Concessionaire shall be specifically prohibited from entering into, or
otherwise creating any, sponsorships and/or endorsements with third
parties which are based solely or in any part on the marketing value of a
City trademark, property, brand, logo and/or reputation.
SECTION 17. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use in any
manner whatsoever, the Concession Area for any improper, immoral or
offensive purpose, or for any purpose in violation of any Federal, State,
County, or municipal ordinance, rule, order or regulation, or of any
governmental rule or regulation now in effect or hereafter enacted or
adopted. Concessionaire will protect, indemnify, and forever save and keep
harmless the City, its officers, employees, contractors, agents or servants,
from and against damage, penalty, fine, judgment, expense or charge
suffered, imposed, assessed or incurred for any violation, or breach of any
law, ordinance, rule, order or regulation occasioned by any act, neglect or
omission of Concessionaire, or any of its officers, employees, contractors,
agents or servants. In the event of any violation by Concessionaire, or if the
City shall deem any conduct on the part of Concessionaire to be
objectionable or improper, the City Manager or his/her designee shall have
the right to suspend the concession operations should the Concessionaire
fail to correct any such violation, conduct, or practice to the satisfaction of
the City Manager or his designee within twenty-four (24) hours after
receiving written or verbal notice of the nature and extent of such violation,
conduct, or practice; such suspension to continue until the violation is cured.
Concessionaire further agrees not to commence operations during the
suspension until the violation has been corrected to the satisfaction of the
City Manager or his/her designee.
SECTION 18. Intentionally Omitted
SECTION 19. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served
upon receipt, if mailed by registered or certified mail with a return receipt to
Concessionaire at the following addresses:
Rohit Thakore
TASTE BAKERY CAFE, LLC
773 17th Street
Miami Beach, Florida 33139
All notices from Concessionaire to the City shall be deemed duly served
upon receipt, if mailed by registered or certified mail return receipt
requested to the City of Miami Beach at the following addresses:
City Manager
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City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to:
Asset Manager
Facilities and Fleet Management Department
City of Miami Beach
1833 Bay Road, Second Floor
Miami Beach, FL 33139
Concessionaire and the City may change the above mailing addresses at
any time upon giving the other party written notification. All notices under
this Agreement must be in writing.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and
Federal ordinances, statutes, rules and regulations(including but not limited
to all applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations, as same may be amended from time to time.
20.2 No Discrimination.
Concessionaire hereby agrees hereby agrees to comply with City of Miami
Beach Human Rights Ordinance, as codified in Chapter 62 of the City Code,
as may be amended from time to time, prohibiting discrimination in
employment, including independent contractors, housing, public
accommodations, public services, and in connection with its membership or
policies because of actual or perceived race, color, national origin, religion,
sex, intersexuality, sexual orientation, gender identity, familial and marital
status, age, ancestry, height,weight, hair texture and/or hair style, domestic
partner status, labor organization membership, familial situation, political
affiliation, or disability.
21. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES OR PLASTIC STRAWS.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time,
effective August 2, 2014, the City has prohibited the use of expanded polystyrene
food service articles by City Contractors, in connection with any City contract,
lease, concession agreement or Special event permit. Additionally, pursuant to
Section 82-385 of the City Code, as may be amended from time to time, no
polystyrene food service articles will be allowed in the right-of-way, and no
polystyrene food service articles can be provided to sidewalk café patrons.
"Expanded polystyrene"is a petroleum byproduct commonly known as Styrofoam.
Expanded polystyrene is more particularly defined as blown polystyrene and
expanded and extruded foams that are thermoplastic petrochemical materials
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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.
Concessionaire ,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. Concessionaire shall ensure that all vendors operating
in the Demised Premises abide by the restrictions contained in this Section 39. A
violation of this section shall be deemed a default under the terms of this Lease.
This subsection shall not apply to expanded polystyrene food service articles used
for prepackaged food that have been filled and sealed prior to receipt by the
Concessionaire or its vendors.
Additionally, Concessionaire 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.
22. NON-ALCOHOLIC PRODUCT EXCLUSIVITY.
The City reserves the right to execute exclusive product agreements and/or
sponsorship agreements with third parties from time to time. Concessionaire
agrees to be subject to the terms and conditions of those agreements, even if
executed after the date of this Agreement. The City is in the process of negotiating
exclusive pouring rights agreements with Pepsi, as the exclusive non-alcoholic
beverage supplier (excluding energy drinks), and Red Bull for the energy drink
category. Upon execution, Concessionaire will be notified and provided with the
purchasing agent for the exclusive non-alcoholic beverage supplier. Upon receipt
of written notification from the City, which could be pursuant to an e-mail,
Concessionaire will not be permitted to purchase, sample or sell competitive
products. Additionally, Concessionaire will be required to remove any equipment
with the logo or name of any competitor of these sponsors.
23. INSPECTOR GENERAL AUDIT RIGHTS.
a) Pursuant to Section 2-256 of the Code of the City of Miami Beach,
the City has established the Office of the Inspector General which may, on a
random basis, perform reviews, audits, inspections and investigations on all City
contracts,throughout the duration of said contracts. This random audit is separate
and distinct from any other audit performed by or on behalf of the City.
b) The Office of the Inspector General is authorized to investigate City
affairs and empowered to review past, present and proposed City programs,
accounts, records, contracts and transactions. In addition, the Inspector General
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has the power to subpoena witnesses, administer oaths, require the production of
witnesses and monitor City projects and programs. Monitoring of an existing City
project or program may include a report concerning whether the project is on time,
within budget and in conformance with the contract documents and applicable law.
The Inspector General shall have the power to audit, investigate, monitor, oversee,
inspect and review operations, activities, performance and procurement process
including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of the Concessionaire, its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract
documents and to detect fraud and corruption. Pursuant to Section 2-378 of the
City Code, the City is allocating a percentage of its overall annual contract
expenditures to fund the activities and operations of the Office of Inspector
General.
c) Upon ten (10) days written notice to the Concessionaire, the
Concessionaire shall make all requested records and documents available to the
Inspector General for inspection and copying. The Inspector General is
empowered to retain the services of independent private sector auditors to audit,
investigate, monitor, oversee, inspect and review operations activities,
performance and procurement process including but not limited to project design,
bid specifications, (bid/proposal) submittals, activities of the Concessionaire its
officers, agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption.
d) The Inspector General shall have the right to inspect and copy all
documents and records in the Concessionaire's possession, custody or control
which in the Inspector General's sole judgment, pertain to performance of the
contract, including, but not limited to original estimate files, change order estimate
files, worksheets, proposals and agreements from and with successful
subcontractors and suppliers, all project-related correspondence, memoranda,
instructions, financial documents, construction documents, (bid/proposal) and
contract documents, back-change documents, all documents and records which
involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends
received, payroll and personnel records and supporting documentation for the
aforesaid documents and records.
e) The Concessionaire shall make available at its office at all
reasonable times the records, materials, and other evidence regarding the
acquisition (bid preparation) and performance of this Agreement, for examination,
audit, or reproduction, until three (3) years after final payment under this
Agreement or for any longer period required by statute or by other clauses of this
Agreement. In addition:
i. If this Agreement is completely or partially terminated, the
Concessionaire shall make available records relating to the work terminated until
three (3) years after any resulting final termination settlement; and
ii. The Concessionaire shall make available records relating to appeals
or to litigation or the settlement of claims arising under or relating to this Agreement
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until such appeals, litigation, or claims are finally resolved.
f) The provisions in this section shall apply to the Concessionaire, its
officers, agents, employees, subcontractors and suppliers. The Concessionaire
shall incorporate the provisions in this section in all subcontracts and all other
agreements executed by the Concessionaire in connection with the performance
of this Agreement.
g) Nothing in this section shall impair any independent right to the City
to conduct audits or investigative activities. The provisions of this section are
neither intended nor shall they be construed to impose any liability on the City by
the Concessionaire or third parties.
24. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA'S PUBLIC RECORDS
LAW.
Tenant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(A) 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.
(B) Pursuant to Section 119.0701 of the Florida Statutes, if the
Concessionaire meets the definition of "Contractor" as defined in Section
119.0701(1)(a), the Concessionaire shall:
Keep and maintain public records required by the City to perform the service;
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 exceed the cost provided in Chapter 119,
Florida Statutes or as otherwise provided by law;
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 Concessionaire does not transfer the records to the City;
Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Concessionaire or keep and maintain public records
required by the City to perform the service. If the Concessionaire transfers all
public records to the City upon completion of the Agreement, the Concessionaire
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Concessionaire keeps
and maintains public records upon completion of the Agreement, the
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Concessionaire 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.
(C) Request for Records; Noncompliance.
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 Concessionaire of the
request, and the Concessionaire must provide the records to the City or allow the
records to be inspected or copied within a reasonable time.
Concessionaire'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: 3
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.
A Concessionaire who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
(D) Civil Action.
If a civil action is filed against a Concessionaire to compel production of public
records relating to the City's contract for services, the court shall assess and award
against the Concessionaire the reasonable costs of enforcement, including
reasonable attorneys' fees, if:
i. The court determines that the Concessionaire unlawfully refused to
comply with the public records request within a reasonable time; and
ii. At least 8 business days before filing the action, the plaintiff provided
written notice of the public records request, including a statement that the
Concessionaire has not complied with the request, to the City and to the
Concessionaire.
A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Concessionaire at the Concessionaire's address listed
on its contract with the City or to the Concessionaire'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.
A Concessionaire 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.
(E) If the Concessionaire has questions regarding the application of
Chapter 119, Florida Statutes, to the Concessionaire's duty to provide public
records relating to this Agreement, contact the custodian of public records at:
23
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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
SECTION 25. MISCELLANEOUS.
25.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be
or create a partnership or joint venture between the City and
Concessionaire.
25.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that
no modification to this Agreement may be agreed to by the City unless
approved by the Mayor and City Commission except where such authority
has been expressly provided herein to the City Manager.
25.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes
all the understandings and agreements of whatsoever nature or kind
existing between the parties with respect to Concessionaire's operations,
as contemplated herein.
25.4 Headings.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
25.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
25.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
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Page 350 of 952
25.7 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement shall be so modified.
25.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours
of operation, have the right to enter into and upon any and all parts of the
Concession Area for the purpose of examining the same for any reason
relating to the obligations of parties to this Agreement.
25.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building,
structure, equipment or space is leased to Concessionaire; that this
Agreement is a concession agreement and not a lease, and that
Concessionaire's right to operate, manage, and maintain the
concession shall continue only so long as Concessionaire complies
with the undertakings, provisions, agreements, stipulations and
conditions of this Agreement.
Accordingly, Concessionaire hereby agrees and acknowledges that in
the event of termination of this Agreement, whether due to a default
by Concessionaire or otherwise, Concessionaire shall surrender and
yield unto the City the Concession Area, in accordance with
Subsection 13.7 hereof, and the City shall in no way be required to
evict and/or otherwise remove Concessionaire from the Concession
Area as if this were a tenancy under Chapter 83, Florida Statutes, nor
shall Concessionaire be afforded any other rights afforded to
nonresidential tenants pursuant to said Chapter (the parties having
herein expressly acknowledged that this Agreement is intended to be
a concession agreement and is in no way intended to be a lease).
25.10 Signage.
Concessionaire shall provide, at its sole expense and responsibility, any
required signs at its concession. All advertising, signage and postings shall
be approved by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any signage
posted by Concessionaire shall be subject to the prior approval of the City
as to size, shape and placement of same.
25.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and
conduct the concession operation(s) contemplated herein, in a manner so
as to show no preference for other concession operations/facilities owned,
operated, managed, or otherwise controlled by Concessionaire.
25
Page 351 of 952
l
25.12 No Waiver.
25.12.1 It is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise any
option herein conferred, will not be considered or construed as a waiver or
relinquishment for the future of any such conditions, covenants, terms, provisions
or options but the same shall continue and remain in full force and effect.
25.12.2 A waiver of any term expressed herein shall not be implied by any
neglect of the City to declare a forfeiture on account of the violation of such term if
such violation by continued or repeated subsequently and any express waiver shall
not affect any term other than the one specified in such waiver and that one only
for the time and in the manner specifically stated.
25.12.3 The receipt of any sum paid by Concessionaire to the City after breach of
any condition, covenant, term or provision herein contained shall not be deemed
a waiver of such breach, but shall be taken, considered and construed as payment
for use and occupation (and not as rent), unless such breach be expressly waived
in writing by the City.
25.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than
the parties hereto and their respective successors and permitted assigns,
any rights or remedies by reason of this Agreement.
26 LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the management and
operation of the Concession Area in the hands of a private management
entity only if so doing the City can place a limit on its liability for any cause
of action for breach of this Agreement, so that its liability for any such breach
never exceeds the sum of Ten Thousand ($10,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this
Agreement with a Ten Thousand ($10,000.00) Dollar limitation on recovery
for any action for breach of contract. Accordingly, and in consideration of
the separate consideration of Ten Thousand ($10,000.00) Dollars, the
receipt of which is hereby acknowledged, the City shall not be liable to
Concessionaire for damages to Concessionaire in an amount in excess of
Ten Thousand ($10,000.00) Dollars, for any action for breach of contract
arising out of the performance or non-performance of any obligations
imposed upon the City by this Agreement. Nothing contained in this
paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida
Statutes, Section 768.28.
27 VENUE.
This Agreement shall be deemed to have been made and shall be
construed and interpreted in accordance with the laws of the State of
26
Page 352 of 952
Florida. This Agreement shall be enforceable in Miami-Dade County,
Florida, and if legal action is necessary by either party with respect to the
enforcement of any and all the terms or conditions herein, exclusive venue
for the enforcement of same shall lie in Miami-Dade County, Florida. THE
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING THAT THE CITY AND CONCESSIONAIRE
MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSION AREA.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
27
Page 353 of 952
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed and their seals to be affixed,all as of the day and year first above written, indicating
their agreement.
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafael E. Granado, City Clerk Alina T. Hudak, City Manager
Date
FOR CONCESSINAIRE: TASTE BAKERY CAFE, LLC
ATTEST:
By:
Witness Managing Member
Rohit Thakore
Print Name Print Name
Date
28
Page 354 of 952
EXHIBIT 2.1
Concession Area
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29
Page 355 of 952
EXHIBIT 3.2
Additional Requirements
The Concession Area shall be maintained in a clean, neat and orderly appearance at all
times by the Concessionaire. The area of the sidewalk, curb and gutter immediately
adjacent to the Concession Area shall be cleared of all debris during hours of operation,
and again at the close of each business day, or as may otherwise be determined by the
City Manager.
The Concessionaire shall be responsible for cleaning the floor surface on which the
outdoor seating is located at the close of each business day. In addition, the following
conditions shall apply:
a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be
maintained in a clean, attractive, and orderly appearance, and shall be
maintained and kept in good repair at all times;
b. All outdoor furniture shall be of high quality, design, materials, and
workmanship so as to ensure the safety and convenience of the public;
c. Only the outdoor cafe furniture specifically shown on the approved site plan
shall be allowed on the Concession Area;
d. All tables, chairs, umbrellas, and any other outdoor furniture shall be readily
removable, and shall not be physically attached, chained, or in any other
manner affixed to any public structure, street furniture, signage, and/or other
public fixture, or to a curb and/or public right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Concession Area;
f. At close of business, all tables, chairs and any other outdoor furniture shall be
removed from the Concession Area and stored in a non-visible location from
the public right-of-way. Any exception to this requirement shall be at the sole
and absolute discretion of the City Manager and/or his/her designee.
g. No storage of dishes, silverware or other similar restaurant equipment shall be
allowed on the Concession Area, or on any other portion of the public right-of-
way, or outside the structural confines of the building in which the restaurant is
located, during non-business hours;
h. There shall be no live entertainment or speakers placed on the Concession
Area;
i. No menu board(s) shall be permitted to be displayed on the Concession Area;
j. No food preparation,food storage, refrigeration apparatus or equipment, or fire
apparatus or equipment, shall be allowed on the Concession Area;
k. No food displays shall be permitted on the Concession Area. No advertising
signs or business identification signs shall be permitted, except that the
restaurant name and/or its logo may be permitted on umbrellas but such logos
and/or lettering may not exceed six inches in height;
30
Page 356 of 952
I. Plants shall be properly maintained. Distressed plants shall be promptly
replaced. Plant fertilizers which contain material that can stain the sidewalks
shall not be allowed;
m. The City Manager or his/her designee may cause the immediate removal,
relocation and/or storage of all or part of any furniture located on the
Concession Area in emergency situations or for public safety considerations.
Upon written and/or verbal notification by the City Manager of a hurricane or
other major weather event, or the issuance of a hurricane warning by Miami-
Dade County, whichever occurs first,the Concessionaire shall, within no more
than four hours of same, remove and place indoors all tables, chairs and any
other outdoor furniture located on the Concession Area. The notification by the
City Manager of a hurricane or other major weather event, or the issuance of a
hurricane warning, shall constitute a public emergency situation as referenced
in this division. The City Manager may remove, relocate, and/or store any
outdoor furniture found on the Concession Area that has otherwise not been
removed by the Concessionaire pursuant to this subsection. Any and all costs
incurred by the City for removal, relocation and/or storage of Concessionaire's
furniture shall be the responsibility of the Concessionaire.
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Page 357 of 952