Concession Agreement with Taste Bakery MB City Hall, LLC DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7 2022324 Li
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH
AND
TASTE BAKERY MB CITY HALL, LLC
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN THE OUTDOOR SPACE ADJACENT TO 773 17th Street
THIS AGREEMENT made the 1st day of March , 2023, 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 MB CITY HALL, 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.
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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
March 1, 2023 (the "Lease Agreement") relating to 734 square feet
of restaurant space located at 773 17th Street, Miami Beach, Florida 33139
(the "Leased Premises"). The concession area shall consist of
approximately 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 thirty four(34)chairs(with
associated tables) and six (6) umbrellas within the Concession Area,
subject to approval of a site plan by the City's Planning Department, 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.
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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 8:00 AM to 2:00 PM. 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 Concessionaire's Property to secure Concessionaire's Property
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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
amplify sound, to the exterior of the Leased Premises. Furthermore,
Concessionaire shall in no manner use the Concession Area, or
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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.
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
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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.
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
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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 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 10.1.2.
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.
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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 10.1.1 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 10.1.3 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.
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
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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.
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.
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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.
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 Concessionaire 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 of Concessionaire's
personal property in the Concession Area (including, without
limitation, inventory, trade fixtures, floor coverings, furniture, and
other property removable by Concessionaire under the provisions of
this Agreement).
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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.
11.2 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 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.
11.3 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—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.
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.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
c/o 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
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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.
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
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 Majeure.
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.
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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
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,
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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
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.
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 City'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.
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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
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.
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
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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
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
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suspension until the violation has been corrected to the satisfaction of the
ti 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:
Aditya Thakore,Manager
Taste Bakery MB City Hall, 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
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
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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.
SECTION 21. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED
POLYSTYRENE FOOD SERVICE ARTICLES OR PLASTIC STRAWS.
21.1 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.
21.2 "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.
21.3 Concessionaire agrees not to sell, use, provide food in, or offer the use of
expanded polystyrene food service articles at the Concession Area or in
connection with this Agreement. Concessionaire shall ensure that all
vendors operating in the Concession Area abide by the restrictions
contained in this Section 21. A violation of this section shall be deemed a
default under the terms of this Agreement. 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.
21.4 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.
SECTION 22. NON-ALCOHOLIC PRODUCT EXCLUSIVITY.
The City reserves the right to execute exclusive product agreements and/or
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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.
SECTION 23. INSPECTOR GENERAL AUDIT RIGHTS.
23.1 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.
23.2 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 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.
23.3 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
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to detect fraud and corruption.
23.4 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.
23.5 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 until such appeals, litigation, or claims are finally
resolved.
23.6 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.
23.7 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.
SECTION 24. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA'S PUBLIC
RECORDS LAW.
24.1 Concessionaire shall comply with Florida Public Records law under Chapter
119, Florida Statutes, as may be amended from time to time.
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24.2 The term "public records" shall have the meaning set forth in Section
119.011(12), which means all documents, papers, letters, maps, books,
tapes, photographs, films, sound recordings, data processing software, or
other material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in
connection with the transaction of official business of the City.
24.3 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:
A. Keep and maintain public records required by the City to perform the
service;
B. 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;
C. 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;
D. 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 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.
24.4 Request for Records; Noncompliance.
A. 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.
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B. 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.
C. 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.
24.5 Civil Action.
A. If a civil action is filed against a Concessionaire to compel production
of public records relating to the City's contract fo,r 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.
B. A notice complies with subparagraph (A)(ii) 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.
C. 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.
24.6 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:
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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.
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
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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 13.8 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. Signaqe.
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.
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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.
SECTION 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.
26
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
SECTION 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
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
DocuSign Envelope ID:F0E45084F536-46F1-900A-7DAF31CCDDB7
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:
DocuSigned by:
FOCA . arGUA.4 6
By: ^eQs^co�esi c=
Rafael E. Granado, City Clerk A a T. Hudak, City Manager
3/3/2023 i 11:35 AM EST
Date
FOR CONCESSINAIRE: TASTE BAKERY MB CITY HALL, LLC
ATTEST:
i/. —
By: Witness Aditya Th e,Manager
i lei( /kq,ns /?;4fezt.._ Zee—
Print NaMe Print Na'Ine
62_\'1A9D7,S
Date
APPROVED AS TO
FORM c LANGUAGE
&FOR EXECUTION
• yAt:orney r a c
28
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29
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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.
31
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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 MB CITY HALL, LLC
ATTEST:
By:
Witness Aditya Th e,Manager
fi lt\etcl ) Ji3#ns
Print Naae Print NaSne
c 2\9A 2D2S
Date
APPROVED AS TO
FORM Et LANGUAGE
&FOR EXECUTION
1iIz?J_
y Attorney. % r c
28
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 1st day of March , 2023
("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 MB CITY HALL, 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
(the "Unit") has 1,269 square feet of space located on the ground floor, and as more
specifically delineated in Exhibit 1A, 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, lets and demises to the Tenant, and Tenant hereby leases and hires from the
City, that certain ground floor retail space, 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 Official Records Book
25724, at Page 1183, of the Public Records of Miami-Dade County, Florida a/k/a 773 17th
Street (the "Demised Premises").
1.1. The City and Tenant are parties to a concession agreement dated March 1 , 2023
(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 Demised
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
2.2 herein, a "Contract Year" shall be defined as that certain period commencing
on the 1st day of January, and.ending on the 31st day of December.
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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.
3.2. Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also pay the
2
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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.
Subsequent to the expiration of a given Contract Year, Landlord shall
provide Tenant with a reconciliation with respect to the actual total
Operating Expenses and Tenant's actual Proportionate Share of the
Operating Expenses for the subject Contract Year. As such, If Tenant's
Operating Expense Payment for a particular Operating Expense is less than
Tenant's actual Proportionate Share(the"Shortage"), Tenant shall remit the
Shortage amount upon receipt of a request for payment from the Landlord.
If Tenant's Operating Expense Payment for a particular Operating Expense
is more than Tenant's actual Proportionate Share (the "Overage"),
Landlord, shall apply a credit for the Overage amount toward any payments
due from Tenant under the Lease, during the next ensuing Contract Year.
Additionally, Landlord, in its sole discretion, may adjust Tenant's Operating
Expense Payment to reflect the prior Contract Year's Operating Expenses,
retroactive to the beginning of the effective Contract Year.
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
3
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDE7
and Thirty-six and 04/100 Dollars ($2,936.04), 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 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 estimated Property Tax Payment for the first Contract
Year shall be based upon the 2022 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).
4
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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
square footage of the Demised Premises to the square
footage of the Unit. 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 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 shall 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 Building for hazard,
flood, windstorm, and liability insurance for the following
calendar year. Tenant acknowledges that Landlord may
5
DocuSign Envelope ID:F0E45064-F536-46F1-900A-7DAF31CCDDB7
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 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 Reimbursement Rate
Purchases Reimbursement
From To Maximum
40% of City Employee
$ - $ 422,400.00 $ 168,960.00 Purchases
20% of City Employee
$ 422,400.01 $ 629,333.33 $ 31,040.00 Purchases
0% of City Employee
Greater Than $ 629,333.34 $ - Purchases
Thereafter, Tenant will continue to provide the City Employee Discount regardless
of any reimbursement amount.
6
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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 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
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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. 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
3.4.2.1.
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
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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
3.7.1 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.
3.7.2 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.
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3.7.3 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.
3.7.4 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.
3.7.5 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.
3.7.6 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.
3.7.7 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.
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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
to him for breach of contract.
7. Use and Possession of Demised Premises.
7.1 The 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.
7.2 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
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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.
7.3 The Demised Premises shall be open for operation a minimum of five (5) days a
week, with minimum hours of operation being as follows:
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.
7.4 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the purpose(s)/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.
8. Improvements.
8.1 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,
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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
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.
8.2 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.
8.3 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.
8.4 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
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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.
8.4.1 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 (Contractor's
Insurance Requirements), listing Tenant and the City as an additional
insured thereunder.
9. City's Right of Entry.
9.1 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.
9.2 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.
9.3 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.
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10. Tenant's Insurance Requirements.
10.1. Tenant shall maintain throughout the Term, at its sole cost and expense, the
following insurance requirements:
10.1.1 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 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.
10.1.2 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.
10.1.3 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).
10.1.4 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.
10.2 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.
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10.3 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 c/o EXIGIS Insurance Compliance Services.
10.4 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.
10.5 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.
10.6 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.
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(a�riskworks.com
10.7 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.
10.8 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.
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11. Intentionally Omitted
12. 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.
13. Operation, Maintenance and Repair.
13.1 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.
13.1.1 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.
13.1.2 •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.
13.1.3 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
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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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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
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.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE DEMISED
PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS" CONDITION.
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14. 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.
15. 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'/2) 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.
16. Intentionally Omitted.
17. Condemnation.
17.1 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.
17.2 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
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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.
18. Default.
18.1 Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default under
this Agreement:
18.1.1 The Base Rent, Additional Rent, or any 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;
18.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.3 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;
18.1.4 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;
18.1.5 Any petition is filed by or against Tenant under any section or chapter
of the Bankruptcy Act, as amended,which remains pending for more
than sixty (60) days, or any other proceedings now or hereafter
authorized by the laws of the United States or of any state for the
purpose of discharging or extending the time for payment of debts;
18.1.6 Tenant shall become insolvent;
18.1.7 Tenant shall make an assignment for benefit of creditors;
18.1.8 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
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18.1.9 The leasehold interest is levied on under execution; or
18.1.10 A default under the Concession Agreement (as such agreement is
referenced in Subsection 1.1 of this Agreement).
18.2 Rights on Default.
18.2.1 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;
18.2.2 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.
18.2.3 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.
18.2.4 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
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therefore from rents resulting from re-letting; and (iii) Tenant shall
pay the City any deficiency as aforesaid.
18.2.5 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.
18.2.6 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.
18.2.7 If Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
may pay such expense but the City shall not be obligated to do so.
Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof. All sums of
money payable by Tenant to the City hereunder shall be deemed as
rent for use of the Demised Premises and collectable by the City from
Tenant as rent, and shall be due from Tenant to the City on the first
day of the month following the payment of the expense by the City.
18.2.8 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.
18.3 Default by City:
18.3.1 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 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
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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.
18.3.2 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).
19 LAWS.
19.1 Compliance.
Tenant 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.
19.2 No Discrimination.
Tenant 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.
20 Indemnity Against Costs and Charges.
20.1 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
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.
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20.2 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.
21 Indemnification Against Claims.
21.1 Tenant shall indemnify, defend 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:
A. An act or omission on the part of Tenant, or any employee, agent,
contractor, invitee, guest, assignee, sub-tenant or subcontractor of Tenant;
B. 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;
C. Any breach, violation, or non-performance of any undertaking of Tenant
under this Agreement;
D. 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.
21.2 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.
22 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.
23 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
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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.
24 Damage to the Demised Premises.
24.1 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.
24.2 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.
24.3 Notwithstanding, any clause contained in this Section 24, 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.
25 Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or
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disturbed in possession of the Demised Premises so long as Tenant complies with the
terms of this Agreement.
26 Waiver.
26.1 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.
26.2 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.
26.3 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.
27 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: Aditya Thakore
Taste Bakery MB City Hall, LLC
773 1 7th 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.
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28 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.
29 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.
30 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.
31 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.
32 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.
33 Surrender of the Demised Premises.
Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly 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
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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.
34 Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay
money is involved.
35 Venue:
This Agreement shall be 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.
36 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.
37 No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or use of
gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators, turpentine, benzene, naphtha, propane, natural gas, or other
similar substances, combustible materials, or explosives of any kind, or any substance
or thing prohibited in the standard policies of fire insurance companies in the State of
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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 37
shall survive the termination or earlier expiration of this Agreement.
38 Prohibitions Regarding Sale or Use of Expanded Polystyrene Food Service Articles or
Plastic Straws.
38.1 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.
38.2 "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.
38.3 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 38. 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.
38.4 Additionally, Tenant agrees to comply(and ensure compliance by its vendors)with
Section 46-92 (c) of the City Code, which states that it is unlawful for any person
to carry any expanded polystyrene product onto any beach or into any park within
the City or for any business to provide plastic straws with the service or delivery of
any beverage to patrons on the beach.
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39. 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. Tenant 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, Tenant 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, Tenant will not be
permitted to purchase, sample or sell competitive products. Additionally, Tenant will be
required to remove any equipment with the logo or name of any competitor of these
sponsors.
40. Inspector General Audit Rights.
40.1 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.
40.2 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.
40.3 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
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elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.
40.4 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.
40.5 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:
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.
40.6 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.
40.7 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.
41. Tenant's Compliance with Florida's Public Records Law.
41.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
41.2 The term "public records" shall have the meaning set forth in Section 119.011(12),
which means all documents, papers, letters, maps, books, tapes, photographs,
31
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
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.
41.3 Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets the
definition of"Contractor" as defined in Section 119.0701(1)(a), the Tenant shall:
A. Keep and maintain public records required by the City to perform the
service;
B. 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;
C. 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;
D. 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.
41.4 Request for Records; Noncompliance.
A. 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.
B. 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
32
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
or in equity.
C. 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.
41.5 Civil Action.
A. 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:
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.
B. A notice complies with subparagraph(A)(ii)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.
C. 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.
41.6 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
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DocuSign Envelope ID:FOE45084-F536-46F1-900A-7DAF31CCDDB7
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:
Dom:Signed by:
iA,.. ..:.-- ,
By: [!afati, e. arcun.ate
oae� ��
Rafael E. t;"ranac1o,ci� ty Clerk a T.Hudak,Ci anager
3/3/2023 I 11:35 AM EST
Date
FOR TENANT: TASTE BAKERY MB CITY HALL, LLC
ATTEST:
By: 24'z/Irr--- 1,",/�- e"
Witness Manage
g . �houko-.Ci • Aditva Thakore
Print Name Print Name
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Witness WI
Print ame
2-LS 20'Zc3
Date
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APPROVED:.;TO
FORM fa LANGUAGE
R EXECUTION I
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at
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DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
EXHIBIT 1
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AREA UNIT 1=1,326.78 S/F F.=
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OVALS ig VEURS WALLS MERE SASSO CI OillaWAL OSAVANGS AIM KS,SEFOINATON COINS Ell.MD WIVE,
First Floor Plan
Prepared by 1701 MERIDIAN BUILDING CONDOMINIUM
V' ''.1 r0 . Page 4 of 9
1,1;Lc' k....74/6/iiarosilifi Exhibit"B" ea&il/7/2007
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DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
Exhibit 3.4.2.1
(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) Ag reed-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.
37-
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
Exhibit 3.4.2.1
(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.
38
DocuSign Envelope ID: F0E45084-F536-46F1-900A-7DAF31CCDDB7
Exhibit 7.1
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POWER BOWLS,
RAT IOU CIAVI! (0)
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f�l The CaliLerat,er TL.Selaospppvxado A ��{
as litres•eb•ddes charge•avocado attune Tao Bow.; sek•d.al.wo'••wcod bled !t �N��
spinach l•ess..to ,ta.ke.best. •�•ade h.....tt ..d b.l..us.< YIC � !!199
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ay b. d�-cke b. . nokwo.i YwDesiehLCasao.Nuh
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b D.a..na.,d.�.strawberries bk.6«.t«.p..aat
m choose•.mok.J hotter-wade b.uukat•...o- u.de.ae.•.d.ms... pea.,�t buttes b.cao•. butte..bane,' a.a.do.on•twa••Moss, 1
4012) «two:•tomatoes• n•da•/rests w .ails•601- •avocado•8J•Dr• •can.*a:b.•...bon:«
dad <•D«.•e.;a•• ...Ianalma•sk+•seals n•bacon•s;a,u.s•eds ew.•a.•....h.t.•<6.. Ldi.aB.e .
B s •i -_-_-.—--- -_Y. •ltt.rb.••e.pout.pout. •e•d.•ean•e wove D e•DDI.•mangoes•bass .cocoa to•Ismael*
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39
DocuSign Envelope ID: F0E45084-F536-46F1-900A-7DAF31CCDDB7
g!STV 1:CHOOSE YOUR BASE STU 2:010061 YOUR MATURE TASIE
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lllaVI iniI:RU(1;R iDiiAPra Sark3 WERR ,...dare.•;•.w :o..dy«a @puma...nc.o' ;•ooLeact'•om.m.. .p,..A.•..otAn r....mo'•t nonos
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WRAP • •'s.lted ems•61..k .,.odl•.•.pro..b • .claret towel.•, 7 rod peppers•Ire.6 •El.ck be.ead.m. ,a.do•.w.
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141 SANDWICH SALAD =k.tr•Aaron•to..- ;mom. •to.alves I loam;dreg.:•.t-
toe*,...ben :.I.s.sloe.•dnnd' mascl. •M6. The Ramat TheCeeau The nag
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*ALB" n AiuN+nc_ t-us Rost PLANT e!t ____s_stR:na±1 BAG OF CHIPS
1.1
40
DocuSign Envelope ID: F0E45084-F536-46F1-900A-7DAF31CCDDB7
FRESH JUI a_R
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Made fresh to order-Served by the 2Uoz-jj UTE
SHOTS
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pineapple•orange tutu ber5•green pineapple•cu- = 3-5oz BigShot served with en
• ginger•lemon apples•beets• cumber•mint =
s
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114.911 2reelt Orange Blush- Herbal Zinger _ The Ginger Shot
Isac$ine oranges•strawber- green apples = ginger•lemon•honey
kale,.celery•green ries•green apples •lemon•ginger T1 S
apples• %mon•Cu— •basil
cumbers The Super Shot
=
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pine pple•green green apple•tor_. Qrangge•carrot• •black pepper•honey
apple•oranges meric•carrot• beefs•ginger• 5.50
• strawberries lemon•black peppesnApr kale
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soDAs -.! ginger•lemon•honey•cayenne
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Made to Order with Soda Water&Sweetened with Agave Nectar LE 5
Served by the 20oz with Ice-5 - The Hulk Shot
Ed
Miami Sunset Mangoals Yacht Party Blue Lagoon T7 ginger•lemon•honey•spirulina
ginger•lemon• ginger•lemon• pineapple• blueberry• _ •chin seeds•orange juice
•basil•straw- mango•mint lemon•cucumber lemon•ginger 5.50
berry•peach •mint •basil
SHOOTHIO a SHAIC1S THE core GRINDER ST�A�1*B�*� �s
Reg•I.,lbw•10 - large 20or•100 yserved hm o,:cad swyk oowe Ib4M tiS4tii��i
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1 sot..sit. •r«o.oe..et., cream corees,.mer •o•d.•.I.ro•d _ C•Ie Db.Ls 1 130 Cortsdito 23(1 )56
,bsrt..•et•o.dstalk U.'''. 1 1.50 Cold. 2.50 350 MochC6lp
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Island Blest( SoBeS•aset Peachesn'Gree. MpeeleBead, cdeA••,,,,, 250 ) •.,..,II•..o....
pm«.ppl..banana taaphotru••pplo. w.b.s•.pmsd e.,..L.... - p•8, T 6i..d. 250 3 .
..nil. .dl.,m. •L•.a .•e•.....p. •b.m .•i,..b .!dB•.Cottm 330 1 Caram•lava
,.. m lo•o••ay...ymp cocoo.,.•,•,•.w,.l,a. c,eeee it s•p,e•s•ca.••el••a•Il.n cream.
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15
41
DocuSign Envelope ID:F0E45084-F536-46F1-900A-7DAF31CCDDB7
Exhibit 8.4
Tenant's Required Improvements
And
Contractor's Insurance Requirements
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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 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.
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
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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 0 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;
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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;
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• 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 17"' 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 De ern_ 2022.
ATTEST: DEC 1 6 2022
•
Rafael E.Gra ado, City Clerk -1,0. E- Dan•Gelber, Mayor
111COR° O'
APPROVED AS TO
,''4yRCH FORM St LANGUAGE
F.• EXECUTION r •
•
/;i� City Attorney ate
t.ItiCORiOUIED
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TASTE BAKERY MB
CITY HALL • . LLC
CONCESSION
AGREEMENT