Concession Agreement Summary between CMB & Anchor Shops at South Beach DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC G8t. ZQ 2,3
LANDLORD: Miami Beach Redevelopment Agency,a public body
corporate and politic
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Open Vision One,LLC
1131 Collins Ave
Miami Beach,FL 33139
DATE OF EXECUTION: ,2024
ANCHOR SHOPS AT SOUTH BEACH
CONCESSION AGREEMENT
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CONCESSION AGREEMENT SUMMARY
The following is a summary of basic agreement provisions with respect to the agreement. It is an integral
part of the Concession,and terms defined or dollar amounts specified in this Summary shall have the meanings or
amounts as stated, unless expanded upon in the text of the Concession Agreement and its Exhibits, which are
" attached to and made a part of this Summary.
1. Date of Concession Agreement Execution: ,2024.
2. 'Landlord": Miami Beach Redevelopment Agency
3. Landlord's Address: Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention:Asset Management Division
with a copy to:
City of Miami Beach
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Legal Department
4. `Tenant": Open Vision One, LLC,a Florida limited liability
company
5. Tenant's Address: 1131 Collins Ave Miami Beach, FL 33139
6. "Guarantor": Miroslav Banjac and Marie F.Pena
7. Guarantor's Address: Open Vision One, LLC ,
1131 Collins Ave Miami Beach, FL 33139
8. Premises(section 1.1): 1560 Collins Avenue,Suite 3 and 4
Miami Beach, FL 33139
As shown on Exhibit"B"Outdoor Concession Area
9. Gross Rentable Area of
Premises(section 1.1): Approximately 684 square feet.
12. Outdoor Concession Area(Section 1.1): . Tenant may be permitted to use the sidewalk area,
adjacent to a portion of the Premises,for outdoor seating,
subject to the prior written approval from the Planning
Department as well all other required governmental
approvals; the square footage of the Concession area
shall be subject to a Concession Fee equal to ($30.00)
thirty dollars per square foot, subject to annual three
percent(3%)escalations, plus applicable sales tax.
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13. Permitted Use of
Premises(section 3.1): Premises shall be used as an outdoor seating area to the
adjacent fine dining restaurant, (and subject to the
prohibited uses described in Exhibit"B"to the Concession
Agreement).Concessionaire shall have the right to place
up to forty(40) chairs and eighteen(18)with tables and
four (4) umbrellas and one (1) menu board 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 B. No material change in the
proposed site plan (or in Exhibit B) shall be permitted
without prior written consent of the Executive Director or
his/her designee,which consent(if given at all)shall be at
the Executive Director's (or his/her designee's)sole and
reasonable judgment and discretion.
14. Term of Concession Agreement(section 1.1): Concession Agreement Term coterminous with the Lease
Agreement for the adjacent fine dining restaurant set to
expire January 23,2033.
"Commencement Date": The date any portion of the
Concession Ares opens for business.
"Rent Commencement Date":The date any portion of the
Concession Area opens for business.
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"Renewal Options": None, this agreement is to be
coterminous with the Lease Agreement for the adjacent
retail space.
15. "Minimum Rent"(section 2.2):
ANNUAUMONTHLY
MONTHS COST PER SQAURE FOOT PAYMENT
(PLUS SALES TAX)
Year 1-Rent Commencement $30 per Square foot $20,5201$1,710
Date plus sales tax plus sales tax
Year 2—End of Concession See Note(•) See Note(•)
Agreement Term
Commencing on the first anniversary of the Rent Commencement Date, and at the beginning of each succeeding
year thereafter during the Term of the Concession Agreement(a Concession Year, as defined in section 2.1), the
Minimum Rent shall be increased annually by three percent(3%).
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16. Percentage Rental(section 2.3): All sales generated by the Concession Area are captured
and reported under the Lease Agreement's Gross Sales
through a centralized Point of Sale(POS)system.
17. Comprehensive General
Liability Insurance(section 6.1): $1,000,000.00 per occurrence;$2,000,000.00 general
Aggregate and other insurance requirements
18. Trade Name(section 3,1): Cave 305
19. Tenant's Hours of Operation
(section 3.5) The Hours of Operation shall be daily 9am — 2am, the
following day, subject to City ordinances. Any change in
the hours of operation shall require the prior written
approval of the Executive Director or designee.
20. Lease Agreement: The lease agreement between the Miami Beach
Redevelopment Agency and Open Vision One.LLC dated
January 13.2023.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
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This Concession Agreement (the "Concession"), dated the day of 2024, is made
between the Miami Beach Redevelopment Agency,a public body corporate and politic(the°Landlord"),and Open
Vision One,LLC,a Florida limited liability company d/bla Cave 305(the"Tenant").
RECITALS:
A. The Landlord Is the fee simple owner of a certain facility (the"Facility") containing a
municipal parking garage and appurtenances containing approximately eight hundred (800) parking spaces
(the"Garage")and certain Concession Area(the"Premises")located in an area bounded by Washington and Collins
Avenues in the proximity of 160,Street, located in the City of Miami Beach, Miami-Dade County, Florida, as more
particularly described in Exhibit"A,"attached hereto and made a part hereof(the"Land"). The Landlord is the fee
simple owner of the Land and the Facility.
B. Landlord and Tenant desire to enter into this Concession Agreement for a portion of the
outdoor seating area adjacent to the Concession Area located at 1560 Collins Avenue,Suites No. 3 and 4, Miami
Beach, FL 33139,on the terms and conditions hereinafter set forth.
C. The Executive Director's designee shall be the contract manager designated by the
Landlord to administer this Concession Agreement.The Executive Director's designee shall be the City of Miami
Beach Division Director of Asset Management of the Facilities and Fleet Management Department.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
ARTICLE I. TERM.
1.1 Term. In consideration of the performance by Tenant of its obligations under this Concession
Agreement,Landlord concessions to Tenant,and Tenant concessions from Landlord,for the Term,a portion of the
Concession Area("Premises.").A site plan showing the location of the Concession Area within the Facility,as well
as the location of the Premises,is attached hereto and made a part hereof as Exhibit"B." The gross rentable area
of the Premises and Concession Area shown in the Concession Summary do not represent accurate measurements
of the square footage contained in the Premises or the Concession Area but are mere estimates. The Premises
does not extend beyond the interior footprint of the Premises. Use of the sidewalk area, adjacent to a portion of
the Premises, may be permitted for outdoor seating ("Outdoor Concession Area"), subject to approval by the
Executive Director, in the Executive Director's sole discretion, as evidenced from a Concession Agreement
executed by the Landlord and Tenant, and provided that Tenant secures the requisite approvals from the City of
Miami Beach.Tenant shall only operate any approved use of the Outdoor Concession Area as an ancillary use to
the Premises and only during the hours of operation of the Premises.
The'Term"of the Concession Agreement is the period from the Commencement Date as specified
in the Concession Summary,through the Expiration Date, as specified in the Concession Summary.
1.2. Landlord's Work.Tenant acknowledges and agrees that it is accepting possession of the Premises
in as-is condition and that,except as otherwise expressly hereinafter set forth,Landlord has no obligation to furnish,
render,or supply any money,work, labor, material,fixture,equipment,or decoration with respect to the Premises.
ARTICLE II. RENT.
2.1 Covenant to Pay.Tenant shall pay to Landlord all sums due hereunder from time to time from the
Rent Commencement Date without prior demand,together with all applicable Florida sales tax thereon; however,
unless otherwise provided in this Concession Agreement, payments other than Tenant's regular monthly payments
of Minimum Rent shall be payable by Tenant to Landlord within ten(10)days following written demand. All rent or
other charges that are required to be paid by Tenant to Landlord shall be payable at Landlord's address indicated
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on the Concession Summary. Minimum Rent and additional rent(which is all sums payable to Landlord other than
Minimum Rent)for any"Concession Year"consisting of less than twelve(12) months shall be prorated on a per
diem basis, based upon a period of 365 days. "Concession Year" means the twelve(12) full calendar months
commencing on the Commencement Date. However,the final Concession Year may contain less than twelve(12)
months due to expiration or sooner termination of the Term. Tenant agrees that its covenant to pay rent and all
other sums under this Concession Agreement is an independent covenant and that all such amounts are payable
without counterclaim, set-off, deduction, abatement,or reduction whatsoever, except as expressly provided for in
this Concession Agreement.
2.2 Minimum Rent/Concession Fee. Minimum Rent. Subject to any escalation which may be provided
for in this Concession,Tenant shall pay Minimum Rent for the Term in the initial amount specified in the Concession
Summary,which,except for the first Installment,shall be payable throughout the Term in equal monthly installments
in advance on the first day of each calendar month of each year of the Term,such monthly installments to be in the
amounts (subject to escalation)specified in the Concession Summary. The first monthly installment of Minimum
Rent shall be due upon execution of the Concession Agreement by Landlord and Tenant,to be applied on the Rent
Commencement Date in accordance with paragraph 17 of the Concession Summary. The Minimum Rent described
above shall be adjusted during the Term of this Concession Agreement as provided in paragraph 15 of the
Concession Summary.
2.3. Percentage Rent. In addition to monthly Minimum Rent payments,Tenant shall pay to Landlord
an annual Percentage Rent(as such term is defined in the Lease Agreement) payment. The Percentage Rent
payment for each Concession Year and each partial Concession Year shall be due and payable within sixty(60)
days at the end of each Concession Year included as part of the Lease Agreement's Gross Sales.
2.4 Intentionally Omitted.
2.5 Payment of Personal Property Taxes; Sales Tax Reports.Tenant shall pay, when due, all taxes
attributable to the personal property,trade fixtures, business,occupancy,or sales of Tenant or any other occupant
of the Premises and to the use of the Concession Area by Tenant or such other occupant. Tenant shall provide
Landlord with copies of Tenant's Sales and Use Tax Return "Form DR-15CS or DR-15EZ" filed with the Florida
Department of Revenue reporting Gross Receipts made from the Premises during the preceding calendar month.
2.6 Rent Past Due. If any payment due from Tenant shall be overdue more than five(5) business
days, a late charge of five(5%) percent of the delinquent sum may be charged by Landlord. If any payment due
from Tenant shall remain overdue for more than fifteen(15)days,an additional late charge in an amount equal to
the lesser of the highest rate permitted by law or one and one-half(1Y2%) percent per month (eighteen(18%)
percent per annum)of the delinquent amount may be charged by Landlord, such charge to be computed for the
entire period for which the amount is overdue and which shall be in addition to and not in lieu of the five(5%)percent
late charge or any other remedy available to Landlord.
2.7 Landlord's Lien. To secure the timely construction and installation of all improvements to the
Premises by tenant,if applicable,and to secure the payment of all rent and other sums of money due and to become
due hereunder and the faithful performance of this Concession Agreement by Tenant, Tenant hereby gives to
Landlord an express first and prior contract lien and security interest on all property now or hereafter acquired
(including fixtures,equipment, chattels,and merchandise)which may be placed in the Premises and also upon all
proceeds of any insurance which may accrue to Tenant by reason of destruction of or damage to any such property.
Such property shall not be removed therefrom without the written consent of Landlord until all arrearages in rental
and other sums of money then due to Landlord hereunder shall first have been paid;provided,Tenant may operate
its business in the ordinary course and the removal of merchandise from the Premises by customers of Tenant shall
not be a default under this section. All exemption laws are hereby waived in favor of said lien and security interest.
This lien and security interest is given In addition to Landlord's statutory lien and shall be cumulative thereto.
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Landlord shall, in addition to all of its rights hereunder, also have all of the rights and remedies of a secured party
under the Uniform Commercial Code as adopted in the State in which the Premises is located. To the extent
permitted by law, this Concession Agreement shall constitute a security agreement under Article 9 of the Florida
Uniform Commercial Code.
2.8 Inspection and Audit.
(A) •Tenant shall maintain its financial records pertaining to its operations pursuant to this
Concession Agreement, and records with respect to the Percentage Rent required pursuant to section 2.3 during
the Term,and for a period of three(3)years following the expiration or termination of the Concession Agreement.
Such records shall be open and available to the Landlord, as deemed necessary by the Executive Director or the
Executive Director's designee,upon ten(10)business days'written notice that the Landlord desires to review said
records. Tenant shall maintain accurate receipt-printing cash registers or a like alternative which will record and
show the payment for every sale made or service provided. Tenant shall also maintain such other records as would
be required by an independent CPA in order to audit a statement of annual Gross Receipts and profit and loss
statement pursuant to generally accepted accounting principles. Tenant shall maintain its records relating to the
operation of the Premises within Miami-Dade County, Florida.
(B) The Executive Director or Executive Director's designee shall be entitled to audit Tenant's
records pertaining to its operations during the Term as often as it deems reasonably necessary throughout the Term
of this Concession Agreement, and within the three(3)year period following the expiration or termination of the
Concession Agreement. Landlord shall be responsible for paying all costs associated with such audits,unless the
audit(s) reveals a deficiency of five percent (5%) or more in Tenant's statement of Gross Receipts for any
Concession Year audited, in which case the Tenant shall pay Landlord, 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 as required pursuant to section 2 6. 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.
(C) Tenant shall submit, at the end of each Concession Year during the Term, 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.
ARTICLE III. USE OF PREMISES.
3.1 Permitted Use. The Premises shall be used and occupied only for the operation of a fine dining
restaurant,subject to the prohibited uses described in Exhibit"D"to the Concession Agreement,as specified in the
Concession Summary, which use may include an Outdoor Concession Area, subject to Tenant securing the
approval of Landlord and any applicable regulatory approvals. The primary use of the Premises shall be for the
operation of a fine dining restaurant. As such,all seats on the Premises and on any approved Outdoor Concession
Area shall remain eligible for food service during all hours of operation. The business of Tenant in the Premises
shall be carried on under the name specified in the Concession Summary and under no other name unless approved
by Landlord in writing. Tenant shall carry on its business within the Premises in a reputable manner and shall not
do,omit, permit,or suffer to be done or exist upon the Premises anything which shall result in a nuisance,hazard,
or bring about a breach of any provision of this Concession Agreement or any applicable municipal or other
governmental law or regulation, or would otherwise be inconsistent with a first-class commercial restaurant or
incompatible with commercial uses ancillary to a first-class convention center hotel.Tenant shall observe all rules
and regulations established by Landlord for the Concession Area. The rules and regulations in effect as of the date
hereof are attached to and made a part of this Concession Agreement as Exhibit"C."Landlord will provide a copy
of any amendments to the rules and regulations at least seven(7) days prior to the effective date of any such
amendments. Tenant shall display such name as Landlord may from time to time designate for the Concession
Area in its stationery used upon the Premises,and in material,which is given,visible,or available to customers of
Tenant. Tenant shall promote such name in any advertisements or promotional material published or initiated by
Tenant in regard to its business from the Premises. The names for the Concession Area and the project of which
the Concession Area is a part,which Landlord may from time to time adopt, and every name or mark adopted by
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Landlord In connection with the Concession Area shall be used by Tenant only In association with the business
carried on In the Premises during the Term end Tenant's use thereof shall be subject to such reasonable regulation
as Landlord may from time to time Impose.
3.2 c n]p1[an Q_withlaws. The Premises shall be used and occupied In a safe, careful, and proper
manner so as not to contravene any present or future laws, rules, regulations, constitutions, orders, ordinances,
charters, statutes, codes, executive orders, and requirements of all governmental authorities having jurisdiction over
the Promises or any street,road,avenue,or sidewalk comprising a pert of,or lying in front of,the Promises or any vault
In or under the Promises(Including,without limilatlon,any of the foregoing relating to handicapped access or parking,
the local building codes,and the laws,rules,regulations,orders,ordinances,statutes,codes,end roquiromonts of any
applicable Fire Rating Bureau or other body exercising similar functions),the temporary and/or pornianent certificate or
certificates of occupancy Issued for the Premtsea as then In force,and any and all provisions and requirements of any
property, casualty, or other Insurance policy required to be carried by Tenant under this Concession Agreement. if,
duo to Tenant's use of the Promises, repairs,Improvements,or alterations aro necessary to comply with any of the
foregoing, Tenant shall pay the entire cost thereof,
3.3 !gne. Tenant, at Tenant's expense, shall erect and maintain Identification signago upon the
storefront of the Premises. The design and specification of such slgnago shall bo subject to Landlord's sign criteria
as adopted from time to time and such design and specification(including camera-ready artwork)shell bo submitted
for Landlord's prior approval. Except with the prior written consent of Landlord, Tenant shall not erect, Install,
display,Inscribe, paint, or affix any signs,lettering,or advertising medium upon or above any exterior portion of the
Promises or In or on Tenant's storefront or storefront window. Landlord's signage criteria is attached hereto and
made a part hereof as Exhibit"E."
3.4 ttf.911.9 I10LE[9Y141Quu,
(A) Tenant shall not knowingly incorporate Into, use, or otherwise place or dispose of any
Hazardous Materials,as hereinafter defined,unless(I)such Hazardous Materials are for use In the ordinary course
of business (i.o., as with office or cleaning supplies), (II)notice of and a copy of tho current material safety dote
sheet is provided to Landlord for each such Hazardous Material(except for Hazardous Materials used by Tenant In
the ordinary course of business(I o., as with office or cleaning supplies)), and(ill)such materials are handled and
disposed of In accordance with all applicable governmental laws,rules, and regulations. If Landlord or Tenant over
has knowledge of the presence in the Premises or the Concession Area of Hazardous Materials which affect the
Promises,such party shall notify the other thereof In writing promptly after obtaining such knowledge. For purposes
of this Concession Agreement,"Hazardous Materials"shall moon (a)petroleum and Its constituents;(b)radon gas,
asbestos In any form which is or could become friable, urea formeldohydo foam insulation, transformers or other
equipment which contain dielectric fluid containing levels of polychlorinated biphonyls in excess of federal,state or local
safety guidelines,whichever are more stringent,(a)any substance,gas,material or chemical which is or may hereafter
be defined as or Included in the definition of"hazardous substances," "hazardous materiels," "hazardous wastes,"
"pollutants or contaminants, "solid wastes,"or words of similar Import under any applicable governmental laws,rules,
and regulations Including,but not limited to, the Comprehensive Environmental Response,Compensation end Liability
Act, as amended, 42 U S.C. §9061 et seq.; the Hazardous Materials Transportation Act. as amended, 49 U.S.C.
§ 1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S C. §6901, of seq.; the Federal
Water Pollution Control Act,as amended, 33 U.S C § 1261,et seq.;and Florida Statutes,Chapters 376 and 403,and
(d)any other chemical, material, gas, or substance, the exposure of which Is regulated by any governmental or
quasi-governmental entity having jurisdiction over the Concussion Area or the operations thereon.
(B) If Tenant or Its employees, agents, or contractors shall ever violate the provisions of
subsection(A), above, then Tenant shall clean-up, remove, and dispose of the Hazardous Material causing the
violation, In compliance with all applicable governmental standards, laws, rules, and regulations and repair any
damage to the Concession Area within such period of time as may be reasonable under the circumstances after
written notice by Landlord, provided that such work shall commence not later than thirty(30)days from such notice
and be diligently and continuously carried to completion by Tenant or Tenant's designated contractors.Tenant shall
notify Landlord of Its method, time, and procedure for any clean-up or removal of Hazardous Materials under this
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provision;and Landlord shall have the right to require reasonable changes in such method, time, or procedure or
to require the same to be done after normal business hours or when the Concession Area is otherwise closed(i.e.,
holidays)if reasonably required for the protection of other tenants or occupants of the Concession Area.
(C) Tenant agrees to defend, indemnify, and hold harmless Landlord, and the City of Miami
Beach(the"City")against any and all claims,costs,expenses,damages,liability,and the like,which Landlord may
hereafter be liable for,suffer,incur,or pay arising under any applicable environmental laws, rules,and regulations
and resulting from or arising out of any breach of the covenants contained in this section 3.4, or out of any act,
activity,or violation of any applicable environmental laws, rules, and regulations on the part of Tenant, its agents,
employees,or assigns.Tenant's liability under this section 3.4 shall survive the expiration or any termination of this
{ Concession Agreement.
3.5 Hours;Continued Occupancy. During the Term,Tenant shall conduct its business in the Premises,
at a minimum, on all days and during all hours established by Landlord from time to time as hours for Concession
Area. Tenant may conduct business on the Premises, in addition to the foregoing times, in Tenant's reasonable
judgment in order to maximize sales from the Premises,at Tenant's sole expense;provided, however,that Tenant
does not to exceed the approved hours of operation set forth in paragraph 23 of the Concession Summary.
However, Landlord shall not be responsible for providing services during such additional hours.Tenant shall open
the whole of the Premises for business to the public, fully fixtured, stocked, and staffed in accordance with the
Concession Summary, unless otherwise approved in writing by Landlord, and shall continuously, actively, and
diligently carryon the business specified in section 3.1 on the whole of the Premises during the Term,during such
hours and upon such days as are herein required,except when prevented from doing so by a Force Majeure event
(as defined in Section 16.16).Tenant acknowledges that its continued occupancy of the Premises and the regular
conduct of its business therein are of utmost importance to neighboring tenants and to Landlord in the renting of
space in the Concession Area, the renewal of other concessions therein, the efficient and economic supply of
services and utilities. Tenant acknowledges that Landlord is executing this Concession Agreement in reliance
thereupon and that the same is a material element inducing Landlord to execute this Concession Agreement.
Tenant shall not keep or display any merchandise on or otherwise obstruct the common areas and shall not sell,
advertise, conduct, or solicit business anywhere within the Concession Area other than in the Premises. Tenant
shall ship and receive supplies, fixtures, equipment, furnishings, wares, and merchandise only through the
appropriate service and delivery facilities provided by Landlord; and shall not park its trucks or other delivery
vehicles or allow suppliers or others making deliveries to or receiving shipments from the Premises to park in the
parking areas, except in those parts thereof as may from time to time be allocated by Landlord for such purpose.
Tenant shall maintain sufficient goods, wares, personnel, and merchandise adequate to ensure the successful
operation of Tenant's business and to ensure proper service to customers.
3.6 Prohibited Uses. Notwithstanding any other provisions of this Concession Agreement,Tenant shall
not use the Premises nor permit the Premises to be used for any purpose not expressly permitted in this Concession
Agreement including: (A)for the sale by Tenant, as its principal business purpose, of any merchandise which
Tenant, in the course of its normal business practice, purchases at manufacturers' clearances or purchases of
ends-of-runs,bankruptcy stock,seconds,or other similar merchandise;(B)for the sale of second-hand goods,war
surplus articles, insurance salvage stock,fire sale stock, merchandise damaged by or held out to be damaged by
fire,except merchandise damaged by fire or smoke occurring in the Concession Area, and then only for thirty(30)
days after the date of any such damage; (C)as an auction or flea market; (D)for a bankruptcy sale or
going-out-of-business sale or liquidation sale or any similar sale, unless Tenant is in fact in bankruptcy or is going
out of business or is in liquidation,in which case such sale shall not continue beyond thirty(30)days;(E)a business
primarily used for an order office, mail order office, or catalogue store; or (F)any business in which Tenant is
engaged in intentionally deceptive or fraudulent advertising or selling practices or any other act or business practice
contrary to honest retail practices(G)the offer or sale of Hookah, E Cigarettes or CBD products.
ARTICLE IV. ACCESS AND ENTRY.
4.1 Right of Examination.Landlord shalt be entitled at all reasonable times and upon reasonable written
notice,not less than 24 hours (but no notice is required in emergencies)to enter the Premises to examine them if
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Landlord reasonably believes that Tenant is not complying with any of its obligations hereunder; to make such
repairs, alterations, or improvements thereto as Landlord considers necessary or reasonably desirable; to have
access to underfloor facilities and access panels to mechanical shafts and to check,calibrate,adjust,and balance
controls and other parts of the heating,air conditioning,ventilating,and climate control systems.Landlord reserves
to itself(and others acting on behalf of Landlord including,without limitation, the City)the right to install, maintain,
use, and repair pipes, ducts, conduits, vents,wires, and other installations leading in, through, over, or under the
Premises and for this purpose,Landlord may take all material into and upon the Premises which is required therefor.
Tenant shall not unduly obstruct any pipes,conduits, or mechanical or other electrical equipment so as to prevent
reasonable access thereto. Landlord reserves the right to use all exterior walls and roof area. Landlord shall
exercise its rights under this section,to the extent possible in the circumstances, in such manner so as to minimize
interference with Tenant's use and enjoyment of the Premises and Tenant's property.
4.2 Right to Show Premises. Landlord and its agents have the right to enter the Premises at all
reasonable times and upon reasonable written notice not less than 24 hours to show them to prospective
purchasers, lenders, or anyone having a prospective interest in the Concession Area, and, during the last six(6)
months of the Term (or the last six(6)months of any renewal term if this Concession Agreement is renewed), to
show them to prospective tenants.Landlord shall exercise its rights under this section,to the extent possible in the
circumstances, in such manner so as to minimize interference with Tenant's use and enjoyment of the Premises
and Tenant's property.
ARTICLE V.
5.1 intentionally omitted.
5.2 Maintenance and Repairs by Landlord. It is hereby acknowledged and agreed that Landlord shall
maintain and repair the foundations and all structural components of the Concession Area. Tenant shall notify
Landlord in writing of any necessary repairs that are the obligation of Landlord. Landlord shall not be responsible
for any of Tenant's damages caused by(1)a failure of any equipment or facilities serving the Concession Area or
(2) delays in the performance of any work for which the Landlord is responsible to perform pursuant to this
Concession Agreement. Notwithstanding any other provisions of this Concession Agreement, if any part of the
Concession Area is damaged or destroyed or requires repair, replacement, or alteration as a result of the act or
omission of Tenant, its employees, agents, invitees, licensees, or contractors, Landlord shall have the right to
perform same and the cost of such repairs, replacement, or alterations shall be paid by Tenant to Landlord upon
demand. In addition,if,in an emergency,it shall become necessary to promptly make any repairs or replacements
otherwise required to be made by Tenant, Landlord may re-enter the Premises and proceed forthwith to have the
repairs or replacements made and pay the costs thereof. Upon demand,Tenant shall reimburse Landlord for the
cost of making repairs under this Article 5.2. Landlord shall exercise its rights under this section in a manner so as
to minimize any disruption or interference with the operation of Tenant's business and property.
5.3 Maintenance and Repairs by Tenant. Tenant shall, at its sole cost, repair and maintain the
Premises to a standard consistent with a first-class commercial restaurant outdoor seating area,with the exception
of base building,which is the obligation of the Landlord. Without limiting the generality of the foregoing,Tenant is
specifically required to maintain and make repairs to (i)the portion of any pipes, lines, ducts, wires, or conduits
contained within the Premises including,without limitation,interior plumbing and electrical installations,(ii)windows,
plate glass,doors,and any fixtures or appurtenances composed of glass(including,without limitation,interior and
exterior washing of windows and plate glass and the installation of hurricane shutters, if provided by the Landlord);
and(iii)Tenant's sign. All repair and maintenance performed by Tenant in the Concession Area shall be performed
by contractors or workmen designated or approved by Landlord,which approval shall not be unreasonably withheld
or delayed. At the expiration or earlier termination of the Term,Tenant shall surrender the Premises to Landlord in
as good condition and repair as Tenant is required to maintain the Premises throughout the Term,reasonable wear
and tear excepted.Tenant shall also furnish, maintain, and replace all electric light bulbs, tubes,and tube casings
located within or serving the Premises and Tenant's signage,all at Tenant's sole cost and expense.
5.4 Arbroval of Tenant's Alterations. Unless otherwise provided herein, lib alterations (including,
without limitation, improvements, additions, or modifications to the Premises) shall be made by Tenant to the
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Premises without Landlord's prior written approval,which,as to exterior or structural alterations may be withheld in
Landlord's sole discretion. Any alterations by Tenant shall be performed at the sole cost of Tenant, by contractors
end workmen approved by Landlord,which approval shall not be unreasonably withheld or delayed, in a good and
workmanlike manner, and in accordance with all applicable laws and regulations.
5.5 Removal of Improvements and Fixtures. All improvements and fixtures (other than unattached,
movable trade fixtures which can be removed without damage to the Premises) shall at the expiration or earlier
termination of this Concession Agreement become Landlord's property.Tenant may,during the Term, in the usual
course of its business, remove its trade fixtures, provided that Tenant is not in default under this Concession
Agreement; and Tenant shall, at the expiration or earlier termination of the Term, at its sole cost, remove such
improvements(except for improvements installed by Landlord prior to the Commencement Date)and trade fixtures
In the Premises as Landlord shall require to be removed to restore the Premises to the condition existing prior to
such removal.Tenant shall at its own expense repair any damage caused to the Concession Area by such removal.
If Tenant does not remove its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures
shall,at the option of Landlord, become the property of Landlord and may be removed from the Premises and sold
or disposed of by Landlord in such manner as Landlord deems advisable without any accounting to Tenant.
5.6 Liens.Tenant shall promptly pay for all materials supplied and work done in respect of the Premises
by,through,or under Tenant so as to ensure that no lien is recorded against any portion of the Concession Area or
against Landlord's or Tenants interest therein. If a lien is so recorded, Tenant shall discharge it promptly by
payment or bonding. If any such lien against the Concession Area or Landlord's interest therein is recorded and
not discharged by Tenant as above required within ten(10)days following written notice to Tenant, Landlord shall
have the right to remove such lien by bonding or payment and the cost thereof shall be paid immediately from
Tenant to Landlord. Landlord and Tenant expressly agree and acknowledge that no interest of Landlord in the
Premises or the Concession Area shall be subject to any lien for improvements made by Tenant in or for the
Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant, such liability being
expressly prohibited by the terms of this Concession Agreement. In accordance with applicable laws of the State
of Florida, Landlord has filed in the public records of Miami-Dade County, Florida, a public notice containing a true
and correct copy of this paragraphs and Tenant hereby agrees to inform all contractors and material suppliers
performing work in or for or supplying materials to the Premises of the existence of said notice.
5.7 Utilities.Tenant shall pay to Landlord,or as Landlord directs, all gas, electricity, water, trash,pest
control and other utility charges applicable to the Premises as separately metered. Tenant shall, at its own cost,
install, maintain and repair, as required, its electrical meter for the Premises. In addition, Tenant's electrical
equipment and lighting shall be restricted to that equipment and lighting which individually does not have a rated
capacity and/or design load greater than the rated capacity and/or design load of the Concession Area. If Tenants
consumption of electrical services exceeds either the rated capacity and/or design load of the Concession Area,
then Tenant shall remove the equipment and/or lighting to achieve compliance within ten(10)days after receiving
written notice from Landlord,or such equipment and/or lighting may remain in the Premises,so long as(a)Tenant
shall pay for all costs of installation and maintenance of submeters,wiring,air-conditioning,and other items required
by Landlord, in Landlord's reasonable discretion, to accommodate Tenant's excess design loads and capacities;
and (b)Tenant shall pay to Landlord, within thirty(30) days after rendition of a bill, the cost of the excess
consumption of electrical service at the rates charged to Landlord by Florida Power & Light, which shall be in
accordance with any applicable laws.
ARTICLE VI. INSURANCE AND-INDEMNITY.
6.1 Tenant's Insurance. Tenant shall, throughout the Term (and any other period when Tenant is in
possession of the Premises), maintain at its sole cost the following insurance:
(A) Worker's Compensation Insurance for all employees of the Tenant 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
Concession Agreement. The exempt Tenant shall also submit (i) a written statement detailing the number of
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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 Concession Agreement or(ii)a copy of a Certificate of Exemption.
(B) 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.
(C) 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 improvements installed in the
Premises by or on behalf of Tenant and including without limitation all of Tenants 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 Concession Agreement).
(D) Liquor Liability Insurance on an occurrence basis, including property damage, bodily injury and
personal&advertising injury with limits no less than$1,000,000 per occurrence.
(E) 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.
6.2 Additional Insured.Landlord and the 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, hired or borrowed in the form of an
endorsement to the Tenant's insurance.
6.3 Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not
be cancelled,except with notice to the Landlord c/o EXIGIS Insurance Compliance Services.
6.4 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
Landlord and the City have received a waiver of subrogation endorsement from the insurer.
6.5 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.
6.6 Verification of Coverage.Tenant shall furnish to the Landlord and the City with original certificates
and amendatory endorsements,or copies of the applicable insurance language, effecting coverage required by this
Concession Agreement. All certificates and endorsements are to be received and approved by the Landlord and
the City before work commences. However,failure to obtain the required documents prior to the work beginning
shalt not waive the Tenant's obligation to provide them. The Landlord and the City reserve 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:
MIAMI BEACH REDEVELOPMENT AGENCY AND THE 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-miam ibeach(a�riskworks.com
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6.7 Special Risks or Circumstances.Landlord and the City of Miami Beach reserve the right to modify
these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other
special circumstances.
6.8 Compliance with the foregoing requirements shall not relieve the Tenant of his liability and
obligation under this section or under any other section of this Concession Agreement.
6.9 Loss or Damage:Indemnification.
(A) Loss or Damage. Tenant acknowledges that the Landlord will be performing any maintenance and
repairs required of Landlord hereunder.Landlord shall not be liable for any death or injury arising from
or out of any occurrence in, upon, at, or relating to the Concession Area or damage to property of
Tenant or of others located on the Premises or elsewhere in the Concession Area, nor shall it be
responsible for any loss of or damage to any property of Tenant or others from any cause,unless such
death, injury, loss, or damage results from the gross negligence or willful misconduct of Landlord.
Without limiting the generality of the foregoing, Landlord shall not be liable for any injury or damage to
persons or property resulting from fire,explosion,falling plaster,falling ceiling tile,falling fixtures,steam,
gas, electricity, water, plumbing works (outside of the Premises), roof, or subsurface of any floor or
ceiling of the Concession Area or from the street or any other place or by any other cause whatsoever,
unless resulting from the gross negligence or willful misconduct of Landlord.
Notwithstanding the foregoing paragraph, in no event shall Landlord or 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
Premises, or for any damage to person or property arising from a force majeure event,environmental
concerns, theft, vandalism, HVAC malfunction, sprinklers, appliances, plumbing works within the
Premises,windows, dampness,the bursting or leaking of water pipes,any act or omission of Tenant,
or its employee,agent,contractor,invitee,guest, assignee,or sub-tenant or occupant of the Premises
or of any other person, or otherwise.. Additionally, all personal property placed or moved into the
Premises will be at the sole risk of Tenant.
(B) Tenant shall indemnify, defend and hold harmless Landlord and the City of Miami Beach from and
against any and all losses (including loss of Minimum Rent and additional rent payable in respect to
the Premises), claims, actions, damages, liability, and expense of any kind whatsoever (including
attorneys' fees and costs at all tribunal levels), arising from (1) any occurrence in, upon, or at the
Premises, (2) the occupancy, use, or improvement by Tenant, or its employee, agent, contractor,
invitee,guest,assignee,or sub-tenant of the Premises or any part thereof, (3)occasioned wholly or in
part by any act or omission of Tenant or its employee,agent,contractor, invitee,guest,assignee,sub-
tenant or by anyone permitted to be on the Premises by Tenant; (4)any misuse, neglect or unlawful
use of the Premises by Tenant or its employee, agent, contractor, invitee, guest, assignee, or sub-
tenant; or (5) any breach, violation, or non-performance of any undertaking of Tenant under this
Concession Agreement.
(C) No Waiver of Sovereign Immunity. Nothing contained in this Section or elsewhere in this Concession
Agreement is in any way intended to be a waiver of the limitation placed upon the Landlord and the
City's liability as set forth in Florida Statutes Section 768.28.
ARTICLE VII. DAMAGE AND DESTRUCTION.
7.1 Damage to Premises.Tenant acknowledges that if the Premises are partially or totally destroyed
due to fire or other casualty, any repairs to or rebuilding of the damaged portions of the Concession Area will be
performed by Landlord and in any event only to the extent that Landlord is required to repair or rebuild the Concession
Area.If Landlord repairs or rebuilds, Rent shall abate proportionately to the portion of the Premises,if any,rendered
untenantable from the date of destruction or damage until the repairs have been substantially completed. Upon
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being notified that the repairs have been substantially completed, Tenant shall diligently perform all other work
required to fully restore the Premises for use in Tenant's business,in every case at Tenant's cost and without any
contribution to such cost by Landlord,whether or not Landlord has at any time made any contribution to the cost of
supply, installation, or construction of improvements in the Premises. Tenant agrees that during any period of
reconstruction or repair of the Premises, it will continue the operation of its business within the Premises to the
extent practicable. If all or any part of the Premises shall be damaged by fire or other casualty and the fire or other
casualty is caused by the fault or neglect of Tenant or Tenant's agents,guest,or invitees,rent and all other charges
shall not abate.
7.2 Termination for Damage. Notwithstanding section 7.1,if damage or destruction which has occurred
to the Premises or the Concession Area is such that in the reasonable opinion of Landlord such reconstruction or
repair cannot be completed within one hundred twenty(120)days of the happening of the damage or destruction,
Landlord or Tenant may, at its option, terminate this Concession Agreement on notice to the other given within
thirty(30) days after such damage or destruction and Tenant shall immediately deliver vacant possession of the
Premises In accordance with the terms of this Concession Agreement.
in addition,if Landlord undertakes the reconstruction or repair,and does not complete same within nine(9)
months after the date of the fire or other casualty(subject to the time required to prepare plans for reconstruction,
to obtain building permits,to receive distribution of insurance proceeds,and to complete the likely contract bidding
process and all other relevant factors, but not to exceed an additional ninety(90)days),then Tenant shall have the
right to terminate this Concession Agreement by written notice to Landlord delivered within thirty(30)days after the
expiration of such nine(9) month period (or as extended), whereupon both parties shall be relieved of all further
obligations hereunder,except as otherwise expressly set forth herein.
ARTICLE VIII. ASSIGNMENT,CONCESSIONS,AND TRANSFERS.
8.1 Transfer by Tenant.Tenant shall not enter into,consent to,or permit any Transfer, as hereinafter
defined, without the prior written consent of Landlord in each instance,which consent may not be unreasonably
withheld. For purposes of this Concession Agreement, "Transfer" means an assignment of this Concession
Agreement in whole or in part;a sublease of all or any part of the Premises;any transaction whereby the rights of
Tenant under this Concession Agreement or to the Premises are transferred to another; any mortgage or
encumbrance of this Concession Agreement or the Premises or any part thereof or other arrangement under which
either this Concession Agreement or the Premises become security for any indebtedness or other obligations;and
if Tenant is a corporation or a partnership,the transfer of a controlling interest(greater than 50%)in the stock of the
corporation or partnership interests,as applicable provided transfers to family members and transfers to third parties
of less than 50%of the stock of the Tenant are permitted without Landlord consent. If there is a permitted Transfer,
Landlord may collect rent or other payments from the transferee and apply the net amount collected to the rent or
other payments required to be paid pursuant to this Concession Agreement but no acceptance by Landlord of any
payments by a transferee shall be deemed a waiver of any provisions hereof regarding Tenant. Notwithstanding
any Transfer,Tenant shall not be released from any of its obligations under this Concession Agreement. Landlord's
consent to any Transfer shall be subject to the further condition that if the Minimum Rent and additional rent pursuant
to such Transfer exceeds the Minimum Rent and additional rent payable under this Concession Agreement, the
amount of such excess shall be paid to Landlord. If, pursuant to a permitted Transfer, Tenant receives from the
transferee, either directly or indirectly, any consideration other than Minimum Rent and additional rent for such
Transfer, either in the form of cash, goods, or services, Tenant shall, upon receipt thereof, pay to Landlord an
amount equivalent to such consideration. Landlord acknowledges that any proceeds received in connection with
the sale of Tenant's business(which sale shall include a corresponding assignment of this Concession Agreement)
shall belong exclusively to the Tenant and/or its principals).
ARTICLE IX. DEFAULT.
9.1 Defaults. A default by Tenant shall be deemed to have occurred hereunder, if and whenever:
(i)any Minimum Rent is not paid within 5 days from notice or demand for payment has been made by Landlord;
(ii)any other additional rent is in arrears and is not paid within five(5) days after written demand by Landlord;
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(iii)Tenant has breached any of its obligations in this Concession Agreement(other than the payment of rent)and
Tenant fails to remedy such breach within thirty(30) days (or such shorter period as may be provided in this
Concession Agreement), or if such breach cannot reasonably be remedied within thirty(30)days(or such shorter
period),then if Tenant fails to Immediately commence to remedy and thereafter proceed diligently to remedy such
breach, in each case after notice in writing from Landlord; (iv)Tenant becomes bankrupt or insolvent; (v)any of
Landlord's policies of insurance with respect to the Concession Area are canceled or adversely changed as a result
of Tenant's use or occupancy of the Premises; or(vi)the business operated by Tenant In the Premises shall be
closed by governmental or court order for any reason.
9.2 Remedies. In the event of any default hereunder by Tenant,then without prejudice to any other
rights which it has pursuant to this Concession Agreement or at law or in equity, Landlord shall have the following
rights and remedies,which are cumulative and not alternative:
(A) Landlord may cancel this Concession Agreement by notice to Tenant and retake
possession of the Premises for Landlord's account or may terminate Tenant's right to possession of the Premises
without terminating this Concession Agreement. In either event,Tenant shall then quit and surrender the Premises
to Landlord. If Landlord terminates Tenant's right to possession of the Premises without terminating this Concession
Agreement, Tenant's liability under all of the provisions of this Concession Agreement shall continue
notwithstanding any expiration and surrender,or any re-entry,repossession,or disposition hereunder.
(B) Landlord may enter the Premises as agent of Tenant to take possession of any property of
Tenant on the Premises,to store such property at the expense and risk of Tenant or to sell or otherwise dispose of
such property in such manner as Landlord may see fit without notice to Tenant. Re-entry and removal may be
effectuated by summary dispossess proceedings,by any suitable action or proceeding,or otherwise.Landlord shall
not be liable in any way in connection with its actions pursuant to this section, to the extent that its actions are in
accordance with law.
(C) If Landlord terminates Tenant's right to possession of the Premises without terminating this
Concession Agreement under subsection(A)above,Tenant shall remain liable(in addition to accrued liabilities)to
the extent legally permissible for all rent and all of the charges Tenant would have been required to pay until the
date this Concession Agreement would have expired had such cancellation not occurred.Tenant's liability for rent
shall continue notwithstanding re-entry or repossession of the Premises by Landlord. In addition to the foregoing,
Tenant shall pay to Landlord such sums as the court which has jurisdiction thereover may adjudge as reasonable
attorneys'fees with respect to any successful lawsuit or action instituted by Landlord to enforce the provisions of
this Concession Agreement.
(D) Landlord may relet all or any part of the Premises for all or any part of the unexpired portion
of the Term of this Concession Agreement or for any longer period and may accept any rent then attainable;grant
any concessions of rent, and agree to paint or make any special repairs,alterations,and decorations for any new
tenant as it may deem advisable in its sole and absolute discretion.Landlord shall be under no obligation to relet or
to attempt to relet the Premises,except as expressly set forth below.
(E) If Landlord terminates Tenant's right to possession of the Premises without terminating this
Concession Agreement under subsection(A)above,and Landlord so elects,the rent hereunder shall be accelerated
and Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the
remainder of the Term(reduced to present value using a discount factor equal to the stated prime lending rate on
the date of Tenant's default by Landlord's then existing mortgagee or, if there is no mortgagee, by Citibank, N.A.,
New York). Prior to or following payment in full by Tenant of/such discounted sum promptly upon demand,Landlord
shall use good faith efforts to relet the Premises. If Landlord receives consideration as a result of a reletting of the
Premises relating to the same time period for which Tenant has paid accelerated rent, such consideration actually
received by Landlord, less any and all of Landlord's cost of repairs, alterations, additions, redecorating, and other
expenses in connection with such reletting of the Premises, shall be a credit against such discounted sum, and
such discounted sum shall be reduced if not yet paid by Tenant as called for herein, or if Tenant has paid such
discounted sum, such credited amount shall be repaid to Tenant by Landlord(provided said credit shall not exceed
the accelerated amount).
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(F) Landlord may remedy or attempt to remedy any default of Tenant under this Concession
Agreement for the account of Tenant and to enter upon the Premises for such purposes. No notice of Landlord's
intention to perform such covenants need be given Tenant unless expressly required by this Concession
Agreement.Landlord shall not be liable to Tenant for any loss or damage caused by the reasonable acts of Landlord
in remedying or attempting to remedy such default and Tenant shall pay to Landlord all expenses incurred by
Landlord in connection with remedying or attempting to remedy such default. Any expenses incurred by Landlord
shall accrue interest from the date of payment by Landlord until repaid by Tenant at the highest rate permitted by
law.
9.3 Costs.Tenant shall pay to Landlord on demand all costs incurred by Landlord, including attorneys'
fees and costs at all tribunal levels, incurred by Landlord in enforcing any of the obligations of Tenant under this
Concession Agreement. In addition, upon any default by Tenant, Tenant shall be also liable to Landlord for the
expenses to-which Landlord may be put in re-entering the Premises;repossessing the Premises;painting,altering,
or dividing the Premises;combining the Premises with an adjacent space for any new tenant;putting the Premises
in proper repair;protecting and preserving the Premises by placing watchmen and caretakers therein;reletting the
Premises(including attorneys'fees and disbursements,Marshall's fees,and brokerage fees,in so doing);and any
other expenses reasonably incurred by Landlord.
9.4 Additional Remedies: Waiver. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereinafter provided by law. All rights and remedies shall be
cumulative and non-exclusive of each other. No delay or omission by Landlord in exercising a right or remedy shall
exhaust or impair the same or constitute a waiver of,or acquiescence to,a default.
9.5 Default by Landlord. In the event of any default by Landlord,Tenant's exclusive remedy shall be
an action for damages or injunction, but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity,and Landlord shall have a period of thirty(30)days following the date of such notice
in which to cure such default;provided,however,that if such default reasonably requires more than thirty(30)days
to cure, Landlord shall have a reasonable time to cure such default, provided Landlord commences to cure within
such thirty(30) day period and thereafter diligently prosecutes such cure to completion). Notwithstanding any
provision of this Concession Agreement, in the event of a default by Landlord, Tenant hereby agrees and
acknowledges that in no event shall Landlord be liable for any incidental, indirect,special or consequential damages
including,without limitation,loss of revenue or loss of profits of Tenant which may be alleged as a result of Landlord's
default,and Landlord's maximum liability shall be as provided in section 9.6.
9.6 Limitation of Landlord's Liability.
Landlord desires to enter into this Concession Agreement only if in so doing the Landlord can place a limit on its
liability for any cause of action for money damages due to an alleged breach by the Landlord of this Concession
Agreement,so that its liability for any such breach never exceeds the sum of$10,000.00. Tenant hereby expresses
its willingness to enter into this Concession Agreement with Tenant's recovery from the Landlord 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 Concession Agreement, Tenant hereby agrees that the Landlord shall not be
liable to the Tenant for damages 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 Landlord by this Concession
Agreement.Nothing contained in this paragraph or elsewhere in this Concession Agreement is in any way intended
• to be a waiver of the limitation placed upon the Landlord's liability as set forth in Section 768.28, Florida Statutes.
ARTICLE X. ESTOPPEL CERTIFICATE;SUBORDINATION.
10.1 Estoppel Certificate. Within ten(10)days after written request by Landlord,Tenant shall deliver in
a form supplied by Landlord, an estoppel certificate to Landlord as to the status of this Concession Agreement,
including whether this Concession Agreement is unmodified and in full force and effect (or, if there have been
modifications,that this Concession Agreement is in full force and effect as modified and identifying the modification
agreements); the amount of Minimum Rent and additional rent then being paid and the dates to which same have
been paid;whether or not there is any existing or alleged default by either party with respect to which a notice of
default has been served, or any facts exist which, with the passing of time or giving of notice, would constitute a
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s �
t i
default and, if there is any such default or facts, specifying the nature and extent thereof; and any other matters
pertaining to this Concession Agreement as to which Landlord shall request such certificate. Landlord, and any
prospective purchaser,lender,or ground lessor shall have the right to rely on such certificate.
10.2 Subordination;Attornment. This Concession Agreement and all rights of Tenant shall be subject
and subordinate to any and all mortgages, security agreements, or like instruments resulting from any financing,
refinancing, or collateral financing (Including renewals or extensions thereof), and to any and all ground
concessions, made or arranged by Landlord of its interests in all or any part of the Concession Area,from time to
time in existence against the Concession Area,whether now existing or hereafter created. Such subordination shall
not require any further instrument to evidence such subordination. However, on request, Tenant shall further
evidence its agreement to subordinate this Concession Agreement and its rights under this Concession Agreement
to any and all documents and to all advances made under such documents. The form of such subordination shall
be made as required by Landlord, its lender,ground lessor, the City.Tenant shall, if requested by Landlord,or a
mortgagee, owner, or purchaser, or by any person succeeding to the interest of such mortgagee, owner, or
purchaser,as the result of the enforcement of the remedies provided by law or the applicable instrument held by
Landlord,such mortgagee, owner,or purchaser,automatically attorn to and become the tenant of Landlord or any
such mortgagee,owner,purchaser,or successor-in-interest,without any change in the terms or other provisions of
this Concession Agreement; provided, however, that Landlord, said mortgagee, owner, purchaser, or successor
shall not be bound by(a)any payment of rent or additional rent for more than one(1)month in advance,or(b)any
security deposit or the like not actually received by Landlord,such mortgagee,owner,or purchaser, or successor,
or(c)any amendment or modification in this Concession Agreement made without the consent of Landlord, such
mortgagee, owner, purchaser, or successor, or(d)any construction obligation, free rent, or other concession or
monetary allowance,or(a)any set-off,counterclaim,or the like otherwise available against Landlord,or(f)any act
or omission of any prior landlord (including Landlord). Upon request by Landlord, said mortgagee, owner, or
purchaser,or successor,Tenant shall execute and deliver an instrument or instruments confirming its attornment.
Notwithstanding the foregoing,any such subordination of this Concession Agreement shall be conditioned
on the Landlord obtaining a non-disturbance agreement in favor of Tenant from all mortgagees and ground lessors
regarding any financings or other concessions entered into by Landlord with respect to the Concession Area, and
no subordination shall be effective without a corresponding non disturbance agreement.
ARTICLE XI. CONTROL OF CONCESSION AREABY LANDLORD.
11.1 Use and Maintenance of Common Areas Tenant and those doing business with Tenant for
purposes associated with Tenant's business on the Premises,shall have a non-exclusive license to use the common
areas for their intended purposes during normal business hours in common with others entitled thereto and subject
to any rules and regulations imposed by Landlord.Landlord shall use reasonable efforts to keep the common areas
in good repair and condition and shall clean the common areas when necessary.Tenant acknowledges that any
common areas of the Concession Area shall at all times be under the exclusive control and management of
Landlord. For purposes of this Concession Agreement,"common areas"shall mean those areas,facilities,utilities,
improvements,equipment,and installations of the Concession Area which serve or are for the benefit of tenants of
more than one component of the Concession Area and which are not designated or intended by Landlord to be
concession,from time to time,or which are provided or designated from time to time by Landlord and/or the City for
the benefit or use of all tenants in the Concession Area,their employees,customers,and invitees,in common with
others entitled to the use or benefit of same.Tenant acknowledges that the Garage portion of the Facility is not a
part of the Concession Area,and that Tenant has no right or license to use the Garage pursuant to this Concession
Agreement. Any use by Tenant or its invitees of the Garage is subject to the rules and regulations in connection
therewith imposed by Landlord(or successor owner)and/or the operator of the Garage. No portion of the garage
is under Landlord's control or supervision, and Landlord shall not be liable for any damage to automobiles of any
nature whatsoever to,or any theft of, automobiles or other vehicles or the contents thereof, while in or about the
Garage.
11.2 Alterations by Landlord. Landlord and/or the City may(but shall not be obligated to)(i)alter, add
to, subtract from, construct improvements on, re-arrange, and construct additional facilities in, adjoining, or
proximate to the Concession Area; (ii)relocate the facilities and improvements in or comprising the Concession
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I '
Area or erected on the Land;(iii)do such things on or in the Concession Area as required to comply with any laws,
by-laws, regulations,orders,or directives affecting the Land or any part of the Concession Area; and (iv)do such
other things on or in the Concession Area as Landlord and/or the City, in the use of good business judgment
determines to be advisable, provided that notwithstanding anything contained in this section 11.2, access to the
Premises shalt be available at all times.Landlord shall not be in breach of its covenants for quiet enjoyment or liable
for any loss,costs,or damages,whether direct or indirect,incurred by Tenant due to any of the foregoing;provided,
Landlord shall exercise its rights under this section in a manner so as to minimize any disruption or interference
with the operation of Tenant's business and property.
ARTICLE XII. CONDEMNATION.
12.1 Total or Partial Taking. If the whole of the Premises, or such portion thereof as will make the
Premises unusable for the purposes concession hereunder,shall be taken by any public authority under the power
of eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease as of the
day possession or title shall be taken by such public authority,whichever is earlier("Taking Date"),whereupon the
rent and all other charges shall be paid up to the Taking Date with a proportionate refund by Landlord of any rent
and all other charges paid for a period subsequent to the Taking Date. If less than the whole of the Premises, or
less than such portion thereof as will make the Premises unusable for the purposes of a concession hereunder,
the Term shall cease only as to the part so taken as of the Taking Date,and Tenant shall pay rent and other charges
up to the Taking Date,with appropriate credit by Landlord(toward the next installment of rent due from Tenant)of
any rent or charges paid for a period subsequent to the Taking Date. Minimum Rent and other charges payable to
Landlord shall be reduced in proportion to the amount of the Premises taken.
12.2 Award. All compensation awarded or paid upon a total or partial taking of the Premises or
Concession Area including the value of the concession estate created hereby shall belong to and be the property
of Landlord without any participation by Tenant;Tenant shall have no claim to any such award based on Tenant's
concession's interest. However, nothing contained herein shall be construed to preclude Tenant,at its cost,from
independently prosecuting any claim directly against the condemning authority in such condemnation proceeding
for damage to,or cost of removal of,stock,trade fixtures,furniture,and other personal property belonging to Tenant
and for Tenant's moving expenses; provided, however, that no such claim shall diminish or otherwise adversely
affect Landlord's award or the award of any mortgagee.
ARTICLE XIII PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES,SINGLE-USE PLASTIC BEVERAGE STRAWS,AND SINGLE-USE PLASTIC STIRRERS.
13.1 Tenant hereby agrees and acknowledges that, pursuant to Section 82-7 of the City Code, as may
be amended from time to time,Tenant shall not sell,use, provide food in,or offer the use of expanded polystyrene
food service articles (as defined in City Code Section 82-7) in the Premises. A violation of this section shall be
deemed a default under the terms of this Concession Agreement.Notwithstanding the above,this section shall not
apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed
prior to receipt by Tenant.
13.2 Additionally,Tenant agrees and acknowledges that, pursuant to Section 82-8 of the City Code, as
may be amended from time to time,Tenant shall not sell,use, provide food in,or offer the use of single-use plastic
beverage straws or single-use plastic stirrers(as defined in City Code Section 82-8)in the Premises.A violation of
this section shall be deemed a default under the terms of this Concession Agreement. Notwithstanding the above,
the requirements of Section 82-8 shall not restrict Tenant from providing a beverage with, or offering the use of, a
single-use plastic beverage straw or single-use plastic stirrer to an individual with a disability or medical condition
that impairs the consumption of beverages without a single-use plastic beverage straw or single-use plastic stirrer.
13.3 As additional consideration for this Concession Agreement, separate and apart from the
requirements of Sections 82-7 and 82-8 of the City Code,Tenant agrees:
(A) not sell, use, provide food in,or offer the use of expanded polystyrene food service articles in the
Premises. A violation of this section shall be deemed a default under the terms of this Concession Agreement.
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Notwithstanding the above, this section shall not apply to expanded polystyrene food service articles used for
prepackaged food that have been filled and sealed prior to receipt by Tenant;and
(B) not sell, use, provide food in, or offer the use of single-use plastic beverage straws or single-use
plastic stirrers in the Premises. A violation of this section shall be deemed a default under the terms of this
Concession Agreement. Notwithstanding the above, Tenant shall be permitted to providing a beverage with, or
offering the use of,a single-use plastic beverage straw or single-use plastic stirrer to an individual with a disability
or medical condition that impairs the consumption of beverages without a single-use plastic beverage straw or
single-use plastic stirrer.
ARTICLE XIV. TENANT'S COMPLIANCE WITH FLORIDA'S PUBLIC RECORDS LAW.
14.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may
be amended from time to time.
14.2 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.
14.3 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.
14.4 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 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.
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14.5 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:
(1) The court determines that the Tenant unlawfully refused to comply with the public records
request within a reasonable time;and
(2) At least 8 business days before filing the action, the plaintiff provided written notice of the
public records request, including a statement that the Tenant has not complied with the request, to the City and to
the Tenant.
(B) A notice complies with subparagraph (A)(2) 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.
14.6 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
ARTICLE XV. INSPECTOR GENERAL AUDIT RIGHTS.
15.1 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.
15.2 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.
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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.
15.3 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.
15.4 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.
15.5 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 Concession Agreement, for
examination, audit, or reproduction, until three(3)years after final payment under this Concession Agreement or
for any longer period required by statute or by other clauses of this Concession Agreement. In addition:
(A) If this Concession 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
(B) The Tenant shall make available records relating to appeals or to litigation or the settlement of
claims arising under or relating to this Concession Agreement until such appeals, litigation, or claims are finally
resolved.
15.6 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 Concession Agreement.
• 15.7 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.
ARTICLE XVI. GENERAL PROVISIONS.
16.1 Delay. Whenever a period of time is herein prescribed for the taking of any action by Landlord or
Tenant, as applicable, Landlord or Tenant, as applicable,shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials,war,or governmental laws,regulations,or restrictions in the nature of a prohibition or moratorium,
or any bona fide delay beyond the reasonable control of Landlord or Tenant,as applicable. The foregoing shall not
apply to any payments of money due under this Concession Agreement.
16.2 Holding Over. If Tenant remains in possession of the Premises after the end of the Term without
having executed and delivered an agreement extending the Term,there shall be no tacit renewal of this Concession
Agreement or the Term, and Tenant shall be deemed to be occupying the Premises as a Tenant from month to
month at a monthly Minimum Rent payable in advance on the first day of each month equal to twice the monthly
amount of Minimum Rent payable during the last month of the Term, and otherwise upon the same terms as are
set forth in this Concession Agreement.so far as they are applicable to a monthly tenancy.
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16.3 Waiver;Partial Invalidity. If Landlord excuses or condones any default by Tenant of any obligation
under this Concession Agreement, this shall not be a waiver of such obligation in respect of any continuing or
subsequent default and no such waiver shall be implied. All of the provisions of this Concession Agreement are to
be construed as covenants even though not expressed as such. If any provision of this Concession Agreement is
held or rendered illegal or unenforceable it shall be considered separate and severable from this Concession and
the remaining provisions of this Concession Agreement shall remain in force and bind the parties as though the
illegal or unenforceable provision had never been included in this Concession Agreement.
16.4 Recording. Neither Tenant nor anyone claiming under Tenant shall record this Concession
Agreement or any memorandum hereof in any public records without the prior written consent of Landlord.
16.5 Notices. Any notice, consent, or other instrument required or permitted to be given under this
Concession Agreement shall be in writing and shall be delivered in person, or sent by certified mail,return receipt
requested, or overnight express mail courier, postage prepaid,addressed(i)if to Landlord,at the address set forth
in the Concession Summary;and(ii)if to Tenant,at the Premises or,prior to Tenant's occupancy of the Premises,
at the address set forth on the Concession Summary. Any such notice or other instruments shall be deemed to
have been given and received on the day upon which personal delivery is made or, if mailed, then forty-eight(48)
hours following the date of mailing. Either party may give notice to the other of any change of address and after
the giving of such notice, the address therein specified is deemed to be the address of such party for the giving of
notices. If postal service is interrupted or substantially delayed, all notices or other instruments shall be delivered
in person or by overnight express mail courier.
16.6 Successors; Joint and Several Liability. The rights and liabilities created by this Concession
Agreement extend to and bind the successors and assigns of Landlord and the heirs, executors, administrators,
and permitted successors and assigns of Tenant. No rights, however, shall inure to the benefit of any transferee
unless such Transfer complies with the provisions of Article VIII. If there is at any time more than one Tenant or
more than one person constituting Tenant, their covenants shall be considered to be joint and several and shall
apply to each and every one of them.
16.7 Captions and Section Numbers. The captions, section numbers, article numbers, and table of
contents appearing in this Concession Agreement are inserted only as a matter of convenience and in no way affect
the substance of this Concession Agreement.
16.8 Extended Meanings. The words"hereof,""hereto,""hereunder,"and similar expressions used in
this Concession Agreement relate to the whole of this Concession Agreement and not only to the provisions in
which such expressions appear. This Concession Agreement shall be read with all changes in number and gender
as may be appropriate or required by the context. Any reference to Tenant includes,when the context allows, the
employees, agents, invitees, and licensees of Tenant and all others over whom Tenant might reasonably be
expected to exercise control. This Concession Agreement has been fully reviewed and negotiated by each party
and their counsel and shall not be more strictly construed against either party.
16.9 Entire Agreement:Governing Law:Time. This Concession Agreement and the Exhibits and Riders,
if any, attached hereto are incorporated herein and set forth the entire agreement between Landlord and Tenant
concerning the Premises and there are no other agreements or understandings between them. This Concession
Agreement and its Exhibits and Riders may not be modified except by agreement in writing executed by Landlord
and Tenant. This Concession Agreement shall be construed in accordance with and governed by the laws of the
State of Florida. Time is of the essence of this Concession Agreement.
16.10 No Partnership. The parties hereby acknowledge that it is not their intention under this Concession
Agreement to create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy,
co-ownership,or agency relationship. Accordingly,notwithstanding any expressions or provisions contained herein,
nothing in this Concession Agreement,whether based on the calculation of rental or otherwise,shall be construed
or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy-in-common, joint
22
DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
!f4
•
tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the parties hereto. The
provisions of this section shall survive expiration of the Term.
16.11 Quiet Enjoyment. If Tenant pays rent and other charges and fully observes and performs all of its
obligations under this Concession Agreement, Tenant shall be entitled to peaceful and quiet enjoyment of the
Premises for the Term without interruption or interference by Landlord or any person claiming through Landlord.
16.12 Radon Notice. Chapter 88-285, Laws of Florida, requires the following notice to be provided with
respect to the contract for sale and purchase of any building, or a rental agreement for any building. RADON GAS:
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may
be obtained from your county public health unit.
16.13 No Discrimination. Concessionaire hereby agrees hereby agrees to comply with City of Miami
Beach Human Rights Ordinance,as codified in Chapter 62 of the City Code,as may be amended from time to time,
prohibiting discrimination in employment (including independent contractors), housing, public accommodations,
public services, and in connection with its membership or policies, because of actual or perceived race, color,
national origin, religion, sex, intersexuality, sexual orientation, gender identity, familial and marital status, age,
ancestry, height, weight, hair texture and/or hairstyle, domestic partner status, labor organization membership,
familial situation, political affiliation,or disability.
16.14 Execution. This Concession Agreement has been submitted for discussion purposes only and shall
not be deemed an offer by either party to the other to enter Into this Concession Agreement unless and until this
Concession Agreement shall have been executed by both parties, indicating their acceptance of the terms and
conditions contained herein.
16.15 TRIAL BY JURY.LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS CONCESSION AGREEMENT.
16.16 Force Maieure. No party hereto shall be liable for its failure to carry out its obligations under the
Agreement during a period when such party is rendered unable, in whole or in part, by Force Majeure to carry out
such obligations. A"Force Majeure" event is an event that(i) in fact causes a delay in the performance of the
Concessionaire or the City's obligations under the Agreement, and (ii)is beyond the reasonable control of such
party, which may include events such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism,
sabotage, explosions, embargo restrictions, quarantine restrictions, transportation accidents, strikes, strong
hurricanes or tornadoes, earthquakes, or other acts of God which prevent performance. Force Majeure shall not
include technological impossibility,inclement weather, or failure to secure any of the required permits pursuant to
the Agreement. If the City or Concessionaire's performance of its contractual obligations is prevented or delayed
by an event believed by to be Force Majeure,such party shall immediately, upon learning of the occurrence of the
event or of the commencement of any such delay,but in any case within fifteen(15)business days thereof, provide
notice to the other party. The timely delivery of the notice of the occurrence of a Force Majeure event is a condition
precedent to allowance of any relief pursuant to this section; however, receipt of such notice shall not constitute
acceptance that the event claimed to be a Force Majeure event is in fact Force Majeure,and the burden of proof of
the occurrence of a Force Majeure event shall be on the requesting party. In no event will any condition of Force
Majeure extend this Agreement beyond its stated term.
[THE REMAINDER OF THiS PAGE IS INTENTIONALLY LEFT BLANK)
23
DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
EXECUTED as of the day and year first above written.
ATTEST: LANDLORD:
MIAMI BEACH REDEVELOPMENT AGENCY,
a public body corporate and politic
e—DocuStgned by:
By: OAd, GV'aln alk 212-1 I'25$2'By. `•.1ckiC
I6rdi e.%Fig°do,Secretary ,Wna T.Hudak Executive V irector
By:
Witness
Print Name
Date:
ATTEST: TENANT:
z...
OPEN VISION ONE,LLC,a Florida limited liability company
By:
Witness B jac,Miroslav,President
Print Name
By: /arr& Pedal
itn ss
Print Name
Date: 0 2• (0* • 0-0ay
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
OZIo4ZI
City Attorney 54:r Date
24
•
DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
1i
EXHIBIT"A"
Legal Description
Lots 8, 9, 10, 11, 12 and 13, Block 57, Fisher's First Subdivision of Alton Beach, according to the Plat thereof, as
recorded in Plat Book 2, Page 77 of the Public Records of Dade County, Florida, together with all of 16th Street
(Avenue"C"),less and except the following described parcel:
BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of Alton Beach Plat;thence North
88° 0' 53" East along the South line of said Block 54, a distance of 443.08 feet, to the Southeast corner of said
Block 54;thence South 07°35'04"West,a distance of 96 26 feet,to a point of cusp with a tangent curve concave
to the Southwest;thence along the arc of said curve to the left, having a radius of 25.00 feet and a central angel of
90°00'00",an arc distance of 39.27 feet,to a point of tangency;thence North 82°24'52"West,a distance of 24.75
feet;thence South 88°00'53"West along a line 8.00 feet North of and parallel with,as measured at right angles to
the North line of Block 57 of said plat, a distance of 382.18 feet to a point on the Easterly Right-of-Way line of
Washington Avenue;thence North 01°59'11"West along said Easterly Right-of-Way line,a distance of 62.00 feet
to the Southwest corner of said Block 54 and the Point of beginning.
Said lands lying and being in the City of Miami Beach and containing 65,910 square feet(1.5131 Acres)more or
less.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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DocuSign Envelope ID:2FF7DAFB-0700-4302-6499-DFDF4DC881AC
EXHIBIT"C"
RULES AND REGULATIONS
1. Security.Landlord may from time to time adopt appropriate systems and procedures for the security
or safety of the Concession Area, any persons occupying, using, or entering the same, or any equipment,
furnishings,or contents thereof,and Tenant shall comply with Landlord's reasonable requirements relative thereto.
2. Return of Keys. At the end of the Term, Tenant shall promptly return to Landlord all keys for the
Concession Area and Premises which are in the possession of Tenant. In the event any Tenant fails to return keys,
Landlord may retain$300.00 of Tenant's security deposit for locksmith work and administration.
3. Repair, Maintenance. Alterations, and Improvements. Tenant shall carry out Tenant's repair,
maintenance, alterations, and improvements in the Premises only during times agreed to in advance by Landlord
and in a manner which will not interfere with the rights of other Tenant's in the Concession Area.
4. Water Fixtures.Tenant shall not use water fixtures for any purpose for which they are not intended,
nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting from such misuse by
Tenant shall be paid for by Tenant.
5. Personal Use of Premises. The Premises shall not be used or permitted to be used for residential,
lodging,or sleeping purposes or for the storage of personal effects or property not required for business purposes.
6. Heavy Articles. Tenant shall not place in or move about the Premises without Landlord's prior
written consent any safe or other heavy article which in Landlord's reasonable opinion may damage the Premises,
and Landlord may designate the location of any such heavy articles in the Premises.
7. Bicycles,Animals.Tenant shall not bring any animals or birds into the Concession Area and shall
not permit bicycles or other vehicles inside or on the sidewalks outside the Concession Area except in areas
designated from time to time by Landlord for such purposes.
6. Deliveries.Tenant shall ensure that deliveries of supplies,fixtures,equipment,furnishings,wares,
and merchandise to the Premises are made through such entrances,elevators,and corridors and at such times as
may from time to time be designated by Landlord and shall promptly pay or cause to be paid to Landlord the cost
of repairing any damage in the Concession Area caused by any person making improper deliveries.
1
9. Solicitations.Landlord reserves the right to restrict or prohibit canvassing,soliciting,or peddling in
the Concession Area.
10. Refuse. Tenant shall place all refuse in proper receptacles provided by Tenant at its expense in
the Premises or in receptacles(if any)provided by Landlord for the Concession Area and shall keep sidewalks and
driveways outside the Retail Space, and lobbies,corridors, stairwells, ducts, and shafts of the Concession Area,
free of all refuse.
11. Obstructions. Tenant shall not obstruct or place anything in or on the sidewalks or driveways
outside the Concession Area or in the lobbies, corridors,stairwells,or other common areas, or use such locations
for any purpose except access to and exit from the Premises without Landlord's prior written consent.Landlord may
remove at Tenant's expense any such obstruction or thing caused or placed by Tenant (and unauthorized by
Landlord)without notice or obligation to Tenant.
DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
12. Proper Conduct. Tenant shall not conduct itself in any manner which is inconsistent with the
character of the Concession Area as a first quality retail center,or which will impair the comfort and convenience of
other Tenant's in the Concession Area.
13. Emolovees, Agents, and Invitees. In these Rules and Regulations, "Tenant" includes the
employees, agents, invitees,'and licensees of Tenant and others permitted by Tenant to use or occupy the
Premises.
14. Pest Control. In order to maintain satisfactory and uniform pest control throughout Concession
Area,Tenant shall engage for its own Premises and at its sole cost,a qualified pest extermination contractor either
designated or approved by Landlord,who shall perform pest control and extermination services in the Premises at
such intervals as reasonably required or as may be directed by Landlord.
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DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
EXHIBIT"D"
Prohibited Uses
1. In no event may the primary business at the Premises engage in the operation of a cocktail lounge.
2. In no event may the primary business of the Premises engage in the operation of a Cuban or Latin cuisine.
It is not the intent of Prohibited Uses to limit Tenant's Permitted Use, but to limit direct competition,consolidation of
merchandise, services, and business image between tenants. It is understood there may be some items or item
categories available in multiple locations at the Concession Area, but there shall not be comparable categories
along with a similar display of business image.
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DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
EXHIBIT"E"
Landlord's Signage Criteria
Tenant Sign Standards—l6'^ Street and Washington Avenue Frontages
Tenant signage is to be located in the 6'-0"wide transom panel above the entrance doors to each space.
One 15amp 110volt AC electrical circuit has been provided at the designated sign location above the entrance
doors for illuminated tenant signage. The area of the sign shall not exceed twenty(20)square feet.
Three(3)tubular aluminum mounting rails are provided on the transom framing, in front of the glass line. The
tenant sign shall mount to the rails and shall be composed of individual letters, symbols, or decorative elements.
The individual letters are encouraged to be neon illuminated.
No box signs are allowed so as to maintain maximum transparency of the storefront line.
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Receiving Door Signs
Each store shall have a sign identifying their receiving door,adjacent to the latch side of the door.Tenant
shall provide acid etched aluminum panel with blind studs,silicone cemented to the wall at 5'-0"above
the finished floor.Tenant name copy shall be acid-etched and paint filled.
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DocuSign Envelope ID:07A8222C-6ED1-4B12-99C6-0013C91A6D97
RESOLUTION NO. 681-2023
A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA), ACCEPTING THE
RECOMMENDATION OF THE CITY'S FINANCE AND ECONOMIC RESILIENCY
COMMITTEE AND APPROVING AMENDMENT NO. 1 TO THE LEASE
AGREEMENT BETWEEN THE RDA (LANDLORD) AND OPEN VISION ONE,
LLC (TENANT), FOR THE USE OF APPROXIMATELY 4,236 SQUARE FEET
OF GROUND FLOOR RETAIL SPACE AT THE ANCHOR SHOPS AND
GARAGE, AS A FINE DINING RESTAURANT LOCATED AT 1560 COLLINS
AVENUE, SUITE NOS. 3-4; SAID AMENDMENT REDUCING THE
CONCESSION FEE FOR USE OF AN OUTSIDE SEATING AREA, ADJACENT
TO THE PREMISES, FROM THE MINIMUM RENT RATE OF $75.00 PSF TO
$30.00 PSF, PLUS ESCALATIONS EQUAL TO 3°/0 PER YEAR, BRINGING THE
CONCESSION FEE IN LINE WITH THE FEES CHARGED BY THE CITY FOR
SIMILAR USES PURSUANT TO ITS SIDEWALK CONCESSION
AGREEMENTS.
WHEREAS, the Miami Beach Redevelopment Agency (the "RDA") is a public body
corporate and politic, which owns that certain project commonly known as the "Anchor Shops",
containing a garage and ground floor retail spaces located in the area bounded by Washington
Avenue and Collins Avenue, in the proximity of 16th Street; and
WHEREAS, the RDA (Landlord) and Open Vision One, LLC ("Tenant") are parties to a
Lease agreement dated January 13, 2023, pursuant to Resolution No. 673-2022, for use of the
retail spaces at the Anchor Shops, located at 1560 Collins Avenue, Suites Nos. 3-4("Premises"),
as a fine dining restaurant("Lease"); and
WHEREAS, the Lease term is for nine (9) years and 364 days, commencing on January
25, 2023, when possession of the Premises was delivered to Tenant ("Commencement Date"),
and expiring on January.23, 2033; and
WHEREAS, the Tenant began renovation of the Premises to convert the former retail
space to a new, fine dining venue at the Tenant's sole cost and expense, and the Premises is
expected to remain closed during the renovation process until the summer of 2024; and
WHEREAS, under the current Lease provisions, in the event the Tenant desires to use
the exterior area within the footprint of Landlord's property, adjacent to a portion of the Premises,
for outdoor seating ("Outside Concession Area"), the Tenant is required to execute a separate
Concession Agreement; the square footage allowable would be subject to approval by the
Executive Director,-as well as all other governmental City approvals (if necessary); and the
additional square footage of the Outside Concession Area would be subject to the Minimum Base
Rent rate, and applicable sales tax, at the time implemented,which is currently$75.00 per square
foot(PSF); and
WHEREAS, on December 14, 2022, the Chairperson and Members of the Miami Beach
Redevelopment Agency adopted Resolution No. 680-2022 approving a lease agreement for the
adjacent space located 1560 Collins Avenue, Suite Nos. 1-2 with Collins 1560, LLC d/b/a Lime
Tree Café ("Lime Tree"), an affiliate of Tenant(the"Lime Tree Lease"); and
WHEREAS, the lease term for the Lime-Tree Lease and this Lease run concurrently; and
DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC
DocuSign Envelope ID:07A8222C-6ED1-4B12-99C6-0013C91A6D97
WHEREAS, having these two restaurants in close proximity could provide the operator
with cost saving opportunities and increases the opportunity to be successful at both locations;
and
WHEREAS, the Lime Tree lease also allows for the use of the exterior area within the
footprint of Landlord's property, adjacent to a portion of Lime Tree's premises, and requires Lime
Tree to execute a separate Concession Agreement,subject to the initial rental rate of$30.00 PSF,
subject to escalations equal to three percent(3%) per year; and
WHEREAS, the Outdoor Concession Area is an essential component of Tenant's
restaurant operation and, as such, Tenant requested an amendment to the Lease to adjust the
Concession Fee for use of the Outside Concession Area from $75.00 PSF to $30.00 PSF, plus
applicable sales tax, for the first year following Rent Commencement,with escalations thereafter
equal to 3% per year, which would bring the Concession Fee in line with the City's Sidewalk
Concession Agreements; and
WHEREAS, this item was discussed at the April 21, 2023 Finance and Economic
Resiliency Committee (FERC) meeting and the Committee recommended in favor of approving
an amendment to the Lease to place the Concession Fee in line with the concession fee contained
in the Line Tree Lease and the City's Sidewalk Concession Agreements; and
WHEREAS, the Administration recommends accepting the recommendation of the FERC
and approving Amendment No. 1 to the Lease, incorporated herein by reference and attached to
the City Commission Memorandum accompanying this Resolution as Attachment"A".
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRPERSON AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Chairperson and
Members of the Miami Beach Redevelopment Agency hereby accept the recommendation of the
City's Finance and Economic Resiliency Committee and approve Amendment No. 1 to the Lease
agreement between the RDA (Landlord) and Open Vision One, LLC (Tenant), for the use of
approximately 4,236 square feet of ground floor retail space at the Anchor Shops and Garage, as
a fine dining restaurant located at 1560 Collins Avenue,Suite Nos.3-4;said amendment reducing
the Concession Fee for use of an outside seating area adjacent to the Premises, from the
Minimum Rent rate of$75.00 PSF to$30.00 PSF, plus escalations equal to 3% per year, bringing
the Concession Fee in line with the fees charged by the City for similar uses pursuant to its
Sidewalk Concession Agreements.PASSED and ADOPTED this /7 day of mar
2023.
ATTEST: Dan Gelber, Chairperson
a MAY 2 [ 9323
Rafael . Granado, Secretary •
APPROVED AS TO
� RM�', FO &LANGUAGE
/ FOR EXECUTION
It d:,7LIED!
City Arorney .l9YCI Date
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