Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Concession Agreement Summary between CMB & Anchor Shops at South Beach (2)
DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC Co 202`3 RDA- Re$tl I.�i 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 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 Exhioit'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 2 DocuSign Envelope ID: 2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 "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 $20,520/$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%). 3 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 16. Percentage Rental tsect,on 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 6.11: S1,000,000.00 per occurrence; S2,000,000.00 general Aggregate and other insurance requirements 18. Trade Name(section 3.1 j: 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) 4 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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/b/a 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 16"' Street, located in the City of Miami Beach, Miami-Dade County, Flonda, 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 shad 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 Ali rent or other charges that are required to be paid by Tenant to Landlord shall be payable at Landlord s address indicated 5 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 Min.mum 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 Reoorts. 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(1'/z%) 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. 6 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 oe 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 such name as Landlord may from time to time designate for the Concession amendments. Tenant shall display Area in its stationery used upon the Premises, and inv 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 s The names for the Concession Area and the project of which Tenant in regard to its business from the Premise the Concession Area is a part. which Landlord may from time to time adopt, and every name or mark adopted by 7 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 and Tenant's use thereof shall be subtoct to such reasonable regulation as Landlord may from time to time Impose 3 2 cgmpliltnco-witt1iews 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 tho Promises or any street,road, avenue,or sidewalk comprising a part of,or lying in front of, the Promises or any vault In or under the Promises (Including,without limitation, any of the foregoing relating to handicapped access or parking, the local building codes, and the laws, rules,regulations,orders,ordinances, statutes, codes, end requirements of any applicable Fire Rating Bureau or other body exercising similar functions),the temporary and/or permanent certificate or certificates of occupancy issued for the Promises 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 Concosslon Agreement If, due to Tenant's use of tho Promises, repairs, Improvements, or alterations aro necessary to comply with any of the foregoing, Tenant shall pay the entire Coll thereof 3,3 %}gni. Tenant, al Tenant's expense, shall erect and maintain Identification signago upon the storefront of the Premises The design and specification of such signago shell be subject to Landlord's sign criteria as adopted from time to time and such design and specification(including camera-ready artwork)shall be 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 signago criteria Is attached hereto and made a part hereof as Exhibit"E " 3.4 EflYISMOrIlitLEMISItrti. (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 e , as with office or cleaning supplies), (ii)notice of and a copy of the current materiel safety data sheet Is provided to Landlord for each such I tazardous Motional(except for Hazardous Materials used by Tenant in the ordinary course of business (I e , as with office or cleaning supplies)), and (Iii)such materials aro handled and disposed of In accordance with all applicable governmental laws, rules, end regulations If Landlord or Tenant over hos knowledge of the presence in the Premises or the Concession Area of Hazardous Materials which affect the Premises, such party shall notify the other thereof In wiling promptly after obtaining such knowledge For purposes of this Concession Agreement, "Hazardous Materials"shall moan (a)petroleum and its constituents,(b)radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphonyle in excess of foderai, state or local safety guidelines, whichever are more stringent,(c)any substance, gas, material or chemical which is or may hereafter be defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or contaminants,""solid wastes,"or words of similar import under any applicable governmental laws, rules, and regulations including, but not limitexd to, the Comprehensive Environmental Response,Compensation and Liability Act, as amended, 42 U S C §HOC1 et sag , the Hazardous Materiels Transportation Act, as amended, 49 U S C § 1801, et soq , the Resource Conservation and Recovery Act, as amended, 42 U S C §0001, of seq the Federal Water Pollution Control Act, as amended, 33 U S C § 1251,et see ,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 Concession Area or the Operations thereon. (B) If Tenant or its employees, agents or contractors shall ever violate tho provisions of subsection(A), above, then Tenant shall clean-up, remove, and dispose of the I lazardous 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 lime 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 bo 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 8 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 carry on 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 otner 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 (out no notice is required in emergencies)to enter the Premises to examine them if 9 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 plumb ng 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 Approval of Tenant's Alterations. Unless otherwise provided herein, no alterations (including, without limitation, improvements, additions, or modifications to the Premises) shall be made by Tenant to the to DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 and 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 oe 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 Tenant's 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 paragraph, 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 Tenant's 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 11 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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°/o) 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 Tenant's personal property in the Demised Premises (including, without limitation, inventory, trade fixtures. floor coverings, furniture, and other property removable by Tenant under the provisions of this 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 do 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 aiso 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 shall 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 do EXIGIS Insurance Compliance Services P.O. Box 4668—ECM#35050 New York, NY 10163-4668 Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing agent, EXIGIS,at: Certificates-miamibeachOnskworks corn 12 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 addtional 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 substantia ly completed. Upon 13 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 unreasonabiy 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; 14 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC (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 adcition 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 Ciscount 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). 15 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC (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 reed 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 snail 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 mere is any ex•sting 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 16 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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(e)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 hat 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 17 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 shall 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 taker 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 hprphy 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 18 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 dsability or medical condition that impairs the consumption of beverages without a single-use piastic 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 per-form 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. 19 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 (AX2) 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, activvities 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. 20 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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, (bidlproposal)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. Ir 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 21 DocuSign Envelope ID: 2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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 shail be delivered in person or by overnight express mail courier 16.6 Successors, Joint and Several I lability 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, oint tenancy, co-ownership,or agency relationship Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this Concession Agreement, whether based on the calcLlation of rental or otherwise, shal. 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 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 Qulet_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 polices, 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 Majeure. 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 DocuSigned by: `1 By: rafati, • GV611.4adO By: (PI I Ftari A 4F l �' �.��rnado, Secretary Alma T. Hudak Executive Director DocuSigned by: By rt,)tS barigbtti 1 g161DB6EFF418... Regis Barbou Print Name 3/6/2024 6:19 AM PST Date: ATTEST: TENANT: OPEN VISION ONE, LLC, a Florida limited liability company By: • Witness B Jac, Mlroslav, President I Print Name � By: iC!e Pam. a W�tn ss m /VI A +k)L C f ENi- Print•�NName Date: Q.p.' © • a_04 APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION OZ!o4zat City Attorney 'r.#' Date 24 DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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] canc,.son Ay..n°nt O.d•Ov.,v w O,v s.% DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC EXHIBIT"B• Site Plan of Concession Area and Location of Premises 311C11 7.. .'' r..,...--::.:-...--..7. p-r-------Tz\ . .......... .....-:==- lip s.a.r..-4.47,.-- 1 — a I 'All, d lMlt.. ,,, r_ A L . 4•yam' �_� _ �• .. _ . — >a Win: 1 -.1..---.7.s_-, \ i s' C. ) t•Q•) ('E.) (••.) i `I _, i ICI-, .�� �0 ; �:a- .. 'I C - ire _ _I 43 ( ] c04 r. ._) • -— L..,____._________.-___. ‘_- - r _:. Imo-w •i_ *S �iI *.• ••`r!ma's 1 1{ .-,___ .. ocw.WWI (�. 51DE'e c t►LOON Pt,W �'Jt'�.�:x .+l ' DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-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. 8. 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. 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. Employees, 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. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 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. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC EXHIBIT"E" Landlords Signage Criteria Tenant Sign Standards—16' 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 desigrated 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 mounting..is \ I -✓ --- • • i►.- hi , _ 'II C ar ,° Ilp ' + � II LI' �Fo �I r e i/ i! I I �� i�r .1 1 ' 1 i I , i ; i!I : 1 • • I II ! ( �, I .% . / I • .... I ' tt ' I11 ( 1 i� c"L=VATON -TSNANT 4 TRANSOM DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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. B a I b a T 0ELEVATION-RECEIVING DOOR SIGN scums!be.,..o. 1 ..a- TENANT NAME Addrems ks, t� 520 J i_ qof 7an•l �B�� LAYOUT-RECEIVING DOOR SIGN SCAM t/A FULL SIZE -II- DocuSign Envelope ID:2FF7DAFB-0700-4302-B499-DFDF4DC881AC 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% 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 16'h 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 Tenants 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 S30.00 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 A 2023. ,02--7 --'1------ • ATTEST: Dan Gelber. Chairperson 'f MA c %i,i.` _. Rafael E. Granado, Secretary ',,, APDROVEO AS Ti) _�P' .,.i... .-)',,, FORM Sc LANGUAGE ; .7_6,.: L i� _..ac FOR EXECUTION i') Gci ACorne :J1