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R7N-Accept Recomm Early Termination Of Damian J Gallo�s Lease AgmtCOMMISSION ITEM SUMMARY Condensed Title: Resolution Accepting The Recommendation Of The Finance And Citywide Projects Committee To Execute: 1) A New Lease Agreement For 1,269 Square Feet And 2) A Revocable Concession Agreement For An Outdoor Seating Area; Between The City And Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor; Located At 1701 Meridian Avenue, Unit 4 (afkla 775 17th Street) Key Intended Outcome Supported: Increase resident satisfaction with the level of services and facilities. Supporting Data (Surveys, Environmental Scan, etc.): Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the best places to do business and 61% of the same group would recommend Miami Beach as a place to do business. Item Summary/Recommendation: On May 13, 2009, the Mayor and City Commission passed Resolution No. 2009-27071, approving a Consent to Assignment and Assumption of Lease Agreement whereby the Dade County Federal Credit Union assigned its lease to Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor ("Tenant") and certain terms and conditions of the Lease Agreement were modified. The lease automatically renewed on February 1, 2011 and expires on January 30, 2016, with no additional renewal options. Pursuant to the Lease, the Demised Premises shall be used by Tenant solely for the purpose(s) of providing building plan and permit processing services. The Tenant has requested permission to expand the use of the Demised Premises to include a cafe in a portion of space, to be separated by partition walls from the space which Tenant will continue to operate its plan and permit processing services. The Tenant further requested to use the outdoor walkway, immediately outside and to the east of the Premises, as an outdoor seating area. From a Landlord/Proprietary perspective, the tenant mix at 1701 Meridian Avenue is more conducive to a cafe than to a plans/permitting processor's office. The use of the outdoor area in the City Hall complex is new but is comparable to other outdoor concession/lease agreements with the City such as Smith & Wollensky, Syanna and Cinematheque. At its July 25, 2013 meeting, the Finance and Citywide Projects Committee recommended in favor of allowing the Tenant to use the Demised Premises for the dual purpose of plan/permit processing services (d/b/a Permit Doctor) as well as a cafe, subject to regulatory approvals at every level. Furthermore, the Committee was in favor of allowing the use of the outdoor seating area, under a separate Concession Agreement, subject to the City having the right to revoke said agreement. 25,2013 Financial Information: Source of Amount Account Funds: 1 n/a Financial Impact Summary: Ci Clerk's Office Le islative Trackin Max Sklar, ext. 6116 JLM/KGB/MAS//M T:\AGENDA\2013\September 11\Damian J. Gallo Lease Amendment SUM (8-21-13).docx AGENDA ITEM --':-B ..... 7--'N __ _ DATE f-//-/3 MIAMI BEACH 900 (9 MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov TO: FROM: DATE: SUBJECT: COMMISSION MEMORANDUM Mayor Matti H. Bower and Mem ers of the Cit Jimmy Morales, City Manager September 11, 2013 PUBLIC HEARING A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJECTS COMMITTEE PERTAINING TO THE EARLY TERMINATION OF AN EXISTING RETAIL LEASE AGREEMENT BETWEEN THE CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A PERMIT DOCTOR; APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE: 1) A NEW LEASE AGREEMENT BETWEEN THE CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A PERMIT DOCTOR, FOR AN INITIAL TERM OF THREE (3) YEARS, WITH TWO (2) RENEWAL OPTIONS FOR TWO (2) YEARS EACH, INVOLVING THE USE OF APPROXIMATELY 1,269 SQUARE FEET OF CITY-OWNED PROPERTY LOCATED AT 1701 MERIDIAN AVENUE, UNIT 4 (A/KIA 775 17TH STREET), MIAMI BEACH, FLORIDA (THE "LEASED PREMISES"); AND 2) A REVOCABLE CONCESSION AGREEMENT BETWEEN THE CITY AND DAMIAN J. GALLO & ASSOCIATES, INC. D/B/A PERMIT DOCTOR, ALLOWING FOR AN OUTDOOR SEATING AREA, ADJACENT TO THE LEASED PREMISES; AND FURTHER WAIVING BY 5/7THS VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE PUBLIC ADMINISTRATION RECOMMENDATION Adopt the Resolution. BACKGROUND On July 30, 2003, the Mayor and City Commission passed Resolution No. 2003-25298 approving a Lease Agreement between the City and the Miami Beach Federal Credit Union for the use of approximateiYt 1,350 square feet of City-owned property, located at 1701 Meridian Avenue, Unit 4 (alkla 775 17 h Street), Miami Beach, Florida for use as a federal credit union. On January 11, 2006, the Mayor and City Commission passed Resolution No. 2006-26087 approving a Consent to Assignment and First Amendment to Lease Agreement whereby the Miami Beach Federal Credit Union assigned its lease to the Dade County Federal Credit Union and certain terms and conditions of the Lease Agreement were modified, including amending the Term to commence on February 1, 2006 and expire on January 31 , 2011 I with one automatic extension option for a period of four (4) years and 364 days. On May 13, 2009, the Mayor and City Commission passed Resolution No. 2009-27071 I approving a Consent to Assignment and Assumption of Lease Agreement whereby the Dade County Federal Credit Union assigned its lease to Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor ("Tenant") and certain terms and conditions of the Lease Agreement were modified, including correcting the 901 Commission Memorandum Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor-New Lease Agreement & Concession Agreement September 11, 2013 Page 2of5 square footage of the Leased Premises which is 1 ,269 square feet of ground floor retail space (not 1 ,350 square feet). The lease automatically renewed on February 1, 2011 and expires on January 30, 2016, with no additional renewal options. As stated in Section 7.1 of the existing Lease Agreement, the Leased Premises shall be used by Tenant solely for the purpose(s) of providing building plan and permit processing services. The Tenant has requested permission from the City to expand the use of the Leased Premises to include a cafe in approximately the eastern 2/3 portion of space, to be separated by partition walls from the space which Tenant will continue to operate for its plan and permit processing services (d/b/a Permit Doctor). Furthermore, Tenant has requested to use the outdoor walkway, immediately outside and to the east of the Premises (perpendicular to the 1 th Street sidewalk), as an outdoor seating area, containing seven tables, twenty six chairs and five umbrellas, including consideration for patrons requiring ADA accessibility. A plan of the proposed Permit Doctor I cafe space and the outdoor seating area is attached hereto and marked "Attachment 1 ". Three (3) photographs of the adjacent outdoor space are also attached for your review and consideration and marked "Attachment 2." The Permit Doctor space and the cafe would each have their own entrances as well as exterior signage. On January 24, 2013, the Finance and Citywide Projects Committee ("F&CPC") discussed Tenant's request and suggested the Administration prepare two (2) separate agreements for Tenant's ·requested uses. The F&CPC recommended allowing Tenant, subject to regulatory approvals, to use the Leased Premises as requested for the dual purpose and additionally negotiate to use the outside space. The City Commission considered this matter at the March 13, 2013 regularly scheduled City Commission meeting. The item was discussed extensively and ultimately the resolution was rejected because the Commission expressed a concern with amending the existing lease, as well as other terms. Tenant worked with staff to address the Commission's concerns and bring the item back to the F&CPC. On July 25, 2013, the F&CPC again discussed Tenant's request and suggested the Administration prepare a new Lease Agreement, allowing Tenant, subject to regulatory approvals, to use the Leased Premises as requested for the dual purpose. Additionally, the F&CPC recommended allowing Tenant to use the outside seating area under a separate revocable Concession Agreement. ANALYSIS The proposed cafe would cater to pedestrians along 1 ih Street, City Hall employees and clients, as well as visitors to the convention center during special events. From a Landlord/Proprietary perspective, the tenant mix at 1701 Meridian Avenue is more conducive to a cafe than to a plans/permitting processor's office. The current waxing salon, massage franchise, and hair-drying salon all better function with an ancillary cafe/snack shop than with the current office use. At this time, in accordance with the recommendation of the F&CPC, Tenant is proposing to cancel the existing Lease in exchange for a new Lease Agreement, in substantial form as attached hereto and marked "Attachment 3", and a new Concession Agreement, in substantial form as attached hereto and marked "Attachment 4", each for an initial term of three (3) years with two (2) additional two (2) year renewal options. The attached DRAFT Lease and Concession Agreements are subject to Legal and Regulatory approvals as well as final approval by the Tenant. The Leased Premises contain a total of 1,269 square feet. The proposed portion of the Leased Premises which will remain as an office for plans processing services is 468 square feet and the proposed portion which will be used as a cafe is 801 square feet. 902 Commission Memorandum Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor-New Lease Agreement & Concession Agreement September 11, 2013 Page 3of5 Under the current Lease, Tenant is paying an annual rate of $36.64 per square foot, on a NNN basis. Additionally, Tenant pays $12.33 PSF for operating expenses which consist of $7.43 PSF for real estate taxes, $4.00 PSF for maintenance expenses and $0.90 PSF for insurance. Uni-K Wax is currently paying $30.93 PSF on a NNN basis, plus $12.33 PSF for operating expenses. Massage Envy is currently paying $27.60 PSF on a NNN basis, plus $12.33 PSF for operating expenses. South Florida Salon is currently $52.53 PSF on a Gross basis. A Rent Detail for all four retail tenants at 1701 Meridian Avenue is attached hereto and marked "Attachment 5". Permit Doctor Space If the Tenant's proposal to cancel the current Lease and enter into new agreements is accepted, staff proposes Tenant shall continue to pay its existing market rate of $36.64 PSF on a NNN basis (with three percent (3%) annual increases), plus $12.33 PSF for operating expenses, for the office portion {Permit Doctor) of the Leased Premises. Cafe Space For the cafe portion of the Leased Premises, staff recommends Tenant's rent shall be increased. According to market research, comparable rents for available retail space on 171 h Street range from a low of $47 to a high of $75 per square foot, on a NNN basis, with an average of $60 per square foot as follows: Address: Sq.Ft Rent/sq.ft. Annual Rent Type Term Use 1000 17th Street 7,000 $ 75.00 $ 525,000 NNN 60mos Retail 1000 17th Street 6,600 $ 50.00 $ 330,000 NNN 60mos Retail 1000 17th Street 6,700 $ 60.00 $ 402,000 NNN 60mos Retail 723 Lincoln Lane 2,900 $ 47.00 $ 136,300 NNN 12mos Retail Total 23,200 $ 60.06 $ 1,393,300 The three comparable spaces at the high end of the range ($50-$75 PSF) are in a new, Class A project with an expected completion in the 3rd quarter of 2013. The rental rate of $47 PSF for the 723 Lincoln Lane property includes use of the outdoor seating area which consists of approximately 361 SF. Tenant has projected annual gross sales in the amount of $218,400. Staff considers this to be a conservative estimate as this amount is based upon typical weekly sales of $4,200 and does not take into consideration revenue from special events. Staff recommends Tenant's rent for the cafe space shall be increased in accordance with one of the following options: 1. Tenant's base rent of $36.64 PSF, on a NNN basis, shall be increased to $45.00 PSF on a NNN basis, with three percent (3%) annual increases. Tenant would continue to pay operating expenses (currently $12.33 PSF); or 2. Tenant shall pay fifteen percent (15%) of gross sales with a Minimum Guarantee of $39,225 annually (payable in monthly installments at the beginning of each month), with three percent (3% annual increases). The Minimum Guarantee is equal to Tenant's current rental rate calculated based upon the 801 SF cafe space ($36.64+$12.33=48.97 times 801 SF=$39,225). The percentage rent structure provides greater revenue to the City than Tenant's current rate, in the event the cafe operation is successful, as expected. 903 Commission Memorandum Damian J. Gallo & Associates, fnc. dlbla Pennit Doctor-New Lease Agreement & Concession Agreement September11, 2013 Page 4 of5 Additionally, Tenant shall be required to pay additional rent for the use of the outdoor seating area as contained below. Outdoor Seating Area The outdoor seating area consists of approximately 507 square feet outside and immediately east of the Leased Premises. There is no precedent for the use of an outdoor seating area in the City Hall complex; however, the use of the outdoor area is comparable to other outdoor concession/lease agreements with the City. The revenue to the City for said agreements, on a per square foot basis, is provided below: Annual Annual Gross Revenue Concessionaire I Gross % Base Amount Square To City ~ Address Revenue To City Rent To City E!!! Per Sg. Ft. Smith & Wollensky 1 Washington Ave. $3,133,119 10% NIA $313,312 581 $539.26 Syanna 816 Commerce St. NIA NIA $66,480 $66,480 2,216 $30.00 Cinematheque 1130 Washington Ave. NJA 15% NIA $7,000 671 $10.43 It should be noted that the outdoor concession areas for Syanna and Cinematheque were both unsuccessful and ultimately ceased operations. In determining a fair market rate for use of the outdoor concession, Staff took the average per square foot rate from Syanna and Cinematheque, which was approximately $20.00 per square foot. Smith and Wollensky was not considered to be comparable to the operation proposed by Permit Doctor. As such, staff recommends Tenant shall pay $20.00 per square foot, or $10,140 annually, on a gross basis, and would be subject to three percent (3%} annual increases on the anniversary of the lease commencement date. CONCLUSION AND RECOMMENDATION At the July 25, 2015 Finance and Citywide Projects Committee meeting, the Administration proposed the terms set forth above and asked for a recommendation. The F&CPC recommended cancelling the existing Lease in exchange for a new Lease Agreement, allowing for both the office use (Permit Doctor) and the cafe use, and a new revocable Concession Agreement for the outdoor seating area, each for an initial term of three (3) years with two (2) additional two (2) year renewal options. For the office portion (Permit Doctor) of the Leased Premises, the F&CPC agreed with the Administration's recommendation that Tenant shall continue to pay its existing market rate of $36.64 PSF on a NNN basis (with three percent (3%} annual increases), plus $12.33 PSF for operating expenses. For the cafe portion of the Leased Premises, the F&CPC recommended that Tenant shall pay fifteen percent (15%) of gross sales with a Minimum Guarantee of $39,225 annually (payable in monthly installments at the beginning of each month), with three percent (3% annual increases). The Minimum Guarantee is equal to Tenant's current rental rate calculated based upon the 801 SF cafe space ($36.64+$12.33=48.97 times 801 SF=$39,225). 904 Commission Memorandum Damian J. Gallo & Associates, Inc. d/b/a Permit Doctor-New Lease Agreement & Concession Agreement September 11, 2013 Page 5of5 For the outdoor seating area, the F&CPC agreed with the Administration's recommendation that Tenant shall pay $20.00 per square foot, or $10,140 annually, on a gross basis, and would be subject to three percent (3%) annual increases on the anniversary of the lease commencement date. The Administration recommends that the Mayor and City Commission accept the recommendation of the F&CPC. Attach...._~nts JLMtK""'Ji3'tMAS/MMM T:\AGENDA\2013\September 11\Damian J GaJio Lease Amendment MEM (8-21-13).docx 905 Attachment 1 906 1 r:~:~~:l i I ;ii:!~i:~.:::j ' I F'UFINITURE, FIXTURE a EQI.JIP ..... Er..IT fLOOR PLA"' 907 FF&E & Floor Plan Attachment 2 908 Attachment 3 912 LEASE AGREEMENT THIS LEASE AGREEMENT, made this _ day of , 2013 (Lease, Lease Agreement), by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred to as "City" or "Landlord"), a DAMIAN J. GALLO & ASSOCIATES, INC., a Florida corporation, (hereinafter 1. 2. Demised Premises. The City, in consideration of the rentals herei covenants, conditions and agreements to b hereby leases, lets and demises to the T e from the City, those certain premises owned building at 1701 Meridian "Building"), and more fully described 1 ,269 square feet I more specifically attached hereto and (a.k.a. 775 1ih Street}. to be paid and of the by the Tenant, leases and hires in the City- 3139 (the of the Building, and as (Demised Premises), known as: Unit 4 of Demised Premises s a permit processing office (the 2.1 entitled to have and to hold the Demised Premises for an ree (3) years, commencing on the 1st day of October, 2013 ~,....-=-...,-=-nt Date"), and ending on the 30th day of September, urposes of this Lease Agreement, and including, without lim , Subsection 2.2 herein, a "contract year" shall be defined as that certain period commencing on the 151 day of October, and ending on the 30 1h day of September. 2.2 Provided Tenant is in good standing and free from default(s) under Section 18 hereof, and upon written notice from Tenant, which notice shall be submitted to the City Manager no earlier than one hundred twenty (120) days, but in any case no later than sixty (60) days prior to the expiration of the initial term, this Lease may be extended for two (2) additional two (2) year renewal terms. Any extension, if approved, shall be memorialized in writing 913 2.3 3. 3.1 3.2 and signed by the parties hereto (with the City hereby designating the City Manager as the individual authorized to execute such extensions on its behalf). In the event that the City Manager determines, in his sole discretion, not to extend or renew this Lease Agreement {upon expiration of the initial term or any renewal term), the City Manager shall notify Tenant of same in writing, which notice shall be provided to Tenant within fift~~.n (15) business days of the City Manager's receipt of Tenant's written n, '''~'/: Notwithstanding anything in this subsectio .. · . ..~~.pther term or condition in this Lease Agreement, the City reserves t~:jnghf~~~~ugh its City Manager, to terminate this Lease Agreement ~dive any t)~,"after July 1, 2014, without cause and without liabilitytg;;~City, upon provtff~Tenantwith 180 days prior written notice. .·~'~;:tt{:.>· ";J.~i#;;;,., ~:ri~~£'' ~;, 'T,~~~~i}~ Rent. Base Rent: "'' !¥fV~&;,{/J11ff' Tenant's payment of•n;a§ defined i;Wtfiis Section 3, shall commence on October 1. 2013 (the "R~nfe~oo~rlceme~'i~te") and, thereafter, on each first day of,:,~,:,:,:q uent ~:,~·. ,:JIIJ;~ill~ii!J>,'t\if;. 3.1.1 Dut5m;,.;:~%fjrst Corij~j,;fear, ttter:aase Rent for the Demised ,<{i~fsmises s~'M be Fo,'[~ix Thousand Four H~ndred Ni~ety Six and ;;;i:(W~6!1 00 Doll. ($46,49&J!J§) per year, payable m monthly mstallments ·:;:fi,I)Three l:ti&~n,9 Eighf{@undred Seventy Four and 68/100 Dollars ($~~~~~,!;·~,,,~:;;F!t11t~~~N;1f~i?~>,;~~v'·, .cYx~1:if~Jf&:W:i>;;,~/. ·., . · ";: !· .,~~~t\irif;be . ·.· . Rent amount pursuant to this Section 3.1 shall be ,/,: ',c?\''-;./;'>d.<, ·>·\-','C,-1;,.', ,~,1.;,·; .•. ·.• .. ~.;·.·,:.··.~': .. :, ... ': .. ·.•~~·:· .... ·,:::,:,: .. :"···,.~·0,.'·.·.: .. :·,.:·,·... =~~~-,a~~~h~~~~~~~!~eoJ~~~~~~~~~c~~~~;~:~ t~;~~ ·: .. i:: LeaS~kand e~i:::h anniversary Commencement Date thereafter, in increrMnts of three (3%) percent per year. '\~~n~t In afflftJ~J::f5to the Base Rent, as set forth in Section 3.1, Tenant shall also pay therfbllowing Additional Rent as provided below: 3.2.1 Operating Expenses: During the first Contract Year, the Operating Expenses for the Demised Premises shall be Five Thousand Seventy Six and 00/100 Dollars ($5.076.00) per year, payable in monthly installments of Four Hundred Twenty Three and 00/100 Dollars ($423.00), for its proportionate share of "Operating Expenses" which are defined as follows: 2 914 "Operating Expenses" shall mean the following costs and expenses incurred in operating, repairing, and maintaining the Common Facilities (as hereinafter defined) and shall include, without limitation, water service to the Building, sewer service to the Building, trash removal from the Building, costs incurred for gardening and landscaping, repairing and maintaining elevator(s), painting, janitorial services (except for areas within the Demised Premises), lighting, cleaning, striping, policing, removing g and other refuse and trash, removing ice and snow, repairi maintaining sprinkler systems, water pipes, air-conditionin ms, temperature control systems, and security systems, fire air and maintenance and other equipment in the common rior and structural portions of the Building, patching and maintaining the parking ing adjacent areas, management fee . · .• · · · . expenses to employees furnishing .e common areas, together with an · nistration ch • equal to fifteen percent (15%) of a nses included in the annual common area ~.~nses, p . ·. the City for the common or joint use and/or be~~t:~be occupa the Building, their employees, agents, servant~i!(:.u'Mf·t~ and ru"'""""''n" ·:-~~~~~;· . ·•·J;~jJM;;:;ik,ik·. . .... "Coq.lJ]lQ!L Faciliti~~. sl"\~lfH?'MEitl; .. pl ·Building areas, spaces, e,~~~~~!~r well a~i~~fh servibes',···~:.vailable for use by or for the .x:;~ef1t of T~nt and!QJ:~I~S employees, agents, servants, volunteers, ,::;;~~f~@Ustomers, t!ests and1(i£,jnvitees. ';;;*~1&-ih.::.. . .. f:.:£;f)i~•j);s,., , ·:~M?@':: TifiiDt., .. ':·· ·an~g.~r~nds that the costs incurred for Operating .A,;~i~d;·;i.I%i~?:?,,w •• Expi~· may incr~a§ibr decrease and, as such, Tenant's pro-rata .:{ii%~f:l~:"' ···"<:i::r::J~are ~~perating Expenses shall increase or decrease accordingly. 7~~1f;zy~v •?•t:.;,K~;,~;. ····~~i@~ .... '·.,:,,,.:<i-2 Pr'•"·: !e1Y T.;. ~:~;?:1?~j:~;... Th~(gperty Tax Payment shall be payable by Tenant, in accordance ~·i;:iMl•%;::. with ~tion 11 herein. The Property Tax Payment for the first t'f:,'!f'L' "/,·,-.">//? ··~·1~i;;?l::\ Cant~ Year shall be estimated based upon the 2012 Property Tax ·~r;i#~·i·. Pd-nt, in the total sum of Nine Thousand Four Hundred Twenty ··<·ittf!l:i'Dollars and 2111_00 ($9.422.21), payable in monthly installments Of'S even Hundred E1ghty Five and 18/100 Dollars ($785.18). 3.2.3 Insurance: The Additional Rent shall also include Tenant's pro-rata share toward estimated insurance costs, determined by the City in its sole discretion an judgment, to be sufficient to self-insure the Demised Premises (Landlord Insurance). Tenant's pro-rata share of the Landlord Insurance cost for the first Contract Year shall be One Thousand One Hundred Forty Two Dollars and 161100 ($1. 142.16), payable in monthly installments of Ninety Five and 18/100 Dollars 3 915 ($95.18). The Landlord Insurance cost may be adjusted periodically, in the city's sole discretion, during each anniversary of the Commencejment Date. This insurance coverage is in addition to the insurance required pursuant to Section 10, which shall be obtained at Tenant's sole expense and responsibility. 3.3 Percentage of Gross Derived From Cafe Space ("PGCS"): During the Term of this Lease Agreement, in the evJ~[lt that the amount equal to fifteen percent (15%) of Tenant's annual gro~at~eipts derived from the ;C:('c,~'J../'i~·o' use of the Cafe Space (PGCS) exceeds the t~·iBase Rent and Additional Rent provided in Subsections 3.1 (as ig~~,o annually pursuant to Subsection 3.1 .2) and 3.2 above which ~)pr6pOffl~~te to the Cafe Space (the "Cafe Space Proportionate Rent"};J~b,eh Tenanf'Sli@ll also pay to the City within thirty (30) days of the anniv~~ty of this Agre-t, the difference J'>'"•/"J'/<1/ ?:/)'N'<,/-' between the amount of the PGSfl:f:nd the Cafe Space PF'·!lg~ionate Rent, each year during the Term oft~~;f.greemen~i~Ircluding any:r~~wal terms. The Cafe Space Proportionate R~.!s he~-~1ipulated as th~:l)ercentage which the square footage of the Cafi:J,§Ji~'. which is 801 square feet (as contained in Section Jc;,;Qfthis Lease'·A~~ment), bears to the total square footage of the Demise¢J;;~J~es, whicfli{t!;·~1 269 square feet (as contained in Section 1of this Le~ Ag(-m.ent). A@f(Jingly, for purposes of this Subsection 3.3, the Caf~);&pac~:·~rtiona't~iBent is 63.12% of the total Base Rent~~lt'L~dditionart~~nt~(~Vi~~~-;;,~u·B~ections 3.1 (as increased annually~tsti~&t~ Subs~~j3':1.2) artt!t:¥.2 above .. :~~lM'N? t(~;~: ~:;&k' The%~~ "gross r~ipts" is angerstood to mean all income collected or .• ,,.-, •. "'. •"<).[-,-,". .).··.( accrli~t:,_9erivegii~ •• l~llant u~r the privileges granted by this Lease Agreeni~ijt~.1 ~~~l~iri§?-~~·"·~··any Federal, State, or City sales tax, or ,;;:i~~W~~~Jax, 9Q.hmental imjrombn, assessment, charge or expense of any .~:0Y~1W''''/{iri<¥H~~~ctE~'tlf~)tJenant from customers and required by law to be remitted 4;&f{(:ffV to the t~t~~ or·o~rgovernmental authority. "-:~:~~~M~1)? . '-:.<:~~;:M~::~:i. . /<~:i~H~~:~:~:/.'. 3ii~~~ Mairli!ance a:nd Examination of Records. ;,~~~~1;. Tena~~shall maintain current, accurate, and complete financial '"i'0~if;;;.. recorflton an accrual basis of accounting related to its operations ''j;~Ul·~~p!M:lpht to this Lease Agreement. Systems and procedures used to ·:;sttt.tain these records shall include a system of internal controls and 'aff accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit, but not photocopying, by the City Manager or his designee upon reasonable prior request and during normal business hours. Such records and accounts shall include a breakdown of gross receipts, expenses, and profit and loss statements, and such records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. 4 916 3.3.2 Inspection and Audit for Cafe Space. Tenant shall maintain its financial records pertaining to its operations for a period of three (3) years after the conclusion of any contract year and such records shall be open and available to the City Manager or his/her designee, as deemed necessary by them. Tenant shall maintain all such records at its principal office, currently located at 1701 Meridian Avenue, Unit 4, Miami Beach, Florida 33139, or, if moved to another location, all such recor!j§ shall be relocated, at Tenant's expense, to a location in Miami ~~• within ten (1 0) days' written notice from the City. .,:r1~~i~1" ·~:~:!~~~ff~:;:~~'~:i:?f~;~{:',, The City Manager or his/her d~ee ~~l be entitled to audit Tenant's records pertaining tq>;;~ 'OperatiortiY.J~ often as the City deems reasonably necess,~ifil'roughout the'''~~-:!]1 of this Lease Agree_ment, a_nd .three ~;;t£~tiffies within the thr~~~~~J. year period followmg termination oHfiii'Lease Agr~ment, (regar~ of whether /,'}/,'"+>'/-, :'.tv~-1,<:•;\~', , n#r.f!r,(-''r such termination results ffQ!n.;.the n.~Ji~expiration offtl@"term or for any other reason). The City'~~!~~~iresponsible for paying all costs associated witb;.;§~.Ch audits, Utl.the audit(s) reveals a deficiency of five (5%) p~~LJl10re in T~t's statement of gross receipts for any year or Yfer~'~§~g, in w~f~;~ase Tenant shall pay to the City, within thirtyi{ft:90) diii~Jh~xthe au~. being deemed final (as specJ~J~elow), trr~j~ostfi)Mtl"Ef~it1g:ncf'a sum equal to the amount ~&~~:def{~~:pc~ rev~~jfJy the aodltt'pl~s interest. _The audit shall P:tl~fbe dee~~() f1nal untt't;)"enant has rece1ved the aud1t and has had a ·-1!"2;!:l:!~asonable ,t,mportunityf#Jeview the audit and discuss the audit with '~i~City. T~~.@gudits ar$:'&:1 addition to periodic audits by the City of ~rt-::::lax:;;;:ooi~§. "ifi"nd payments, which are performed .!:f.?2fJu:~i2r~~\"7···. sep~y. Nothing··a~~ined within this Section shall preclude the ,_?'iJ';i"·',<~:;,-~'.>-'"·'.?;J.>. ?'.~: ·'r{lR,,'' ,v,>,~~S-'/ ', .y~y(fii"f';, .. ,~,~~§jty's aumt rights for Resort Tax collection purposes. 4~1;~~f~i;Jl '•>;,;*!;l~~~{;;,, >~,>~iWf;£ixc ·1~if~!t~;3;,, Te'~J! shalt{~~bmit at the end of each contract year, an annual <?;$~~li~z,,, stat~nt of gross receipts, in a form consistent with generally ~~,~~~{;,_ acce~IP accounting principles. Additionally, such statement shall be .,~,?it:@i>>, accqQjpanied by a report from an independent CPA firm which shall ""z:};j~;,,, p~fi~ certain agreed upon procedures, as described in the attached •,;·::;s;:~lb"t 6 '<-f:~:~~~"-I . It is Tenant's intent to stay informed of comments and suggestions by the City regarding Tenant's performance under this Lease Agreement. Within thirty (30) days after the end of each contract year, Tenant and the City Manager or his/her designee may meet to review Tenant's performance under this Lease Agreement for the previous contract year. At the meeting, Tenant and City may discuss quality, operational, maintenance and any other issues regarding Tenant's performance under this Lease Agreement. 5 917 3.4 3.5 4. 5. 6. 6.1 Sales Taxes. Concurrent with the payment of the Base Rent and Additional Rent as provide herein, Tenant shall also pay any and all sums for all applicable tax(es), including without limitation, sales and use taxes and Property Taxes, imposed, levied or assessed against the Demised Premises, or any other charge or payment required by any governmental authority having jurisdiction there over, even though the taxing statute or ordinance may purport to impose such tax against the City. Enforcement. Ten ant agrees to pay the Base Rent, . amounts as may be due and payable by r·~·.... n u rJhis Agreement, at the time and in the manner provided her~:afid shoul ·~·.·, rents and/or other additional amounts due herein provid$fat any time r~~fl due and unpaid !•!i/ci/?.'-"(,.?},;:_1/'n for a period of fifteen (15) days~r'the same shall be·····:·~.·." due, the City may exercise any or all optionsf-ilable to it~reunder, w~ .. ptions may be exercised concurrently or se~tely, q~~J~ City may pur' ue any other . remedies enforced b:.~~;:,,,., ''~~af!~~ Locat1on for Payments. ·~~:~;:~. '5•.~»if:).,, ,. ·"r~r:r>;:;,, All rents or other payments d~J;bere~r shall oi~~id to the City at the following address: i,J®~~~~~i~~tf:t!tWl~liW#§;:'¥~ ,;:.~'''/;,. ·:;,.;;,;,Reven ~ •. f!Jianager :''"'%"''' ··"·;·,. ,,.,,.. rd ~;~.>;J:~:it 1700 C~ntion Cqter Drive, 3 Floor '•::~;"t~.J,,. · · each ~ida 33139 ':1!~1~i~~b:., ... l . . .~~it1;;f\;·~~i·;;;,/ ,. 'fW:· o~(~M?:i9!ber ~Fs as the C'ffY;:may, from time to time, designate in writing . . /gi:;~,:n~·i~ . ··</·~~r~~t~it:~~~;., ··,~1Iff~;m~}Z:. . ant may req~. at f.t's cost, from the City's Parking Department, the use J~ more than fd~H4) parking spaces, if available, within the Municipal Parking G~i-.. Rates for ~d spaces are subject to change, and are currently Seventy ($70.·~1&,Qollars p~~£1\nonth, plus applicable sales and use tax per space. , "{. 1~~~J~~~~?;;~>c. 1.\:r::-:~*!tftf:/. Security D'~f:Wt3uaranty. ·~~~{~l~··_, Upon execution of this Agreement Tenant shall furnish the City with a Security Deposit, in the amount of Ten Thousand Three Hundred Fifty Six and 08/100 Dollars ($1 0,356.08). Said Security Deposit shall serve to secure Tenant's performance in accordance with the provisions of this Agreement. In the event Tenant fails to perform in accordance with said provisions, the City may retain said Security Deposit, as well as pursue any and all other legal remedies provided herein, or as may be provided by applicable law. 6 918 7. 7.1 The parties agree and acknowledge that the foregoing condition is intended to be a condition subsequent to the City's approval of this Agreement. Accordingly, in the event that Tenant does not satisfy the aforestated, then the City Manager or his designee may immediately, without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to him for breach of contract. Use and Possession of Demised Premises. J'~~:*l'~~f' 0=-:...<ff.:...:ic=e-=S::...~:p=a=c=e: "'~~}{ff~:~~:' Approximately 468 square feet of the western portigj9f;~ Demised Premises shall be used by the Tenant solely for the purpose(~f:~~f P~9)ng building plan and permit processing services (i.e. certificates ot~~)l'lpletion, c·~ates of occupancy, violation remediation, plan review, proce~fng>and expediting'>·' , ices, inspection management, special and 40 year insp.~!9f1s, fire and building · :'·. )iance, permit administration, occupancy load calcul~rs, speciaiJ~yent permittirf§f,~tpd recording services) . ,,,~~~~1\·t~~"!!~;;,»>:~[~~~j~i~;;h ~"~~:;: Tenant's uses and/or servic~:~erovided updff:f~ Demised Premises may require Tenant to interact, from tirif~::t~)~!!~~· with·~~~3.pf Miami Beach officials ~nd employees, acting in their reg~lato~·;,;~pacity. ·<~~ithstanding the preced1ng, Tenant hereby represents and··~ranfs~~;-J::;ity ~;:~t shall in no way, whether express or implie914~~$;l;he impr~on,l~~~~i~ ii+~ny way actin~ as an age~t and/or repres~t!~tive••"i~~the C1ty,:;~~tf~!i'fam1 Beaen, nor that, by v1rtue of th1s Agreement, ,~pnt deriv.,any sp~l benefit and/or consideration from the City (acting in ·~~{egulatory g!ipacity) wlt{i~iregard to Tenant's provision of plan and permit proce-&1 servJ~ijR:tQ!rd pa~. Any violation of this Subsection 7.1 by Tenant shall o~~l@~. ;: .. :,· :z,:as::,:):lti~~~tq~atic default under this Agreement and, · . ng a:· .. er provismn?i:Set forth herein, shall entitle the City to · ··•· .· . rmiff*'~:Jhis Agreement, without further notice to Tenant, and . ~,ji> LV'"·"""'.'''".' e V'I-J:.~:,:;::~': .·. ·: . ~~~B~l~;!Jj are feet of the eastern portion of the Demised Premises shall ly for the purpose(s) of operating a cafe. Tenant shall cook, prepare,'.::(! wH.:au.~· .. ,, • ..., be prepared, for sale within the Demised Premises, such cooked, p and/or prepackaged foods, and such non-alcoholic beverages as those set in "Exhibit 7.1" (Menu), attached hereto and incorporated herein. 7.2 The Demised Premises shall be open for operation a minimum of five (5) days a week, with normal hours of operation being as follows: Office Space: Cafe Space: Monday -Friday: Monday -Friday: 7:00AM to 5:00 PM 7:00AM to 9:00PM Nothing herein contained shall be construed to authorize hours contrary to the laws governing such operations. 7 919 7.3 8. 8.1 8.2 It is understood and agreed that the Demised Premises shall be used by the Tenant during the Term of this Agreement only for the above purpose(s)/use(s), and for no other purpose(s) and/or use(s) whatsoever. Tenant will not make or permit any use of the Demised Premises that, directly or indirectly, is forbidden by law, ordinance or government regulation, or that may be dangerous to life, limb or property. Tenant may not commit (nor permit) waste on the Demised Premises; nor permit the use of the Demised Premises for any illegal purposes; nor it a nuisance on the Demised Premises. In the event that the Tenant u mised Premises (or otherwise allows the Demised Premises to be r any purpose(s) not expressly permitted herein, or permits and/or . y prohibited use(s) as provided herein, then the City may declare th · · .· .. _in default pursuant to Section 18 or, without notice to Tenant, rest~am:.s · · by injunction or other legal action. .;i;#zii~f,; lmorovemenm. ·~c~:w ~-"~t"' ·. Tenant accepts the Demised Preril~~;f~;sffleir present "AS IS" condition and may construct o~~use to be co-cted, such interior and exterior improvements and m1~~ce to the-ised Premises, as reasonably nec~ssary for it to car~::l£n'Jt$:~iJ?:~Hritted -~~~~· as set forth in Section 7; prov1ded, however, thaf:\.l@,~Y plan,!tt9&.o,~ucn'·~Ji!provements shall be first submitted tQ;l:be.~City Man.r fo,r:;:fti$1Yffii: ·ueh consent, which consent, if grantedJ~t~~~N;~{-kbe at tf\fj~;@fiY?Manag\. 'sole and absolute discretion. AdditiQ;f:iJtY, any a~all app~d improvements shall be made at Tenant's sol~it~ense and .f:flponsibill~f:(\11 permanent (fixed) improvements to the Demi~1Jlremi~_~5~:9~n remai'n;f~e property of the City upon termination .a.nd/or e·:e~~:rif\tffiS:;ffll:~f!).~t. Upon termination and/or expiration of .j~l:~·ijffx~~~reerrttlf'all personafproperty and non-permanent trade fixtures may .s.;;~~:r;;;,:cr· be ~~ed OJ;~tp~ Tenant from the Demised Premises, provided that they ,,/i;!t}:~:~.:i:'·~: can be't~Ad. are}ifi~oved without damage to the Demised Premises. Tenant <;~?£1%~;., will permftf£:mo lie~.t:fltP attach to the Demised Premises arising from, ·~:{;f~U·. connected ';•th, or :/related to the design and construction of any ··::;:;~~~~~!Qlprovemen~~:;Moreover, such construction shall be accomplished through -~~>use of ,ij~sed, reputable contractors who are acceptable to the City. A'ff~:~;:;f!m;t~::~f;-7•· permits and or licenses required for the installation of imp~~ts shall be the sole cost and responsibility of Tenant. ~;·.0:~·?:5",? Notwithstanding Subsection 8.1, upon termination and/or expiration of this Agreement, and at City's sole option and discretion, any or all alterations or additions made by Tenant to or in the Demised Premises shall, upon written demand by the City Manager, be promptly removed by Tenant, at its expense and responsibility, and Tenant further hereby agrees, in such event, to restore the Demised Premises to their original condition prior to the Commencement Date of this Agreement. 8 920 8.3 The above requirements for submission of plans and the use of specific contractors shall not apply to improvements (which term, for purposes of this Subsection 8.3 only, shall also include improvements as necessary for Tenant's maintenance and repair of the Demised Premises) which do not exceed Five Hundred ($500.00) Dollars, provided that the work is not structural, and provided that it is permitted by applicable law. 8.4 Tenant Improvements. J:< Tenant agrees to make certain improvements (!~!~~enant Improvements") to the Demised Premises {valued by the P~d!l~· at approximately Eighty Thousand Dollars and 00/100 {$80.000.0Q};;~~~~Iineated in "Exhibit 8.4" ~'. '•"<v~:f:'' '~.N<r,tii~,(~, {Tenant Improvements), attached here~;~d l~porated herein. The Tenant Improvements shall be mad§;.dr{ accorda~ with the following timeline: /tJ!t~!jifi' "''~4\'~~'' • Tenant shall obtain ~:?~ilding pe~~~~ no later thaqj~'~e hundred eighty (180) days ff~~;. the ··~·~mencement t:Yate of this A t •~'>:,.;>> ./!c,[!:"/,'i,o/ greemen · , .. ,,('/· ,·x·.:-·7'" .:~~{~\~x:l.. ··~~:tf~~f~~!c" • Tenant sha· ''· · ·L::.\., pee makiri§lk Tenant Improvements no later than forty fivei~~r·aa~t!f;9m the'·~,the building permit is issued (the "Building ~~mit Dal;jl~;,;j[ld .;_:~i~~&f . >:~wt:i~~; •.... ··i~rr~tth .••. ;·!~~~;.;~~,~ ·· .. ~:l~~:i_1;it~~t~;;.,;.. ·c/ •,+;Ji~enarttlf~rovemt~•!Shall be co!'"'pleted, and Tenant shall obtain ,;g~t:Mi{:flnal ap~yar by t~Jpity's Buildmg Department for said Tenant :WU\1C lmprov 'nts, no ,.;than one hundred eighty (180) days from •i:/I:. th B . E "t Date. . ··•" .. . . ··;::~~(~}Jt~~/: rA~~;Wi: :'::x;,f~i·':;!~:i~I!'X >• •• ,.'fi;' ,/;;ii£~©ff:~~Q¥tJ~to d.RfY with the tih1t~ffhe and complete the Tenant Improvements J,i:if#ff/1' witRfrn~~Jh.~ ti~hperiod specified shall constitute an event of default {t~f,~~ '·, hereun~ti~l~~~., ·~~i~~$w~~s; .,, .. ~~*; 8.4.1 Tenat~;,;shall provide the City with proof that the contractor engaged !,;;:'[;~)?*;; for th~.Construction of the Tenant Improvements has obtained the ':;.i~@¥ih;. req .. .cf;l·="f insurance coverages, as set forth on the attached "Exhibit \=?Mm~l;,8~~;;2. Contractor's Insurance Requirements), listing Tenant and the <:;&lfii#Yas an additional insured thereunder. ''';;~:,;;, 9. City's Right of Entry. 9.1 The City Manager, and/or his authorized representatives, shall have the right to enter upon the Demised Premises at all reasonable times for the purpose of inspecting same; preventing waste; making such repairs as the City may consider necessary; and for the purpose of preventing fire, theft or vandalism. The City agrees that, whenever reasonably possible, it shall use reasonable efforts to provide notice (whether written or verbal), unless the 9 921 need to enter the Demised Premises is an emergency, as deemed by the City Manager, in his sole discretion, which if not immediately addressed could cause property damage, loss of life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the City to do any work that under any provisions of this Agreement the Tenant may be required to perform, and the performance thereof by the City shall not constitute a waiver of the Tenant's default. 9.2 If the Tenant shall not be personally present te>,. and permit entry into the Demised Premises at any time, for any r ~•~n~,.~:r,, and any entry thereon shall be necessary or permissible, the City;:·'' ··-~r. and/or his authorized representatives, may enter the Demised;;;> mis'·~·, y master key, or may forcibly enter the Demised Premise§I~;Witl1out ren :mg the City or such agents l1"able therefore <:;-;:::~:·:~~':?::~-!:'! <:~:~:~:~:(~ • . 'I' •.wsw· '\p:;.};;.~>;. :A:~r:t~~~r~~J--,~'~,~~~1;~~~~, 9.3 Tenant shall furnish the City w~Jd~licate key$ to alllocks)f.ing exterior and interior doors prior to (but nd;~t~r thart ''~'iffhe Commenci!'fiNent Date of this Agreement. Tenant shall not cha;jm~;· ··· Ocks to the Demised Premises without the prior writt~fl:;9c:msent of ttl~~., Manager, and in the event such consent is given, Tefijl~~§~i!J furnish ffi:~?~ity with duplicate keys to said locks in advance of th~tt~lngfiJtation. '''<~ .. ;. l.)lli) ' ,·,; ;,; . ' "' . i i;(~6~;,; ' 1 0. Tenant's I nsura~~~~~!ji;;; ,,[%M;ff~JW!~;~~JJi(iP ''if 10.1 lena. , ... ,.~".II, at its5'~e expe~1i:md responsibility, comply with all insurance reqt.:J:,(..... nts of th~J:;City. It is<!mreed by the parties that Tenant shall not occupJ:i~tbe Deflllid. Premise$~;until proof of the following insurance coveragQ;J:he.'l~~efit~ftW~g.)tld approved by the City's Risk Manager: tfi~~~{!1fl~r~j~~ij~~;eo~''rsive G~~:;;;:Liability in the minimum amount of One :;;~~~f;(~;;'. .,~~n (.$\flep.ooo} Dollars (subj~ct to adjustment for inflation) per '':'1(~{,.:5:, oc~~ncettt~:podily injury and property damage. The City of Miami '"·1;~~~~;&~,. Bea~;rust befnamed as an additional insured on this policy. '-/<~:~~t~~\ }i~~~~~, 1 0.1.2~\h., Wor~~~ Compensation and Employers Liability coverage in '':.·t;c~~l:h aq~~Bance with Florida statutory requirements. \; ~r~:f~g~~~f:r:"' .. 1 0.1.3 <Jll1f~Risk property and casualty insurance, written at a minimum of eighty (80%) percent of replacement cost value and with replacement cost endorsement, covering all leasehold improvements installed in the Demised Premises by or on behalf of Tenant and including without limitation all of Tenant's personal property in the Demised Premises (including, without limitation, inventory, trade fixtures, floor coverings, furniture, and other property removable by Tenant under the provisions of this Agreement). 10 922 10.1.4 10.1.5 Business interruption insurance sufficient to insure Tenant for no less than one (1) full year of loss of business, with the City named thereon as loss payee to the extent permitted by applicable law. Any other form of insurance which Tenant or the City, acting reasonably, requires form time to time, in amounts, and for risks against which a prudent tenant would ins in any event not less than that carried by comparable I establishments in Miami-Dade County area. 1 0.1.6 Waiver of Subrogation. The City and Tenant each h If of itself and its insurers (none of which s be assig uch claim or be entitled thereto due to or otherwise) all rights of recovery, claim, act cause of n, again other, its agents, officers, or empl . for or damage may occur to the Demised Premises, ' rovements thereto or any improvements .. ta~reto, or any al property of such party therein, by reason of flf~~~:~. ~lements, other causes which are, or could or should ie insur~ agai the terms of the standard fire and extendea:::£overa~~~I,Jran cies referred to in this Lea~·~;f;§~ardless <li~h~~$~ifst:~~fj,;jg~u ce is actually maintained ar¥~~;,.,egatff$~ss of ~.~·~use or''Or!ig'in of the damage involved, A~Oding nleJt~gence ~~e other party hereto, its agents, officers, or ':<~:~~~gfmployees. ~~he City '~~fiP Tenant shall each obtain from their ·;:;·~-pectiv~;;il~YX~f~, und.JiJilll policies of fire, theft, public liability, wotf!er·~~~@fl",p,f{cf' other insurance maintained by either of JA~ffi!;;~~¥Hi;z;;;;;o;., the!Wliiit1y time diJlffig.;ffie term hereof insuring or covering the Retail ~f':l·, ··:·,.-·' r.t• ,-,. ,, . (-'(>:·,~,?-~?.,',:,,-··-~'<<'"•·/~: .. ;j:~W»~ff" · ·" ·:;·:';it[~Bace;·~%~ny port_ion the_reof or ~perations therein, a wa_iver of all ,;r~>?:ifi;·· r~ of·~11rogat1on wh1ch the msurer of one party m1ght have "::~f:~*l',:> ag'~t the"~! party, and the City and Tenant shall each indemnify, >&J$1:~f;:c,. defe~ and Hold harmless the other against any loss or expense, <':~:frfjr?{: inclucli reasonable attorneys' fees (appellate or otherwise) resulting ···~{:~~~~~;,, fron1§~~ failure to obtain such waiver. ~~-~:~J~~~;~1-~:" :·5:>:;~:~:~:tJr?r · 10.2 Pr~8t!l;~:s~ coverages must be provided by submitting original certificates of insurai1ce to the City's Risk Manager and Asset Manager respectively. All policies must provide thirty (30) days written notice of cancellation to both the City's Risk Manager and Asset Manager (to be submitted to the addresses set forth in Section 27 hereof). All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of B+:VI or better per A.M. Best's Key Rating Guide, latest edition, and certificates are subject to the approval of the City's Risk Manager. 11 923 11. Property Taxes and Assessments. For the purposes of this Section and other provisions of this Agreement: 11.1 The term "Property Taxes" shall mean (i} real estate taxes, assessments, and special assessments of any kind which may be imposed upon the Demised Premises, and (ii) any expenses incurred by the City in obtaining a reduction of any such taxes or assessments. <",{!)?, 11.2 The term "Property Tax Year" shall mean the p~~hftwelve (12} calendar months, beginning on January 151 of each ye~(~rf~'?? c~~~:i~~WX??JJ§~:$:>:j 11.3 Tenant shall pay, as Additional Rent pur~l1t td~IMPsection 3.2, for such Property Tax Year an amount ("Prop~;y 'fax Pay-;') equal to Tenant's pro-rata share of Property Taxes (~~~y) for such Pr-y Tax Year; said pro-rata share to be determin~.QiJi~Jc~the City based up~~ .. ~ ratio of the Demised Premises to the tax:iifM': If a Prop~rty Tax Yeaf1,~s after the expiration or termination of the'iif~ of tt}j$;~~greement, the)'R'foperty Tax Payment therefore shall be proratell!Q, .· . espond to that portion of such Property Tax Year ocs;~~~}pg within tt-l~:~~~ of this Agreement. The Property Tax Paym~nt shall be~~~5 .. ~~ Tenarit:wed_iately upon receipt of_ notice from the C1ty. A copy of~ ta~;tm{~J or otH~~~K1dence of such taxes 1ssued by the taxing authorities .·~ethe'f·~~ Cit9'$f~mputation of the Property Tax P . . be made~avaii~Je~to:m:~nt once received from the taxing 12. 13. autho · ·· ·.· · bV\~~~iff' Ten~fifi~hall pay any difference in the '''""'''."""C'T·mat$1Iproperty taxes and the actual property taxes , upon ?~eipt of request for said payment from the '>?&;~~k. fC:i:i:Ci.~/:~1::~?>: I: hatt;.m~t 1c1v~''Ui.~. right to assign or sublet the Demised Premises, in whole . written consent of the City Manager, which consent, if .. City Manager's sole and absolute discretion. Such . a m ' · · r of right and the City is not obligated to give such · .. provided herein, the making of any assignment or sublease from any of its obligations under this Agreement. 13 .1 Ten ant shall be solely responsible for the operation, maintenance and repair of the Demised Premises. Tenant shall, at its sole expense and responsibility, maintain the Demised Premises, and all fixtures and appurtenances therein, and shall make all repairs thereto, as and when needed, to preserve them in good working order and condition. Tenant shall be responsible for all interior walls and the interior and exterior of all windows and doors, as well as immediate replacement of any and all plate glass or other glass in the Demised Premises which may become broken, using glass of the same or better quality. 12 924 The City shall be responsible for the maintenance of the roof, the exterior of the Building, the structural electrical and plumbing (other than plumbing surrounding any sink(s) and/or toilet(s), including such sink(s) and toilet(s) fixture(s), within the Demised Premises), the common areas and the chilled water supply system. The City shall maintain and/or repair those items that it is responsible for, so as to keep same in proper working condition. If the City provides a separate air-conditioning unit for the Demised Premises, Tenant agrees and understands that:Jenant shall be solely responsible for the maintenance, repair ~;t:;:replacement of the heating/ventilation/air-conditioning (HVAC) ecu-t~iffant servicing the Demised Premises, at Tenant's sole expense. ,::;?iJW!{~i:~ri:, 4]~i~f~V,: !'';{(~it~t::,~, Tenant further agrees and understan~trat, if the Cf®;,:provides a separate HVAC unit for the Demised Premi.i;the City, at its;~ discretion, may require that Tenant obtain, at aq;sf{~~ during the Term"Mt1bJs Agreement, and continuously maintain in go;it.~~·tanding, ~t,Jenant's exp-Jhroughout '•,./•;l•_,,. ·: ,, ~ ;/,-1._,~:-.~·o_·• the Term of this Agreement, a m'q~nanc~~-(frepair contrac(;~fpproved by the City, with a service company p~~M§tlC':§pproved in writing by the City, providing for the prev~tRtive mainteri~~~md repair of all HVAC equipment servicing the Demisetftj~r~t~$~S. In thei{i:JJlt that the City notifies Tenant that it will require Tef:lpf'·'~i:~Jract fot*ffMjd maintenance and repair services, Tenant shall pfQJ:!Pe tolq;l~t ·' in .g. within ten (1 0) business days, the n~m~§) and tele~on~i~ · .,~ ;,pf S:ervice company(ies) for the City's r~Mi~}::itij~i~:approvat.~.;.~.;~Bant sha it~fo/rovide a copy of a current, enfor~~fe and l\iJJy executtlf:'maintenance and repair contract, no later than;,;#iif'(1 0) busin.~ days aff~:receipt of the City's approval of the service com!Y-t, as prq~{if :-r~nant's ~~pliance with this provision. ''!H:i~~}?~lj,. <:~'l(;·l:lW~~l>:c:::;~~;;~i;~~:(:1')'1f~/~:;;::: ··"·' '<~.\':·'· 13.2 ,;;;,;f:?!:)~Hifk~9il>nage~t~i~)ury of an~Vt(l((f to the Demised Premises, and including ,.fi:;~~~W~~~l,, wltfi~~;~.i.rnita'~·J!s fixtures, glass, appurtenances, and equipment (if any), ,,:tti~~~·y or to tfW:tA;b,uildifi:j~jxtures, glass, appurtenances, and equipment, if any, '<?'f_-i>-~'>,'·, -< '<;f'<p'/.o ~•f/•:/?/c··-,,~27~~~1~~:\ except da~~e ca~~ by the gross negligence and/or willful misconduct of ';~·~t~f~~''" the City, s. be the sole obligation of Tenant, and shall be repaired, '·i'~~{~Bbrstored or t!:~laced promptly by Tenant, at its sole expense and to the ''):QJjsfaction,~~he City . . ,~~tr%~ ,. ..s?J~¥r:t 13.3 All citt~f.Q¥6resaid repairs, restorations and replacements shall be in quality and cr~s equal to or better than the original work or installations and shall be done in good and workmanlike manner. 13.4 If Tenant fails to make such repairs or restorations or replacements, the same may be made by the City, at the expense of Tenant, and all sums spent and expenses incurred by the City shall be collectable by the City and shall be paid by Tenant within three (3) days after submittal of a bill or statement therefore. 13 925 13.5 It shall be Tenant's sole obligation and responsibility to insure that any renovations, repairs and/or improvements made by Tenant to the Demised Premises comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. 13.6 Tenant Responsibilities for Utilities (not included within Operating Expenses). Tenant is solely responsible for, and shall promptly pay when due all charges for electricity, gas, cable, telephone, internet, jani I garage service and any other utility service provided to the Demised , including, without limitation, all hook-up fees and impact fees, eluded as an Operating Expense (pursuant to Subsection 3.2.1). In addition to other rights and remedico.~thcr,::u the failure of Tenant to pay for Subsection 13.6) when due, t same, whereby Tenant agreestc~nr·om e~~MM:¥t~u to the City, upon r'!:lc-·~·nt.:.mplated in this le'-r.!I1Sc:ret1on, to pay demand. In no event, however, shall the C ·· · , whether to Tenant or to third parties, for an interru~.or failure pply of any utilities or services to the Demised Premis~f~~:~$~~f::?!gtJiJ~;cc;· . · .. · .· . 13.7 TENANT HEREBY A~JSt~iO\NE~~~S DEMISED .e,BiiPJIISES ARS\~EI,.}LEQ§QI AGREES THAT THE EIR PRESENT"AS IS" 14. 15. CON~~S">¥11\i£;~~~ "{,f' Wftj\'" GovernmeGJ'Regulation$~r: •;J:J:::., Tenant cov~l:~ an~,;~•~.Jpfultni{~Qd comply with all statutes, ordinances, rules, orders, regQ:{;~J~ffll:t•ahdr~fi!j~:enrE:mts of any and all governmental bodies, i~~~t~~t ndf}l~Q~fited to Fel:fefaf, State, Miami-Dade County, and City ,y~e·rnmen~•l)d a:n¥i~~pd all of their departments and bureaus applicable to the v$~J~,~mised PreH~~;~• a'~1~all also comply with and fulfill all rules, orders, and ·<~i?:~~.ulations for ttieiefrventl~&of fire, all at Tenant's own expense and responsibility. ~ "··. nt shall pay aM~st, exp-enses, claims, fines, penalties, and damages that may be .... sed becau~iPf the failure of Tenant to comply with this Section, and shall indemif~; •. and hq~f1harmless the City from all liability arising from each non- complia lilli!l~~~~~;.~W'i¥ Liens. Tenant will not permit any mechanics, laborers, or materialman's liens to stand against the Demised Premises or improvements for any labor or materials to Tenant or claimed to have been furnished to Tenant's agents, contractors, or sub-tenants, in connection with work of any character performed or claimed to have performed on said Premises, or improvements by or at the direction or sufferance of the Tenant; provided however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give the City reasonable security as may be demanded by the City to insure payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or 14 926 16. 17. 17.1 17.2 18. 18.1 improvements by reasons of such non-payment. Such security need not exceed one and one half (1 %) times the amount of such lien or such claim of lien. Such security shall be posted by Tenant within ten (10) days of written notice from the City, or Tenant may "bond off' the lien according to statutory procedures. Tenant will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at Tenant's own expense. Intentionally Omitted. Condemnation. If at any time during the Term of this Ag hereunder) all or any part or portio appropriated, or condemned by then this Agreement shall be te shall thereafter be completely shall thereafter have any Agreement or anything containecf,;0tfltenez,: beyond the date of s~~t}Jaking sha shall pay any and all r~~;~Y!gJtional for which it is liable und~f~'hEFf~~.ofthis Pi.. m:M!P. taking. :;;.;;; ">;:i<:.;, .. .. ;:::?;t(iJ·~~:··· ;:;.[~~'·: . ;::fttf$;::X11i:i:1r~$~r~t*':"·. Except cmL~~r provi~£J:$:ti:lhant sti~df'rfot be entitled to participate in the p~·ds of a~nflward rwe to the City in any such ~minent ~omain pro~amg, excep.tJNQ, howev~1;,Tenant shall have the nght to cla1m and ".'i/ii/o,'Jc, ';Vt,'-:' 'i''!>','i>'o recov.!4rom t~t!~~~QJ;J,9.~mnin~lf*~~uthority, but not from the City, such compen" ... , · . ·:«·:.,.·v'B'~·~-~:S~tely awarded or recoverable by Ten~nt in ,~~~~1;:~!:~~~;;o~~· . t on account10f any and all damage to Tenant's bus1ness ;f~! a· "' : . condemnation and for or on account of any cost or loss . rrf~~Jncur in removing Tenant's furniture and fixtures. 18.1.1 18.1.2 ltVf1$2:£t1PtiCln, any of the following shall constitute an Event of Default :t:met:>:M.u reement: The Base Rent, Additional Rent, or any other amounts as may be due and payable by Tenant under this Agreement, or any installment thereof, is not paid promptly when and where due, and Tenant shall not have cured such failure within five (5) days after receipt of written notice from the City specifying such default; The Demised Premises shall be deserted, abandoned, or vacated; 15 927 18.1.3 18.1.4 18.1.5 18.1.6 18.1.7 18.1.8 18.1.9 19. Tenant shall fail to comply with any material term, provision, condition or covenant contained herein other than the payment of rent and shall not cure such failure within thirty (30) days after the receipt of written notice from the City specifying any such default; or such longer period of time acceptable to the City, at its sole discretion; Receipt of notice of violation from any governmental authority having jurisdiction dealing with a law, code, regulati.~n. ordinance or the like, which remains uncured for a period of:;fllijirty (30) days from its issuance, or such longer period of ti~p>may be acceptable and approved in writing by the City Man.}f~.~his sole discretion; :: .. ;~;@'~~~ .,~~!~hi Any petition is filed by or again~~~~nant und~.:, section or chapter ofthe Bankruptcy Act, asa~ed, which rem· '~ ending for more than sixty (60) days, o~/~j~":•·ath~r proceedings··>·· or hereafter authorized by the laws:~?:Jthe Umted/§.tates or of a·A!i;t~~!ate for the purpose of discharging cif;~ndin~;:Wtime for paymetit of debts; .. x~;{~~{,f)y;;;~~k~~itf'(." Tenant shall b~~rne insolvenff~.·:~}?~ZC <_:~:;~~w~~:;:;{;:~·;{~:k_, ( , ~::.;~~:~~~:~~~j:c- Tenant shall m;~~~f::(~~!~m~ent'f~Ja~tnefit of creditors; ;~~;:~\ .. l;·":.:;:lX.::~lll;··· .;;y~~%~· . is appot~d t!j.l~8:lf'e~w9Y ahy court and shall not be . . in thi~~~~acws th.@reJatfter; or ' ': ,-~ ;~f::~:;:;)!'· ·.· · interest~~}levied on under execution. ~-. '~-~~~~~*~;1., 1·/c·/c</'c·l'•··•·l• ult by Tenant as provided herein, City shall have the .. following, in addition to and not in limitation of, any by law or by this Agreement; this Agreement, in which event Tenant shall immediately UI~I!mt~er the Demised Premises to the City, but if Tenant shall fail to ·;1~i2~!'fJti~i6 the City may, without further notice, and without prejudice to other remedy the City may have for possession or arrearages in rent or damages for breach of contract, enter upon the Demised Premises and expel or remove Tenant and its effects in accordance with law, without being liable for prosecution or any claim for damages therefore, and Tenant agrees to indemnify and hold harmless the City for all loss and damage which the City may suffer by reasons of such Agreement termination, whether through inability to re-let the Demised Premises, or otherwise. 16 928 19.1.2 Declare the entire amount of the Base Rent and Additional Rent which would become due and payable during the remainder of the term of this Agreement to be due and payable immediately, in which event Tenant agrees to pay the same at once, together with all rents therefore due, at the address of the City, as provided in the Notices section of this Agreement; provided, however, that such payment shall not constitute a penalty, forfeiture, or liquidated damage, but shall merely constitute payment in advaQg,e of the rents for the remainder of said term and such pay,~· shall be considered, .~r.?X':·~'},/" construed and taken to be a de~.~~[~vable in bankruptcy or receivership <>~;:'J!Zf/A::~~~):I, .• 0 ,'i:~'i;','f;'/;:J-/"':'."i.~o',(•r:/': .. )~~fjlif!. ''"'f;:~~~*Wii\, 19.1.3 Enter the Demised Premises,,:& fne agenf'ii:ft;:.Jenant, by force if necessary, without being -~to prosecutl31t;gr any claim for ~ J <~' J~ J ),_ ' ;,_ -,_, 'r; f:J: "' damages therefore; remqtf~T'enant's property the~~pm; and re-let the Demised Premises.·~Ql:1:pbrtions the. . .:.eof, for such' ::hh ~ and upon such conditions which th~:'-~dee!lllli~'its sole discret ·.rf, desirable, an~ t? receive the ren~s the~~t~Pa Ten ant sh~ll pay the City any def1c1_ency that~t..~nse by_ r~~ of su~h re-lett1ng,. on demand at any t1me and ~time to t1me at:~tne off1ce of the C1ty; and for the purpose of re-l@lio9~~~~ij~.~ •. ~.ity ma}rt· ·· . ake any repairs, changes, alterations or adCftl~.ns i·n;·~~t~§~)d D~§;ed Premises that may be nec~~§;~J¥. or conv~~ent;.;{ij)::~pijfiJ:J!;.fosfs and expenses therefore fr.~lf:E¥ntst,~ulting ff~~letting;·~:aiilf (iii) Tenant shall pay the City ·~y'deficie·~ as afofuaid. :·· ]i~ j4ey~~· 19.1.4 e pos~Jon.of any ~t$onal property owned by Tenant on said . . .,:;: .. ~~[~,~-~:m~t~.~~fthe same at public or private sale, and 1 ;,;:r:@~~~~~~ff~~?:•rap~l~·e· to the paymsnt of rent due, holding Tenant liable for the /.d:;'i?~t;::·· ···~*o:;:··4t:eflcletf~ 1f any oh1 > :':7 ::•*~~~t;.})'. · .. >; iS:ii~:B,:c. . It ti;:~~pres~1~greed and understood by and between the parties hereft~;fi!hat aiiy"'installments of rent accruing under the provisions of ·s,*~~~i:M~'5 , this AIJement which shall not be paid when due shall be subject to a ''<:~>:"··· late ~rge of Fifty and 00/100 ($50.00), plus interest at the rate of '·k~·,:: ... eiQ~n (18%) percent per annum, or the maximum amount ··<:~1*~~-able under Florida law, whichever is lesser, from the due date of 19.1.6 ~~~~yment until such time as payment is actually received by the City. Any failure on the City's behalf to enforce this Section shall not constitute a waiver of this provision with respect to future accruals of past due rent. If Tenant shall default in making any payment of monies to any person or for any purpose as may be required hereunder, the City may pay such expense but the City shall not be obligated to do so. Tenant, upon the City's paying such expense, shall be obligated to forthwith reimburse the City for the amount thereof. All sums of money 17 929 19.2 19.3 20. payable by Tenant to the City hereunder shall be deemed as rent for use of the Demised Premises and collectable by the City from Tenant as rent, and shall be due from Tenant to the City on the first day of the month following the payment of the expense by the City. 19.1.7 The rights of the City under this Agreement shall be cumulative but not restrictive to those given by law and failure on the part of the City to exercise promptly any rights given hereuaper shall not operate to waive or to forfeit any of the said rights. A~~~1l·i\' . . ,;:~:{~,[ill]~~ .. t . Default by C1ty. .;;:,1:.c%;:;?··cY:;,:·:; .. ""·J!/:f-(• 'l;{if;-$.)'!' The failure of the City to perform any .qJ;!~ftle ~[lants, conditions and -'·,/{."" ""i.f,'i.K'i.f;·~-- agreements of this Agreement which ~~Jobe perfd~ by the City and the continuance of such failure for a p~ ·'";~of thirty (30) day§}":fter notice thereof in writing from Tenant to the Cityr .· . :tch notice shall spe-~tl1e respects in which Ten ant contends that til(~)., ty failed t~hperform any:~~ covenant, conditions and agreements) sh~i~pnstit~~if7 default by the:WCity, unless such default is one which cannot be~~~~hin thirty (30) days because of circumstances beyo . City's conffiW/iifhd the City within such thirty (30) day period shall · .... · .· ced and t~,after shall continue diligently to prosecute all actions · ···· ·· ·. re su~fJJ~faults. : : : . . :;;;*%r~~~; However, i . . . ... wffhin the initial thirty (30) day period ilure ·· rform prevents Tenant from ope · ary manner and causes an undue hardship for rm (regardless of circumstances beyond its .··. I constitute a default by the City. i:rw:;;.,,.~n+ mDIEne City's default shall occur, Tenant, to the fullest extent 1aw.;;.::::SI all have the right to pursue any and all remedies equity, including the right to sue for and collect ing · sonable attorney fees and costs, to terminate this "ded however, that Tenant expressly acknowledges and · recovery by Tenant shall be limited to the amount set forth in ~::mtahis Agreement. 20.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable attorney's fees, and damages which may be incurred or sustained by the City, by reason of Tenant's breach of any of the provisions of this Agreement. Any sums due the City under the provisions of this item shall constitute a lien against the interest of the Tenant and the Demised Premises and all of Tenant's property situated thereon to the same extent and on the same conditions as delinquent rent would constitute a lien on said premises and property. 18 930 20.2 If Tenant shall at any time be in default hereunder, and if the City shall deem it necessary to engage an attorney to enforce the City's rights and Tenant's obligations hereunder, Tenant will reimburse the City for the reasonable expenses incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, whether suit be brought or not and if suit be brought, then Tenant shall be liable for expenses incurred at both the trial and appellate levels. · 21. Indemnification Against Claims. jlfJI'jf~'V::v Tenant shall indemnify and save the City ~prnles '.,~i,;Jn and against any and all claims or causes of action (whet ·~;i~rbundless~7~::.· :ptherwise) by or on 21.1 21.1.1 21.1.2 behalf of any person, firm, or cor ·· . ··on, for perso · '')Jjury or property damage occurring upon the D~~~· Premises or upon·:c-.. other land or other facility or appurtenancj~6iilsed in cggnection witfli~:f:~ Demised Premises, occasioned in whole''CiffJiapart 9~l·PY of the followff\9': • ?") ~,~;:.~I~~i~5::; ~,,; ±~: f~~:t~~~(J~~:<:···' An act or omi&$i~D on the pa·n:~~~~ll"enant, or any employee, agent, contractor, inV~~~Q1il~tst, assig·~~«§ub-tenant or subcontractor of Tenant; ·:x~~~>·":·a;&:fg~~,1~~;~i:<:q;:~''f' , .... ,.,~f~~~f~~;> Any mi~y$e. negler~i;Or y~}l~~of;the Demised Premises by ;/,I <,",''i/}',li0:?>'-'-1'-'.l • {,'","'.-/ ~-'?\ ,'.:. ~):.; · .}.,•,~•.•/:c-1,;;•\: T~ttt;':et:t~Y empl~~jlgent, contiactor, invitee, guest, assignee, ,;:;_,_., _·,.-, 'J"''.!''r' •'~··l,,"i~":-,,, ~i:tenanr~$ubconf~tor of Tenant; v:f~$tf .~f~:~:l ;f1~~il2; 21.1.3 . '"5;l·~Y brea.~~y!Q).f!tion, o~~ipon-performance of any undertaking of ., •. :rz. ··~i.t~r,~~.,~,., .. , -r~,~rc~-~~WiJht; ,i~mtz. : ~=;~itie;~;?;;i.i:'t~lth'i~?~~rowing out ~f the use or occupancy of the Demised 4ff~f:m:§r P~fnises=ti;lenant or anyone holding or claiming to hold through or ·-~:r~;fu:, un<i~f;rJ:his A~ment. ''rt~~!}Mi~~;,. ,~~~*t ''%':i 21.2 -r{:i:r~l~;i(enant agreRto pay all damages to the Demised Premises and/or other i'':~_lities us~qj~fh connection therewith, caused by Tenant or any employee, a~mt~. cqf)f~Ctor, guest, or invitee of Tenant. . rr;%I$;%i~ffiJf:'. 22. Signs and A~rtising. Without the prior written consent of the City Manager, which consent, if given at all, shall be at the City Manager's sole and absolute discretion, Tenant shall not permit the painting and display of any signs, plaques, lettering or advertising material of any kind on or near the Demised Premises. All additional signage shall comply with signage standards established by the City and comply with all applicable building codes, and any other municipal, County, State and Federal laws. 23. Effect of Conveyance. The term "City" and/or "Landlord" as used in the Agreement means only the owner 19 931 for the time being of the land and building containing the Demised Premises, so that in the event of any sale of said land and building, or in the event of a lease of said building, the City shall be and hereby is entirely freed and relieved of all covenants and obligations of the City hereunder, and it shall be deemed and construed without further agreement between the parties, or between the parties and the purchaser at such sale, or the lease of this building, that the purchaser or Tenant has assumed and agreed to carry out all covenants and obligations of the City hereunder. 24. Damage to the Demised Premises. 24.1 If the Demised Premises shall be damage , , lements or other casualty not due to Tenant's negligence, or by '·. ... ut · . /,not thereby rendered untenantable, as determined by the ~.Manager,''·lfl'fbj~ sole discretion, in whole or in part, and such damage,!§::~t:ered by the c·it!lt;;jnsurance, if any, (hereinafter referred to as "suci:){;~-urrence"), the CitY:;~~!I, as soon as possible after such occurrence~~~ze the ins~f·~nce proceeCJ{i~tcause such damage to be repaired and the R~t (Bas!irJi,fit and Additiori'af'Rent) shall not be abated. If by reason of such"~,vf~~. the Demised Premises shall be rendered untenan~l~. as determU:jfi}'by the City Manager, in his sole discretion, only in parf~~~i~¥,shall as ~llQrh.;:tS possible utilize the insurance proceeds to cause the d~a~~J~.~ repaif~~;~nd the Rent meanwhile shall be abated proportionaf~~ as · td5f:.' t;F:R?rtidlt~f:~f the Demised Premises rendered Ul}~f;la(ltable; p~ie,j.de . . ~t~tQpt ffle City shall promptly obtain a good f~li1¥:'f~~te of th~W'~~quired'1tiftremder the Demised Premises tenantf:~and if~~ time Ejffeds sixty (60) days, either party shall have the .• on of canc~fil this A~ment. • :!::;w?i~~· j~~~rra:: :. . . -~:;~0:;:, 24.2 If the D~Qf~~-~~1"!1! ·~~hdered wholly untenantable by reason of ,;;f;;J?M~-~R.ccu·rr~:· the City§fl: ·ave the option, but not the obligation, in its "z0Wf:~f:"'' sor~::.retion\\to.utilize the insurance proceeds to cause such damage to be .;d;i~~*$~1r· repairEfit(lm~ tt1·~1,~~,~t meanwhile shall be abated. However, the City shall :~~4$;~(. have the ttgl;lt, to oS;~~rcised by notice in writing delivered to Tenant within '.~"/? . .i·T'-:, -<•./_;:/; ·, .•. (·''1-' ·:rir~~~i':<:·· sixty (60) da~~f~om and a~er said o~currence, to elec~ not to reconstruct the ··~g¥~~~estroyed D:~1sed Prem1ses, and 1n such event, th1s Agreement and the "'rt::c,, ncy her~ created shall cease as of the date of said occurrence, the . '~Jo bii'~justed as of such date. If the Demised Premises shall be P·y,r!J?!.-\, ', ~''c:~"i/".!. renCf'ttl~olly untenantable, Tenant shall have the right, to be exercised by notice'ifwriting, delivered to the City within thirty (30) days from and after said occurrence, to elect to terminate this Agreement, the Rent to be adjusted accordingly. Notwithstanding any clause contained in this Section 24, if the damage is not covered by the City's insurance, then the City shall have no obligation to repair the damage, but the City shall advise Tenant in writing within thirty (30) days of the occurrence giving rise to the damage and of its decision not to repair, and the Tenant may, at any time thereafter, elect to terminate this Agreement, and the Rent shall be adjusted accordingly. 20 932 25. Quiet Enjoyment. Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or disturbed in possession of the Demised Premises so long as Tenant complies with the terms of this Agreement. 26. Waiver. 26.1 26.2 26.3 27. It is mutually covenanted and agreed by and betw~ the parties hereto that the failure of the City to insist upon the strict .... ?•····~> ·. rmance of any of the conditions, covenants, terms or provisions of ... · /: · reement, or to exercise any option herein conferred, will not be corJ.:~:·:';? •. .. ..pr construed as a waiver or relinquishment for the future of any ~~condftl~J1S, covenants, terms, provisions or options but the same sh~M;:Fo'~tinue an:d'it~ain in full force and effect. x~£~ff~f1JF' ···•i?:~&if~il;;i, A wai~er of any term exp~esse€(ilffein shall ~;9:tb.e implied ·5~~>' neg.lect of the Crty to declare a forferture on·~punt qf~~~\lrolatron of sucftlerm rf such violation by continued or repeate<:J:ttiJJ? .• ~ntly and any express waiver shall not affect any teJ;~·,gJher than thgf .. specified in such waiver and that one only for the time ·~~piU~t~£!1~. manner'.,pifically stated. _,~~;~~~~:~. "·~~~;~~<~;;~:::~,>-~:~-,'-: '\:(~;~It;-:;.~. The receipt of any surNf{~id ··t);y:%;11t~~.Qt t~;;~., City after breach of any cond~tion, 9~~-P.~nt, term o~~roy:~~~tt-?£oiitai.ned shall not be deemed a warver,,~f:ii~t:r~-{Cach, b~f"§ti~ff· be takS'ftt'COnsrdered and construed as paym~fbr use ·~~ •• occupatjib, and not as Rent, unless such breach be exp~fy waived i~ffriting by"~ City. Notices. 'Ciilf~~~kt: ,;;f~-:\(~J;:f,~<l;p.,:~:lt~~ Tl}~~(~l;§ .• ~s fdf.i,~!~5tices requlfMiu'nder this Agreement shall be as follows, or ~<:§rich ot~~dre~~;~§ either party shall be in writing, notify the other: ·i¥~~~171 .. ~~::ii~~~·t ... . . .. ,.,{;~~~r~·~(~ .. ·.· ., H LANDLOAil. ~··I~·· City Manager City of Miami Beach ijt~\,,, ;!,, .. ' ~-~, TENANT: 1700 Convention Center Drive Miami Beach, Florida 33139 Director Office of Real Estate City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Damian J. Gallo, President Damian J. Gallo & Associates, Inc. 1701 Meridian Avenue, Unit 4 Miami Beach, Florida 33139 21 933 28. 29. 30. 31. 32. All notices shall be hand delivered and a receipt requested, or by certified mail with Return receipt requested, and shall be effective upon receipt. Entire and Binding Agreement. This Agreement contains all of the agreements between the parties hereto, and it may not be modified in any manner other than by agreement in writing signed by all the parties hereto or their successors in interest. The terms, covenants and conditions contained herein shall inure to the benefit of an!;t 1be binding upon the City and Tenant and their respective successors and a.s. except as may be otherwise expressly provided in this Agreement. ~':f1:~i:Jt~~i~" .c7~~~}~~J~Y:l!~¥fb:, .. Provisions Severable .i·:~;t<;::Y .. ,,,~,,;:~'··· .:___:_:~::..:...:...:..;..:...-=.;::..:...=:...=.:;:=· ~:~::?{t:t1?~ '\;~1:5~~})/,-~ If any term or provision of this Agreement or :t!Jt>iiPPiicatiori''~~of to any person or circumstance shall, to any extent, be invaljgl~ilnenforceable·:~remainder of this Agreement, or the application of such ty_rmioFprovision to personS'~;pircumstances other than those as to which it is held iifyi(ld or unenffi?rceable, sha·rr~~.be affected thereby and each term and provisiori';~::r.:!his A,a£{;fnent shall be'(~ilid and be enforced to the fullest extent permitted bY'lM;.1;t,:$~~f!X~>·~ Captions. ·~~fli}ltl.~~~~·~,:·oc, T;;;~~)~~;~ih. The captions contained hereiri{~~':ffit~~J;onven'IE:Ji~ and reference only and shall not be deemed a part of this Ag~mertt;~~H~tru~~f:~ in any manner limiting or amplifying the te. ·• .. provisiO:~. of.Mil~;~g:r~~nflo which they relate . . · .. · .. •.. . \1:ti):~~:~l:~·~f);' ! "••::i:~!:fJ%'' !....!..=~~.=.:..:~'~·~~l.§':.!..:. ngula~;Airober shall include the plural and the plural . e use··~;one gender shall include all genders . •. j/'ji•,/'ii'/'•·····~·,;;•.:,•;,;,;, /.·:'··. ·.;~::,:'-'. ,into this Agreement only if in so doing the City can place a · any cause of action for money damages due to an :.tf, .• ~)t.his Agreement, so that its liability for any such breach m en Thousand ($10,000.00) Dollars. Tenant hereby ln!lrtel:;s to enter into this Agreement with Tenant's recovery from aJ'llJSQie action for breach of contract to be limited to a maximum u ..... ,...,.,,1.i]"'· Accordingly, and notwithstanding any other term or condition grE:ifmlitllf;' enant hereby agrees that the City shall not be liable to Tenant for damage i · · ·amount in excess of$1 0,000.00 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. 33. Surrender of the Demised Premises. Tenant shall, on or before the last day of the Term herein demised, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised Premises, together with any and all equipment, fixtures, 22 934 34. 35. 36. 37. furnishings, appliances or other personal property, if any, located at or on the Demised Premises and used by Tenant in the maintenance, management or operation of the Demised Premises, excluding any trade fixtures or personal property, if any, which can be removed without material injury to the Demised Premises, free of all liens, claims and encumbrances and rights of others or broom- clean, together with all structural changes, alterations, additions, and improvements which may have been made upon the Demised Premises, in good order, condition and repair, reasonable wear and tear excepted, ·ect, however, to the subsequent provisions of this Section. Any property to the provisions of this Section is removable by Tenant on or at 1sed Premises upon the termination of this Agreement and is not so at the option of the City, be deemed abandoned by Tenant, and either. by the City as its property or may be removed and disposed O.lff~ sole . the Tenant in such manner as the City may see fit. If the De~~/Premises an . . . nal property, if any, be not surrendered at the end oftg~J~efm as provided in on, Tenant shall make good the City all damages:~h the City:~hall suffer .. n thereof, and shall indemnify and hold harmlesS!lJoo City.Mtnst all claims · e by any succeeding tenant or purchaser, so far as··~~.~~ is occasioned by the failure of Tenant to surrender the Derp;~.d Premises 1~~hd when herein required. Time is ofthe Essence. "'~w~:;$i\*{!i!i:%k ""'1/'\~!J•. Time is of t~e essence in everj;~rticul~~~J?arti&tj~ly where the obligation to pay money IS involv::ld ·WF•·:· ·YI·>·J··.s:'.,,·::c:v~"1··". ·,. Venue: 4/J~f&"'if'i;T'\,, '·~i~~ji"' "'<%1,,• This Agree,n~t shall be *med to fi:Me been made and shall be construed and '"'/!(/tN't, '<"/?-';'-'," ,'-<Fci'~ interpreted iff:J'$cordan~i~itbthe laws1i-the State of Florida. This Agreement shall be enf9rceabi€~~':Mi~~·!ltMJ.~rida, and if legal action is necessary by ei~f;.~!\with ~~t to the e'nf'orcefnent of any and all the terms or conditions .. mJitn','''e~M.e v~~ for the enforcement of same shall lie in Miami-Dade ounty Floricfa::t:;;;,. ~:;:~<'i~B, , '·~:~:;;~:;:~~:-, '·.y· ~:~::~!;')\, ' <· '(,5?<--· ·. . .. AND TENAMit{HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGi:J.,JO TRIAL SJ;JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND"TtN~'NT MAI:f~EREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPEO'tfJj:;::IO.,:;-~ MATTER ARISING OUT OF OR RELATED TO THIS ,;n:";fj/ff,, ,/ti/-i'',·.'Ji-Y AGREEMENYF?';:;)>,<" iyif!J/:!!p Radon is a naturally occurring radioactive gas that, when it is accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your County Public Health Unit. No Dangerous Materials. Ten ant agrees not to use or permit in the Demised Premises the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered 23 935 electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. Any such substances or materials found within the Demised Premises shall be immediately removed. Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or expense of the City, including, without limitation, rea~gnable attorney's fees, incurred as a result of, arising from, or connected withJ!liiJtacement by Tenant of any "hazardous substance" or "petroleum products.;;?:k8!>;in or upon the Demised Premises as those terms are defined by applicagtfJ.~ral and State Statute, or any environmental rules and environmental regjfiftionS''~~tqmulgated thereunder. The provisions of this Section 37 shall surviv~;~Qlferminati~Qrearlierexpiration of th. Ag t ~~~)~:{;~i:;:~:r·' (·::~~H:~~;;:;"t IS reemen . ,;;:i,f~2\i;;;: ·i?:~%~~;,1 , ,::if!tW!l' ,, '::;r;t' ... REMAINDER OF PAGE INTE:~]:~PNAL4~f~EFT BLANK ~~~,4<~7~%, 24 936 IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their agreement. Attest: CITY OF MIAMI BEACH, FLORIDA Print Name: ----------------------- Print Name: ------------------------Attest: CORPORATE SEAL (affix seal here) T:\AGENDA\2013\September 11 \Damian Gallo\Damian J Gallo Lease Agreement DRAFT (9-3-13).doc 25 937 EXHIBIT 1 Demised Premises UNIT3 UNIT2 AREA UNIT 1= 1,326.78 S/F w:=::::::::-J AREA UNIT 2= 1,802.89 S/F It:;··::··: .. :=::!! AREA UNIT 3=o 1,290.59 S/F h:.:;::;;·•:::;;:;;:::::~ AREA UNIT 4= 1,268.87-S/F 11:-·-;::::·•· .. ::::;;:zJ i "' 1 .. f:;:j w 0:: f- "' .<::: r'C ----·- 0 U)O 200 SCili FttT SUR\IEYDR'5 NO~ DITAILS Of" IH~OAS WN...Ls WER( 8ASED IH CRfQNAL ~,._WINIJS N10 !fEST INrDRMAliON oBTAIN mot.t FElD 53.1R\£Y First Floor Plan 1701 MERIDIAN BUILDING CONDOMINIUM Page 4 of9 Exhibit "B" 26 938 Soups OUR IJU.0S m MADi' N!iH THE FERE)Hf) i!VGR:O!ENT\ USI!IG L~'CAL f4R~~[PS, ORGA'/1[ BE ~N5 i VECEWi.H AND FREE OF PES:E510ES French Ril'lm Beach caramelize anion soup 00 Neulr3ii[Cd bale. with :artli€li1f 'l1da1ra omens. The oriental blac~ bean soup 4.00 31ac~ beans B~d 3 :cue~. d Cuoan seasoned. Colndy neam of tomato soup 4.00 Twice Med potato soup 4 CO )a[ads CP.IIN COU5li NASH W.AD) WITH OPGANiC TOMATO[) AND FW Ill Chicken Floribbean style 6.W BaGy Romains, crouto~s.avo:ados Cae:ar. S~uth Beach Sunrise Bnii's and Tomatoes m;x le~tuce Fr~ncn dressing and slic~d 3irrJnd:. 6.00 Ocean Drive mfood salad 7.0) 5aby snwr:•, scallops to~~ed 'l~th ror1aine ettuce HJ: c:essing EXHIBIT 7.1 Menu Ughting Paninis PAHINIS A.Rf ~MOE WH FRESH LOW BREADl MkEDDAi~l MID V£,~(FA\i j£,~1/fD TO YOU. A!l incl~de owr Jo:'s cvowdo air (ries •·· Chicken tender~ and Tomato chutney Gnlled cllickerl With adoh'l and l~t:uct and tomdto svead S€rvl:'d our fre~ch ta~~:ett~l. Cuban twist 11.00 5erranoHam, slowso11 v:de JUII pork, fried picKles, frer.ci1 mustard, \wis1 cnesses Chicken Poblano IO.OCr Grilled chic•.en ip€cia! 1p1ee \W '1.1tt: romai~f letuce 1.~d ronawes, Ch1nuatua chesSEs Flat tm.j Italian de Parma 1LOC Cris:Jy prosc:;ttu ci P3rma. provJ!on~, sun· d1 :ed plum to mao, ~est~ ettuce, Jl1ve: focaccia bread BBQ pull pork So us Vide ID.OO Slow o~er ni1,ht (•1C•hn~ w! with Du soLlh siDUt BBQ saucf sharp chpaM cn~ES€. Low·Fat smoothies FRESh FRUiT~ AND VEGETABLE~ iMOOT:i!£5 AND )UPfR 6UITf,q),'·iCCi. iNO~~GENT TOOl Sunshine Early birds 1.00 NOS oxide Energy 1.00 Cilrus Kcmt.dra. G11r~er. comnut, kale llihnana Mama 27 939 1.00 Meltin~ Pot FRfJH G R!l~ED SAI110WlCH iO 5~ TilF'IED YOUf TR,luJT!ONS ,'\1 CUR Ch'O!Cf OF f,qfjH CRGAMIC BREADi AliD CPO/)lANTS Rub€-n up I le~n Corn Dee f. barr€! Kraut, Swisi. Russiarr c:·es1in~ .PumpernicKe 1 bread Veget.Jrian vegan Black moon 8.00 ~rilled Partobell J. zucchini, on'ons lelliJ:e tomato, romaire and cnipotle jresiing i!at b·eac Permitdoctor C~ic~en dub ~ Wl1a: the Docto: order, Uiicken, berries, rale, and low fat cr,ee:.e 1n our Nhole •:;heet b'eac, no c I dressin~ s~uma Una media Noche Croissant 9xed ham, rc·as: pOl'., Swi1s cheese ficHes, WIE"t Cuban brcctd all san&11icn served 'i<'il" arr rries ar:o Jcr's avocad:J 'ri es •· Coffee and more 9~r Costa Rica, Hiwduras blends You said Cooffe Cafe OJ blend served with cane suw Coffee frappe ).OJ 4.00 Dcub!: iuel str~~!t11 ~oifet, cnilled, f:avored 'lliln :vanilla, nazdnuts, wh1~pea crr.a1a 1. Indulgent Chai Tea 'lanil!a, gm~fr. cinllan:.Jr,, ciC'Ies and cardar:wm HQ I --..,-------- 1 I I I I I I I I CJ I I I . ' I I I D D EXHIBIT 8.4 Tenant Improvements 28 940 EXHIBIT 8.4.1 CONTRACTOR'S INSURANCE REQUIREMENTS Worker's compensation insurance covering all employees of the Contractors (as required by the laws of the State of Florida) and employer's liability insurance of not less than One Million Dollars($ 1 ,000,000) per occurrence. Comprehensive general liability insurance in an amoulft11lif'n(Jt less than One Million Dollars ($1,000,000) per occurrence and Two Milli ($2,000,000) annual aggregate covering personal injury and property dam shall include, but not be limited to, the following: ,·f~g~f~~~ Bianket contractual liability .fance covering £/_·~·.-.)·: ~:;:/" harmless agreements. j:i/;l;iiW' ;}~~~~1:y~:j:/~ ,, ii. Protective liability insur'~ for th~:c(.ration of th Contractors. D ';'~t~{~r~;~~~ii~ff~~~f:~~' iii. xcu coveragtJlt~!osion, ca~~ or damage to underground property). l<~~~;z~~f~J:~~~~~~i~;:i~.?:~~. . . ·~r~f~~~l~t~,;· .. iv. Products and cd~~~,leted'::;.·~t~e,ns·IJ;,~ two (2) year extension ~~.~-~~~lletion:,~~~r /'r:£;:·~t%;~~::? · i. ependent Corn,e .,. nsive a ·.mobile ~'t.wance in an amount of not less than Two Million Dollars ($Zi/' :. ,000) co . ed singf~Ktirnit for bodily injury and property damage covering all ownec/;1ri:m-own ·;.i::Alre.d vehias, trailers or semi-trailers, including any machinery . araf~· 'th~~~~~J~~t~2r~,··~z:Y 3. '4fs.I!Qdard "All Risk" or equivalent coverage) in an amount not ... ......... ,~~p... sfr~n, written on a completed value basis or a reporting age'''frotecting BGCM-D, City, and BGCM-D's General em:~;enole of not more than Fifty Thousand Dollars ($50,000), r ....... ,.,.. .. ",._·.,. · inflation (except as to flood and windstorm, with regard to ... ·11 be a commercially reasonable amount). 4. Payment and . rmance bond guaranteeing the performance of the general contractor, for the value of the work to be performed. 29 941 Attachment 4 942 Damian J. Gallo & Associates, Inc. Concession Agreement 943 CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH AND DAMIAN J. GALLO & ASSOCIATES, INC. FOR MANAGEMENT AND OPERATION OFA FOOD & BEVERAGE CONCESSION IN THE OUTDOOR SPACE ADJACENT TO 1701 MERIDIAN AVENUE, UNIT 4 THIS AGREEMENT made the day of , 2013, between the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called "City"), having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and DAMIAN J. GALLO & ASSOCIATES, INC., a Florida corporation, having its principal place of business at 1701 Meridian Avenue, Unit 4, Miami Beach, Florida, 33139 (hereinafter called "Concessionaire"). WITNESSETH WHEREAS, on September 11, 2013, the Mayor and the City Commission adopted Resolution No. 2013-, approving that certain Lease Agreement dated _______ , 2013 (the "Lease Agreement") between the City and Damian J. Gallo & Associates, Inc. for approximately 1,269 square feet of ground floor retail space in the City- owned building located at 1701 Meridian Avenue, Unit 4, Miami Beach, Florida (the "Leased Premises"); and WHEREAS, the Lease Agreement is for an initial term of three (3) years, commencing on October 1, 2013, and ending on September 30, 2016, with two (2) additional renewal terms for two (2) years each; and WHEREAS, the Leased Premises are used as an office and as a cafe and include a side door that opens out to an outdoor area immediately to the east of the Leased Premises, but the Leased Premises do not include the outdoor space; and WHEREAS, Damian J. Gallo & Associates, Inc. has requested use of the outdoor space, which is adjacent to the Leased Premises, to place seven (7) tables, twenty six (26) chairs and five (5) umbrellas, for the purpose of providing an outdoor seating area for patrons of the cafe; and WHEREAS, at the July 25, 2013 Finance and Citywide Projects Committee meeting, the Committee recommended entering into a concession agreement with Damian J. Gallo & Associates, Inc. for use of the outdoor space. WHEREAS, accordingly, the City and Concessionaire have negotiated the following Concession Agreement. NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows: 2 944 The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to maintain, manage and operate a food and beverage concession within the Concession Area (as hereinafter defined), in accordance with the purpose(s) and for the term(s) stated herein, and subject to all the terms and conditions herein contained. SECTION 1. TERM. 1. 1 This Agreement shall commence on the 1st day of October. 2013 (the "Commencement Date,.}, and terminate on the 30 1n day of September. 2016 (the "Term"). For purposes of this Agreement, a "contract year" shall be defined as that certain period commencing on the 1st day of October, and ending on the 30th day of September. Provided Concessionaire is in good standing and free from default(s) under Section 13 hereof, and upon written notice from Concessionaire, which notice shall be submitted to the City Manager no earlier than one hundred twenty (120) days, but in any case no later than sixty (60) days prior to the expiration of the initial Term, this Agreement may be extended for two (2) additional two (2) year renewal terms. Any extension, if approved, shall be memorialized in writing and signed by the parties hereto (with the City hereby designating the City Manager as the individual authorized to execute such extensions on its behalf). In the event that the City Manager determines, in his sole discretion, not to extend or renew this Agreement (upon expiration of the initial term or any renewal term), the City Manager shall notify Concessionaire of same in writing, which notice shall be provided to Concessionaire within fifteen (15) business days of the City Manager's receipt of Concessionaire's written notice. It is the intent of the parties hereto that, unless otherwise terminated pursuant to the provisions of this Agreement, the Term of this Agreement is intended to run concurrent with the term, including any extensions thereof, of that certain Lease Agreement by and between the City of Miami Beach and Damian J. Gallo & Associates, Inc., dated , 2013 (hereinafter, the "Lease Agreement"). If, at any time during the Term of this Agreement, the Lease Agreement is terminated or otherwise ceases to be of any legal force and effect, for whatever reason whatsoever, then this Concession Agreement shall automatically terminate, and shall be null and void and of no further force and effect. The City shall each have the right to terminate this Agreement for any reason whatsoever upon providing thirty (30) days written notice to the other party. Notwithstanding anything to the contrary contained herein, in the event the 3 945 ----------------------------------------------------- Lease Agreement is terminated for any reason whatsoever, this Agreement shall also be terminated effective immediately. SECTION 2. CONCESSION AREA. The City hereby grants to Concessionaire the right, during the Term herein, to maintain, manage and operate an outdoor seating area in the following Concession Area: 2.1 Concession Area: 507 square feet of outdoor space adjacent to and east of 1701 Meridian Avenue, Unit4, Miami Beach, Florida (a/kla 775 17'h Street); which outdoor space is further delineated in "Exhibit 2.1" (the Concession Area"), attached hereto and incorporated herein. Concessionaire shall have the right to place seven (7) tables, twenty six (26) chairs and five (5) umbrellas within the Concession Area, subject to approval of a site plan by the City, and compliance with applicable ADA requirements. The proposed site plan is also delineated in Exhibit 2.1. No material change in the proposed site plan (or in Exhibit 2.1) shall be permitted without prior written consent of the City Manager or her designee, which consent (if given at all) shall be at the City Manager's (or his designee's) sole and reasonable judgment and discretion. 2 .2 Concessionaire hereby agrees and acknowledges that the Concession Area shall be open and available to all members of the general public choosing to enjoy Concessionaire's food and beverage services. SECTION 3. USE(S). 3.1 The Concession Area shall be used by the Concessionaire solely as an outdoor seating area for the patrons and guests of the Leased Premises. The outdoor cafe shall have minimum days and hours of operation from Monday through Friday commencing on 9:00AM, and ending no later than 9:00PM. Any change in the hours of operation including, without limitation, any request by Concessionaire for an increase or decrease in same, shall be subject to the prior written approval of the City Manager (or his designee), which approval, if granted at all, shall be at the City Manager's (or his designee's) soJe option and discretion. Notwithstanding the preceding hours of operation, the Concession Area shall only be open when the Leased Premises are open for business (and, conversely, shall be closed when the Leased Premises is closed). 3.2 Concessionaire and the tenant of the Leased Premises shall at all times throughout the Term of this Agreement be one and the same and cannot exist independently of each other. Concessionaire acknowledges and agrees that its use of the Concession Area shall be, and remain at all times throughout the Term, an ancillary use to the Leased Premises. The number of seating on the Concession Area shall be included in the overall seating count of the Leased Premises. There shall be no bar counter of any kind as part of the Concession Area and all food served shall be 4 946 prepared within the interior kitchen of the Leased Premises. There shall be no alcoholic beverages permitted on the Concession Area. All tables and chairs will be removed and stored each night at close of business. Any exception to this requirement shall be at the sole and absolute discretion of the City Manager or his designee. Concessionaire shall further maintain the Concession Area and abide by the conditions set forth in "Exhibit 3.2" (the "Additional Requirements"), attached hereto and incorporated herein. 3.3 Concessionaire hereby warrants and represents that Concessionaire is the owner of the restaurant at the Leased Premises and shall, throughout the Term of the Lease Agreement, remain as the owner of said restaurant, unless any change in ownership is approved by the City Manager, in writing, prior to such change taking place. Change of ownership for purposes hereof shall include, without limitation, a sale, exchange, assignment, transfer or other disposition by tenant of all or a portion of tenant's interest in the restaurant, whether by operation of law or otherwise. 3.4 Concessionaire agrees not to place any speakers, or any other device used to amplify sound, on or around the Concession Area. Concessionaire further agrees to not attach any televisions, speakers, or any other device used to amplify sound, to the exterior of the Leased Premises. Furthermore, Concessionaire shall in no manner use the Concession Area, or Concessionaire's restaurant at the Leased Premises, as an outdoor entertainment or open air entertainment establishment, and hereby acknowledges that such uses are prohibited (whether as main or accessory uses). 3.5 ·· Concessionaire shall be permitted to apply to the City of Miami Beach for one (1) special event permit for the sole and express purpose of hosting an opening event for the restaurant. At no time thereafter, throughout the remaining term of the Lease, shall the Concessionaire be permitted to submit an application for a special event to be held on the Concession Area. 3.6 It is understood and agreed that the Concession Area shall be used by the Concessionaire during the term of this Agreement only for the uses contemplated herein, and for no other purpose or use whatsoever. Concessionaire will not make or perm it any use of the Concession Area that, directly or indirectly, is forbidden by public law, ordinance or government regulation, or that may be dangerous to life, limb or property. Concessionaire may not commit waste on the Concession Area, use the Concession Area for any illegal purpose, or commit a nuisance on the Concession Area. In the event that the Concessionaire uses the Concession Area for any purpose not expressly permitted herein, then the City may declare this Agreement in default pursuant to Section 13, or without notice to Concessionaire, restrain such improper use by injunction or other legal action. 3. 7 Notwithstanding anything to the contrary contained herein, in the event of a breach by Concessionaire of any conditions in this Section 3, the 5 947 City Manager, in his sole determination and judgment, shall have the right to automatically terminate this Agreement, without any liability to the City; said termination effective upon three (3) days written notice to Concessionaire. By executing this Agreement, Concessionaire hereby agrees to this condition, and further voluntarily and knowingly waives and releases any and all rights now or hereinafter conferred upon Concessionaire pursuant to Florida Statutes including, without limitation, the procedures set forth in Chapter 83, Florida Statutes' for removal in nonresidential tenancies; the Miami-Dade; and the Miami Beach Code (respectively); to the extent this and applicable law(s) would have the effect of limiting or modifying the City's rights to terminate this Agreement pursuant to this Subsection. 3.8 Concessionaire shall obtain, at its sole expense and responsibility, any business tax receipts required by the City for the proposed use(s) contemplated herein. SECTION 4. CONCESSION FEES. 4.1 Concession Fee. In consideration of the City's granting of the rights provided in this Agreement, the Concessionaire shall pay to the City a Concession Fee of Ten Thousand One Hundred Fortvand 00/100 Dollars ($10.140.00), payable in monthly instalfments of Ei~ht Hundred Forty Five and 00/100 Dollars ($845.00); payabte on the 19 day of every month of each contract year during the Term. The first payment shall be due on _______ _ The Concession Fee amount pursuant to this Section 4.1 shall be increased annually throughout the Term, including any renewal terms, commencing on the anniversary of the Commencement Date of this Agreement, and each anniversary Commencement Date thereafter, in increments of three (3%) percent per year. 4.2 Intentionally Omitted 4.3 Interest for Late Payment. Any payment which Concessionaire is required to make to the City which is not paid on or before the respective date provided for in this Agreement shall be subject to a late charge of Fifty and 00/100 ($50.00), plus interest at the rate of eighteen (18%) percent per annum, or the maximum amount allowable under Florida law, whichever is lesser, from the due date of payment until such time as payment is actually received by the City. 4.4 Sales and Use Tax. It is also understood that the required Florida State Sales and Use Tax shall be added to Concessionaire's payments and forwarded to the City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire as net of such Florida State Sales and Use Tax. 6 948 SECTION 5. Intentionally Omitted SECTION 6. Intentionally Omitted SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES. Concessionaire agrees and shall pay, before delinquency, alltaxes and assessments of any kind (including, without limitation, ad valorem taxes, if assessed, and/or Resort Taxes) levied or assessed upon Concessionaire and/or the Concession Area including, without limitation, any such taxes and/or assessments that may be levied and/or assessed against Concessionaire and/or the Concession Area by reason of this Agreement, or by reason of the business or other operations and/or activities of Concessionaire upon or in connection with the Concession Area. Concessionaire will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax and/or assessment by appropriate proceedings, which Concessionaire shall conduct diligently and continuously, in good faith. Concessionaire may refrain from paying a tax to the extent it is contesting the imposition of same in a manner that is in accordance with law; provided, however, if, as a result of such contest, additional delinquency charges become due, Concessionaire shall be responsible for such delinquency charges, in addition to payment of the contested tax (if so ordered). Concessionaire shall be solely responsible for and shall promptly pay when due all charges for utility service(s) provided to the Concession Area (including all hook-up fees and impact fees) for gas, electricity, water, sewer, cable, telephone, trash collection, etc., if applicable. In addition to other rights and remedies hereinafter reserved to the City, upon the failure of Concessionaire to pay for such utility services when due, the City may elect to pay same and Concessionaire shall promptly reimburse the City upon demand. In no event shall the City be liable, whether to Concessionaire or to third parties, for an interruption or failure in the supply of any utilities services to the Concession Area. SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. 8.1 Concessionaireshall select, train, employ (or otherwise hire or retain) such number of employees and/or independent contractors as is necessary and appropriate for Concessionaire to satisfy its responsibilities hereunder, and as necessary to maintain the same levels of service as exist in similar first class concession facilities and operations. Concessionaire's employees and/or independent contractors shall be employees and/or independent contractors of Concessionaire and not of the City, and Concessionaire shall be solely responsible for their supervision and daily direction and control. Concessionaire shall be solely responsible for, and have the sole authority to hire, terminate and discipline any and all personnel and/or contractors employed or retained by Concessionaire. 8.2 All employees and/or independent contractors shall observe all the graces of personal grooming. Concessionaire shall hire people to work in its operation who are neat, clean, well groomed, and comport themselves in a 7 949 professional and courteous manner. Concessionaire and any persons hired and/or retained by Concessionaire shall never have been convicted of a felony. Concessionaire shall have an experienced manager or managers overseeing the concession operations at all times. SECTION 9. Intentionally Omitted SECTION 10. IMPROVEMENTS. MAINTENANCE. REPAIR and OPERATION. Concessionaire accepts the use of the Concession Area in its "AS IS" "WHERE IS" condition. Concessionaire assumes sole responsibility and expense for maintenance of the Concession Area (including all furniture, fixtures, equipment and any other improvements thereon). This shall include, without limitation, daily (i.e. 365 days) removal of litter, garbage and debris. Concessionaire shall also be responsible for all garbage disposal generated by its operations. 10.1 Improvements. 1 0.1.1 Concessionaire, at Concessionaire's sole expense and responsibility, shall be required to demolish and remove the existing concrete ramp from within the Concession Area. Concessionaire shall install new concrete in a manner and fashion as to be level with the surrounding area and to match the existing concrete. 1 0.1.2 Any improvements to the Concession Area shall be at Concessionaire's sole expense and responsibility; provided, however, that any plans for such improvements shall be submitted to the City Manager or her designee for prior written approval. Upon termination and/or expiration of this Agreement, all personal property and non- permanent trade fixtures may be removed by Concessionaire without causing damage to the Concession Area. All permanent (fixed) improvements to the Concession Area shall remain the property of the City upon termination and/or expiration of this Agreement, except as provided in Subsection 1 0.1.3. Concessionaire will permit no liens to attach to the Concession Area arising from, connected with, or related to, the design, construction, and installation of any improvements. Construction of any approved improvements shall be diligently prosecuted to completion and accomplished through the use of licensed, reputable contractors who are acceptable to the City Manager or her designee. In addition to obtaining the prior approval of the City Manager or her designee (acting on behalf of the City, in a proprietary capacity), Concessionaire shall also be solely responsible for obtaining, at its sole cost and expense, any and all permits, 8 950 licenses, and/or regulatory approvals; such regulatory approvals which may include, without limitation, land use board and/or the approvals of other required regulatory agencies having jurisdiction) required for the construction of improvements. 1 0.1.3 Notwithstanding Subsection 1 0.1.2 hereof, upon termination and/or expiration of this Agreement, Concessionaire shall immediately remove any permanent improvements made to the Concession Area during the Term, at Concessionaire's sole expense and responsibility. In such event, Concessionaire shall also restore the Concession Area to its original condition prior to the improvements being made, reasonable wear and tear excepted. 1 0.1.4 The above requirements for submission of plans and the use of specific contractors shall not apply to improvements (which term, for purposes of this Subsection 1 0.1.4 only, shall also include improvements necessary for Concessionaire's ongoing maintenance and repair of the Concession Area) which do not exceed Five Hundred ($500.00) Dollars; provided that the work is not structural, and provided further that it is permitted by applicable law. 10.2 Garbage Receptacles. With respect to litter, garbage and debris removal, Concessionaire shall provide, at its sole expense, a sufficient number of trash receptacles for its own use and for the use of its patrons. Determination of the "number" of receptacles shall at all times be within the City Manager or her designee's sole discretion. Disposal of the contents of said receptacles (and removal of litter, garbage and debris within the Concession Area), shall be done on a daily {i.e. 365 days) basis. Any costs for removal of the contents of said trash receptacles by the City, because of the Concessionaire's failure to do so, will be assessed to, and become the responsibility of, the Concessionaire. The dumping or disposal of any refuse, discards, trash or garbage, generated by, or as a result of Concessionaire's operations, into any of the City's trash dumpster shall be prohibited. 10.3 Maintenance/Repair. Concessionaire shall maintain, at its sole expense and responsibility, all furniture, fixtures, and equipment (FFE) and any other improvements (whether permanent or not) required to operate the concession. In the event any FFE and/or other improvement(s) is lost, stolen, or damaged, it shall be replaced or repaired promptly, at the sole expense of Concessionaire. 10.3.1 All damage or injury of any kind to the Concession Area, and/or to any improvements and/or FFE thereon, except damage caused by the willful misconduct or gross negligence of the City, shall be the sole obligation of Concessionaire, and shall be repaired, restored and/or replaced promptly by Concessionaire, at its sole expense, to the satisfaction of the City Manager or his designee. 9 951 10.3.2 10.3.3 10.3.4 All of the aforesaid repairs, restoration and replacement shall be in quality and class equal to or better than the original work (or FFE, as the case may be) and shall be done in good and workmanlike manner. If Concessionaire fails to make any repairs, restoration and/or replacement, the same may be made by the City, at the expense of Concessionaire, and all sums spent and expenses incurred by the City shall be collectable by the City and shall be paid by Concessionaire within ten (1 0) days after receipt of a bill or statement thereof. Notwithstanding that the City may elect to make such repairs, restoration, and/or replacement, the City shall have no obligation and/or affirmative duty to do so. It shall be Concessionaire's sole obligation to ensure that any renovations, repairs and/or improvements made by Concessionaire to the Concession Area comply with all applicable permitting, building codes and life safety codes of governmental authorities having jurisdiction. 10.4 No Dangerous Materials. Concessionaire agrees not to use or permit in the Concession Area the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. Any such substances or materials found within the Concession Area shall be immediately removed. In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify and hold the City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Concessionaire of any "hazardous substance" or "petroleum products" on, under, in or upon the Concession Area as those terms are defined by applicable Federal and State statutes, or any environmental rules and environmental regulations promulgated thereunder. The provisions of this subsection 1 0.4 shall survive the termination or earlier expiration of this Agreement. 10.5 Security. Concessionaire shall be responsible for and provide such reasonable security measures as may be required to protect the Concession Area and any improvements and FFE thereon. Under no circumstances shall the City be responsible for any stolen or damaged FFE; damage to or loss of any 10 952 improvements; or any stolen, lost, or damaged personal property of Concessionaire's employees, contractors, patrons, guests, invitees, and/or any other third parties. 10.6 Inspection. Concessionaire agrees that the Concession Area (and operations thereon) may be inspected at any time during hours of operation by the City Manager or his designee, or by any other municipal, County or State officer, or other agency having responsibility and/or jurisdiction for inspection of such operations. Concessionaire hereby waives all claims against the City for compensation for loss or damage sustained by reason of any interference with the concession operations, whether by the City or by any public agency or official, in enforcing their respective duties~ or enforcing compliance with any applicable laws, or ordinances, or regulations. SECTION 11. INSURANCE. Concessionaire shall maintain, at all times throughout the Term, at its sole expense and responsibility, the following types of insurance coverage: a. Comprehensive General Liability, in the minimum amount of One Million ($1 ,000,000.00) Dollars (subject to adjustment for inflation) per occurrence for bodily injury and property damage. This policy must also contain coverage for premises operations, products and contractual liability. b. Workers Compensation Insurance shall be required in accordance with the laws of the State of Florida. c. Only if Concessionaire will be utilizing automobiles in connection with the use of the Concession Area, Concessionaire shall purchse automobile Insurance shall be provided covering all owned, leased, and hired vehicles and non- ownership liability for not less than the following limits (subject to adjustment for inflation): Bodily Injury $1,000,000.00 per person Bodily Injury $1,000,000.00 per accident Property Damage $1,000,000.00 per accident The policies of insurance referred to above shall not be subject to cancellation or changing coverage except upon at least thirty (30) days prior written notice to the City, and then only subject to the prior written approval of the City Manager or his designee. Prior to the Commencement Date of this Agreement, Concessionaire shall provide the City with a Certificate of Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies shall be obtained from companies authorized to do business in the State of Florida with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or substitute company shall also be subject to the approval of the City's Risk Manager. 11 953 Should Concessionaire fail to obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums expended by the City in obtaining said insurance, shall be repaid by Concessionaire to the City, plus ten (1 0%) percent of the amount of premiums paid to compensate the City for its administrative costs. If Concessionaire fails to repay the City's expenditures following written demand from the City (and within the time specified in the City's demand notice), such failure shall be deemed an event of default hereunder and the total sum owed shall accrue interest at the rate of twelve (12%) percent until paid. SECTION 12.1NDEMNITY. 12.1 In consideration of a separate and specific consideration of Ten ($1 0.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officers, employees, contractors, agents or servants from and against any claim, demand or cause of action of whatsoever kind or nature arising out of error, omission, or negligent act of Concessionaire, its officers, employees, contractors, agents or servants in the performance of services under this Agreement. 12.2 In addition, and in consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officers, employees, contractors, agents or servants from and against any claim, demand or cause of action of whatever kind or nature arising out of any misconduct of Concessionaire, its officers, employees, contractors, subconcessionaire(s), agents or servants not included in Subsection 12.1 herein and for which the City, its officers, employees, contractors, subconcessionaire(s), agents or servants are alleged to be liable. 12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such liability, that arises as a result of the willful misconduct or gross negligence of the City, its officers, employees, contractors, agents or servants. 12.4 Subrogation. The terms of insurance policies referred to in Section 11 shall preclude subrogation claims against Concessionaire, the City and their respective officers, employees, contractors, agents or servants. 12.5 Force Majeure. Whenever a period of time is herein prescribed for the taking of any action by the City or Concessionaire (as applicable), the City or Concessionaire (as applicable), shall not be liable or responsible for, and there shall be excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, or governmental laws, 12 954 regulations, or restrictions in the nature of a prohibition or moratorium, or any bona fide delay beyond the reasonable control of City or Concessionaire (as applicable). The foregoing shall not apply to any payments of money due under this Agreement. 12.6 Waiver of Loss from Hazards. Concessionaire hereby expressly waives all claims against the City for loss or damage sustained by the Concessionaire resulting from an event of Force Majeure (as defined herein), and the Concessionaire hereby expressly waives all rights, claims, and demands against the City and forever releases and discharges the City from all demands, claims, actions and causes of action arising from any of the aforesaid causes. SECTION 13. DEFAULT AND TERMINATION. Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An event of default by Concessionaire shall entitle the City to exercise any and all remedies described as the City's remedies under this Agreement, including but not limited to those set forth in Subsection 13.4. An event of default by the City shall entitle Concessionaire to exercise any and all remedies described as Concessionaire's remedies under this Agreement, including but not limited to those set forth in Subsection 13.5. 13.1 Bankruptcy. If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 13.2 Default in Payment. If any payment and accumulated penalties are not received within fifteen (15) days after the payment due date, and such failure continues three (3) days after written notice thereof, then the City may, without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract.. 13.3 Non-Monetary Default. In the event that Concessionaire or the City fails to perform or observe any of the covenants, terms or provisions under this Agreement, and such failure continues thirty (30) days after written notice thereof from the other party hereto, such non-defaulting party may immediately or at any time thereafter, 13 955 and without further demand or notice, terminate this Agreement. In the event that a default is not reasonably susceptible to being cured within such period, the defaulting party shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall such extended cure period exceed ninety (90) days from the date of written notice thereof. In the event Concessionaire cures any default pursuant to this subsection, it shall promptly provide the City with written notice of same. 13.4 City's Remedies for Concessionaire's Default. If any of the events of default, as set forth in this Section, shall occur, the City may, after notice (if required) and the expiration of cure periods, as provided above, at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such default(s) and to compensate the City for damages resulting from such default(s), including but not limited to the right to give to Concessionaire a notice of termination of this Agreement. If such notice is given, the Term ofthis Agreement shall terminate upon the date specified in such notice from the City t.o Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area to the City pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement by the City, all rights and interest of Concessionaire in and to the Concession Area and to this Agreement, and every part thereof, shall cease and terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by Concessionaire under this Agreement, including but not limited to, beginning procedures to collect the Performance Bond in Section 14 herein. In addition to the rights set forth above, the City shall have the rights to pursue any and all of the following: a. the right to injunction or other similar relief available to it under Florida law against Concessionaire; and/or b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Concessionaire's default. 13.5 Concessionaire's Remedies for City's Default. If an event of default, as set forth in this Section, by the City shall occur, Concessionaire may, after the expiration of the cure period, terminate this Agreement upon written notice to the City. Said termination shall become effective upon receipt of the written notice of termination by the City. On the date specified in the notice, Concessionaire shall quit and surrender the Concession Area to the City pursuant to the provisions of Subsection 13.7. 13.6 Termination for Convenience. 13.6.1 Notwithstanding any other provision of this Section 13, this Agreement 14 956 may be terminated, in whole or in part, by the City, for convenience and without cause, upon the furnishing of thirty (30) days prior written notice to Concessionaire. 13.6.2 In the event of termination by the City pursuant to this subsection, Concessionaire herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature, against the City, its agents, servants and employees (including, but not limited to, claims for any start-up costs, interference in business or damages for interruption of services, or interference in its concession operations). In no event shall the City be liable to Concessionaire for any indirect, incidental, special, lost profits or consequential damages. 13.7 Surrender of Concession Area. At the expiration of this Agreement, or earlier termination in accordance with the terms of this Agreement, Concessionaire shall surrender the Concession Area in the same condition as the Concession Area was prior to the Commencement Date of this Agreement, reasonable wear and tear excepted. Concessionaire shall remove all its personal property, upon forty- eight (48) hours written notice from the City Manager or his designee unless a longer time period is agreed to by the City. Concessionaire's obligation to observe or perform this covenant shall survive the expiration or other termination ofthisAgreement. Continued occupancy of the Concession Area after termination of the Agreement shall constitute trespass by the Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand ($1 ,000.00) Dollars per day as liquidated damages for such trespass and holding over. SECTION 14. Intentionally Omitted SECTION 15. Intentionally Omitted SECTION 16. SPECIAL EVENTS I SPONSORSHIPS. 16.1 City SJ)ecial Events. Notwithstanding Subsection 16.1 herein, and in the event that the City, at its sole discretion, deems that it would be in the best interest of the City, the City reserves the right to displace the Concessionaire for City produced and/or sponsored special events and/or City produced and/or sponsored productions. Additionally, the aforestated events may also require additional time for load-in and load-out of the event. In such cases, the City may request that Concessionaire cease and desist operations during the term of, and in the area of, the special event and/or production, and Concessionaire shall cease and desist during such time. To the extent that Concessionaire is displaced, and/or required to cease and desist operations, City shall provide, calculated on a per diem basis for the period of time the Concession Area is non-operational, a credit against Concessionaire's Concession Fee, prorated on a per diem basis, to be calculated by dividing the monthly Concession Fee by 30 and multiplying said figure by the number of days the 15 957 Concessionaire was displaced .. If the Concessionaire is not required to close, or the City Manager or his designee determines that Concessionaire may remain open in such a manner as prescribed by the City, that will not interfere with the special event and/or production, Concessionaire shall use its best efforts, in either case, in cooperating with the City. If Concessionaire is allowed to remain open during special events and/or productions, Concessionaire may be allowed to have in operation its normal daily complement of equipment and staff. "Normal" shall be defined as equipment and staff that the Concessionaire customarily has available to service its patrons within the Concession Area on a normal business day (during its hours of operation}. 16.2 Sponsorships. The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark, property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited from entering into, or otherwise creating any, sponsorships and/or endorsements with third parties which are based solely or in any part on the marketing value of a City trademark, property, brand, logo and/or reputation. SECTION 17. NO IMPROPER USE. Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the Concession Area for any improper, immoral or offensive purpose, or for any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officers, employees, contractors, agents or servants, from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of Concessionaire, or any of its officers, employees, contractors, agents or servants. In the event of any violation by Concessionaire, or if the City shall deem any conduct on the part of Concessionaire to be objectionable or improper, the City Manager or his designee shall have the right to suspend the concession operations should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City Manager or his designee within twenty-four (24} hours after receiving written or verbal notice of the nature and extent of such violation, conduct, or practice; such suspension to continue until the violation is cured. Concessionaire further agrees not to commence operations during the suspension until the violation has been corrected to the satisfaction of the City Manager or his designee. SECTION 18. PRICE SCHEDULES. (Intentionally Omitted) 16 958 SECTION 19. NOTICES. All notices from the City to Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to Concessionaire at the following addresses: Damian J. Gallo, President Damian J. Gallo & Associates, Inc. 1701 Meridian Avenue, Unit 4 Miami Beach, Florida 33139 All notices from Concessionaire to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested to the City of Miami Beach at the following addresses: With copy to: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Director Office of Real Estate City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Concessionaire and the City may change the above mailing addresses at any time upon giving the other party written notification. All notices under this Agreement must be in writing. SECTION 20. LAWS. 20.1 Compliance. Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations (including but not limited to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations, as same may be amended from time to time. 20.2 Equal Employment Opportunity. Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, sex, sexual orientation, color, creed, national origin, familial status, religion or handicap. Concessionaire will take affirmative steps to utilize minorities and females in the work force and in correlative business enterprises. 20.3 No Discrimination. Concessionaire agrees that there shall be no discrimination as to race, sex, sexual orientation, color, creed, national origin, familial status, religion or 17 959 handicap, in its employment practice or in the operations referred to by this Agreement; and further, there shall be no discrimination regarding any use, service, maintenance, or operation within the Concession Area. All facilities and services offered shall be made available to the public. SECTION 21. MISCELLANEOUS. 21.1 No Partnership. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Concessionaire. 21.2 Modifications. This Agreement cannot be changed or modified except by agreement in writing executed by all parties hereto. Concessionaire acknowledges that no modification to this Agreement may be agreed to by the City unless approved by the Mayor and City Commission except where such authority has been expressly provided herein to the City Manager. 21 .3 Complete Agreement. This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's operations, as contemplated herein. 21 .4 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 21.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 21.6 Clauses~ The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 21 . 7 Severabilitv. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this 18 960 Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement shall be so modified. 21.8 Right of Entry. The City, at the direction of the City Manager, shall at all times during hours of operation, have the right to enter into and upon any and all parts of the Concession Area for the purpose of examining the same for any reason relating to the obligations of parties to this Agreement. 21.9 Not a Lease. 21.10 21.11 21.12 It is expressly understood and agreed that no part, parcel, building, structure, equipment or space is leased to Concessionaire; that this Agreement is a concession agreement and not a lease, and that Concessionaire's right to operate, manage, and maintain the concession shaH continue only so long as Concessionaire complies with the undertakings, provisions, agreements, stipulations and conditions of this Agreement. Accordingly, Concessionaire hereby agrees and acknowledges that in the event of termination of this Agreement, whether due to a default by Concessionaire or otherwise, Concessionaire shall surrender and yield unto the City the Concession Area, in accordance with Subsection 13.7 hereof, and the City shall in no way be required to evict and/or otherwise remove Concessionaire from the Concession Area as if this were a tenancy under Chapter 83, Florida Statutes, nor shall Concessionaire be afforded any other rights afforded to nonresidential tenants pursuant to said Chapter (the parties having herein expressly acknowledged that this Agreement is intended to be a concession agreementand is in no way intended to be a lease). Signage. Concessionaire shall provide, at its sole expense and responsibility, any required signs at its concession. All advertising, signage and postings shall be approved by the City, and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Any signage posted by Concessionaire shall be subject to the prior approval of the City as to size, shape and placement of same. Conflict of Interest. Concessionaire shall perform its services under this Agreement and conduct the concession operation(s) contemplated herein, in a manner so as to show no preference for other concession operations/facilities owned, operated, managed, or otherwise controlled by Concessionaire. No Waiver. 21.12.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be 19 961 21.12.2 21.12.3 considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. The receipt of any sum paid by Concessionaire to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation (and not as rent), unless such breach be expressly waived in writing by the City. 21.13 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. SECTION 22. LIMITATION OF LIABILITY. The City desires to enter into this Agreement placing the management and operation of the Concession Area in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for anysuch breach never exceeds the sum of Ten Thousand ($1 0, 000. 00) Dollars. Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten Thousand ($1 0,000.00) Dollar limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of Ten Thousand ($10,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in excess of Ten Thousand ($10,000.00) Dollars, for any action for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. SECTION 23. VENUE. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. THE CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH 20 962 RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA. IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their agreement. Attest: CITY OF MIAMI BEACH, FLORIDA Rafael Granado, CITY CLERK Matti Herrera Bower, MAYOR Attest: DAMIAN J. GALLO & ASSOCIATES, INC. Signature I Corporate Secretary Damian J. Gallo, PRESIDENT Print Name Signature Print Name CORPORATE SEAL (affix seal here) T:I.AGENDA\2013\September 11\Damian Gallo\Damian J Gallo Concession Agreement DRAFT (9-3-13).doc 21 963 EXHIBIT 2.1 Concession Area I ----------,- I I I I I I I I I I I I I 0 ; ¥ i ¥ A l • I I ' 1 IJ.: ! ¥ • .., • i D .., .., ~ ,. I / I /·· (• I I i I I ~=====================:::::L _____ j 22 964 ---. EXHIBIT 3.2 Additional Requirements The Concession Area shall be maintained in a clean, neat and orderly appearance at all times by the Concessionaire. The area of the sidewalk, curb and gutter immediately adjacent to the Concession Area shall be cleared of all debris during hours of operation, and again at the close of each business day, or as may otherwise be determined by the City Manager. The Concessionaire shall be responsible for cleaning the floor surface on which the outdoor seating is located at the close of each business day. In addition, the following conditions shall apply: a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a clean, attractive, and orderly appearance, and shall be maintained and kept in good repair at aU times; b. All outdoor furniture shall be of high quality, design, materials, and workmanship so as to ensure the safety and convenience of the public; c. Only the outdoor cafe furniture specifically shown on the approved site plan shall be allowed on the Concession Area; d. All tables, chairs, umbrellas, and any other outdoor furniture shall be readily removable, and shall not be physically attached, chained, or in any other manner affixed to any public structure, street furniture, signage, and/or other public fixture, or to a curb and/or public right-of-way; e. The stacking or piling up of chairs shall be prohibited on the Concession Area; f. At close of business, all tables, chairs and any other outdoor furniture shall be removed from the Concession Area and stored in a non-visible location from the public right-of-way. Any exception to this requirement shall be at the sole and absolute discretion of the City Manager and/or his/her designee. g. No storage of dishes, silverware or other similar restaurant equipment shall be allowed on the Concession Area, or on any other portion of the public right-of- way, or outside the structural confines of the building in which the restaurant is located, during non-business hours; h. There shall be no live entertainment or speakers placed on the Concession Area; i. No menu board(s) shall be permitted to be displayed on the Concession Area; j. No food preparation, food storage, refrigeration apparatus or equipment, or fire apparatus or equipment, shall be allowed on the Concession Area; k. No food displays shall be permitted on the Concession Area. No advertising signs or business identification signs shall be permitted, except that the restaurant name and/or its logo may be permitted on umbrellas but such logos and/or lettering may not exceed six inches in height; 23 965 I. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant fertilizers which contain material that can stain the sidewalks shall not be allowed; m. The City Manager or his/her designee may cause the immediate removal, relocation and/or storage of all or part of any furniture located on the Concession Area in emergency situations or for public safety considerations. Upon written and/or verbal notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning by Miami-Dade County, whichever occurs first, the Concessionaire shall, within no more than four hours of same, remove and place indoors all tables, chairs and any other outdoor furniture located on the Concession Area. The notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning, shall constitute a public emergency situation as referenced in this division. The City Manager may remove, relocate, and/or store any outdoor furniture found on the Concession Area that has otherwise not been removed by the Concessionaire pursuant to this subsection. Any and all costs incurred by the City for removal, relocation and/or storage of Concessionaire's furniture shall be the responsibility of the Concessionaire. 24 966 Attachment 5 967 1701 Meridian Avenue Rent Schedule Tenant Sq. Ft. South Florida Salon 1,327 Monthly Annually PSF Massage Envy 1,802.89 Monthly Annually PSF Uni~KWax 1,290.59 Monthly Annually PSF Permit Doctor 1,268.87 Monthly Annually PSF Updated 8/22/13 Rent $ 5,808.94 $ 69,707.31 $ 52.53 $ 4,146.92 $ 49,763.04 $ 27.60 $ 3,326.39 $ 39,916.68 $ 30.93 $ 3,874.10 $ 46,489.23 $ 36.64 RETAIL SPACE Basis RElaxes $ - $ - Gross $ - $ 1,115.61 $ 13,387.29 NNN $ 7.43 $ 798.80 $ 9,585.57 NNN $ 7.43 $ 785.18 $ 9,422.16 NNN $ 7.43 968 Insurance C.A.M. Total $ -$ -$ 5,808.94 $ -$ -$ 69,707.31 $ -$ -$ 52.53 $ 135.22 $ 600.96 $ 5,998.71 $ 1,622.64 $ 7,211.52 $ 71,984.49 $ 0.90 $ 4.00 $ 39.93 $ 96.79 $ 430.20 $ 4,652.18 $ 1,161.48 $ 5,162.40 $ 55,826.13 $ 0.90 $ 4.00 $ 43.26 $ 95.17 $ 422.96 $ 5,177.41 $ 1,142.04 $ 5,075.52 $ 62,128.95 $ 0.90 $ 4.00 $ 48.96 RESOLUTION TO BE SUBMITTED 969 THIS PAGE INTENTIONALLY LEFT BLANK 970 -I MIAMI BEACH CllY OF MIAMI BEACH NOnCE OF PUBLIC HEARINGS Nat'ICE IS HEREBY given lhat public hearings wm b~:~ l1eld by the Mayor and City CommlssiOP of the City of Miami B&ach, Fk>rlda, tn the Commlsslao Chambers. 3rd Floor. City Hall 1700 Convention Center Drive, Miami Beach, Flt:fida. on Ykdnesday, September 11, 2013 to consider the following: 11:45a..m. A Re&llution Approving A Revocable Perm~ Reques:l: By FlfS! Street Development, LLC, As. Tl'e Owner Of The Commercial Property Located At 800 First Street. To Cor~Struct Fout (4) Concr~ Eyebrows That Project Over And lrrtc The Public Rlght-Of-Wa.y, At A Minimum Horizontal Dimension Of 2'-2" At 9'-e• Above The Sidewalk. To A Maximum Horizontal Dlmens.ion0f5'-0" At9'-!l'AbcveThe Sidewalk. &1quiries may be directed to the Pwlic Works Department m (305) 573· 7060. 12:00 p.m. Vacation Of Alleyway • 500 AltOn Road A Resolution Apprrwlng, On Second Reading, The Vacation Of An Alley Located In The 500 Slocl10f A~on Roaci.ContainingApproximately 6,005 Square Feet, In Favor Of The Adja(;ent Property Owners, South 8$lch Heights I. LLC. 500 Alton Fload ventures. LLC, And i220 Sixth, LLC. &1quiries may be directed Ia the Pwlic Works Department at (305) 6T.H060. 12:15 p.m. A Resolution Accepting The Recommendation Of The Floooce And Citywide P!cjects Committee Pertaining To The Early Term lnat!on Of An Exis!fng Retail Lease Agreement Between The City And Damian J. Gallo & Assoclates, Inc. 018/A Permit Doctor; Approving And Authorizing The Mayor And City Clerk To Execute: 1) A New Lease Agreement Between l'he City And Damian J. Gallo & Associate~>, Inc. 018/A Permit Doctor, For An Initial Tmn Of Three (3) Years. Wrth Two (2! RenewaJ Options For Two (2) Yem Each, Involving The Use Of Approi(Jmately 1.269 Squ.a;e Feet Of Clty-Qwned Pmperty Lccated At 1701 Meridian Avenue. Unit 4 (A/KIA 775 17th Street). Miami Beach, Aorlda (Tha "Leased Premises"); And 2) A Revocable Concession Agreement Between The City And Damian J. Galle & Assooiares. Inc. D/8/A Permit Doctor, Allowing For An Outdoor Seating Area, Adjacent To The Leased Ptemlses; And Further Waiving By 517tlls Vote. The Competltive Bidding Rl)qu~ement, Finding SUch Waiver To Be In The Best Interest Of The Public. lnquines may be directed to the Real Estate. Housing & Community Development Offoce at (305) 613-7260. INTERESTED PARTIES are invited to appear at this meelirlg, or be reprasen:ted by an aganl, cr to express their views in writing addressed to the City Commission, c/o the City Clerk, 17()0 Convention Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139. Copies. of tllese items are available fer publlc iospectlon during normal business houts in the C~y Clerk's Office, 1700 Convention Center Orlve, 1st Floor, City Hall, Miami Beach, Florida 33139. This mooting or any of the items herein may be continued, and undE!f such circumstances additional legal notice will not be provided. Rafael E. Granado, City Clerk City of Miami Beach Pursuant to Sec:l:ion 286.0105, Fla. Stat., ·the City hereby advises lhe public that if a person decides lo appeal ooy deciSion made by the City Commission with respect to any matter considered at its meeting or its hearing, sudl person must ensure tllat a \lel'batim recofd of the p.;oceedtogs is made, whichreco«<lncludes!hetesUmonyandevldence upon which 1he appeal is ro be based. This notice does not constitute consent by the City for the introduction or admission of olherwi$6 inadmissible or Irrelevant evidence, nor does It authorize chaHenges or appeals not otherwise allowed by klw. To request this material in a.:cessible fom1at. sigr1 language interpreters, lnformatfononaccessforpemonswilltdisabiiHlesand/oranyaccornmodation to review any document or participate in any C~y-sponsor«! proceeding, pleas<~ COII!act us five days in advance at (305) 673-741 I (voice) or TTY users may also call !he Florida Relay Service al 711. Ad i1'798 971 MiamiHeraktmm MIAMI HERALD