20150902 SM1C7E
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MIAMIBTACH
City Gommission Meeting
SUPPLEMENTAL MATERIAL 1
City Hall, Gommission Ghambers, 3rd Floor, 1700 Convention Center Drive
September 2,2015
Mayor Philip Levine
Vice-Mayor Edward L. Tobin
Commissioner Michael Grieco
Commissioner Joy Malakoff
Com m issioner Micky Steinberg
Commissioner Deede Weithorn
Com m issioner Jonah Wolfson
City Manager Jimmy L. Morales
City Attorney Raul J. Aguila
City Clerk Rafael E. Granado
Visrt us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings.
ATTENTION ALL LOBBYISTS
Chapter 2, Article Vll, Division 3 of the City Code of Miami Beach entitled "Lobbyists" requires the
registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with the City
Gommission, any Gity Board or Committee, or any personnel as defined in the subject Code
sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office.
Questions regarding the provisions of the Ordinance should be directed to the Office of the Gity
Attorney.
SUPPLEMENTAL AGENDA
C7 - Resolutions
A Resolution Approving And Authorizing The MayorAnd City Clerk To Execute Amendment No. 1 To
The TylerTechnologies, lnc., Agreement Between The City Of Miami Beach And TylerTechnologies,
lnc., Dated October 10,2014,For Replacing The City's Enterprise Resource Planning (ERP) System;
Amending The ERP System'Go-Live'Dates, As Provided ln This Resolution.
(ProcuremenVOffice of the City Manager)
(Memorandum & Resolution)
1
Supplemental Agenda, September 2, 201 5
R5 - Ordinances
R5K An Ordinance Amending Miami Beach City Code Chapter32, Entitled "Public Property," ByAmending
Article lV Thereof Entitled "Uses ln Public Right-Of-Way", By Amending Section 82-383, Entitled
"Permit Fee; Penalties For Late Payments; Review Of Fee; Exception," ByAmending Subsection (a)
Thereof To Abate Sidewalk Caf6 Fees For Businesses North Of 63'd Street, Through And lncluding
September 30,2017; Providing For Repealer, Codification, Severability, And An Effective Date. First
Reading
(Sponsored by Commissioner Edward L. Tobin)
(Legislative Tracking: Public Works)
(Ordinance)
R5N An Ordinance Amending Chapter 46 Of The Code Of The City Of Miami Beach, Entitled
"Environment," ByAmending Article lll, Entitled "Litter," ByAmending Division 1, Entitled "Generally,"
By Amending Section 46-92 To Amend The Enforcement And Penalty Provisions For Violations Of
Subsections (b), (c), (d), And (e), By lncreasing Penalties For Violations Of Subsections (b), (c), (d),
And (e), And lmposing Criminal Penalties For Violations Of Subsection (b) On Beaches, Parks,
Marinas, Piers, Docks, And Boat Ramps; To Amend Provisions ln Subsections (l)And (m) Regarding
Appeals From Violations; And To Amend The Provisions ln Subsection (m) Regarding Liens For
Unpaid Fines; And Providing For Repealer, Severability, Codification, And An Effective Date. First
Reading
(Sponsored by Commissioner Grieco)
( Leg islative Tracking : Environment & Sustai nability)
(Memorandum & Ordinance)
RsQ An Ordinance Amending Chapter 90 Of The Code Of The City Of Miami Beach, Entitled "Solid
Waste," By Amending Article ll, Entitled "Administration," By Amending Section 90-39 Thereof,
Entitled "Fine Schedule ForViolations lssued And Applied To Owners, Agents, Tenants, Occupants,
Operators Or Managers, Or Persons Responsible For The Violation," To Amend The Fine Schedules
Therein; And Providing For Repealer, Severability, Codification, And An Effective Date. First Readinq
(Sponsored by Deede Weithorn)
(Legislative Tracking : Code Enforcement)
(Memorandum & Ordinance)
R7 - Resolutions
R7C A Resolution Calling For A November 3,2015 Special Election, For The Purpose Of Submitting To
The Electorate Of The City Of Miami Beach, Florida, A Question Asking Whether The Floor Area
Ratio (FAR) For The "Ocean Terrace Overlay District," With An Underlying Zoning Designation Of
"Commercial District-2" (CD-z")And "Mixed Use Entertainment District" ("MXE"), Be lncreased From
A Maximum 2.0 FAR To A Maximum 3.0 FAR For Residential And Hotel Uses Only, And Allow No
FAR lncrease For Commercial Uses; Which Ocean Terrace Overlay District ls Located Between 73'd
And 75th Streets, Collins Avenue, And Ocean Terrace?
(Sponsored by Commissioner Joy Malakoff)
(Legislative Tracking: Office of the City Attorney)
(Revised Memorandum & Resolution)
2
Supplemental Agenda, September 2, 201 5
R7D A Resolution Calling For A November 3,2015 Special Election, For The Purpose Of Submitting To
The Electorate Of The City Of Miami Beach, Florida A Question Asking Whether City Code Section 2-
459 Should Be Amended To lnclude An Additional Exception Allowing Historic Preservation And
Design Review Board Members Who Are Architects Or Landscape Architects To Lobby City
Personnel And Agencies On Land Development Applications, Except The Board On Which They
Serve And Related City Staff.
(Sponsored by Commissioner Joy Malakoff)
(Legislative Tracking: Office of the City Attorney)
(On July 8,2015, it was requested to bring this item to September 2,2015 - R7R)
(Revised Memorandum & Resolution)
R7F A Resolution Approving And Authorizing The Mayor And City Clerk To Execute A Settlement
Agreement Between The City (Owner), PKY Lincoln Place, LLC (Tenant), And 16th Street Partners,
LLC (Master Subtenant), Relating To That Certain Agreement Of Lease (Ground Lease), Dated
September 1 , 1999, For The Lincoln Place Garage, Located At 1601 Washington Avenue.
(Office of the City Attorney/Tourism, Culture & Economic Development)
(Memorandum & Resolution)
R7H A Resolution Adopting The Sixth Amendment To The Capital Budget For Fiscal Year 2014115. 11 :05
a.m. Public Hearinq
(Budget & Performance lmprovement)
(Memorandum & Resolution)
Redevelopment Aqencv ltem
A Resolution Of The Chairperson And Members Of The Miami Beach RedevelopmentAgency(RDA),
Accepting The Recommendations Of The Finance And Citywide Projects Committee; Waiving The
Competitive Bidding Requirement, Finding Such Waiver To Be ln The Best lnterest Of The RDA; And
Approving And Authorizing The Chairperson And Secretary To Execute A Lease Agreement With
Artconnection lnternational, lnc. (Tenant), ln Connection With The Use Of Suite No. 6 At The Anchor
Shops, Located At 100 16th Street, Suite No. 6, Miami Beach, Florida (Premises); Said Lease Having
An lnitialTerm Of Five (5) Years, Commencing On November 12,2015, With Two Renewal Options
(At Tenant's Option), Of Three (3) Years And One (1) Year And 364 Days, Respectively.
2:00 p.m. Public Hearinq
(Tourism, Culture & Economic Development)
(Lease Agreement)
1A
3
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4
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Approving And
Authorizing The Mayor And City Clerk To Execute Amendment No. 1 To The Tyler Technologies, lnc.,
Agreement Between The City Of Miami Beach And Tyler Technologies, lnc., Dated October 10,2014
inq The ERP 'Go-Live' Dates, To The Contract With Tyler T ies. lnc.
Streamline the delivery of services through all departments. Strengthen intemal controls to achieve more accountability.
Su Data (Surveys. Environmental Scan, etc.: N/A
Item Summarv/Recommendation :
On October 10,2Q14, the City Commission approved an agreement with Tyler Technologies, lnc., for
replacing the City's current enterprise resource planning (ERP) system, known as Eden, as well as a
discussion on Permits Plus, the City's system for permitting and licensing. The replacement of these
systems are a key part of the Administration's goal of re-engineering core business process to
maximize efficiencies and service to constituents, as well as improve internal controls.
The original contract called for certain "go-Live" dates for each of the system modules which include:
Financials, EnerGov (permitting and licensing), HR / Payroll, and Utility Billing / Revenue.
However, at its meeting dated July 16, 2015, atthe advice of Tyler, the EMA CMB Steering Committee
agreed to consider an amendment to the go-live dates. The committee agreed to perform the system
implementation after the City's audit activities are complete in order to ensure the availability of subject
matter experts (SMEs) of the project.
The committee also decided that EnerGov should go live at the same time as Munis Financials to
ensure the financial transactions related to permits are contained within a single financial system,
instead of spanning both the old and new financial system.
As a result, the City and Tyler Technologies would like to amend the "go-live" dates as follows:
a. Phase 1 - Financials: changed from October 1,2015 to April 1,2016.
b. Phase 2 - EnerGov: changed from December 1 , 2015 to April 1 ,2016.c. Phase 3 - HR/Payroll: changed from July 1 ,2016 to January 1,2017.
d. Phase 4 - Utility Billing and Revenue: changed from July 1 ,2017 to January 1,2018.
RECOMMENDATION
the Resolution.
Financial !nformation:
Source of
Funds:
Amount Account
1
Financial lmpact Summary:
Ariel Sosa, ext. 7040 or Mark Taxis, ext. 6829
Clerk's Office islative Trac
yler amendment
AGErtoA rrgrur C -J EE MIAAAIBTACH
merge.doc
D/riE qA-IS5
4 MIAMIBEACH
City of Miomi Beoch, lZO0 Convention Center Drive, Miomi Beoch, Florido 331 39,
www. miomibeochfl.gov
MISSION MEMORANDUM
TO: Mayor Philip Levine and
FROM: Jimmy Morales, City Manager
DATE: September 2,2015
SUBIECT: A RESOLUTION OF THE M
MIAMI BEACH, FLORIDA,
AND CITY COMMISSION OF THE CIry OF
AND AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE AMENDMENT NO. 1 TO THE TYLER
TECHNOLOGIES, INC., AGREEMENT BETWEEN THE CITY OF MIAMI
BEACH AND ryLER TECHNOLOGIES, INC., DATED OGTOBER {0, 2014
AMENDING THE ERP SYSTEM 'GO.LIVE' DATES, TO THE CONTRACT
WITH TYLER TECHNOLOGIES, INC
FUNDING
N/A
BACKGROUND
On October 10, 2A14, the City Commission approved an agreement with Tyler
Technologies, lnc., for replacing the City's current enterprise resource planning (ERP)
system, known as Eden, as well as a discussion on Permits Plus, the City's system for
permitting and licensing. The replacement of these systems are a key part of the
Administration's goal of re-engineering core business process to maximize efficiencies and
service to constituents, as well as improve internal controls.
The original contract called for certain "go-Live" dates for each of the system modules which
include: Financials, EnerGov (permitting and licensing), HR / Payroll, and Utility Billing /
Revenue.
However, the EMA CMB Steering Committee met on July 16,2015, and at the advice of
Tyler, agreed to consider an amendment to the go-live dates. The committee agreed to
perform the system implementation after the City's audit activities are complete in order to
ensure the availability of subject matter experts (SMEs) of the project.
The committee also decided that EnerGov should go live at the same time as Munis
Financials to ensure the financial transactions related to permits are contained within a
single financial system, instead of spanning both the old and new financial system.
As a result, the City and Tyler Technologies recommends amending the "go-live" dates as
follows:
Phase 1 - Financials: changed from October 1, 2015 to April 1, 2016.
Phase 2 - EnerGov: changed from December 1, 2015 to April 1 ,2016.
Phase 3 - HR/Payroll: changed from July 1 ,2016 to January 1,2017.
Phase 4 - Utility Billing and Revenue: changed from July 1 ,2017 to January 1,2018.
a.
b.
c.
d.
6
Commission Memorandum - September 2,2015
Munis, EnerGov, BPR and Project Management
Page 2 ol 2
RECOMMENDATION
The City Manager recommends approval of a Resolution of the Mayor and City
Commission of the City of Miami Beach, Florida, approving and authorizing the Mayor
and City Clerk to execute Amendment No. 1 to the Tyler Technologies, lnc., Agreement
between the City Of Miami Beach and Tyler Technologies, lnc., Dated October 10, 2014
Amending the ERP System 'Go-Live' Dates, to the contract with Tyler Technologies,
ATTACHMENTS
AppendixA- Amendment#1
JLM/MT/AD/AS
T:\AGENDA\20 1 S\SeptembeAlT\Tyler Amendment #1 - MEMO.docx
7
AMENDMENT NO. 1 TO THE AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND
TYLER TECHNOLOGIES, INC.,
DATED OCTOBER 2,2014
FOR THE MUNIS AND ENERGOV ENTERPRISE RESOURCE PLANNING SYSTEMS
This Amendment No. 1 (Amendment) to the Agreement is entered into this
-
day of
Fronda, a munic p"??l?rl',1?ill",r?llih'JJ:X i,iiy",",.iJ[^"'l']##-il J,ii'l+
Florida, having its principal place of business at 1700 Convention Center Drive, Miami
Beach, Florida 33139 (City), and Tyler Technologies, lnc., a corporation having its
principal place of business at One Tyler Drive, Yarmouth, Maine 04096 (Tyler), and
hereby amend the Agreement as follows:
RECITALS
WHEREAS, on October 10, 2014, the City Commission approved an agreement
with Tyler for replacement the City's current enterprise resource planning (ERP) systems
with Munis and EnerGov, both owned by Tyler; and
WHEREAS, the replacement of these systems are a key part of the
Administration's goal of re-engineering core business process to maximize efficiencies
and service to constituents, as well as improve internal controls; and
WHEREAS, the original contract called for certain "go-Live" dates for each of the
system modules which include: Financials, EnerGov (permitting and licensing), HR /
Payroll, and Utility Billing / Revenue; and
WHEREAS, the original "Go-Live" dates stipulated in the contract interfere with
the completion of the City's financial audits and annual financial report preparation; and
WHEREAS, the City's Steering Committee, appointed by the City Manager to
implement the ERP systems, met on July 16, 2015, and at the advice of Tyler, agreed to
consider an amendment to the go-live dates as indicated herein.
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the City and Tyler hereby agree to amend the Agreement as
follows:
1. ABOVE RECITALS.
The above recitals are true
Amendment.
and correct and are incorporated as part of this
8
By:
2. MODIFICATIONS.
The system module "Go Live" dates are modified hereto as follows:
a. Phase 1 - Financials: from October 1,2015 to April 1,2016.
b. Phase 2 - EnerGov: from December 1,2015 to April 1,2016.
c. Phase 3 - HR/Payroll: from July I ,2016 to January 1, 2017 .
d. Phase 4 - Utility Billing and Revenue: from July 1 ,2017 to January 1,2018.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall
remain unchanged and in full force and effect. ln the event there is a conflict
between the provisions of this Amendment and the Agreement, the provisions of this
Amendment shallgovern
lN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
FOR C!TY:
ATTEST:
Rafael E. Granado, City Glerk Philip Levine, Mayor
Date
FOR TYLER:
ATTEST:
Date
Secretary President
Print Name Print Name
Date Date
By:
F: ATTO/TORG \GISELA\FORMS\AMENDMENTS\AMENDMENTTEMPLATE
9
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORTZING THE
MAYOR AND GIry CLERK TO EXECUTE AMENDMENT NO. 1 TO THE
ryLER TEGHNOLOGIES, INC., AGREEMENT BETWEEN THE GITY OF
MIAMI BEACH AND TYLER TEGHNOLOGIES, INC., DATED OCTOBER 10,
2014, FOR REPLACING THE CITY'S ENTERPRISE RESOURCE PLANNING
(ERP} SYSTEM; AMENDING THE ERP SYSTEM .GO.LIVE, DATES, AS
PROVIDED IN THIS RESOLUTION.
WHEREAS, on October 10, 2014, the City Commission approved an agreement with Tyler
Technologies, lnc., for replacing the City's current enterprise resource planning (ERP) system,
known as Eden (the "Agreement"); and
WHEREAS, the replacement of these systems is a key part of the Administration's goal of re-
engineering core business process to maximize efficiencies and service to constituents, as well
as improve internal controls; and
WHEREAS, the Agreement called for certain "go-live" dates for each of the ERP system
modules which include: Financials, EnerGov (permitting and licensing), HR / Payroll, and Utility
Billing / Revenue; and
WHEREAS, the Steering Committee, appointed by the City Manager to oversee the
implementation of the ERP system, met on July 16, 2015 and, at the advice of Tyler, agreed to
consider an amendment to the go-live dates; and
WHEREAS, the Committee agreed to perform the system implementation after the City's audit
activities are complete, in order to ensure the availability of subject matter experts (SMEs) of the
project; and
WHEREAS, the Committee also decided that EnerGov should go live at the same time as
Munis Financials to ensure the financial transactions related to permits are contained within a
single financial system, instead of spanning both the old and new financial system; and
WHEREAS, As a result, the City and Tyler Technologies recommend amending the "go-live"
dates in the Agreement as follows:
Phase 1 - Financials: changed from October 1,2015 to April 1,2016;
Phase 2 - EnerGov: changed from December 1, 2015 to April 1 ,2016;
Phase 3 - HR/Payroll: changed from July 1 ,2016 to January 1,2017; and
Phase 4 - Utility Billing and Revenue: changed from July 1 ,2017 to January 1, 2OlB.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND Ctry
COMMISSION OF THE Clry OF MIAMI BEACH FLORIDA, that the Mayor and City
Commission hereby approve and authorize the Mayor and City Clerk to execute Amendment
No. 1 to the Tyler Technologies, lnc., Agreement between the City of Miami Beach and Tyler
Technologies, lnc., dated October 10, 2014, for replacing the City's Enterprise Resource
Planning (ERP) system; amending the ERP system 'go-live' dates, as provided in this
Resolution.
a.
b.
c.
d.
10
PASSED and ADOPTED this day of September,2015.
Philip Levine, Mayor
ATTESTED BY:
Rafael E. Granado, City Clerk
APPRO\GD AS TO
FORM & LANGUAGE
& FOR EXECUTION
s\l-tl!
Date
11
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12
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING MIAMI BEAGH CIry GODE
CHAPTER 82, ENTITLED "PUBLIG PROPERTY" BY AMENDING ARTICLEIV THEREOF ENTITLED "USES IN PUBLIC R!GHT.OF.WAY", BY
AMENDING SECTION 82-383, ENTITLED "PERMIT FEE; PENALTIES FOR
LATE PAYMENTS; REVIEW OF FEE; EXCEPTION,,' BY AMENDING
SUBSECT|ON (a) THEREOF TO ABATE STDEWALK CAFE FEES FOR
BUSINESSES NORTH OF 63RD STREET, THROUGH AND INCLUDING
SEPTEMBER 30, 2017; PROVIDING FOR REPEALER, CODIFICATION,
SEVERABILIW, AND AN EFFECTIVE DATE.
WHEREAS, the Miami Beach City Code Chapter 82 authorizes the City to charge
restaurants with sidewalk cafes a $150.00 annual permit fee, plus $20.00 per square foot for the
caf6 area. The City does not charge Sidewalk Caf6 fees for businesses situated on State
Roads because they were outside its jurisdiction. This created a competitive disadvantage for
sidewalk cafes on City streets in the North beach Area; and
WHEREAS, in 1998, pursuant to Ordinance No. 98-3146, Sidewalk Caf6 fees were
abated during the North Shore construction project and for a year after completion as an
economic development measure. Pursuant to Ordinance No. 2000-3237 adopted on April 12,
2000, the City Commission extended the fee waiver provisions to September 30, 2001; and
WHEREAS, on February 26,2003, the City Commission adopted Ordinance No. 2003-
3397 which reinstated the fee waiver provisions subject to a two year budget analysis and
review by the Administration. Later that same year, the City Commission adopted Ordinance
No. 2003-3423 on July 30, 2003 repealing the Sidewalk Caf6 fee abatement provisions.
WHEREAS, at its July 19,2013 meeting, the City Commission heard ltem R9P, "A
Discussion To lmmediately Reinstate The Fee Waiver For Sidewalk Cafes ln North Beach" and
approved a referral to the Finance and Citywide Projects Committee (FCWPC). ln addition, the
Commission requested that a new fee abatement program be established for the square
footage fee on sidewalk caf6 permits issued for locations north of 63'd Street; and
WHEREAS, at its September 19,2013, the FCWPC Committee recommended that the
sidewalk caf6 fees be waived; and
WHEREAS, at its October 2013 meeting, the City Commission adopted Ordinance No.
2013-3824 which waived square footage fees for sidewalk cafes north of 63'd Street through and
including September 30, 2015, and required a budget analysis and review by the City
Administration by September 30,2015, in order to determine whether the abatement should
sunset on September 30, 2015 or should be extended by Ordinance; and
WHEREAS, the Miami Beach City Commission desires to encourage continued
economic development in the North Beach area by extending the sidewalk caf6 square footage
fee waiver provision for an additional two years through and including September 30, 2017; and
Agenda rtem BS_K
Date q21{13
WHEREAS, presently, north of 63'd Street, there are three (3) restaurants with sidewalk
cafes with a total footprint of 985 square feet that are not on State roadways and nine (9)
sidewalk cafes with a total footprint of 880 square feet on State roadways.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Section 82-383, of Chapter 82 of the Miami Beach City Code is hereby
amended as follows:
CHAPTER 82
PUBLIC PROPERTY
***
Article lV. Uses ln Public Rights-Of-Way
Division 5. Sidewalk Gafes
sroliri"ion ll. permit
Sec. 82-383. Permit fee; penalties for late payments; review of fee; exception.
(a) The annual permit fee for operation of a sidewalk caf6 shall be as set forth in appendix
A, and shall be based on a per square foot calculation of permitted sidewalk area
(including the atea between the tables and chairs). Notwithstanding any other
paragraphs or provisions of this article, no square footage fee as required by this section
shall be required for the operation of sidewalk cafes north of 63'd Street through and
including September 30, 2O{5 2Q17. The abatement of sidewalk caf6 square footage
fees for businesses north of 63'd Street shall be the subject of a budget analysis and
review by the City Administration by September 30, ?€15 2017. However a permit must
be obtained and the annual base application fee required by subsection 82-382(bxg)
shall be paid for the operation of sidewalk cafes north of 63'd Street.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
14
SECTION3. SEVERAB!LITY-
lf any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made a part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect the _ day of 2015.
PASSED and ADOPTED this
ATTEST:
2015.
Philip Levine, Mayor
Rafael E. Granado
(Sponsored by Vice Mayor Edward Tobin)
Underline denotes additions
S*i*e+nreush d e notes deletio ns.
T:\AGENDA\2015\SeptembeAPUBLlC WORKS\Sidewalk cafe ordinanceamendment 2015.docx
day of
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16
COMMISSION ITEM SUMMARY
Condensed Title:
First Reading Of An Ordinance Of The Mayor And City Commission Of The City Of Miami Beach, Florida,
Amending Chapter 46 Of The Code Of The City Of Miami Beach, Entitled "Environment," By Amending Article
lll, Entitled "Litter," By Amending Division 1, Entitled "Generally," By Amending Section 46-92Io Amend The
Enforcement And Penalty Provisions For Violations Of Subsections (B), (C), (D), And (E), By lncreasing
Penalties For Violations Of Subsections (B), (C), (D), And (E), And lmposing Criminal Penalties For Violations
Of Subsection (B) On Beaches, Parks, Marinas, Piers, Docks, and Boat Ramps; To Amend Provisions ln
Subsections (L)And (M) Regarding Appeals From Violations; And To Amend The Provisions ln Subsection (M)
Regarding Liens For Unpaid Fines; And Providing For Repealer, Severability, Codification, And An Effective
Date.
Enhance the Environmental Sustainabilitv of the Comm
Su Data (Surveys, Environmental Scan, etc.): N/A
Item Summary/Recommendation:
FIRST READING
Miami Beach is a barrier island with approximately 70 miles of shoreline along numerous canals and
waterways, including the Biscayne Bay Aquatic Preserve. The waters surrounding the City support a wide
variety of flora and fauna. The environmental impact of litter is particularly harmful on the City's beaches, parks,
marinas, piers, docks, and boat ramps, because of the likelihood of litter entering the City's canals and
waterurays, as well as the Atlantic Ocean and Biscayne Bay Aquatic Preserve. Debris floating in urban
watenarays and concentrated along the banks of our wateruryays and beaches also has social impacts.
The proposed Ordinance amends Chapter 46 of the City Code by amending Section 46-92 to increase the fines
and penalties for violations related to litter. The intent of these proposed increases is to change negative
behavior and deter future violations in order to safeguard and improve the environment and community well-
being of the City. The proposed fines for carrying onto any beach within the City a glass or metal bottle or
container; carrying any expanded polystyrene product onto any beach or park within the City, or onto any City
marina, pier, dock, or boat ramp; or for the provision by a business of plastic straws to a patron on any City
beach, are as follows: (i) First offense within a 12-month period: $100.00 civit fine. (ii) Second offense within a
12-month period: $200.00 civil fine. (iii) Third or subsequent offense within a 12-month period: $500.00 civil fine.
The fines and penalties for litter violations that take place anywhere other than a beach or park within the City,
or a City marina, pier dock, or boat ramp; the use of leaf blowers, or any other means, to discard garbage, litter,
or yard clippings onto public or private property; or the failure of a restaurant with take-out service to have up to
four garbage containers in front of and within 50 feet in each direction of the premises, are as follows: (i) First
offense within a 12-month period: $1 ,000.00 fine. (ii) Second offense within a 12-month period: $2,000.00 fine.
(iii) Third or subsequent offense within a 12-month period: $3,000.00 fine.
The fines and penalties for litter violations that take place on a beach or park within the City, or on a City
marina, pier, dock, or boat ramp, shall be a second degree misdemeanor punishable by imposition of a fine not
to exceed $500.00, or by imprisonment not to exceed 60 days, or both. The Ordinance also amends provisions
in Section 46-92 that relate to appeals from violations and liens for unpaid fines.
The proposed Ordinance has been referred by Commissioner Michael Grieco. The Administration recommends
that the Citv Commission adoot the Ordinance on first
Financial I nformation:
Source of
Funds:
Amount Account
1
OBPI Total
NDA ITEI' RSl\JE MIAMIBEACH DATE17
g MIAMI BEACH
City of Miomi Beoch, 'l 700 Convention Center Drive, Miomi Beoch, Florido 33I39, www.miomibeochfl.gov
TO: Mayor Philip Levine and
FROM: Jimmy L. Morales, City Manager
DATE: September 2,2015
SSION MEMORANDUM
FIRST READ!NG
the Ci
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSTON oF THE clTY
oF MtAMt BEACH, FLOR|DA, AilhENDtNG CHAPTER 46 OF THE CODE OF
THE CITY OF MIAMI BEACH,D "ENVIRONMENT,'' BY AMENDING
ARTICLE III, ENTITLED "LITTER," BYAMENDING DIVISION 1, ENTITLED..GENERALLY," BY AMENDING SECTION 46.92 TO AMEND THE
ENFORCEMENT AND PENALTY PROVISIONS FOR VIOLATIONS OF
SUBSECTIONS (B), (C), (D), AND (E), By INCREASTNG PENALTIES FOR
vtoLATtoNS oF SUBSECTIONS (B), (c), (D), AND (E), AND tMpOStNG
cRtMtNAL PENALTIES FOR VTOLATTONS OF SUBSECTTON (B) ON
BEACHES, PARKS, MARINAS, PIERS, DOCKS, AND BOAT RAMPS; TO
AMEND PROVTSIONS !N SUBSECTTONS (L) AND (M) REGARDTNG
APPEALS FROM VIOLATIONS; AND TO AMEND THE pROVtStONS !N
SUBSECTION (M) REGARDING LIENS FOR UNPATD FTNES; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
ADMINISTRATION RECOMMEN DATION
The proposed Ordinance has been referred by Commissioner Michael Grieco. The Administration
recommends that the City Commission approve the Ordinance on First Reading.
BACKGROUND
Miami Beach is a barrier island with approximately 70 miles of shoreline along numerous canals and
waterways, including lndian Creek, Surprise Lake, Lake Pancoast as well as the Atlantic Ocean and
the Biscayne Bay Aquatic Preserve. The waters surrounding the City support a wide variety of flora
and fauna, including threatened and endangered species like the West lndian manatee, the
American crocodile, Johnson's seagrass, and smalltooth sawfish. These waters also act as
nurseries and habitat for migratory birds, including brown pelicans and ospreys, and for
commercially and recreationally important fish, such as snapper, sailfish, and mahi-mahi.
Furthermore, the City's beaches support shorebird species, including seagulls and royal terns, and
are a designated nesting habitat for the protected Loggerhead, Green, and Leatherback sea turtles.
The environmental impact of litter is particularly harmful on the City's beaches, parks, marinas, piers,
docks, and boat ramps, because of the likelihood of litter entering the City's canals and watenarays,
as well as the Atlantic Ocean and Biscayne BayAquatic Preserve. Litter in the waterways can have
devastating impacts on marine life. For example, plastic bags and plastic wrap can asphyxiate
marine animals and fish. Trash, such as cigarettes and silicon packets, can also make animals sick
18
Enhanced Litter Fines Ordinance Memo - F/rsf Reading
September 2, 2015
Page 2 of 3
or kill them. As such, it is critical that the City limit pollutants from entering its vast system of
interconnected watenruays and sensitive marine habitats.
Debris floating in urban waterways and concentrated along the banks of our watenauays and
beaches also has social impacts. Accumulated littercan clog storm-waterdrains and cause flooding
in the urban environment. Visible litter also reduces the visual attractiveness of our City, degrades
the quality of life for our residents and visitors, and reduces the recreational value of our natural
environment. lt decreases the desirability of our neighborhoods, which can reduce property values
and result in economic decay. Economic decay is associated with apathy and crime, which in turn,
decreases the overall quality of life in the community.
The City has taken a number of steps to reduce litter including prohibiting litter on public and private
property; prohibiting the use of glass or metal bottles or containers on City beaches; restricting the
sale and use of expanded polystyrene products; prohibiting the carrying of expanded polystyrene
products onto City parks and beaches, or onto any City marina, pier, dock, or boat ramp; prohibiting
the service of plastic straws on City beaches; prohibiting the use of leaf blowers, or any other
means, to discard garbage, litter, or yard clippings onto public or private property; and requiring that
restaurants with take-out service have garbage containers in front of and within 50 feet in each
direction of the premises.
The proposed Ordinance amends Chapter 46 of the City Code by amending Section 46-921o
increase the fines and penalties for violations related to litter. The intent of these proposed
increases in fines and penalties is to change negative behavior and deter future violations in order to
safeguard and improve the environment and community well-being of the City.
The proposed fines for carrying onto any beach within the City a glass or metal bottle or container;
carrying any expanded polystyrene product onto any beach or park within the City, or onto any City
marina, pier, dock, or boat ramp; or for the provision by a business of plastic straws to a patron on
any City beach, are as follows:
(i) First offense within a 12-month period: $100.00 civil fine.
(ii) Second offense within a 12-month period: $200.00 civilfine.
(iii) Third or subsequent offense within a 12-month period: $500.00 civil fine.
The fines and penalties for litter violations that take place anyruhere other than a beach or park
within the City, or a City marina, pier dock, or boat ramp; the use of leaf blowers, or any other
means, to discard garbage, litter, or yard clippings onto public or private property; or the failure of a
restaurant with take-out service to have up to four garbage containers in front of and within 50 feet in
each direction of the premises, are as follows:
(i) First offense within a 12-month period: $1,000.00 fine.
(ii) Second offense within a 12-month period: $2,000.00 fine.
(iii) Third or subsequent offense within a 12-month period: $3,000.00 fine.
The fines and penalties for litter violations that take place on a beach or park within the City, or on a
City marina, pier, dock, or boat ramp, shall be a second degree misdemeanor punishable by
imposition of a fine not to exceed $500.00, or by imprisonment not to exceed 60 days, or both.
19
Enhanced Litter Fines Ordinance Memo - First Reading
September 2, 2015
Page 3 of 3
The Ordinance also amends provisions in Section 46-92 that relate to appeals from violations and
liens for unpaid fines.
CONCLUSION
The Administration recommends approving the Ordinance.
Attachment: Enhanced Litter Fines Ordinance
MT/ESW/MKW/NK
20
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 46 OF THE
CODE OF THE CITY OF MIAMI BEACH, ENTITLED "ENVIRONMENT,"
BY AMENDTNG ARTICLE II!, ENTITLED "L!TTER," BY AMENDING
DlvlsloN 1, ENTITLED "GENERALLY," BY AMENDING SECTION 46'
92 TO AMEND THE ENFORCEMENT AND PENALW PROVISIONS
FOR VIOLATIONS OF SUBSECTIONS (B), (G), (D), AND (E), BY
INCREASING PENALTIES FOR VIOLATIONS OF SUBSECTIONS (B),
(c), (D), AND (E), AND IMPOSING CRIMINAL PENALTIES FOR
vtoLATtoNS OF SUBSECTION (B) ON BEACHES, PARKS,
MARINAS, PIERS, DOCKS, AND BOAT RAMPS; TO AMEND
PROVISIONS lN SUBSECTIONS (L) AND (M) REGARDING APPEALS
FROM VIOLATIONS; AND TO AMEND THE PROVISIONS IN
SUBSECTION (M) REGARDING LIENS FOR UNPAID FINES; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFIGATION, AND
AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach ("City"), a world-renowned tourist destination,
known for its miles of beautiful beaches, declares that it is in the interest of the public health,
safety, and welfare of its residents and visitors to reduce litter and pollutants on the lands and in
the waters of the City, and along its shores and beaches; and
WHEREAS, the City is comprised of a number of islands with approximately 70 miles of
shoreline along numerous canals and watenrvays, the Atlantic Ocean, and the Biscayne Bay
Aquatic Preserve, all of which support a wide variety of flora and fauna; and
WHEREAS, the visual and sanitary blight caused by litter detracts from the City's quality
of life and negatively impacts the City's residents, visitors, and businesses; and
WHEREAS, the environmental impact of litter is particularly harmful on the City's
beaches, parks, marinas, piers, docks, and boat ramps, because of the likelihood of litter
entering the City's canals and watenrvays, as well as the Atlantic Ocean and the Biscayne Bay
Aquatic Preserve; and
WHEREAS, litter accumulates in and obstructs the City's stormwater management
infrastructure; and
WHEREAS, Section 46-92 of the City Code prohibits, among other things, littering on
public or private property; carrying glass or metal bottles or containers onto beaches within the
City; carrying any expanded polystyrene product onto any beach or park within the City, or onto
any City marina, pier, dock, or boat ramp; the provision of plastic straws by businesses to
patrons on any beach within the City; and the use of leaf blowers or any other means to cause
litter on public or private property; and
WHEREAS, Section 46-92 also requires restaurants with take-out service to have up to
four garbage containers in front of and within 50 feet in each direction of the premises; and
21
WHEREAS, as an environmental leader among local governments in the State of
Florida, the City, by virtue of this Ordinance, will strengthen its litter and environmental
protection laws by increasing penalties for violations of Section 46-92, and imposing criminal
penalties for litter violations on a beach or park within the City, or on a City marina, pier, dock, or
boat ramp; and
WHEREAS, this Ordinance will preserve and enhance the environment of the City of
Miami Beach.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Section 46-92 of Division 1 of Article lll of Chapter 46 of the Code of the
City Miami Beach is hereby amended as follows:
CHAPTER 46
ENVIRONMENT
ARTIGLE !l!. Litter
DIVISION 1. Generally
Sec.46-92. Litter; definitions; prohibitions on litter; penalties for litter and commercial
handbitl violations; commercial handbill regulations, fines, and rebuttable presumptions;
seizure and removal of litter by the city; enforcement; appeals; liens.
(a) Definitions. The following words, terms and phrases, when used in this article, shall
have the meanings ascribed to them in this section, except where the context clearly
indicates a different meaning:
(1) Benefactor means the owner of the business advertised in the commercial
handbill whose agent, employee, contractor, promoter, or other representative
did or caused the throwing, discarding, placing or depositing.
(2) Business means any commercial or industrial activity, entity, or event in or for
which any goods or services are made, sold or offered for sale or other
consideration, pecuniary or othenrise.
(3) Handbiltmeans any handbill, flyer, paper, document, dodger, circular, folder,
booklet, letter, card, pamphlet, sheet, poster, sticker, banner, notice or other
written, printed or painted matter or object that conveys any information,
except that "handbill" shall not include a newspaper or its contents.
(4) Commerciat handbill means any handbill that conveys any information about
any good or service provided by a business.
(5) Litter means any paper, handbill, commercial handbill, garbage, bottle caps,
chewing gum, tobacco products, including, but not limited to, used and unused
22
(b)
cigarettes, cigars, pipe or chewing tobacco, polystyrene or plastic products, or
other waste, including, but not limited to, tree, plant, and grass cuttings,
leaves, or other yard maintenance debris, that has been placed or deposited
on a public sidewalk, street, road, avenue, beach, swale, median, building,
fence, wall, boardwalk, beachwalk, baywalk, cutwalk, park, or in a gutter, drain,
or sewer, or on any other public property, right-of-way or place, or on any
object located on public property, or on the kneewall, window ledge or sill of
any public or private building, or on a motor vehicle, or on any other type of
private real or personal property. Handbills and commercial handbills attached
to a trash receptacle, but not within the trash receptacle in the usual manner,
shall also be considered litter.
(6) One day means a24-hour period from noon to noon.
(7) Person, benefactor, or owner include, within their respective meanings, either
an individual or an entity.
(8) Right-of-way means and includes, but is not limited to, any state, county, or
city-owned public street, sidewalk, street corner, curb, bicycle path, or
pedestrian walkway.
(9) Polystyrene means a thermoplastic polymer comprised of at least 80 percent
styrene or para-methylstyrene by weight.
(10) Expanded potystyrene means blown polystyrene and expanded and extruded
foams that are thermoplastic petrochemical materials utilizing a styrene
monomer and processed by any number of techniques including, but not
limited to, fusion of polymer spheres (expandable bead foam), injection
molding, foam molding, and extrusion-blown molding (extruded foam
polystyrene).
Litter prohibited. ll shall be unlawful for any person or benefactor to throw, discard,
place or deposit, or cause to be thrown, discarded, placed, or deposited, litter in any
manner or amount whatsoever in or on any public highway, sidewalk, road, street,
alley, thoroughfare, beach, park, baywalk, beachwalk, Cutwalk, sidewalk cafe areas,
or any other public place, except in containers or areas lawfully provided therefor. lt
shall be unlawfulfor any person to throw, discard, place or deposit any garbage, cans,
bottles or containers in or on any freshwater lakes, rivers, streams, canals, or tidal or
coastal waters within the city. ln addition, it shall be unlaMul for any person to throw,
discard, place or deposit litter in any manner or amount whatsoever on any private
real or personal property, including, but not limited to, sidewalk cafe furniture and
fixtures, unless prior consent of the owner has been given and unless such litter will
not cause a public nuisance or be in violation of any other state or local laws, rules or
regulations.
Prohibitions on beaches, marinas, piers, docks, boat ramps, and in parks. lt shall be
unlawful for any person to carry onto any beach within the city a glass or metal bottle
or other glass or metal container. ln addition, it shall be unlaMul for any person to
carry any expanded polystyrene product onto any beach or park within the city, or
onto any city marina, pier, dock, or boat ramp, or for any business to provide plastic
(c)
23
straws with the service or delivery of any beverage to patrons on any beach within the
city.
(d) Prohibitions on causing litter in sewers and on public and private propefty. lt shall be
unlaMul for any person to use leaf blowers, or any other means, to sweep, cast or
throw, or cause to be cast or thrown, or discarded into any of the gutters, drains,
sewers, or public rights-of-way within the city, or upon any adjacent public or private
real or personal property, any garbage, litter, paper, handbill, trash, tree, plant, or
grass cuttings, leaves, yard maintenance debris, or other objects or substances.
(e) Garbage container requirements for restaurants. All restaurants with take-out service
shall have up to four garbage containers, as need requires, based on the
determination of the city manager or his designee. The containers shall be located in
front of and within 50 feet in each direction of the premises at locations approved by
the city manager or his designee. These containers shall be kept in clean and sanitary
condition at all times and shall be emptied daily or more frequently if necessary to
prevent overflowing. The garbage containers required by this section are in addition to
those required by chapter 90 of this Code.
(0 Penalties for violations. The following eivil fines and penalties shall be imposed for
violations of this section. except as provided in subsection (h) below:
(1) For violations of subsection (c):
a. First offense within a 12-month period: $50$O $100.00 civilfine.
(21b. Second offense within a 12-month period: ${{}0$O $200.00 civilfine.
(3) c. Third or subsequent offense within a 12-month period: $500.00 civil fine.
(!) For violations of subsection (b) that take place anvwhere other than a beach or
park within the Citv, or a Citv marina, pier. dock, or boat ramp. or for violations of
subsections (d) or (e):
a. First offense within a 12-month period: $1,000.00 civil fine.
b. Second offense within a 12-month period: $2.000.00 civil fine.
c. Third or subsequent offense within a 12-month period. $3.000.00 civil fine.
(Q A violation of subsection (b) that takes place on a beach or park within the Citv. or
on a Citv marina. pier. dock, or boat ramp, shall be a second deoree misdemeanor
punishable bv imposition of a fine not to exceed $500.00, or bv imprisonment not
to exceed 60 davs. or both.
G) ln lieu of a civil fine, the special master may accept voluntary community service
removing litter in the city equivalent to one hour of community service for each $5SO
$50.00 of an imposed civil fine. lf the community service is not completed within six
months of an adjudication of guilt, the fine shall be reinstated.
24
(k)
(l)
Removal of litter by the city. Fhe city may cause the removal, at the violator's
expense, of all litter distributed or placed in violation of this section.
Enforcement by code compliance officers; notice of violation. l{ Except as to
subsection (fl(3) herein. which shall be enforced bv the police deoartment. if a code
compliance officer (which, as defined in section 70-66. includes a police officer) finds
a violation of this article, such code compliance officer shall issue a notice of violation
. The notice shall inform the violator of the
nature of the violation, amount of fine for which the violator may be liable, instructions
and due date for paying the fine, notice that the violation may be appealed by
requesting an administrative hearing within 20 10 days after service of the notice of
violation, and that failure to do so shall constitute an admission of the violations and
waiver of the right to a hearing.
Rights of violators; payment of fine; right to appeal; failure to pay civil fine or to
appeal.
(1) Aviolatorwho has been served with a civil notice of violation shall elect either
to:
a. Pay the civil fine in the manner indicated on the notice; or
b. Request an administrative hearing before a special master appeinba-gy
the eity eemmissien upen reeernmendatien ef the eity manager to appeal
tne
ef+he notice of violation. which hearinq must be requested within ten (10)
davs of service of the notice of violation.
(2) The procedures for appeal by administrative hearing of the notice of violation
shall be as setforth in sections 102 384 and 102 385 30-72 and 30-73 of the
City Code.
(3) lf the named vielater after netiee fails te pay the eivil fine er fails te timely
sfrall be infermed ef sueh failure by repert frem the eede eemplianee effieer,
Failure ef the named vielater te appeal the deeisien ef the eede eemplianee
The failure to pav the civil fine. or to
timelv request an administrative hearinq before a special master, shall
constitute a waiver of the violator's right to administrative hearing before the
special master, A waiver ef the rig shall be
treated as an admission of the violation, and for which fines and penalties may
be assessed accordinglY.
(4) Any party aggrieved by the a decision of the special master may appeal the
that decision in aeeerdanee with law to a court of competent iurisdiction.
151 The special master shall be prohibited from hearino the merits of the. notice of
violation or considerinq the timeliness of a request for an administrative
hearinq if the violator has failed to request an administrative hearino within ten
(10) davs of the service of the notice of violation.
(m)
25
(n)
1o1 Other than the option to accept voluntary communitv service in lieu of a civil
fine pursuant to subsection (fl(4). the special master shall not have discretion
to alterthe penalties prescribed in subsections (fl(1) or (fl(2).
Recovery of unpaid fines; unpaid fines to constitute a lien; foreclosure.
(1) The city may institute proceedings in a court of competent jurisdiction to
compel payment of civil fines.
(2) A certified copy of an order imposing a civil fine may be recorded in the public
records and thereafter shall constitute a lien upon any other real or personal
property owned by the violator, anc_i+ which may be enforced in the same
manner as a court judgment by the sheriffs of this state, including levy against
the violator's real or personal property, but shall not be deemed to be a court
judgment except for enforcement purposes.
Three (3) months after the recordinq of any such lien which remains unpaid,
the city may foreclose or otherwise execute upon the lien, for the amount of
the lien, plus accrued interest.
Ptanning board authority. Nothing in this article shall limit or restrict any condition or
limitation imposed by the planning board.
lnjunctive relief. As an additional means of enforcement, the city may seek injunctive
relief and/or follow procedures to revoke a business tax receipt and/or certificate of
use as set forth in chapters 14, 18 and 102 of the City Code when there are more than
three offenses by the same violator within a calendar year.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 3. SEVERABILIry.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered
or relettered to accomplish such intention, and the word "ordinance" may be changed to
"section," "article," or other appropriate word.
(o)
(p)
6
26
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the day of ,2015.
PASSED AND ADOPTED this
-
day of-,2015.
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, City Clerk
(Sponsored by Commissioner Michael Grieco)
Underline denotes additions
S+rike+n+eugh de notes deletions
APPROVED AS TO
rONU & LANGUAGE
& FOR EX^ECUIiON ( ,-
0 1 )^,,1 c()1["
ciry Aitorney
UK
F:\ATTO\KALN\ORDINANCES\Litter\Litter Ordinance Enforcement and Penalties (September 2015).docx
7
27
28
Condensed Title:
Ordinance Amending Chapter 90, Entitled "Solid Waste," By Amending Article ll, Entitled
"Administration," By Amending Section 90-39 Thereof, Entitled "Fine Schedule For Violations
lssued And Applied To Owners, Agents, Tenants, Occupants, Operators Or Managers, Or
Persons For The Violation," To Amend The Fine Schedules Therein.
COMMISSION ITEM SUMMARY
!ntended Outcome
Strengthen internal controls to achieve more accountability.
Supporting Data (Surveys, EnvironmentalScan, etc.): N/A
Item S ummary/Recommendation :
FIRST READING
This is a request regarding proposed amendments of Chapter 90, Subsection 39 of the City
of Miami Beach Code of Ordinances, pertaining to Solid Waste violations. The request is
sponsored by Commissioner Deede Weithorn.
Research reflects that some solid waste violations in Chapter 90 of the City of Miami Beach
Code have not been amended for a number of years. Thus, the Administration recommends
that solid waste fines, which include but are not limited to illegal disposal of biohazardous
and/or hazardous waste (currently at $250 for first offense) or illegal disposal of garbage,
trash, industrial and bulky waste (currently at $50 for first offense) be significantly increased
in order to create a financial deterrent to these violations.
The amendment will have no financial impact on atfected departments.
The Administration recommends that the City Commission approve the Ordinance at First
Reading.
Financial lnformation :
Source of
Funds:
Amount Account
1
2
3
OBPI Total
Financial lmpact Summary: No fiscal impact is anticipated.
Code Compliance Department
AGENDA ITEM
DATE
R5qq-bKMIAMIBEACH29
ii i: ;i i" . i-l
City of Miomi Beoch, 1700 Convention Cenler Drive, Miomi Beoch, Florido 33,l 39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
To: Mayor Philip Levine and Members
FRoM: Jimmy L. Morales, City Manager
DATE: September 2,2015
SUBJECT: Ghapter 90 Amendment
FIRST READING
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AMENDING CHAPTER 90 OF THE CODE OF THE CIry OF
MIAMI BEACH, ENTITLED ..SOLID WASTE," BY AMENDING ARTICLE II,
ENTITLED "ADMINISTRATION," BY AMENDING SECTION 90.39 THEREOF,
ENTITLED "FINE SCHEDULE FOR VIOLATIONS ISSUED AND APPLIED TO
OWNERS, AGENTS, TENANTS, OCCUPANTS, OPERATORS OR MANAGERS, OR
PERSONS RESPONSIBLE FOR THE VIOLATION," TO AMEND THE FINE
SCHEDULES THEREIN; AND PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission approve the Ordinance at First
Reading.
BACKGROUND
This is a request regarding proposed amendments of Chapter 90, Subsection 39 of the City of
Miami Beach Code of Ordinances, pertaining to Solid Waste violations. The request is
sponsored by Commissioner Deede Weithorn.
Research reflects that some solid waste violations in Chapter 90 of the City of Miami Beach
Code have not been amended for a number of years. Thus, the Administration recommends
that solid waste fines, which include but are not limited to illegal disposal of biohazardous and/or
hazardous waste (currently at $250 for first offense) or illegal disposal of garbage, trash,
industrial and bulky waste (currently at $50 for first offense) be significantly increased in order to
create a financial deterrent to these violations.
FISCAL IMPACT
The amendment will have no financial impact on affected departments.
CONCLUSION
The Administration recommends that the City Commission approve the Ordinance at First
Readino.
D6
JLM/HDC/RSA
T:\AGENDA\201 s\SeptembeACODE\Commission Memo Solid Waste.docx
30
ORD!NANGE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
90 OF THE CODE OF THE CITY OF MIAMI BEACH,
ENTITLED "SOLID WASTE," BY AMENDING ARTICLE II,
ENTITLED "ADMINISTRATION," BY AMENDING SECTION 90-
39 THEREOF, ENTITLED "FINE SCHEDULE FOR VIOLATIONS
ISSUED AND APPLIED TO OWNERS, AGENTS, TENANTS,
OCCUPANTS, OPERATORS OR MANAGERS, OR PERSONS
RESPONSIBLE FOR THE VIOLATION," TO AMEND THE FINE
SCHEDULES THEREIN; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach (the "City"), because of overriding public health,
safety, and welfare considerations, retains regulatory authority over solid waste collection and
disposal; and
WHEREAS, the provisions of Chapter 90 of the City Code are intended to ensure that
solid waste collection and disposal in the City is efficient and responsive to public complaints,
and that the public convenience, aesthetic and environmental considerations, and the public
investment in right-of-way property are protected; and
WHEREAS, Section 90-39 sets forth a fine schedule for, among other things, solid
waste violations or accumulations of solid waste that create a health hazard, environmental
hazard, or nuisance; the illegal disposal of garbage, trash, industrial and bulky waste; the illegal
disposal of garden trash, tree, and shrubbery trash and/or special handling trash; and the illegal
disposal of biohazardous and/or hazardous waste; and
WHEREAS, Section 90-39 also sets forth fines for the following violations of Chapter 90:
the presence of garbage facilities on public property without a permit; open lids on garbage
facilities; garbage facilities with insufficient capacity; an insufficient frequency of garbage
collection; overloaded garbage facilities; a lack of or deterioration of garbage facilities; and the
presence of garbage or miscellaneous trash around garbage facilities; and
WHEREAS, an increase in the fine schedule is necessary to deter future violations and
protect the public health, safety, and welfare; and
WHEREAS, the amendments set forth below are necessary to accomplish the above
objectives.
NOW, THEREFORE, BE tT ORDAINED BY THE MAYOR AND CITY GOMMISSION
OF THE CITY OF MTAMI BEACH, FLORIDA, AS FOLLOWS:
SEGTION 1. That Article ll of Chapter 90 of the Code of the City Miami Beach is hereby
amended as follows:
31
CHAPTER 90
soLrD:otr:
ARTICLE II. ADM!NISTRATION
Sec. 90-39. Fine schedule for riolrtion" l""r"O
"nO "ppfi"d to owners, agents, tenants,
occupants, operators or managers, or persons responsible for the violation.
Fine
(a) Violation(s) of section 90-36: A solid waste violation or
accumulation of solid waste that creates a health hazard,
environmental hazard or nuisance:
a. First offense ..... $1€030 $500.00
b. Second or subsequent offense ..... 2go$o $1,000.00
(b) Violations of sections 90-96, 90-97 and 90-98:
(1) Garbage facilities on public property without a
permit:
a. First offense per qarbaqe facilitv ..... $50SO $100.00
b. Second or subsequent offense per
qarbaqe facilitv ..... 1€0€O $500.00
Fine for
failure to
correct in
specified time
after notice
(2) Dumpsters located and kept on front yard or side
yard facing street (corner lots) ..... $50SO $100.00
(3) Dumpsters not kept in approved garbage
storage facility ..... SOSO $100.00
(4) Owners; occupants; or operator or managers
without garbage collection service where
required by this chapter (private or city) ..... 1€0$g $200'00
(5) lndividual properties with different ownerships
sharing the same service, with or without consent,
per owner ..... 1€OSO $200'00
2
32
(c)Violations of secfions 90-99 and 90-100:
(1) Open lid on garbage facility(ies) .....
(2) lnsufficient garbage facility(ies) capacity .....
(3) lnsufficient frequency of garbage collection .....
(4) Overloaded garbage facility(ies) .....
(5) Lack oflor deteriorated garbage facility(ies) .....
(6) Garbage or miscellaneous trash around garbage
facility(ies) .....
(d) Violations of secfions 90-100-90-105:
(1) lllegal disposal of garbage, trash, industrial and bulky waste:
a. First offense .....
b. Second or subsequent offense .....
(2) lllegal disposal of garden trash, tree and shrubbery trash
trash.
a. First offense .....
b. Second or subsequent offense .....
(3) lllegal disposal of biohazardous and/or hazardous waste:
a. First offense .....
b. Second or subsequent offense .....
Fine
$25SO $s0.00
50sg $100.00
50sg $100.00
50so $100.00
50€g $100.00
50€o $100.00
$50€o $250.00
1€OSO $500.00
and/or special handling
50ss $250.00
+)€$o $500.00
250$0 $1,000.00
4poo,oo $2.000.00
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SEGTION 3. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
3
33
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or
relettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the day of 2015.
PASSED AND ADOPTED this
ATTEST:
day ol
Philip Levine, Mayor
Rafael E. Granado, City Clerk
(Sponsored by Commissioner Deede Weithorn)
Underline denotes additions
S+ike+n+eugn de notes deletio ns
,2015.
APPROVED AS TO
F:\ATTO\KALN\ORDINANCES\SoIid Waste\Solid Waste Fine Schedule 90-39 (September 2015).docx
34
,DrtEli AAIAMIBEACH
OFFICE OF THE CITY ATTORNEY
RAUL J. AGUILA, CITY ATTORNEY
TO:
FROM:
DATE:
SUBJECT:
COMMISSION
MEMORANDUM
MAYOR PHILIP LEVINE
MEMBERS OF THE CITY GOMMISSION
GITY MANAGER JIMMY MORALESo 0A .(--RAUL J. AGUTLG{*L-r. r
CITY ATTORNEY
September 2,2015
A RESOLUTION OF THE MAYOR AND GITY COMMISSION OF THE CITY
OF MIAM! BEACH, FLORIDA, CALLING FOR A NOVEMBER 3, 2015
SPECIAL ELECTION, FOR THE PURPOSE OF SUBMITTING TO THE
ELECTORATE OF THE GITY OF MIAMI BEACH, FLORIDA, A QUESTION
ASKTNG WHETHER THE FLOOR AREA RATTO (FAR) FOR THE ,,OCEAN
TERRACE OVERLAY DISTRICT," WITH AN UNDERLYING ZONING
DESIGNATION OF "COMMERCIAL DISTRICT-2" (*CD-2") AND ,,M!XED
usE ENTERTAINMENT D!STR!CT" (,,MXE"), BE TNCREASED FROM A
MAXIMUM 2.0 FAR TO A MAXIMUM 3.0 FAR FOR RESIDENTIAL AND
HOTEL USES ONLY, AND ALLOW NO FAR INCREASE FOR
COMMERGIAL USES; WHICH OGEAN TERRACE OVERLAY DISTRICT lS
LOCATED BETWEEN 73RD AND 75TH STREETS, COLLTNS AVENUE, AND
OCEAN TERRACE?
Pursuant to the request of City Commissioner Joy Malakoff, the attached Resolution has
been prepared calling for a City of Miami Beach Special Election to be held on November 3,
2015 for the purpose of submitting to the City's voters the following question:
Shal! the Floor Area Ratio (FAR) for the "Ocean Terrace Overlay District,"
located between 73'd and 75h Streets, Goltins Avenue, and Ocean Terrace,
which has underlying zoning designation of "Commercial District-z" ("CO-
2") and "Mixed Use Entertainment District" ("MXE"), be increased from a
maximum ol 2.0 FAR to a maximum of 3.0 FAR for residential and hote!
uses only, and allow no far increase for commercial uses?
Agenda tten A7 CDateqn-35
Pursuant to the City Charter Section 1.03(c), the City is required to hold an election and
obtain a majority vote of the electorate in order to authorize any increase in the Floor Area Ratio
(FAR) of any property. The City is seeking to create the "Ocean Terrace Overlay District," which
district is located between 73'd and 75th Streets, Collins Avenue, and Ocean Terrace. The
underlying properties are zoned Commercial District 2 (CD-z) and Mixed Use Entertainment
(MXE), and currently have a maximum FAR of 2.0. The proposed FAR increase of 1.0, from a
maximum FAR of 2.0 to 3.0, would be restricted to residential and hotel uses and could not be
utilized for commercial/retail uses.
Finally, pursuant to directive of the Miami-Dade County Elections Department, the
final date by which the City may adopt its Resolution placing a ballot measure on the
November 3, 2015 ballot is September 4, 2015. Accordingly, this matter is timely
presented to the City Commission and adoption of the attached Resolution may take place
at today's meeting.
36
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND C!ry COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, CALLING FOR A NOVEMBER 3, 2015 SPECIAL
ELECTION, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE
OF THE CITY OF MIAMI BEACH, FLORIDA, A QUESTION ASKING
WHETHER THE FLOOR AREA RATTO (FAR) FOR THE ,,OCEAN TERRACE
OVERLAY DISTRICT," WITH AN UNDERLYING ZONING DESIGNATION OF
"GoMMERGIAL DISTRICT-2" (,,CD-2") AND ,,MIXED USE ENTERTAINMENT
DISTRICT" (,,MXE"), BE INCREASED FROM A MAXIMUM 2.0 FAR TO A
MAXIMUM 3.0 FAR FOR RESIDENTIAL AND HOTEL USES ONLY, AND
ALLOW NO FAR INCREASE FOR COMMERCIAL USES; WHICH OCEAN
TERRACE OVERLAY DISTRICT IS LOCATED BETWEEN 73RD AND 75TH
STREETS, COLLINS AVENUE, AND OGEAN TERRACE?
WHEREAS, pursuant to Section 1.03(c) of the City Charter, the floor area ration (FAR)
of any property within the City of Miami Beach shall not be increased by zoning, transfer, or any
other means from its current zoned floor area ratio as it exists on the date of adoption of this
Charter Amendment [November 7, 2001), including any limitation on floor area ratios which are
in effect by virtue of development agreements through the full term of such agreements, unless
anv such increase in zoned floor area ratio for anv such propertv shall first be approved bv a
vote of the electors of the City of Miami Beach; and
WHEREAS, the City would like to schedule a vote of the electorate for Tuesday,
November 3,2015, in order for the residents of Miami Beach to vote on whether the residential
and hotel use FAR for the proposed Ocean Terrace Overlay District should be allowed; and,
WHEREAS, The City desires to place the question on the ballot and call a special
election.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEAGH:
SECTION 1. ln accordance with provisions of the Charter of the City of Miami Beach, Florida
and the general laws of the State of Florida, a Special Election is hereby called and directed to
be held in the City of Miami Beach, Florida, from 7:00 a.m. to 7:00 p.m. on Tuesday, November
3,2015, for the purpose of submitting to the electorate the question as set forth hereinafter.
SECTION 2. That the appropriate and proper Miami-Dade County election officials shall
conduct the said Special Election hereby called, with acceptance of the certification of the
results of said Special Election to be performed by the City Commission. The official returns for
each precinct shall be furnished to the City Clerk of the City of Miami Beach as soon as the
ballots from all precincts have been tabulated.
SECTION 3. That the said voting precincts in the City of said Special Election shall be as
established by the proper and appropriate Miami-Dade County Election Officials. All electors
shall vote at the polling places and the voting precincts as determined by the Miami-Dade
County Election Officials as set forth in the attached Exhibit "A".
37
SECTION 4. Not less than thirty (30) days notice of the adoption of this Resolution and of its
provisions calling this Special Election shall be given by publication in the Miami Herald, a
newspaper of general circulation in Miami Beach, Miami-Dade County, Florida. Such
publication shall be made in accordance with the provisions of Section 100.342, Florida
Statutes, and Section 38-3 of the Code of the City of Miami Beach.
SECTION 5. The Notice of Election shall be substantially in the following form:
THE CITY OF MIAMI BEACH, FLORIDA
NOTICE OF SPECIAL ELECTION
NOTICE IS HEREBY GIVEN THAT A SPECIAL ELECTION HAS BEEN
CALLED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AND WILL BE HELD IN SAID CITY FROM 7:OO
A.M. UNTIL 7:OO P.M. ON THE 3RD DAY OF NOVEMBER, 2015, AT WHICH
TIME THERE SHALL BE SUBMITTED TO THE DULY REGISTERED AND
QUALIFIED VOTERS OF THE CITY OF MIAMI BEACH THE FOLLOWING
QUESTION:
1.0 Maximum FAR lncrease for Residentialand
Hote! Uses in the Ocean Terrace Overlay District
Shall the Floor Area. Ratio (FAR) for the "Ocean Terrace Overlay District,,,
Iocated between 73'd and 75th Streets, Collins Avenue, and Ocein Terrace,
which has underlying zoning designation of "Gommercia! District-2" ("CD-
2") and "Mixed Use Entertainment District" ("MXE"), be increased from a
maximum of 2.0 FAR to a maximum of 3.0 FAR for residential and hotel
uses only, and allow no far increase for commercial uses?
YES
NO
Said Notice shall further set forth the several polling places in the election precincts as
established in accordance with Section 3 hereof, and shall further set forth pertinent information
regarding eligibility of electors to participate in said elections.
SECTION 6. That the official ballot to be used in the Special Election to be held on November
3,2015, hereby called, shall be in substantially the following form, to-wit:
38
..OFFICIAL BALLOT''
1.0 Maximum FAR lncrease for Residential and
Hotel Uses in the Ocean Terrace Overlay District
Shall the Floor Area Ratio (FAR) for the "Ocean Terrace Overlay District,"
located between 73rd and 75th Streets, Collins Avenue, and Ocean Terrace,
which has underlying zoning designation of "Commercia! District-z" ("CD-
2") and "Mixed Use Entertainment District" ("MXE"), be increased from a
maximum of 2.0 FAR to a maximum of 3.0 FAR for residential and hotel
uses only, and allow no far increase for commercial uses?
YES
NO
SECTION 7. The form of the ballots to be used in this Special Election and their preparation
shall be in compliance with all statutory requirements relating to the use of mechanical or other
approved voting machines or devices.
SECTION 8. Registration of persons desiring to vote in the Special Election shall be in
accordance with the general law of the State of Florida governing voter registration. Qualified
persons may obtain registration forms to vote at the Office of the City Clerk, City Hall, 1700
Convention Center Drive, First Floor, Miami Beach, Florida 33139, during normal business
hours, and at such other voter registration centers and during such times as may be provided by
the Supervisor of Elections of Miami-Dade County. The Miami-Dade County Supervisor of
Elections will register voters for this Special Election until 5:00 p.m. on 2015.
All persons eligible to vote at this Special Election must be registered before the time and date
set forth herein or have registered previously, as provided by law. Each person desiring to
become a registered voter shall be responsible for properly filling out the registration form and
returning it to the Miami-Dade County Elections Office. All questions concerning voter
registration should be directed to the Miami-Dade County Elections Office, 27OO N.W. 87th
Avenue, Doral, Florida 33172; Telephone: (305) 499-VOTE (8683).
SECTION 9. That the absentee voters participating in said Special Election shall be entitled to
cast their ballots in accordance with the provisions of the Laws of the State of Florida with
respect to absentee voting.
SECTION 10. That the City of Miami Beach shall pay all expenses for conducting this Special
Election and will pay to Miami-Dade County or directly to all persons or firms, upon receipt of
invoice or statement approved by the Supervisor of Elections of Miami-Dade County, Florida.
SECTION 11. lf any section, sentence, clause or phrase of the proposed ballot measure is held
to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in
no way affect the validity of the remaining portions of said ballot measure.
39
SECTION {2. This Resolution shall be effective immediately upon its passage.
PASSED and ADOPTED this day of
ATTEST:
Philip Levine, Mayor
2015.
Rafael E. Granado, City Clerk
(Requested by City Commissioner Joy Malakoff)
dffislP.-8ilB'
& FOR EXEqufloNl-1t*\- sszl [t5-ffi-CllVAttorrY , ^ -
ffi5
40
. )(.,: ::
OFFICE OF THE CITY ATTORNEY
RAULJ. AGUILA, C Y ATTORNEY COMMISSION MEMORANDUM
TO:MAYOR PHILIP LEVINE
MEMBERS OF THE CITY COMMISSION
CITY MANAGER JIMMY MORALES
RAUL J. AGUIL^$./,- .l .l--
CITYATTORNEY \ U5\FROM:
DATE: SEPTEMBER 2, 2015
SUBJECT: RESOLUTION CALLING NOVEMBER 3, 2015 SPECIAL ELECTION
AMENDMENT TO CITY CODE SECTION 2.459 ENTITLED: ..CERTAIN
APPEARANCES PROHIBITED".
Pursuant to the request of City Commissioner Joy Malakoff, the attached
Resolution has been prepared calling for a City of Miami Beach Special Election to be
held on November 3, 2015 for the purpose of submitting to the City's voters the
following question:
City Code Section 2-459, which prohibits Gity board members and their
associates from lobbying City personnel and agencies, already has an
exception allowing lobbying for non-profit entities. Should this Section be
amended to include an additional exception allowing Historic Preservation
and Design Review Board members who are architects or landscape
architects to lobby Gity personnel and agencies on land development
applications, except the board on which they serve and related City staff?
This proposal seeks to amend City Code Section 2-459, in the City's Code of
Ethics, by providing for an exception from the prohibition on lobbying by City officials.
The exception would be limited to Historic Preservation Board ("HPB") and Design
Review Board ('DRB') members who are architects or landscape architects, and would
allow those members to lobby City personnel or officials, except for members of the
boards on which they serve. Because the proposed exemption would lessen the
stringency of City Code Section 2-459, a public vote is required pursuant to City Charter
Section 1.05.
Agenda rtem Rl D
Date 9-f,-lY41
Commissioner Malakoff has proposed this ballot measure as part of her envisioned
comprehensive legislative reform towards streamlining and otherwise improving the
City's development review process. The prohibition on lobbying by all board members
set forth in City Code Section 2-459, although laudable in concept, has served to
discourage qualified design professionals from serving on the HPB and DRB, as such
service prevents them from lobbying the City on behalf of their clients. By amending
the Code to allow for a limited exception whereby such architecUlandscape architect
HPB and DRB members may lobby the City (while maintaining the existing prohibition
on lobbying (i) other members of the board on which the HPB or DRB member serves
or (ii) related City staff), the City will have a greater opportunity to attract qualified
design professionals for such City service.
Finally, pursuant to a directive of the Miami-Dade County Elections Department,
the final date by which the City may adopt a Resolution placing a ballot measure on the
November 3, 2015 ballot is September 4, 2015. Accordingly, this matter is timely
presented to the City Commission and adoption of the attached Resolution may take
place at today's meeting.
F:\ATTO\KALN\BALLOT QUESTION\CiIy Code Sec 2459 Ballot Question (2015) docx
42
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA CALLING FOR A NOVEMBER 3, 2015 SPECIAL
ELECTION, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE OF
THE CITY OF MIAMI BEACH, FLORIDA A QUESTION ASKING WHETHER CITY
CODE SECTION 2.459 SHOULD BE AMENDED TO INCLUDE AN ADDITIONAL
EXCEPTION ALLOWING HISTORIC PRESERVATION AND DESIGN REVIEW
BOARD MEMBERS WHO ARE ARCHITEGTS OR LANDSCAPE ARCHITECTS TO
LOBBY CITY PERSONNEL AND AGENCIES ON LAND DEVELOPMENT
APPLIGATIONS, EXGEPT THE BOARD ON WHICH THEY SERVE AND
RELATED CITY STAFF.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH:
SECTION 1.
ln accordance with provisions of the Charter of the City of Miami Beach, Florida and the
general laws of the State of Florida, a Special Election is hereby called and directed to be held
in the City of Miami Beach, Florida, from 7:00 a.m. to 7:00 p.m. on Tuesday, November 3,2015,
for the purpose of submitting to the electorate the question as set forth hereinafter.
SECTION 2.
That the appropriate and proper Miami-Dade County election officials shall conduct the
said Special Election hereby called, with acceptance of the certification of the results of said
Special Election to be performed by the City Commission. The official returns for each precinct
shall be furnished to the City Clerk of the City of Miami Beach as soon as the ballots from all
precincts have been tabulated.
SECTION 3.
That the said voting precincts in the City of Miami Beach of said Special Election shall be
as established by the proper and appropriate Miami-Dade County Election Officials. All electors
shall vote at the polling places and the voting precincts as determined by the Miami-Dade
County Election Officials as set forth in the attached Exhibit "A".1
1 As of date, the City of Miami Beach has not received from Miami-Dade County Elections Department the final list of
polling places for the City's November 3, 2015 Special Election. Accordingly, attached to this Resolution is a list of
polling places from the City's November 2014 Special Election, which upon receipt from the County, will be
superseded by the Department of Elections' list of polling places for the City's subject November 3,2015 Special
Election, which list of polling places for the City's November 3, 2015 Special Election will be publicly noticed by the
City.
43
SECTION 4.
Not less than thirty days notice of the adoption of this Resolution and of its provisions
calling this Special Election shall be given by publication in the Miami Herald, a newspaper of
general circulation in Miami Beach, Miami-Dade County, Florida. Such publication shall be
made in accordancewith the provisions of Section 100.342, Florida Statutes, and Section 38-3
of the Code of the City of Miami Beach.
SECTION 5.
The Notice of Election shall be substantially in the following form:
THE CITY OF MIAMI BEACH, FLORIDA
NOTICE OF SPECIAL ELECTION
NOTICE IS HEREBY GIVEN THAT A SPECIAL ELECTION HAS BEEN
CALLED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AND WILL BE HELD IN SAID CITY FROM 7:OO
A.M. UNTIL 7:OO P.M. ON THE 3,d DAY OF NOVEMBER, 2015, AT WHICH
TIME THERE SHALL BE SUBMITTED TO THE DULY REGISTERED AND
QUALIFIED VOTERS OF THE CITY OF MIAMI BEACH THE FOLLOWING
QUESTION:
CiW Code Section 2-459:
Establish Additiona! Exception to
Prohibition on Lobbvinq bv Citv Board Members
City Code Section 2459, which prohibits Gity board members and their associates from
lobbying City personnel and agencies, already has an exception allowing lobbying for
non-profit entities. Should this Section be amended to include an additional exception
allowing Historic Preservation and Design Review Board members who are architects or
landscape architects to lobby Gity personnel and agencies on land development
applications, except the board on which they serve and related City staff?
YES
NO
Said Notice shall further set forth the several polling places in the election precincts as
established in accordance with Section 3 hereof, and shall further set forth pertinent information
regarding eligibility of electors to participate in said election.
44
SECTION 6.
That the official ballot to be used in the Special Election to be held on November 3,
2015, hereby called, shall be in substantially the following form, to-wit:
.,OFFICIAL BALLOT''
Citv Code Section 2459:
Establish Additional Exception to
Prohibition on Lobbvinq bv Citv Board Members
Gity Code Section 2459, which prohibits City board members and their associates from
lobbying City personnel and agencies, already has an exception allowing lobbying for
non-profit entities. Should this Section be amended to include an additional exception
atlowing Historic Preservation and Design Review Board members who are architects or
landscape architects to lobby Gity personnel and agencies on land development
applications, except the board on which they serve and related City staff?
YES
NO
SECTION 7.
The form of the ballots to be used in this Special Election and their preparation shall be
in compliance with all statutory requirements relating to the use of mechanical or other approved
voting machines or devices.
SECTION 8.
Registration of persons desiring to vote in the Special Election shall be in accordance
with the general law of the State of Florida governing voter registration. Qualified persons may
obtain registration forms to vote at the Office of the City Clerk, City Hall, 1700 Convention
Center Drive, First Floor, Miami Beach, Florida 33139, during normal business hours, and at
such other voter registration centers and during such times as may be provided by the
Supervisor of Elections of Miami-Dade County. The Miami-Dade County Supervisor of
Elections will register voters for this Special Election until 5.00 p.m. on October 5,2015. All
persons eligible to vote at this Special Election must be registered before the time and date set
forth herein or have registered previously, as provided by law. Each person desiring to become
a registered voter shall be responsible for properly filling out the registration form and returning
it to the Miami-Dade County Elections Office. All questions concerning voter registration should
be directed to the Miami-Dade County Elections Office, 2700 N.W. 87th Avenue, Doral, Florida
33172; Telephone: (305) 499-VOTE (8683).
45
SECTION 9.
That the absentee voters participating in said Special Election shall be entitled to cast
their ballots in accordance with the provisions of the Laws of the State of Florida with respect to
absentee voting.
SECTION 10.
That the City of Miami Beach shall pay all expenses for conducting this Special Election
and will pay to Miami-Dade County or directly to all persons or firms, upon receipt of invoice or
statement approved by the Supervisor of Elections of Miami-Dade County, Florida.
SECTION 11.
lf any section, sentence, clause or phrase of the ballot measure set forth above in this
Resolution is held to be invalid or unconstitutional by any court of competent jurisdiction, then
said holding shall in no way affect the validity of the remaining portions of said ballot measure.
SEGTION 12.
This Resolution shall be effective immediately upon its passage.
PASSED and ADOPTED this daY of
ATTEST:
Philip Levine
Mayor
Rafael E. Granado
City Clerk
(Sponsored by City Commissioner Joy Malakoff)
APPROVED AS TO
FORM & LANGUAGE
r-, &FOREXECUTION , -' K*[ J, v-- ',,'::'Y
4Tnttonev
N)K
*,"
2015.
F:\ATTO\KALN\BALLOT QUESTION\C|Iy Code Sec 2-459 Ballot Question (201S).docx
46
CITY GODE SEGTION 2459:
PROPOSED BALLOT QUESTION AND AMENDED CITY CODE TEXT
NOVEMBER 3,2015 SPEGIAL ELECTION
I. PROPOSED BALLOT QUESTION:
Citv Code Section 2-459:
Establish Additional Exception to
Prohibition on Lobbvinq bv Gitv Board Members
City Gode Section 2459, which prohibits City board members and their associates from
lobbying Gity personnel and agencies, already has an exception allowing lobbying for
non-profit entities. Should this Section be amended to include an additional exception
atlowing Historic Preservation and Design Review Board members who are architects or
landscape architects to tobby Gity personnel and agencies on land development
applications, except the board on which they serue and related City staff?
YES
NO
II. PROPOSED CIry CODE TEXT:
City of Miami Beach Code section 2-459. "Certain appearances prohibited."
(a) No member of a city board, agency or committee or a member of any board, agency or
committee created hereafter which is designated as a board, agency or committee subject to
the purview of this section shall:
(1) Either directly orthrough an associate, appear, represent or act on behalf of a third
person before the city commission or any city agency with respect to any agency action sought
by the third person.
(2) Either directly or through an associate be engaged as a lobbyist for and on behalf of
a third person with respect to any official action by any public officer sought by such third
person.
(b) Definitions. As used in this section, the following definitions shall apply:
Agency means any board, commission, committee or authority of the city, whether
advisory, ad hoc or standing in nature.
Assocrafe means any person or entity engaged in or carrying on a business enterprise
with a city agency member as a partner, joint venturer, or co-corporate shareholder where the
shares of such corporation are not listed on any national or regional stock exchange or co-
owner of property. Associate shall further include a business affiliation with a city agency
member where an "employee" or "of counsel" relationship exists.
Lobbyist means all persons, firms, or corporations employed or retained, whether paid or
not, by a principal who seeks to encourage the passage, defeat, or modification(s) of any of the
following: (1) ordinance, resolution, action or decision of any commissioner; (2) any action,
decision, or recommendation of any city board or committee; or (3) any action, decision or
recommendation of the city manager, deputy city manager, assistant city managers, all
department heads, all division heads, city attorney, chief deputy city attorney, deputy city
attorneys, and/or all assistant city attorneys (except when such personnel are acting in
connection with administrative hearings) during the time period of the entire decision-making
47
process on such action, decision or recommendation which foreseeably will be heard or
reviewed by the city commission or a city agency. "Lobbyist," as defined above, specifically
includes the principal, as described above, as well as any agent, attorney, officer or employee of
a principal, regardless of whether such lobbying activities fall within the normal scope of
employment of such agent, attorney, officer or employee.
(1) For purposes of this section, and with limited applicability to those agencies that are
not standing in nature, "lobbyist" shall exclude any person who only appears as a representative
of a not for profit corporation or entity (such as a charitable organization, a neighborhood or
homeowner association, a local chamber of commerce or a trade association or trade union)
without special compensation or reimbursement for the appearance, whether direct, indirect or
contingent, to express support of or opposition to any item.
(2) For purposes of this section, and with limited applicability to those
agencies that are standing in nature:
a. Lobbying by a board, agency or committee member shall be permitted when
such person is affiliated with a not for profit corporation or entity (such as a charitable
organization, a neighborhood or homeowner association, a local chamber of commerce or a
trade association or trade union) in a capacity other than as a managerial employee and
appears as a representative of that particular not for profit corporation or entity without special
compensation or reimbursement for the appearance, whether direct, indirect or contingent, to
express support of or opposition to any item.
b. Lobbying by the associate of a board, agency or committee member shall be
permitted:
(i) When a board, agency or committee member is affiliated with a not for
profit corporation or entity in a capacity other than as a managerial employee, and the subject
associate is appearing as a representative of that particular not for profit corporation or entity
without special compensation or reimbursement for the appearance, whether direct, indirect or
contingent, to express support of or opposition to any item.
(ii) When a board, agency or committee member is a managerial
employee of a not for profit corporation or entity, and the subject associate is appearing as a
representative of that particular not for profit corporation or entity without special compensation
or reimbursement for the appearance, whether direct, indirect or contingent, to express support
of or opposition to any item and is affiliated with said not for profit corporation or entity in a
capacity other than as a managerial employee.
c. The term "managerial employee" shall mean any employee of a nonprofit
corporation or entity who has supervision and operational responsibilities/control of all or some
departments of said entity.
(3) For purposes of this section. and with limited applicabilitv to Historic
Preservation Board and/or Desiqn Review Board members who are architects .or
landsiape architects. lobbvinq activities set forth in (aX1) and (2) above shall be
oermitted with reqard to land development applications. insofar as said activities are
than the
Preservation Board or Design Review Board) on which the subiect Board member servqs
and related Citv personnel serve in their capacitv as staff to such agencv. This
arch
Historic Preseruation Board and/or Desiqn Review Board from submitting plans to their
board of membership on behalf of an applicant. so lonq as anv such member also makes
known at meetinqs of such board his or her representation of the applicant and
disqualifies himself or herself from speakins or votins or otherwise participatinq in the
review or approval of such application.
Pubtic officer means any person elected or appointed to hold office in the city, as a
member of an agency which shall include an advisory body.
ibit
48
COMMISSION ITEM SUMMARY
Condensed Title:
Place Located At 1601 Washinqton Avenue.
A Resolution Approving And Authorizing The Mayor And City Clerk To Execute A Seftlement Agreement
Between The City (Owner), Pky Lincoln Place, LLC (Tenant), And 16th Street Partners, LLC (Master Su-btenant),
Relating To That Certain Agreement Of Lease (Ground Lease), Dated September 1, 1g99, For The Lincoln
On June 23, 1999, the City Commission adopted Resolution No.99-23222 approving the development agreement
with 16' Street Partners, LLC, a Florida limited liability company, to create a mixed use project on land leased from
the City located at Washington Avenue and 16th Street (the Project). The Project is an eighl story, high rise building
with approximately 134,135 rentable square feet of office space, 28,483 rentable square feet of retail space and a
493 space parking garage (Garage).
Effective May 25,2006, 16th Street Partners, LLC entered into a sales leaseback agreement (Master Sublease) with
TAG Lincoln Place LLC (IAG) (until TAG transferred/sold its 100% ownership in the property to PKY Lincoln Place
Holdings, LLC, in December 2013. Thereafter, TAG changed its name to PKY Lincoln Place, LLC (PKY or Tenant).
Under said land lease, the City is entitled to receive base rent of $29,020.27lmonth ot $U8,243.24 annually (includes
7Yo slale sales tax) pus 2.5 per cent of the gross Project Revenues from the income of the Project.
Under the Master Sublease, PKY, as successor tenanUMaster Sublandlord, leases the entire Project to 16th Street
and 16th Street is responsible for the payment of all obligations of PKY to the City. There is no sublease or other
occupancy agreement between 16"' Street and its affiliates for the use of office space in the building or parkinq
spaces in the Garage (collectively referred to herein as 16th Street's Exclusive Spaces), and 16th Stre-et does no-t
impose or collect any rent for such use.
ln 2013, the City's Leasing Specialist, tasked with monitoring this lease agreemenl, became concerned that the
tenant was not remitting 2.5% ol all their applicable revenues (Percentage Rent) to the City as she believed that they
were incorrectly excluding rents paid by their parent company (LNR 16rn Street, LLC) which occupied a majority of
Lincoln Place's office space. As a result, lnternal Audit was requested to review the documentation provided and to
determine the validity of these concerns. ln addition to subsequently confirming the omission of parental company
rents, lnternal Audit also noted that the tenant was not remitting sufficient percentage rent payments on the parking
garage revenues and common area maintenance charges. Thereafter, the parties reached a Settlement Agreement.
SETTLEMENT AGREEMENT
(i) a settlement payment from 16th Street to the City for the outstanding claims prior to 2014, in the sum of
$400,000.00, and mutual release, (ii) an agreed upon construction of the Percentage Rent provisions of the Ground
Lease as they shall apply to 16"' Street and its affiliates for the period January 1,2014 through the duration of the
Master Lease Term; (iii) an agreement between the City and PKY as to reasonable conditions for approval by the
City of a future Master Sublease; (iv) acknowledgement the actual number of parking spaces in the Garage is four
hundred and ninety-three (493), and (v) solely during the term of the Master Lease, the Owner agrees to (1) abate
the enforcement of this provision contained in Section 6.1 of the Ground Lease; (2) permit the reallocation of the total
number of public parking spaces that must be available to the general public on weekdays from 7:00 A.M. to 6:30
P.M. (Office Hours) from 100 to 20 spaces; and (3) increase the number of public parking after Office Hours on
at all times durino weekends. to 300
Source of
Funds:
Amount Account
1
2
Total
Financial lmpact Summary:
Ensure Expenditure Trends Are Sustainable Over The Long Term
It is recommended that the Citv adoptthe proposed resolution.
Financial I nformation:
islative Trac
Max A. Sklar, Tourism, Culture and Economic Development Director
AGENDA ,rr*rl07f-MIAMIBEACH DArE ?-J - l.Y49
,D'-i,AlAi\,t ImHACF{
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139,
www.miamibeachfl.gov
COMMISSION DUM
TO:
FROM:
DATE:
City Commission
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMTSSION OF THE CIry OF
MIAMI BEACH, FLORIDA, APP NG AND AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE A MENT AGREEMENT BETWEEN
THE CITY (OWNER), pKy LTNCOLN PLACE, LLC (TENANT), AND 16rH
STREET PARTNERS, LLC (MASTER SUBTENANT), RELATING TO THAT
CERTAIN AGREEMENT OF LEASE (GROUND LEASE), DATED SEPTEMBER
1, 1999, FOR THE LINCOLN PLACE GARAGE, LOGATED AT 1601
WASH!NGTON AVENUE.
RECOMMENDATION
Adopt the Resolution.
BACKGROUND
Pursuant to RFP 20-97198, which sought proposals for the development of public-private
parking facilities, on June 23, 1999, the City Commission adopted Resolution No.99-23222
approving the development agreement with 16th Street Partners, LLC, a Florida limited
liability company (16th Street), to create a mixed use project on land leased from the City
located at Washington Avenue and 16th Street (Lincoln Place or the Project). Once
constructed, Lincoln Place became an eight story, high rise building with approximately
134,135 rentable square feet of office space, 28,483 rentable square feet of retail space and
a 493 space parking garage (Garage).
16th Street was originally formed by LNR 16th Street, lnc. in partnership with Lincoln Place
Partners, LLC and Comras 16th Street, lnc. Effective May 25,2006,16th Street Partners,
LLC entered into a sales leaseback agreement (Master Sublease), having a term of fifteen
years with TAG Lincoln Place LLC, a Delaware limited liability company (tenant), a wholly
owned subsidiary of The Andalex Group, LLC, a Delaware limited liability company, which
remained relatively unchanged until TAG transferred/sold their 100o/o ownership in the
property to PKY Lincoln Place Holdings, LLC, a Delaware limited liability company, in
December 2013. Thereafter, TAG Lincoln Place LLC changed its name to PKY Lincoln
Place, LLC (PKY or Tenant).
ln connection with the development of the Project, 16th Street, as tenant, and the City
(Owner) executed a ground lease (Ground Lease), in effect from September 1 , 1999 through
November 2052, with two (2) 20 year extension options, and which included among other
items the following lease payment terms:
. The Tenant shall pay the base rent in monthly installments equal to one-twelfth of
the then applicable annual rent payable in advance on the first day of each calendar
Honorable Mayor Philip Levine and
Jimmy L. Morales, City Manager
September 2,2015
50
PKY Lincoln Place Settlement Agreement
City Commission Meeting
September 2,2015
Page 2 of 6
month.. The base rent will be $250,000 for lease years '1 through 5 (September 1, 2OO2
through December 31, 2007) increasing to $300,000 for lease years 6 through 10
(January 1, 2008 through December 31,2012). Adjusting these base rent payments
forTo/o state sales tax, the tenant was to remit $26,750 ($300,000 x 1.07 state sales
tax)112 months) from the beginning of the audit period (January 1, 2009) through
December 31,2012.o The monthly base rent was to be adjusted on every fifth lease year thereafter based
upon the lesser of 12o/o or the cumulative CPI over the previous five year period. lt
was subsequently determined that the cumulative CPI grew by less than the 12%
during the preceding five years resulting in the tenant's monthly base rent payments
increasing to $29,020.27 or $348,243.24 annually (includes 7% state sales tax)
starting in January 2013.o The tenant shall also pay the City annual percentage rent for each lease year during
the term in an amount equal to 2.5o/o of the amount of Project Revenue.
The following table lists the rounded amount of base and percentage rent revenues received
from the tenant for each calendar year from 2009:
* The above figures represent the month and/or year that the tenant made the
payment for while the City recognized the payment in the fiscal year that it was
received so differences would exist if this table was reconciled to the City's Financial
System entries. For example, the $48,480 percentage rent payment for the 2009
calendar year was actually received on June 3, 2010 and was included in the
2009110 fiscal year entries.
ln 2013, the City's Leasing Specialist tasked with monitoring this Ground Lease became
concerned that the tenant was not remitting 2.5o/o of all their applicable revenues to the City
as she believed that 16th Street was incorrectly excluding rents paid by 16h Street's affiliated
company (LNR 16th Street, LLC) which occupied a malolity of Lincoln Place's office space.
As a result, lnternal Audit was requested to review the documentation provided and to
determine the validity of these concerns. ln addition to subsequently confirming the
omission of rents from 16th Street's affiliates, lnternal Audit also noted that 16th Street was
not remitting sufficient Percentage Rent payments on the parking garage revenues and
common area maintenance charges.
PKY, as successor tenanVMaster Sublandlord, leases the entire Project to 16th Street
pursuant to a Master Sublease, and pursuant to the terms of the Master Sublease, 16th
Street agreed to be responsible for the payment of all obligations of PKY to the City (as
defined in the Ground Lease) under the Ground Lease. There is no sublease or other
occupancy agreement between 16th Street and its atfiliates for the use of office space in the
building or parking spaces in the Garage (collectively referred to herein as 16th Street's
Exclusive Spaces), and 16th Street does not impose or collect any rent or other charges for
such use.
The City claims that unpaid Percentage Rent (as defined in the Ground Lease) has accrued
2009 2010 2011 2012 2013 Total
Base Rent "$321.000 $321,000 $321,000 $321.000 $348.243 $1.632.243
Percentage
Rent *$48,480 $52,1 91 $48,832 $48,172 $51,626 $249,301
Total Rent $369,480 $373,1 91 $369.832 $369.1 72 $399.869 $1,881,544
51
PKY Lincoln Place Settlement Agreement
City Commission Meeting
September 2,2015
Page 3 of 6
and remains due and payable to the City by virtue of the use by 16th Street and its affiliates
of 16th Street's Exclusive Spaces at the Project for the period prior to January 1,2014,which
claims are disputed and denied by 16th Street. Additionally, the Ground Lease does not
accurately reflect the actual number of parking spaces in the Garage.
ln connection with negotiating theterms of the settlement, in lightof thefactthat 16th Street's
Exclusive Spaces were not being rented at market rates, the Director of Tourism, Culture
and Economic Development secured a Fair Market Rental Analysis, a copy of which is
attached hereto and incorporated herein as Exhibit B. The parties reached an agreement
with respect (i) to a settlement payment from 16th Street to the City in consideration of a
settlement of the dispute and a fulland final release of the outstanding claims, (ii) an agreed
upon construction of the Percentage Rent provisions of the Ground Lease as they shall
apply to 16th Street and its affiliatesfor the period January 1 ,2014 through the duration of
the Master Lease Term (as defined in Section 4 of the Agreement); (iii) an agreement
between the City and PKY as to reasonable conditions for approval by the City of a future
Master Sublease; and (iii) certain agreements regarding the Garage through the duration of
the Master Lease term.
SETTLEMENT AGREEMENT
A copy of the Settlement Agreement is attached hereto and incorporated herein by reference
as Exhibit'A'. A summary of those items is as follows:
1. Settlement of Outstandino Claims and Mutual Release: ln resolution of the DisputeandinconsiderationofatmeoutstandingClaims,16th
Street will pay to the City the sum of Four Hundred Thousand and No/100 Dollars
($400,000.00) (the "Settlement Payment"), the parties agree to mutually release
each other from any and all claims or liability, past, present or future, of whatsoever
kind or character, by reason of or arising out of or existing in connection with the
Dispute or the Outstanding Claims.
Base Rent Fair Market Rental Value: For purposes of determining an implied Prolect
Revenue for office space occupied by 16th Street or its affiliates at the Project, the
parties agree that the base rent fair market rental value (including operating
expenses for the 2006 base year operating expenses for all office space tenants at
the Project) shall be deemed to be $30.41 per rentable square foot effective January
1 ,2014, which shall escalate annually at the rate of three percent (3%) on January
1tt of each year thereafter for the duration of the Master Lease Term. Simultaneously
with the execution of the Settlement Agreement, 16th Street shall reimburse the
Owner for the cost of the appraisal utilized to determine the base rent fair market
rental value, for the year 2014, in the amount of $3,000.00.
Reimbursement of Operatino Expenses: For purposes of determining an implied
Project Revenue for reimbursable operating expenses, applicable to the office space
occupied by 16th Street or its affiliates at the Project ("16th Street Reimbursable
Exoenses"), for the period from January 1,2014 through the end of the Master
Lease Term, the parties agree that said operating expenses which are subject toreimbursementfromthird-partyofficetenants(..',)for
the applicable Lease Year at the Project (calculated in a manner consistent with the
Office Reimbursable Expenses for prior Lease Years at the Project, based upon the
95% grossed-up operating expenses passed through to the other office tenants for
the applicable Lease Year, the actual insurance expenses paid during the applicable
Lease Year, and the actual real estate tax bills paid for the applicable Lease Year,
2.
3.
52
PKY Lincoln Place Settlement Agreement
City Commission Meeting
September 2,2015
Page 4 of 6
copies of which have been furnished to the City), shall be used as the basis for
determining implied Project Revenue as well as Percentage Rent due under the
Ground Lease for the office space occupied by 16th Street or its affiliates at the
Project to the extent that any of the categories of the Office Reimbursable Expenses
exceeds the operating expenses for the 2006 base year.
4. Parkinq Spaces: For purposes of determining an implied Project Revenue and
calculating Percentage Rent thereon for parking spaces actually used by 16th Street
or its affiliates at the Garage, the parties agree that the fair market value shall be
deemed to be $107.00 per space, per month, commencing on January 1,2014, and
for the duration of the Master Lease Term.
5. Percentaqe Rent PaymenVAdditional Documentation: Effective as of the 2015
calendar year, through the end of the Master Lease Term, solely, the process for
submitting the Percentage Rent payment, as required under Section 3.3(b) of the
Ground Lease, shall be modified as follows:
16th Street Partners shall submit an estimated Percentage Rent
payment, along with the back-up information, within sixty (60)
days from the end of each Lease Year, subject to finalizing the
audited financial statement for said particular Lease Year, with the
adjusted/final payment due within one hundred fifty (150) days
from the end of each Lease Year. As long as 16th Street follows
this modified procedure, no penalties shall accrue to PKY under
the Ground Lease.
16th Street agrees, forthe duration of the Master Lease Term, to include, along with
the audited financial statement and each final payment of Percentage Rent
(including Percentage Rent from the lease of space to third parties and other parking
revenue in accordance with the provisions of the Ground Lease), shall provide the
following.
o ? r€poft, with updated floor plans, to the City of the total square feet of space
in the Project actually occupied and used by 16th Street or its affiliates during
the prior Lease Year (which Cityr may verify through a site visit);. the actual Third Party Reimbursable Expenses and the 16th Street
Reimbursable Expenses, as well as the corresponding reconciliations for
said expenses for the prior Lease Year;o the number of monthly parking passes or access cards issued to and actually
used by employees of 16th Street and its affiliates;o a copy of the insurance bill(s) paid and covering the prior Lease Year; and,o proof of payment of real estate taxes paid and covering the prior Lease Year.
6. Aqreement Reqardinq Parkinq Garaqe Provisions.
(a) Recoqnition of Number of Parkino Spaces as Constructed in the Garaqe:.
The parties recognize that the Ground Lease provides that the Garage shall contain
a minimum number of six hundred (600) parking spaces. The parties acknowledge,
however, that the actual number of parking spaces in the Garage is four hundred
and ninety-three (493).
53
PKY Lincoln Place Settlement Agreement
City Commission Meeting
September 2,2015
Page 5 of 6
(b) Temporary Abatement of Enforcement of the Public Parkino Requirements:
The parties acknowledge that Section 6.1(b) of the Ground Lease requires 100
public parking spaces in the Garage to be made available at all times for use by the
general public, and that said provision under the Ground Lease is not being
modified. 16th Street has represented that this restriction impairs its ability to lease
space to Tenants of the Project, and that the demand for public parking is greater
during periods after regular office hours on weekdays and all times during
weekends. The parties consider it in the best interests of the Project and the Owner
to abate enforcement of this public parking requirement in the Garage, on a
temporary basis. Soley during the term of the Master Lease, the Owner agrees to (i)
abate the enforcement of this provision contained in Section 6.1(b) of the Ground
Lease; (ii) permit the reallocation of the total number of public parking spaces that
must be available to the general public on weekdays from 7:00 A.M. to 6:30 P.M.
(Office Hours) from 100 to 20 spaces; and(iii) increase the number of public parking
that must be available for use by members of the general public, after Office Hours
on weekdays and at all times during weekends, to 300 spaces. This temporary
abatement of enforcement of the public parking requirement shall not affect the
requirement to maintain ten (10) parking spaces for monthly parking for members of
the general public.
7. Future Master Sublease Approvals: Pursuant to Section 3.3 of the Ground Lease,
the City is entitled to receive Percentage Rent on the basis of Project Revenue
derived from operation of the Project by the "Tenant" thereunder, or by the "Master
Subtenant" under a Master Sublease of all or substantially all of the Project or of
twenty percent (2O%o) or more of the Garage to a single tenant. The parties
acknowledge that under circumstances in which the Master Subtenant and/or its
related entities occupy space in the Project for no rental or at a rental rate
substantially below market rental rates then in effect (an "Under-market Sublease"),
Project Revenue may be adversely affected. As such, in connection with the
approval of a proposed Master Sublease, and to the extent the City has approval
rights over any proposed "Master Sublease" (as such term is defined in Section
10.2(f), of the Ground Lease) pursuant to the Ground Lease, and in addition to any
other documents which City may be entitled pursuant to the terms of the Ground
Lease, Tenant shall provide the City with the following documents, in connection with
the approval of such proposed Master Sublease: (1) a copy of the Master Sublease;
(2) the Master Subtenant's business plan (including proposed market rental value for
the spaces under said Master Sublease; proposed operating expenses for the
spaces under said Master Sublease; and proposed market rental values for parking
spaces in the Garage which may be the subject of said Master Sublease); (3) an
acknowledgment from the Master Subtenant, as to whether or not any of the spaces,
which are the subject of said Master Sublease, will be occupied by the Master
Subtenant or its related entity for its exclusive use; and (4) Master Subtenant's
financial statements.
l6thStreet, ingoodfaith, haspaidthe 2Ol4PercentageRent, intheamountof $140,410.31,
which includes the implied Project Revenue for 16th Street's Exclusive Spaces, based upon
the terms of the Settlement Agreement, contingent upon approval of said Settlement
Agreement by the City Commission.
CONCLUS!ON
The Administration recommends that the City Commission adopt the resolution approving and
authorizing the Mayor and City Clerk to execute the settlement agreement, as being in the best
54
PKY Lincoln Place Settlement Agreement
City Commission Meeting
September 2,2015
Page 6 of 6
.,,interest of the City.
JLM/#B/fi66{
r:nOeN O{tI9Y5\SbptembeATCED\PKY Settlement Agreement MEM.doc
55
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND GIry
CLERK TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE CITY
(owNER), PKY LTNCOLN PLACE, LLc (TENANT), AND {6rH STREET PARTNERS,
LLC (MASTER SUBTENANT), RELATING TO THAT CERTAIN AGREEMENT OF
LEASE (GROUND LEASE), DATED SEPTEMBER 1, 1999, FOR THE LTNCOLN
PLACE GARAGE, LOCATED AT 1601 WASHINGTON AVENUE.
WHEREAS, on June 23, 1999, the City Commission adopted Resolution No. 99-
23222 approving the development agreement with 16th Street Partners, LLC, a Florida
limited liability company (16th Street), to create a mixed use project on land leased from the
City located at Washington Avenue and 16th Street (the Project); and
WHEREAS, in connection with said development agreement, on or about September
1, 1999, the City and 16th Street executed a ground lease (Ground Lease); and
WHEREAS, the Project was constructed as an eight story, high rise building with
approximately 134,135 rentable square feet of office space, 28,483 rentable square feet of
retail space and a 493 space parking garage (Garage); and
WHEREAS, Effective May 25, 2006, 16th Street entered into a sales leaseback
agreement (Master Sublease) with TAG Lincoln Place LLC, a Delaware limited liability company
(TAG), a wholly owned subsidiary of The Andalex Group, LLC, a Delaware limited liability
company, which remained relatively unchanged until TAG transferred/sold its 100o/o ownership
in the Project to PKY Lincoln Place Holdings, LLC, a Delaware limited liability company, in
December 2013. Thereafter, TAG changed its name to PKY Lincoln Place, LLC (PKY or
Tenant); and
WHEREAS, PKY, as successor tenanVMaster Sublandlord, leases the entire Project to
16th Street pursuant to a Master Sublease, and pursuant to the terms of the Master Lease, 16th
Street agreed to be responsible for the payment of all obligations of PKY to the City under the
Ground Lease; and
WHEREAS, 16th Street and its affiliate, LNR 16th Street, LLC, occupied the majority of
the Project's office space and the parking spaces in the Garage (16th Street's Exclusive
Spaces); however, there was no sublease or other occupancy agreement between 16th Street
and its affiliates for the use of 16th Street's Exclusive Spaces, and 16th Street does not impose
or collect any rent or other charges for such use; and
WHEREAS, pursuant to said Ground Lease, the City is entitled to receive base rent, on
a monthly basis, which escalates every five years, plus an annual payment of percentage rent,
based upon 2.5o/o of the gross revenues generated by the Project for the particular Leas Year
(Percentage Rent); and
WHEREAS, in 2013, the City's Leasing Specialist tasked with monitoring this lease
agreement became concerned that the tenant was not remitting the correct amount of
Percentage Rent to the City, as she believed that they were incorrectly excluding rents from 16th
Street and its affiliate in connection for the use of the office space; and
56
WHEREAS, as a result, lnternal Audit was requested to review the documentation
provided and to determine the validity of these concerns. ln addition to subsequently confirming
the omission of Percentage Rent based upon the use of the office space by 16th Street and its
affiliate, lnternal Audit also noted that the tenant was not remitting sufficient Percentage Rent
payments on the parking garage revenues and common area maintenance charges (the
Dispute); and
WHEREAS, the parties resolved the Dispute, based upon the following essential
terms: (i) a settlement payment from 16th Street to the City in consideration of a settlement
of the dispute and a full and final release of the outstanding claims prior to 2014, in the sum
of Four Hundred Thousand and No/100 Dollars ($400,000.00), (ii) an agreed upon
construction of the Percentage Rent provisions of the Ground Lease as they shall apply to
16th Street and its affiliates for the period January 1,2014 through the duration of the Master
Lease term; (iii) an agreement between the City and PKY as to reasonable conditions for
approval by the City of a future Master Sublease; (iv) acknowledgement the actual number
of parking spaces in the Garage is four hundred and ninety-three (493), and (v) solely during
the term of the Master Lease, the City agrees to (1) abate the enforcement of this provision
contained in Section 6.1(b) of the Ground Lease; (2) permit the reallocation of the total
number of public parking spaces that must be available to the general public on weekdays
from 7:00 A.M. to 6:30 P.M. (Office Hours) from 100 to 20 spaces; and (3) increase the
number of public parking that must be available for use by members of the general public,
after Office Hours on weekdays and at all times during weekends, to 300 spaces.
WHEREAS, the Administration recommends that the City execute the Settlement
Agreement, attached hereto and incorporated herein by reference as Exhibit A.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby a resolution of the Mayor and City Commission of the City of Miami Beach,
Florida, approving and authorizing the Mayor and City Clerk to execute a settlement agreement,
in the form attached hereto and incorporated herein by reference as Exhibit A, between the City
(Owner), PKY Lincoln Place, LLC (Tenant), and 16th Street Partners, LLC (Master Subtenant),
relating to that certain Agreement of Lease (Ground Lease), dated September 1, 1999, for the
Lincoln Place Garage, located at 1601 Washington Avenue.
PASSED AND ADOPTED this _ day of
ATTEST:
,2015.
Philip Levine, Mayor
Rafael E. Granado, City Clerk
,6FrffiI[R8gIg,
& FOR exSCunolrr
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I-IIY Aftorney.,6ln- Et--
T:\AGENDA\201 S\September\TCED\PKY Seft lement\PKY Settlement ResO.dOCx
57
SETTLEMENT AGREEMENT
PARTIES:
THIS SETTLEMENT AGREEMENT (this "Agreement") is made this
day of _ ,2015 ("Effective Date"), by, between and among the CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation (the "City" or "Owner"), PKY LINCOLN
PLACE, LLC, a Delaware limited liability company ("PKY"), and 16rH STREET
PARTNERS, LLC, a Florida limited liability company ("l6th Street").
RECITALS:
WHEREAS, the City is the fee simple owner of the land (the "Premises")
underlying the improvements, consisting of a mixed-use project containing a parking
garage, office space, and retail and/or commercial space (the "Project") presently known as
Lincoln Place, having an address of 1601 Washington Avenue, Miami Beach, Florida; and
WHEREAS, the City leases the Premises to PKY pursuant to that certain
Agreement of Lease dated as of September l, 1999, andrecorded in Official Records Book
18770, Page 46, of the Public Records of Miami-Dade County, Florida (the "Public
Recqfds"), as modifiedrrbythat certain First Amendment to Agreementof T;ease dated as of
NovCmber 8, 2000, and recorded in Official Records Book 19-395, Page 1 106, of the Public
Recsrds (as amended, the "Ground Leaseu), 6 assigned to TAG Lincoln Pace LLC
("TAG") pursuant to an Assignment and Assumption of Lessee's Interest in Lease dated
May 24, 2006, and recorded, in Official Records Book 24598, Page 2948, of tlle Public
Records; and further assigned to PKY, through the sale of the 100% ownership interest in
TAG to PKY Lincoln Place Holdings, LLC, a Delaware limited liability company,
pursuant to an Assignment of Membership Interest, dated as of December 6, 2013, and the
subsequent name change of TAG to PKY Lincoln Place, LLC.; and
WHEREAS, PKY leases the entire Project to 16th Street pursuant to that certain
Master Sublease, titled Lease Agreement, dated March 25,2006 (the "Master Lease") a
short form of which is recorded as a Memorandum of Lease, dated May 25,2006, and
recorded in Official Records Book 24598, Page 3094, of the Public Records (the
"Memorandum of Lease"); and
WHEREAS, pursuant to the terms of the Master Lease, l6th Street agreed to be
responsible for the payment of all obligations of PKY to the Owner (as defined in the
Ground Lease) under the Ground Lease; and
WHEREAS, there is no sublease or other occupancy agreement between l6th Street
and its affiliates for the use of office space in the building or parking spaces in the Garage,
and 16th Street does not impose or coliect any rent or othir "hu.g.r foi such use; and
WHEREAS, the Owner claims that unpaid Percentage Rent (as defined in the
Ground Lease) has accrued and remains due and payable to the Owner by virtue of the use
by l6'n Street and its affiliates of a portion of the offrce space in the building and parking
spaces in the Garage at the Project (collectively, "l6th Street's Exclusive Spaces")for the
EXHIBlT
nPage I of9
58
period prior to January 1,2074 (the "Outstanding Claims"), which claims are disputed and
denied by 16th Street (the "Dispute"); and
WHEREAS, the Ground Lease does not accurately reflect the actual number of
parking spaces in the Garage, and the parties recognize and agree that it is in the best
interests of the Project and the Owner to reallocate the minimum public parking
requirements currently set forth under the Ground Lease, exclusively during the duration of
the Master Lease Term (as defined in Section 4 of this Agreement); and
WHEREAS, upon the terms. and conditions set forth below, the parties have agreed
(i) to a settlement payment from 16th Street to the Owner in consideration of a settlement of
the Dispute and a full and final release of the Outstanding Claims, (ii) an agreed upon
construction of the Percentage Rent provisions of the Ground Lease as they shall apply to
16th Street's Exclusive Spaces for the period commencing on January l,2Ol4 ttrougfrtne
duration of the Master Lease Term; (iii) an agreement between the Owner and PKY as to
reasonable conditions for approval by the Owner of a future Master Sublease; and (iii)
certain agreements regarding the Garage through the duration of the Master Lease Term.
TERMS AND CONDITIONS:
NOW, THEREFORE, in consideration of the above recitals and 1_he promises,
agreements and releases""iontained herein, as well as for othei 'good,,i'riahd valuable
consideration, *re receip and sufficiency of which is hereby acknowledged, the parties
agree as follows:
l. Recitals Incorporated: Definitions. The above recitals are incorporated
herein by reference. Unless otherwise defined herein. defined terms (as indicated by an
initial capital letter) shall have the meaning ascribed to them in the Ground L.u.?:,,,,,,
2. Cit), Commission Approval Contingency. The parties hereto understand
and agree that this Agreement will not be binding upon the parties to this Agreement until
such time as the City Commission of the City of Miami Beach has approved same, and the
Agreement is fully executed by the parties to the Agreement. City Commission approval is
a material condition precedent to the execution and enforceability of this Agreement,
without which the City does not agree to and is not subject to the terms and conditions
contained herein.
3. Settlement of Outstanding Claims and Mutual Release. In resolution of the
Dispute and in consideration of a full and final settlement of the Outstanding Claims,
contemporaneously upon full execution of this Settlement Agreement, l6th Street has paid
to the City the sum of Four Hundred Thousand and No/I00 Dollars ($400,000.00) (the
"Settlement Palrment"), and the Owner accepts the Settlement Payment in full and final
satisfaction of the Outstanding Claims. Additionally, each and all of the parties to this
Agreement, and the parent companies, subsidiaries, divisions, affiliates, owners, offrcers,
directors, agents, commissioners, employees, subcontractors, representatives, successor
and assigns of each and all of them are released from any and all claims of liability, past,
present or futures, of whatsoever kind or character, by reason of or arising out of or existing
in connection with the Dispute or the Outstanding Claims.
Page2 of9
59
4. Agreed-Upon Construction of Percentage Rent Provisions. The parties
have agreed upon the interpretation of the Percentage Rent provisions of the Ground Lease
(including the definition of "Project Revenue") as they relate to the use and occupancy of
16th Street's Exclusive Spaces for the period commencing on January l, 2014, and
terminating on June 30,2021(the expiration of the current term of the Master Lease), or
any earlier termination of the Master Lease (the "Master Lease Term") as hereinafter set
forth. The parties acknowledge and agree that the interpretations set forth herein shall not
be used to interpret, nor shall they modify the Percentage Rent provisions of the Ground
Lease as they apply to any other Tenant (including the definition of Project Revenue), or to
any future Master Subtenant of the Project.
(a) Base Rent Fair Market Rental Value. For purposes of determining an
implied Project Revenue for office space occupied by 16th Street or its affiliates at the
Project, the parties agree that the base rent fair market rental value (including operating
expenses for the 2006 base year operating expenses for all office space tenants at the
Project) shall be deemed to be $30.41 per rentable square foot effective January 1,2014,
which shall escalate annually at the rate of three percent (3%) on January l't of each year
thereafter for the duration of the Master Lease Term. Simultaneously with the execution of
this Agreement, 16th Street shall reimburse the Owner for the cost of the appraisal utilized
to determine the base rent fair market rental value, for the year 2014, in the amount of
$3,000.00.
Examole:
By way of illustration of the foregoing, and utilizing the fair market annual base
rental for the 2017 calendar year, in the amount of $33.23 per rentable square foot. and
assuming for.purposes of example that 16ft Street and its affiliates actually occupy and use
90,000 square feet of office space in the Project during such year, the implied Project
Revenue and Percentage Rent attributable to 16th Street and its affrliates'occupancy would
be as follows:
Base Rent Per
Square Foot
Per Year
Square Feet of
Space Occupied
Implied Project
Revenue Per
Year
Percentage
Rent
(2.s%)
$33.23 90,000 $2,990,700.00 s74,767.50
(b) Reimbursement of Operating Expenses. For purposes of determining an
implied Project Revenue for reimbursable operating expenses, applicable to the office
space occupied by 16th Street or its affiliates at the Project ("16Itr Street Reimbursable
Expenses"), for the period from January 1,2014 through the end of the Master Lease Term,
the parties agree that said operating expenses which are subject to reimbursement from
third-party office tenants ("Office Reimbursable Expenses") for the applicable Lease Year
at the Project (calculated in a manner consistent with the Office Reimbursable Expenses
for prior Lease Years at the Project, based upon the 95olo grossed-up operating expenses
Page 3 of9
60
passed through to the other office tenants for the applicable Lease Year, the actual
insurance expenses paid during the applicable Lease Year, and the actual real estate tax
bills paid for the applicable Lease Year, copies of which have been furnished to the
Owner), shall be used as the basis for determining implied Project Revenue as well as
Percentage Rent due under the Ground Lease for the ofhce space occupied by 16th Street or
its affiliates at the Project to the extent that any of the categories of the Office
Reimbursable Expenses exceeds the following base amounts (ooBase Expenses"): (a)
Operating Expense Base Amount:$2,456,911.19; (b) Tax Base Amount: $922,423.83; and
(c) Insurance Base Amount: $186,879.43.
Example:
By way of illustration of the foregoing, assuming for purposes of example that in
calendar year 2017,16th Street and its affiliates o..upy 90,000square feet of the total
134,135 rentable square feet of offrce space at the Project, l6th Street's pro rata share would
be 67J0% (90,000/134,135: .067096), and assuming for purposes of example that the
Office Reimbursable Expenses for the Project for 2017 calendar year are: (a) Operating
Expenses $2,000,000.00; (b) Taxes $1,000,000.00; and (c) Insurance $400,000.00;
utilizing the agreed upon Base Expenses as set forth below, the implied Project Revenue
and Percentage Rent due thereon would be calculated as follows:
Expense
Category
2017
Expense Base Expense
2017 Expense
Less Base
Expense
Pro
Rata
Share
Expense
Recovery
(Implied
Project
Revenue)
Percentage
Rent
(2.s%\
Op. Exp.$2,000,0
00.00
$2,456,91r.19 $-0-67.10
%$-0-$-0-
Insurance $400,00
0.00
$ I 86,879.43
$213,120.57 67.10
%
$143,003.
90 $3,575.10
Taxes $1,000,0
00.00
$922"423,93 $77,576.20 67.10
%
$52,053.6
J $ 1,301 .34
If the expenses for any of the categories for Office Reimbursable Expenses for a
particular calendar year are less than the Base Expenses, then, in that case, no Percentage
Rent shall be due and no credit to l6th Street will be due for that particular category.
With respect to the Office Reimbursable Expenses, and the operating expenses
which are subject to reimbursement from third party ground floor retail tenants ("Retail
Reimbursable Expenses") (the Office Reimbursable Expenses and Retail Reimbursable
Expenses shall be collectively referred to as "Third Party Reimbursable Expenses"), for the
period from January 1,2014 through the end of the Master Lease Term, the parties agree
that said Third Party Reimbursable Expenses shall be calculated in a manner consistent
with the Third Party Reimbursable Expenses for prior years at the Project (copies of which
have been furnished to the Owner). Additionally, 16th Street shall report said Third Party
Page 4 of9
61
Reimbursable Expenses as a line item in the audited financial statements, under the
Revenue category, commencing with the 2014 audited financial statement.
(c) Parking Spaces. For purposes of determining an implied Project Revenue
and calculating Percentage Rent thereon for parking spaces actually used by l6th Street or
its affiliates at the Garage, the parties agree that the fair market value shall be deemed to be
$107.00 per space, per month, commencing on January 1,2014, and for the duration of the
Master Lease Term.
Example:
By way of illustration of the foregoing, assuming for purposes of example that 16th
Street and its affiliates use 300 parking spaces at the Garage for each month of the 2017
calendar year on a monthly basis (by virtue of the use of monthly parking cards for access
to the Garage), the implied Project Revenue and Percentage Rent attributable to 16th Street
and its affiliates'use would be as follows:
Parking Charge
Per Month Per' Space
Annual Number
of Parking
Spaces (300
monthlv x 12)
Implied Project
Revenue,,.,,
Percentage
Rent
(2.5o/o)
$107.00 3,600 s385,200.00,$9,630.00
5. Percentage Rent Payment/Additional Documentation. Effective as of the
2015 calendar year, through the end of the Master Lease Term, solely, the process for
submitting the Percentage Rent payment, as required under Section 3.3(b) of the Ground
Lease, shall be modified as follows: 16th Street Partners shall submit an estimated
Percentage Rent payment, along with the back-up information, within sixty (60) days from
the end of each Lease Year, subject to finalizing the audited financial statement for said
particular Lease Year, with the adjusted/final payment due within one hundred fifty (150)
days from the end of each Lease Year. As long as l6th Street follows this modified
procedure, no penalties shall accrue to PKY under the Ground Lease.
16th Street agrees, for the duration of the Master Lease Term, to include, along with
the audited financial statement and each final payment of Percentage Rent (including
Percentage Rent from the lease of space to third parties and other parking revenue in
accordance with the provisions of the Ground Lease), shall provide the Owner with the
following: (i) a report with the floor plans. reflecting the total square feet of space in the
Project actually occupied and used by 16th Street or its affiliates during the prior Lease
Year (which Owner may verify through a site visit); (ii) the actual Third Party
Reimbursable Expenses and the 16th Street Reimbursable Expenses, as well as the
corresponding reconciliations for said expenses for the prior Lease Year; (iii) the number
of monthly parking passes or access cards issued to and actually used by employees of 16th
Page 5 of9
62
Street and its affiliates; (iv) a copy of the insurance bill(s) paid and covering the prior Lease
Year; and (v) proof of payment of real estate taxes paid and covering the prior Lease Year.
6. Agreement Regarding Parking Garage Provisions.
(a) Recognition of Number of Parking Spaces as Constructed in the Garage.
The parties recognize that the Ground Lease provides that the Garage shall contain a
minimum number of six hundred (600) parking spaces. The parties acknowledge,
however, that the actual number of parking spaces in the Garage is four hundred and
ninety-three (493).
(b) Temporary Abatement of Enforcement of the Public Parking Requirements.
The parties acknowledge that Section 6.1 of the Ground Lease requires 100 public parking
spaces in the Garage to be made available at all times for use by the general public, and
that said provision under the Ground Lease is not being modified. 16th Street has
represented that this restriction impairs its ability to lease space to Tenants of the Project,
and that the demand for public parking is greater during periods after regular office hours
on weekdays and all times during weekends. The parties consider it in the best interests of
the Project and the Owner to abate enforcement of this public parking requirement in the
Garage, on a temporary basis. Solely during the Master Lease Term, the Oyuer agrees to
(i) abate the enforcement of this provision contained in section O.t ofinerGrorrnd Lease;
(ii) permit the reallocation of the total nurnber of public parking spaces that must be
available to the general public on weekdayq from 7:00 A.M. to 6:30 P.M. (Office Hours)
from 100 to 20 spaces; and(iii) increase the number of public parking that must be
available for use by members of the general public, after Office Hours on weekdays and at
all times during weekends. to 300 spaces. This temporary abatement of enforcement of the
public parking requirement shall not affect the requirement to maintain ten (10) parking
spaces for monthly parking for members of the general public.
7. Future Master Sublease Approvals. Pursuant to Section 3.3 of the Ground
Lease, the City is entitled to receive Percentage Rent on the basis of Project Revenue
derived from operation of the Project by the "Tenant" thereunder, or by the "Master
Subtenant" under a Master Sublease of all or substantially all of the Project or of twenty
percent (20%) or more of the Garage to a single tenant. The parties acknowledge that
under circumstances in which any future Master Subtenant and/or its related entities
occupy space in the Project for no rental or at a rental rate substantially below market
rental rates then in effect (an "Under-market Sublease") Project Revenue may be
adversely affected. As such, in connection with the approval of a proposed Master
Sublease and to the extent the Owner has approval rights under any proposed "Master
Sublease" (as such term is defined Section 10.2(f), of the Ground Lease) pursuant to the
Ground Lease, and in addition to any other documents which Owner may be entitled
pursuant to the terms of the Ground Lease, Tenant shall provide the Owner with the
following documents, in connection with the approval of such proposed Master Sublease:
(l) a copy of the Master Sublease; (2) the Master Subtenant's business plan (including
proposed market rental value for the spaces under said Master Sublease; proposed
operating expenses for the spaces under said Master Sublease; and proposed market rental
values for parking spaces in the Garage which may be the subject of said Master Sublease;
Page 6 of9
63
(3) an acknowledgement from the Master Subtenant, as to whether or not any of the
spaces, which are the subject of said Master Sublease, will be occupied by the Master
Subtenant or its related entity for its exclusive use; and (4) Master Subtenant's financial
statements.
8. Miscellaneous.
(a) On or about J:une 12, 2015, 16th Street calculated calendar year 2014
Project Revenue and paid Owner 2014 calendar year Percentage Rent in the total amount
of $ 140,410.3 l, which amount includes (in addition to Percentage Rent on direct Project
Revenue), Percentage Rent on implied Project Revenue for l6th Street's Exclusive Spaces
based upon the terms of this Agreement (i.e., Percentage Rent of $62,641.56 attributable to
Base Rent, 53,196.71 attributable to Office Reimbursable Expenses, and $9,983.10
attributable to parking), and the City acknowledges that the method of calculation and
amount of Percentage Rent paid by 16th Street for l6th Street's Exclusive Spaces for the
calendar year 2014 complies with the provisions of this Agreement and satisfies the
Percentage Rent payment due for the l6th Street Exclusive Spaces for the 2014 calendar
year.
(b) l6th Street's agreement to pay the Settlement Amount to the Owner in full
and.final satisfaction ofthe Outstanding Claims has been maft'rin orderto avoid litigation,
and shall not be construed as an admi.rion o, evidence of liability, responsibility, o-r fault
of any kind by l6th Street or PKY.
(c) The parties hereto stipulate and agree that this Settlement Agreement
represents the entire agreement by, between and among them with respect to the subject
matter hereof, and the provisions contained herein may not be changed or altered without
the express written consent of all of the parties.
(d) All of the parties hereto participated in the preparation of this Settlement
Agreement and in the process of preparation thereof, each and all of the parties
acknowledge hereby that each party was fully and adequately represented by its own
respective legal counsel and has received legal advice from its own respective legal
counsel.
(e) In the event of any litigation arising out of this Settlement Agreement, this
Settlement Agreement shall not be construed in favor or against any party by reason of its
process or preparation.
(0 If any legal action, proceeding, or hearing is brought by any of the
undersigned parties to enforce the terms of this Agreement, then the prevailing party shall
be entitled to recover legal costs and reasonable attorneys' fees incurred in connection with
said action. All parties to this Agreement shall bear their own respective legal costs and
attorneys' fees in connection with the Dispute or Outstanding Claims through the Effective
Date of this Agreement.
Page 7 of9
64
(g) This Settlement Agreement shall be signed in counterpart originals by each
and all of the parties hereto and each such counterpart original shall be deemed an original
for all purposes.
ISTGNATURE PAGES FOLLOWI
Page 8 of9
65
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
effective as ofthe day and year first set forth above.
ATTEST:CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of
Florida
Rafael E. Granado, City Clerk Philip Levine, Mayor
Date:
ATTEST:PKY LINCOLN PLACE, LLC,
a Delaware limited liability company
Bvi By:
Namb:Name:
Title:Titl0:l
)g[g;,:r,
Name:
Title:
Date:
ATTEST:I6TH STREET PARTNERS, LLC,
a Florida limited liability company
By: LNR Property LLC,
a Delaware limited liability company
By:
By:
By:
Name:
Title:
Name:
Title:
Date:
Page 9 of9
66
COUNSELING REPORT
MARKET RENT ANALYSIS FOR OFFICE SPACE
Lincoln Place
1601 Washington Ave.
Miami Beach, FL 33139
Report 201541
PREPARED FOR
City of Miami Beach
Mark Milisits
Asset Manager
Tourism, Culture and Economic Development Department
Office of Real Estate
1755 Meridian Ave.
Miami Beach, FL 33139
PREPARED BY
BLAZEJACK & COMPANY
l72W Flagler Street, Suite 340
Miami, Florida 33130
Phone: Q05)372-0211
Fax: (305) 374-1948
EXHIBIT
6
67
BLAZEJACK & COMPANY
REAL ESTATE COUNSELORS
June 25,2015
City of Miami Beach
MarkMilisits
Asset Manager
Tourism, Culture and Economic Development Department
Office of Real Estate
1755 Meridian Ave.
Miami Beach, FL 33139
Re: Appraisal of Real Property -201541
Fair Market Rent analysis for occupied office spaces by LNR.
Lincoln Place
1601 Washington Ave.
MiamiBeach, FL 33139
Dear Mr. Milisits:
At your request, we have completed a retrospective analysis ofthe market rent as ofJanuary 2014 ofthe above
referenced property, to various Assumptions and Limiting Conditions set forth in the accompanying report. The
physical inspection and analysis that form the basis ofthe report has been conducted by the undersigned.
Our analyses have been prepared in compliance with the standards and regulations ofthe Uniform Standards of
Professional Practice (USPAP). The accompanying report includes pertinent data secured in our investigation,
exhibits and the details ofthe processes used to arrive at our conclusion ofvalue.
As a result of the examination and study made, it is my opinion that the Fair Market Rent for small spaces,
subjecttoeconomicconditionsprevailing,asofJanuary l,20l4,thedateoftheanalysiswas:
Respectfully submitted,
BLAZEJACK & COMPANY
Jose Wong
Senior Consultant
Cert Gen RZ-2797
172 W FLAGLER STREET, SUTTE 340, MtAMt, FLORTDA 33130 opHONE (305) 372-0211 oFAX (30S) 374-1948
68
1601 Washington Ave
REPORT 201541
Property Name:
Property Type:
Location:
Parcel Identification
Owner:
Client:
Interest Appraised:
Date of Appraisal:
Dates of Inspection:
Date of Report:
Property Size:
Highest and Best Use:
As Vacant:
As Improved:
SUMMARY OF FACTS AI\D CONCLUSIONS
Lincoln Place
Office
160l Washington Ave. Miami Beach
FL 33139
02-3234-919-0840
Source: Miami Dade Public Records
City of MiamiBeach
City of MiamiBeach
Fair Market Rent
January 1,2014
June 22,2015
June 25, 201 5
78,168 SF (space occupied by LNR)
Mixed-Use Building Development
Continued use as Mixed-Use Building
Retrospective Market Rent Indication, as of January lr20l4z
BLAZEJACK & COMPANY
REAL ESTATE COUNSELORS
69
1601 Washington Ave
REPORT 201541
TABLE OF CONTENTS
CERTIFICATE OF VALUE I
)ASSUMPTIONS AND LIMITING CONDITIONS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Subject Plans and Photographs
Comparable Rent Photographs
Engagement Letter
Qualifi cations of the Appraiser
BLAZEJACK & COMPANY
REAL ESTATE COUNSELORS
70
1601 Washington Ave
REPORT 201541
CERTIFICATE OF VALUE
I certi! that, to the best of my knowledge and belief,
o the statements offact contained in this repoft are true and correct.
o the reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting
conditions, and are my personal, unbiased professional analyses, opinions, and conclusions.
. We have no present or prospective interest in the property that is the subject ofthis report, and no personal
interest with respect to the parties involved.
. We have performed no services regarding the property that is the subject of this report within the three-
year period immediately preceding acceptance of this assignment.
o We have no bias with respect to the property that is the subject of this report or to the parties involved with
this assigrment.
o Our engagement in this assignment was not contingent upon developing or reporting predetermined results.
. our compensation for completing this assignment is not contingent upon the development or reporting of
a predetermined value or direction in value that favors the cause of the client, the amount of the value
opinion, the attainment of a stipulated result, or the occurrence of subsequent event directly related to the
intended use ofthis appraisal.
o Our analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity
with the Uniform Standards of Professional Appraisal Practice.
. Jose Wong has made a personal inspection of the property that is the subject of this report.
o No one provided significant real property appraisal assistance to the persons signing this certification.
o The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in
conformify with the Code of Professional Ethics and Standards of Professional Appraisal Practice of the
Appraisal Institute.
o The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly
authorized representative.
o As the date of this report Jose Wong has completed the continuing education program of the Appraisal
Institute as a Practicing Affrliate member.
BLAZEJACK & COMPANY
Jose Wong
Senior Consultant
Cert Gen RZ-2797
BLAZEJACK & COMPANY
CERTIFICATE
71
1601 Washington Ave
REPORT 201541
ASSUMPTIONS AI{D LIMITING CONDITIONS
The appraisal is subject to the following assumptions and limiting conditions:
No survey ofthe subject property was undertaken.
The subject property is free and clear of all liens except as herein described. No responsibility is
assumed by the appraisers for matters, which are of a legal nature, nor is any opinion on the title
rendered herewith. Good and marketable title is assumed.
The information contained herein has been gathered from sources deemed to be reliable. No
responsibility can be taken by the appraisers for its accuracy. Correctness of estimates, opinions,
dimensions, sketches and other exhibits which have been furnished and have been used in this report
are not guaranteed. The value estimate rendered herein is considered reliable and valid only as ofthe
date ofthe appraisal, due to rapid changes in the external factors that can significantly affect the property
value.
This study is to be used in whole and not in part. No part of it shall be used in conjunction with any
other appraisal. Publication of this report or any portion thereof without the written consent of the
appraiser is not permitted.
The appraisers herein, by reason ofthis report, are not required to give testimony in court with reference
to the property appraised unless notice and proper arrangements have been previously made therefore.
The value estimate assumes responsible ownership and competent management. The appraiser assumes
no responsibility for any hidden or in apparent conditions of the property, subsoil, or structures, which
would render it more or less valuable. No responsibility is assumed for engineering, which might be
required to discover such factors.
Neither all nor any part ofthe contents ofthis report shall be conveyed to the public through advertising,
public relations, news, sales or other media without the written consent and approval of the authors,
particularly as to valuation conclusions, the identity of the appraisers or firm with which they are
connected, or any reference to the Appraisal Institute.
Any exhibits in the report are intended to assist the reader in visualizing the property and its
surroundings. The drawings are not intended as surveys and no responsibility is assumed for their
cartographic accuracy. Any drawings are not intended to be exact in size, scale, or detail. Areas and
dimensions of the property may or may not have been physically measured. If furnished by the
principal or from plot plans or suryeys fumished by the principal, or from public records, we assume
them to be reasonably accurate. No responsibility is assumed for discrepancies, which may become
evident from a licensed survey ofthe property.
The Americans with Disabilities Act (ADA) became effective January 26,1992 sets strict and specific
standards for handicapped access to and within most commercial and industrial buildings.
Determination of compliance with these standards is beyond appraisal expertise and, therefore, has not
been attempted by the appraisers. For purposes of this appraisal, we are assuming the building is in
compliance; however, we recommend an architectural inspection of the building to determine
compliance or requirements for compliance.
BLAZEJACK & COMPANY
ASSUMPTIONS AND LIMITING CONDITIONS
72
1601 Washington Ave
REPORT 201541
MARI(ET RENT ANALYSIS
BLAZEJACK & COMPANY
MARKET RENT ANALYSIS
73
1601 Washington Ave
REPORT 201541
IDENTIFICATION OF THE PROPERTY
The property under analysis in this report is located at 1601 Washington Ave. Miami
Beach, FL 33139, atthe NEC of Washington Avenue and 16fi Street.
The building comprises about 105,194 SF of office space in 8 floors and28,941SF of
retail space on the ground. The site is owned by the City of Miami Beach, according to the Public
Records of Miami Dade County, as folio No. 02-3234-919-0840.
We have been retained to make a market rent study of 78,168 SF of office space occupied
by LNR, on floors 5ft, 6tr, 7ft & 8tr (19,542 SF/floor).
The owner of the building is held in the name of 16ft Street partners LLC clo The Comras
Company of Florida Inc. The folio ofthe leasehold is No.02-3234-919-0842.
BLAZEJACK & COMPANY
MARKET RENT ANALYSIS
74
1601 Washington Ave
REPORT 201541
PURPOSE DATE AND FUNCTION OF THE REPORT
The purpose of this report is to estimate the Fair Market Rent for the office space occupied
by LNR. The date of the analysis was January 1,2014. It is understood that the function of this
report is for internal asset management for lease negotiations.
SCOPE OF THE ASSIGNMENT
This is a complete appraisal presented in a nanative, summary format. USPAP defines
scope of the work as the type and extent of research and analysis in an assignment.
The scope of this analysis was to inspect the property, consider market characteristics and
trends, collect andanalyze pertinent data, develop a conclusion and estimate the property's market
rent. During the course of this assignment, we developed and analyzedcurrent office space rents
located in the Miami Beach area.
The extent of verification consisted of assembling and analyzingraw data gathered from
a variety of sources including public records data services, news periodicals, broker or
knowledgeable third parties when available, and in-houses files.
LEGAL DESCRIPTION
AI-TON BEACH 1ST SUB
PB 2-77
LOTS 17 & 18 & 20 FT ALLEY LYG N
OF LOT 17 LESS E6OFI& LESS BEG
SW COR OF LOT 16 TH S OO OEG W
116.79FT N 89 DEG E 85.2OFT N OO
DEG E 1 16-7OFT N 89 DEG W 85.19FT
TO POB & ALL LOTS 19 THRU 22 &
AIR RIGHTS DESC IN OR 19236-4458
LOT SIZE 64740 SO FT
N UF LU I ] T LE.Sti EtiOF I & LESS t'EG
SW COR OF LOI 16 TH S OO DEG W
116.79FT N 89 DEG E 85-2OFT N OO
DEG E 116-7OFT N 89 DEG W 85.19FT
TO POB &ALL LOTS 19 THRU 22 &
AIR RIGHTS DESC IN OR 19236-4458
LOT S|ZE 54740 SOFr
AS PER LEASE AGREEh4ENT WITH
CITY OF MlAI,tl BEACH
FtNU 02-3234-019-0840
Folio No. 02-3234-019-0840 Folio No. 02-323 4-0 I 9 -08 42
BIAZEJACK & COMPANY
MARKET RENTANALYSIS
75
1601 Washington Ave
REPORT 201541
PROPERTY HISTORY
The property site is held in the name of City of Miami Beach according to the Public
Records of Miami Dade County. We are not aware of any transfer of the property or purchase
listing or offering within the past five years.
Folio No. 02-3234-019-0842: The property is a leasehold interest owned by l6th Street
Partners LLC clo The Comras Company of Fla [nc.
DEFINITIONS OF VALUE A}[D INTEREST APPRAISED
According to the Code of Federal Regulations, Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 ("FIRREA"), and according to the 12ft Edition
of The Appraisal of Real Estate, market value is defined as follows:
Market Value
The most probable price, which a property should bring in competitive and open market under all
conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably,
and assuming the price is not affected by undue stimulus. Implicit in this definition is the
consummation of a sale as of a specified date and the passing of title from seller to buyer under
conditions whereby:
I Buyer and seller are typically motivated.
2 Both parties are well informed or well advised, and acting in what they consider their own best
interests;
3 A reasonable time is allowed for exposure on the open market.
4 Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements
comparable thereto; and
5 The price represents a normal consideration for the property sold unaffected by special or creative
financing or sales concessions granted by anyone associated with the sale.
Fee Simple Interest
Absolute ownership unencumbered by any other interest or estate, subject only to the limitations
imposed governmental powers oftaxation, eminent domain, police power, and escheat.
Leased Fee Interest
An ownership interest held by a landlord with the right to use and occupancy conveyed by a lease
to others; usually consists ofthe right to receive rent and the right to possession at termination of
the lease.
Market Rent
The rental income that a property would most probably command on the open market; indicated
by current rents paid and asked for comparable space as ofthe date ofthe appraisal.
Source: Appraisal Institute, The Appraisal of Real Estate. 136 Edition, (Chicago, 2008)
BLAZEJACK & COMPANY
MARKET RENTANALYSIS
76
'1601 Washington Ave
REPORT 201541
MARJ(ET RENT ANALYSIS
Office Market
In order to estimate the market rent of the subject office space occupied by LNR, a rent
survey of similar spaces in the Miami Beach area was conducted. The basis for classification was
location, design, and quality of construction, quality of interior finishes, age, and condition. Size
is also a sensible, small space with less than 6,000 SF attains higher rent than bigger spaces.
The rent comparable selected give an indication of the level of rent that could be
commanded by the subject if offered in the open market. The rent survey, a location map, and a
table of adjustments can be found following. Photos ofthe comparable office spaces can be found
in the Addenda.
{
4z,9oz
P
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Data Zoom 14-5DeLornre- DeLornre Street Atlas USA@ 2010 MN
z1
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Otfrce Rent 3
llOt Lrtrcoln Rd.
$30/sr
Office Comparable Location Map
BLAZEJACK & COMPANY
MARKET RENT ANALYSIS
77
160'l Washington Ave
REPORT 201541
All the office rates in our survey are asking rates. Leasing agents interviewed in gathering
rental data indicated that no concessions were provided although some terms were negotiable
depending on the size of space and length of the lease. In most cases, the rates actually achieved
in leases are near the asking rates. No tenant improvements were considered, since the offrce
space comps were in good condition.
The office spaces occupied by LNR have good quality construction finish, and are in
excellent condition.
BLAZEJACK & COMPANY
MARKET RENTANALYSIS
Lhcoln Place
160l Washiryton Ave.
Miami Beach
FL 33139
1370 Washington Ave.
Miami Beach
FL 33139
ll0l-1113 Lincoln Road
Miami Beach
FL 33139
420 Lincoln Road
Miami Beach
FL 33r39
560 Lincoln Road
Miami Beach
FL33l39
1688 Meridian Ave.
l\{rami Beach
FL 33139
235 Lircoln Road
Miami Beach
FL 33139
N/A $32
136 2010
1,169
1,980 1940
to
7,200
$30 FS
2,500 1929 $31.20
6,333 196l $36.00
9,687 $34.00
94s 1947 $15 00 FS
1,500
1,480
2,537
FS There are 3 spaces available. Suite 200: 1,500 SF, Suite 320: 1,480 SF.
and Suite 330 : 2,537 SF. The building has I 10,946 SF of office space.
and the s-story parhng struch:re includes 534 spaces 2417 security or
property. The building is located one block south from Lincoln Road. The
space is listed at $36/SF. $20lSF for Tenant knproyements can be gvel
to tenants with good credit and leases with a 5 year term
tocated in tlrc Art Deco District, in the heart of South Beach. The office
space is in moving condition.
Suite 330 has 2,019 SF office space available. The building has an 8-
story concrete and steel reinforced struchre with a high quality space on
South Beach. It's considered a B building. Municipal parking is available
nearby.
This bulding has two wings: one 7-story wing and one 4-story wing.
There is retail on the gound level and office space on $e remaining
floors. Building underwent e*ensive renovations to all common areas.
There are 5 spaces available on floors 2, 3 and 4.
Fully built-ont and fully fumished. The 4-story office
entrance on Pennsylvania Avenue.
building has
All new batkooms and updated common areas. 1688 Meridian was
designed by renowned archrtect Morris tapidus. Biometric secure
access. The building is located one block from Lincoln Road and Miami
Beach Convention Center, across the street from Macy's. The space on
listing is on the 6th floor.
Built out office space ready to move in. Elegant lobby and corridors. This
is a B offce building with a total of20,000 square feet ofoffice space.
Every,thing has been updated, elevator, code entrance. Parking located
adjacent. All common area charges inch.ded, and electricity is included
in the pricing except for the penthouse level. The building is located in
the NEC oflincoln Rd and James Ave.
FS$301948600
FS$35
FS
FS
FS
sil
SUBIECT:
Lincoln Place - Oflice 78,168 N/A NNN The subject retail faces Washington and l6th Street. It has good qualig
I 601 Washingon Ave. finishing and is in good condition.
Miami Beach
FL33l39
78
1601 Washington Ave
REPORT 2O1541
Location
Building Quality
Condition
Size
0% 0% 0% -5% -sYo 5% -5o/o
0o/o l0o/o 0% 0o/o 5% 0o/o 5%
loh 5o/o 0% 0o 0o/o 0% 5%
0oh 0% 0% 0o/o 0% 0% 0%
0% 0% 0% 0% 0o/o 0% 0%
0% 15% i%o -5% \Yo 5% 5oA
$32 $35 $30 $33 $31 $37 $37
$33
Chosen Office Rent ($/Sf) for Subject
as ofJune 2015
$33 Full Service
Chosen Ofrce Rsnt ($/Sf) for fu,\fililt
as ofJ*truarY 2Ol4 ::: :':''
$32 Full Service
Similar to Subject
Inferior to Subject
the comp does not need adjustment
the comp needs a plus adjustment
the como needs a nesative
Based on comparison with the market data we concluded that the market rent for small
office spaces with the same finishing construction quality and excellent condition as the occupied
by LNR was $32 per rentable square foot per year on a full service as of January 2014.
We have considered that the market rent included a 5-year term rental lease.
Market annual increases on base rent and operating expenses is 3%o.
Market office rent for a large office area as the subject was estimated at $30/SF full service
as ofJanuary 2014.
Operating Expenses
The annual operating expenses of the subject property were projected in this analysis
based on similar properties.
BLAZEJACK & COMPANY
MARKET RENTANALYSIS
79
1601 Washington Ave
REPORT 201541
D(PD'{SES:
FD(U) D(PTNSES
Property Taxes
Insurance
TOTAL FIXED EXPENSS:
VARIABLED(PINSES
Administrat ive & Management
RepairVMaintenance
Utilities
Cleaning
Others
Reserves
-I.CITALEXPELI.SES
Per SF
$2.68
$1.31
$3.99
$2.62
$1.68
$2.20
$0.72
$0.00
$0.15
$7.37
$IL!6
Our estimated total stabilized Operating Expenses for the stabilized year for office space
was $l 1.36 per square foot of rentable area.
BLAZEJACK & COMPANY
MARKET RENT ANALYSIS
10
80
1601 Washington Ave
REPORT 201541
CONCLUSION OF MARKET RENT
Market Office Rent is estimated on full service or "gross" basis, wherein the landowner
pays all expenses, including common area utilities, management, administration, common area
costs, cleaning, taxes, and insurance. The tenant has to pay the electricity they consume.
The market rent and operating expenses for small office spaces located at 1601
Washington Avenue in Miami Beach, as of January 01,2014 are:
BLAZEJACK & COMPANY
MARKET RENT ANALYSIS
11
81
ADDENDA
82
Exhibit A
Subject Plans and Photographs
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90
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution of the Mayor and City Commission of the City of Miami Beach, Florida, Adopting the Sixth
Amendment to the Capital Budget for Fiscal Year 2014115.
fiGE$II}A ilEM RI H
Ensure Value and Timely Delivery of Quality Capital Projects, lmprove Storm Drainage Citywide, and
Maintain City's I nfrastructure
Data Environmenta!etc.): N/A
Item Summarv/Recommendation :
Planning for capital improvements is an ongoing process; as needs change within the City, capital programs and
priorities must be adjusted. The Capital lmprovement Plan ("ClP") serves as the primary planning tool for
systematically identifying, prioritizing and assigning funds to critical City capital development, improvements and
associated needs.
The City's capital improvement plan process begins in the spring when all departments are asked to prepare
capital improvement updates and requests on the department's ongoing and proposed capital projects. lndividual
departments prepare submittals identifying potential funding sources and requesting commitment of funds for
their respective projects.
The CIP is updated annually and submitted to the City Commission for adoption. The 2014115 - 2018119 Capital
lmprovement Plan and FY 2014115 Capital Budget was adopted on December 2,2014 by resolution 2014-28863.
The First Amendment to the FY 2014115 Capital Budget was also approved on December 2,2014 by resolution
2014-28864. The Second Amendment to the FY 2014115 Capital Budget was also approved on January 14,
2015 by resolution 2015-28901. The Third Amendment to the FY 2014115 Capital Budget was approved on
March 11,2015 by resolution 2015-28951. The Fourth Amendment to the FY 2014115 Capital Budget was
approved on April 15, 2015 by resolution 2015-28986. The Fifth Amendment to the FY 2014115 Capital Budget
was approved on June 10,2015 by resolution 2015-29048.
Section 166.241(4)(c.), Florida Statutes, requires that a municipality's budget amendment must be adopted in the
same manner as the original budget. The Sixth Amendment to the FY 2014115 Capital Budget totals an increase
of $11,344,634 and in order to provide additional funding to the following three capital projects:
1. West Avenue / Bay Road lmprovements
2. Sunset Harbor Pump Station Upgrades
3. Upsizing Under Capacity Water Mains Citywide from lndian Creek Drive to 41st Street
Financial lnformation:
Source of
Funds:l@
OBPI
Amount Account
$8,683,928
$2,580,706
$80,000
Stormwater Bonds - Fund 432
Line of Credit - Fund 429
Water & Sewer 2000 Bonds - Fund 424
Total $11,3/t4,634
ts MIAMIBHACH DATE q-Z-I(91
'l;*, L- i1 ," " {.-.i'.: ;."J 1*." r" -1 *,.-.. i ir' 1,
r --" --. G)n--
1915, ?015
City of Miami Beach, 1 700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
MIAMI BEACH, FLORIDA, ADOPTING THE SIXTH AMENDMENT TO THE
GAPITAL BUDGET FOR FISCAL YEAR 2014115.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
BACKGROUND
Planning for capital improvements is an ongoing process; as needs change within the City,
capital programs and priorities must be adjusted. The Capital lmprovement Plan ('ClP') serves
as the primary planning tool for systematically identifying, prioritizing and assigning funds to
critical City capital development, improvements and associated needs.
The City's capital improvement plan process begins in the spring when all departments are
asked to prepare capital improvement updates and requests on the department's ongoing and
proposed capital projects. lndividual departments prepare submittals identifying potential
funding sources and requesting commitment of funds for their respective projects.
The CIP is updated annually and submitted to the City Commission for adoption. The 2014115 -
2018119 Capital lmprovement Plan and FY 2014115 Capital Budget was adopted on December
2,2014 by resolution 2014-28863.
The First Amendment to the FY 2014115 Capital Budget was approved on December 2,2014 by
resolution 2014-28864. The Second Amendment to the FY 2014115 Capital Budget was
approved on January 14,2015 by resolution 2015-28901. The Third Amendment to the FY
2014115 Capital Budget was approved on March 11,2015 by resolution 2015-28951. The
Fourth Amendment to the FY 2014115 Capital budget was approved on April 15, 2015 by
resolution 2015-28986. The Fifth Amendment to the FY 2014115 Capital budget was approved
on June 10, 2015 by resolution 2015-29048.
Section 166.241(4Xc.), Florida Statutes, requires that a municipality's budget amendment must
be adopted in the same manner as the original budget. Administration recommends adopting
the resolution for the sixth amendment to the FY 2014115 Capital Budget.
Mayor Philip Levine and Members of fhe City
Jimmy L. Morales, City Manager
September 2,2015
92
Resolution Adopting the Sixth Amendment to the Capital Budget for FY 2U4n 5
September 2, 2015
Page 2 of 3
SIXTH AMENDMENT TO THE FY 2014/15 CAPITAL BUDGET
The Sixth Amendment to the FY 2014115 Capital Budget totals an increase of $1 1,344,634 in
order to provide additional funding to the following capital projects.
1. West Avenue I Bay Road lmprovements: At its October 29,2014 meeting, the
City Commission approved Change Order No. 3 for additional scope including
additional stormwater and drainage improvements, a new pump station, and related
above-ground streetscape improvements. This budget amendment moves the
appropriated but unencumbered funds to cover the additional costs of the change
order. The funding of $7,014,634 for this amendment would come from the following
sources:
o $4,433,928 of Stormwater Bonds, Series 2015 * Fund 432
. $2,204,000 of Water and Sewer Bonds 20005 - Fund 424 reallocate from the 54
inch Diameter Redundant Sewer Force Main project; the Water & Sewer funds
would be replaced with Line of Credit-Fund 429
. $376,706 of Gulf Breeze 2006 - Fund 423 reallocate from the Venetian
Neighborhood-Venetian lslands project; the Water & Sewer funds would be
replaced with Line of Credit-Fund 429
Prior Years' Aoorooriations $34,242,008
September 2,2015 Budqet Amendment 7,014.634
Proposed Total Aoorooriations $41,256,642
Sunset Harbor Pump Station Upgrades: At its October 29, 2014 meeting, the City
Commission approved Change Order No. 1 for additional engineering services,
drainage structure modification, drainage pipe, and water main replacement. This
budget amendment appropriates funds to cover the additional costs of the change
order. The necessary funding of $4,250,000 for this amendment would come from
Stormwater Bonds, Series 2015 -Fund 432.
Prior Years' Appropriations $8,027,718
September 2,2015 Budqet Amendment 4,250,000
Proposed Total Appropriations $12,277,718
2.
93
Resolution Adopting the Sixth Amendment to the Capital Budget for FY 2U4n 5
September 2, 2015
Page 3 of 3
3. Upsizing Under Capacity Water Mains Citywide from lndian Greek Drive to 41't
Street: This budget amendment would allocate $80,000 from fund balance in Water
& Sewer Bonds 20005 - fund 424. The $80,000 would be used to cover the
settlement agreement between the City of Miami Beach and Bermello Ajamil &
Partners, lnc. for extended Professional Construction Engineering and lnspection
(CEl) services for the FDOT work included in the water mains and sanitary sewer
mains, and milling and resurfacing improvements along lndian Creek Drive, between
26th and 41st streets.
Prior Years' Approoriations $3,035,669
September 2,2015 Budqet Amendment 80.000
Prooosed Tota! Aoorooriations $3.115.669
JLM/JW
@
94
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ADOPTING THE SIXTH
AMENDMENT TO THE CAPITAL BUDGET FOR FISCAL YEAR
2014t15.
WHEREAS, the final Capital lmprovement Plan for FY 2014115 - 2018119 and
the final Capital Budget for FY 2014115 was adopted via Resolution 2014-28863 on
December 2,2014; and
WHEREAS, the first amendment to the Miami Beach Capital Budget for FY
2014115 was adopted on December 2,2014 via Resolution No. 2014-28864; and
WHEREAS, the second amendment to the Miami Beach Capital Budget for FY
2014115 was adopted on January 14,2015 via Resolution No. 2015-28901; and
WHEREAS, the third amendment to the Miami Beach Capital Budget for FY
2014115 was adopted on March 11,2015 via Resolution No. 2015-28951; and
WHEREAS, the fourth amendment to the Miami Beach Capital Budget for FY
2014115 was adopted on April 1 5,2015 via Resolution No. 2015-28986; and
WHEREAS, the fifth amendment to the Miami Beach Capital Budget for FY
2014115 was adopted on June 10,2015 via Resolution No. 2015-29048; and
WHEREAS, the proposed amendment to the FY 2014115 Capital Budget is
included in "Attachment A - Source of Funds" and "Attachment B - Programs"; and
WHEREAS, the City Administration recommends that FY 2014115 Capital Budget
be amended to add appropriations totaling $11,344,634 to the projects as highlighted in
"Attachment C - Projects" and as further detailed in the attached Commission
Memorandum.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, that the Mayor and City Commission
hereby adopt the Sixth Amendment to the Capital Budget for Fiscal Year 2014115 as set
forth in Attachment A (Source of Funds), Attachment B (Programs), and Attachment C
(Projects).
PASSED AND ADOPTED this 2nd day of September,2015.
ATTEST:
Philip Levine, Mayor
APPROVED AS TO
FORM & LANGUAGE
Cfy Attorn€y
Raphae! E. Granado, City Clerk
95
ATTACHMENT A
FY 2OL4lt5 CAPITAT BUDGET
SOURCE OF FUNDS
Amended 091021L5
Fundinq Source Amended 6110115 Amended 912115 Revised
2003 GO Bonds - Neighborhood
lmorovement $ t60,000 $ 160,000
2003 GO Bonds - Fire Safetv 625,000 625,000
2010 Parking Bonds Reso. 2010-27491 2,301,000 2,301,000
7th Street Garaoe 1,350,695 1,350,695
Capital Projects Financed by Other Funds
2,265,000 2,265,000
Capital Reserve 8,521,285 8,521,285
Convention Center 525,000 525,000
Concu rrencv M itioation 2,060,000 2,060,000
Equipment Loan/Lease 4,947,000 4,947,000
Fleet Manaqement Fund 50,000 50,000
Half Cent Transit Surtax - County 2,333,000 2,333,000
lnfo & Communications Technology Fund
280,000 280,000
Line of Credit 0 2,580,706 2,580,706
Local Ootion Gas Tax 336,000 336,000
MB Quality of Life Resort Tax Fund - 1%5,235,900 5,235,900
Miami-Dade Countv Bond 54,400,000 54,400.000
NB Quality of Life Resort Tax Fund - 1olo 2,984,000 2,984,000
Non TIF RDA (11,712,000)(11,712,000)
Parkino Ooerations Fund 4,878,000 4,878,000
Pav-As-You-Go 2.863,000 2,863,000
Penn Garaoe 402,000 402,000
Proposed Future RDA Bonds 310.050,000 310,050,000
Prooosed Future Resort Tax 1 Bonds 204,500,000 204,500,000
Proposed Future Water & Sewer Bonds 14,476,000 14,476,000
Prooosed Parkino Bonds 59,500,000 59,500.000
Stormwater Bonds 51.876.000 8,683,928 60,559,928
RDA Garaqe Fund 2,841,000 2,841,000
Renewal & Replacement Fund 3,1 1 9,1 20 3,1 1 9,1 20
SB Quality of Life Resort Tax Fund - 1%1,870,000 1,870,000
Sanitation Enterprise Fund 375,000 375,000
South Pointe Caoital 14,874.000 14,874,000
W&S GBL Series 2010 CMB Reso 2009-
27243 458,000 458,000
Water and Sewer Bonds 2005 0 80,000 80,000
Water and Sewer Enterprise Fund 150,000 150,000
Clean Water State Revolving Loan Fund 7,500,000 7,500,000
Total Appropriation as of 04/15/15 $ 756,394,000 $ 11.344.634 $ 161,138,634
96
ATTACHMENT B
FY 20t4lt5 CAPITAI BUDGET
PROGRAMS
Amended OglO2lLs
Proqram Area Amended 6110115 Amended 912115 Revised
Bridoes $ 283,000 $$ 283,000
Communitv Centers 42,000 42,000
Convention Center 522,013,000 522,013,000
Environmental 224,000 224,000
Equipment 9,405,000 9,405,000
General Public Buildinqs 5,672,000 5,672,000
Golf Courses 124,000 124,000
I nformation Technoloqv 1,780,000 1,780,000
Monuments 233,000 233,000
Parking 833,000 833,000
Parking Garaqes 61,374,214 61,374,214
Parkinq Lots 505,000 505,000
Parks 8,159,900 8,159,900
Renewal & Replacement 6,677,601 6,677,601
Seawalls 254,000 254,000
Streets/ Sidewalk lmps 98,379,608 7,014,634 105,394,242
Transit/ Tra nsportation 8,771,000 8,771,000
Utilities 31,663,677 4,330,000 35,993,677
Total Appropriation as of
04t15t15 $ 756,394,000 $ 11,344,634 $ 767,738,634
97
ATTACHMENT C
FY 2014115 CAPITAL BUDGET
PROJEGTS
Amended 09102115
Capital Project Name Amended
6t10t15
Amended
9l2l',5
Revised
Gapital
Budget
West Avenue / Bav Road lmprovements $ 34.242.008 $ 7.014.634 $ 41.256.642
Sunset Harbor Pump Station Upqrades 8,027,718 4,250,000 12,277,718
Upsizing Under Capacity Water Mains Citywide from
lndian Creek Drive to 41st Street 3,035,669 80,000 3,1 15.669
Total $ 45,305,395 $ 11,344,634 $ 56,650,029
98
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THIS PAGE INTENTIONALLY LEFT BLANK
100
LANDLORD:
TENANT:
DATE OF EXECUTION:
Miami Beach Redevelopment Agency, a public body
corporate and politic
1700 Convention Center Drive
Miami Beach, Florida 33139
ArtConnection lnternational, lnc.
100 16th Street, Suite 6
MiamiBeach, FL 33139
2015
ANCHOR SHOPS AT SOUTH BEACH
RETAIL LEASE
EXHIBITI&
(i)
Asenda ltem flDA l-A
Date 4-2'l{101
LEASE SUMMARY
The following is a summary of basic lease provisions with respect to the Lease. lt is an integral part of the
Lease, and terms defined or dollar amounts specified in this Summary shall have the meanings or amounts as
stated, unless expanded upon in the text of the Lease and its Exhibits, which are attached to and made a part of
this Summary.
1. Date of Lease Execution:
2. 'Landlord":
2015.
3. Landlord's Address:
Miami Beach Redevelopment Agency
The Executive Director shall be authorized to act on
behalf of Landlord. For purposes of managing this
Lease, the Tourism, Culture and Economic Development
Director shall be the Executive Director's designee.
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Max Sklar, Tourism, Culture and Economic
Development Director
with a copy to:
City of Miami Beach
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Legal Department
ArtConnection I nternational, I nc.
100 16th Street, Suite 6
MiamiBeach, FL 33139
100 16th Street, Suite 6
Miami Beach, FL 33139
As shown on Exhibit "B"
Approximately 721 square feet
Approximately 20,639 rentable square feet
3.493Yo
First-class retail store selling costume jewelry that may
be made from or contains jewels and precious metal, but
is not considered fine Jewelry (and subject to the
prohibited uses described in Exhibit "D" to the Lease)
4. "Tenant":
5. Tenant's Address:
6. Premises (section 1.1):
7. Gross Rentable
Area of Premises (section 1.1):
Retail Space (section 1.'t ):
8. Tenant's Proportionate Share
(section 2.4) of the Retail Space:
9. Permitted Use of
Premises (section 3.1 ):
(ii)
102
10. Term of Lease (section 1.1):"lnitial Term of the Lease": Five (5) years
"Commencement Date":November 12,2015
"Rent Commencement Date": November 12,2015
"Expiration Date":November 11,2020
(subject to further extensions through the exercise of
the Renewal Options, pursuant to the terms set forth
herein)
"Renewal Options": Two (2) Renewal Options
"First Renewal Option' is for three (3) years,
commences November 12,2020, and expires
November 11,2023.
"Second Renewal Option" is for one (1) year and
364 days, commences November 12,2023 and expires
November 10,2025.
Tenant must notify Landlord in writing, no later than one
hundred and eighty (180) days prior to the expiration of
the lnitial Term of the Lease or the term of any Renewal
Option, as applicable, of its intention to exercise a
Renewal Option. At the commencement of each
Renewal Option, the Minimum Rent shall be adjusted to
the then current Fair Market Rent.
RenewalOptions See Note *
MONTHLY PAYMENT
(PLUS SALES TAX)
$3,725.17
See Note *
See Note *
* Beginning on November 12,2016, and at the beginning of each succeeding Lease Year thereafter during
the lnitial Term of the Lease and during the term of any subsequent Renewal Options, the Minimum Rent
shall be increased annually in increments of the greater of 3% or the Consumer Price lndex (CPl) rate change
- All Urban Consumers (CPl - U.S. City Average All ltems, base year 1982-84 = 100 ("lndex"), as published
by the United States Department of Labor, Bureau of Labor Statistics ("Annual Rent lncrease"). The CPI
increase calculation shall be determined by multiplying the Minimum Rent then being paid by a fraction, the
numerator of which shall be the CPI for the third month-preceding the month of adjustment, and the
denominator of which shall be the CPI for the fifteenth month preceding the month of adjustment.
Effective at the commencement of each Renewal Option term, Tenant's Minimum Rent shall be adjusted
("Renewal Option Rent Adjustment"), based upon the fair market rents in effect ("Fair Market Rent").
The Fair Market Rent shall be determined by Landlord, by securing the opinion of an independent and
licensed appraiser which will be retained by the Landlord at the Landlord's expense and discretion; however,
any Renewal Option Rent Adjustment shall not be less than, the Minimum Rent for the immediately prior
Lease Year plus the Annual Rent lncrease ("Fair Market Adjustment Procedure"). lf Tenant exercises a
Renewal Option, Tenant accepts the Fair Market Rent amount.
11. "Minimum Rent" (section 2.2):
LEASE YEAR
1
2 - End of lnitial Term of the
Lease
ANNUAL MINIMUM RENT-
$44,702
See Note *
(iii)
103
Minimum Rent shall continue to be payable in monthly installments as otherwise described above until
Landlord notifies Tenant of the new monthly Minimum Rent installment amount. Landlord shall attempt to so
notify Tenant prior to the commencement of each adjustment date; however, failure of Landlord to timely
notify Tenant of the new monthly Minimum Rent installment amount shall not be deemed a waiver by
Landlord of the increased rental; the new monthly Minimum Rent amount (or any portion not previously paid)
shall be payable, retroactive to the commencement of the new adjustment date, upon notification by Landlord
to Tenant of the new monthly Minimum Rent installment amount.
12. Percentage Rental (section 2.3):
13. Prepaid Rent (section 2.2):
14. Security Deposit (section 2.7):
15. Cost Pass-Throughs
(Operating Expenses) (section 2.4):
LEASE YEAR
1
2 - End of Lease Term
lnsurance
Taxes
CAM
OPERATING EXPENSES
COST PER SQUARE FOOT--
$8.81
See Note **
$ 0.s4
$ 7.44
$ 0.83
N/A
$4,552.32, including applicable sales tax (due upon
execution of Lease).
$8,509.02 (due upon execution of Lease), less any
existing deposit from the previous lease.
Proportionate Share of Property Taxes, lnsurance, and
Common Area Maintenance of the Anchor Shops and
Parking Garage.
OPERATING EXPENSES
MONTHLY/ANNUAL PAYMENT
(PLUS SALES TAx)
$529.34/$6,352.01
See Note "*
The Ooeratinq Expenses for the first Lease Year comprise of the followinq fiqures:
$32.45/$389.34
$447.021$5,364.24
$49.87/$598.43
** Beginning on November 12,2016, and at the beginning of each succeeding Lease Year thereafter during
the lnitial Term of the Lease and during the term of any subsequent Renewal Options, the estimated
Operating Expenses for the upcoming Lease Year shall be adjusted, as determined by Landlord in its sole
discretion and judgment, to reflect the Tenant's Proportionate Share of Property Taxes, lnsurance, and
Common Area Maintenance incurred by Landlord during the previous Lease Year ("Operating Expense
Adjustment"). Simultaneously with this adjustment, Tenant shall be responsible for paying any difference
between the Proportionate Share of estimated Operating Expenses paid by Tenant during the previous Lease
Year and the Proportionate Share owed by Tenant in connection with the actual Operating Expenses for the
previous Lease Year ("Operating Expense True-Up'). Conhollable expenses, hereby defined as all expenses
other than property taxes, insurance and utilities shall be capped at no more than a five percent (5%) increase
above the previous Lease Year.
Operating Expenses shall continue to be payable in monthly installments as otherwise described above until
Landlord notifies Tenant of the new monthly Operating Expense Adjustment installment and True-Up
payment. Landlord shall attempt to so notify Tenant prior to the commencement of each Operating Expense
Adjustment date and Operating Expense True-Up amount; however, failure of Landlord to timely notify Tenant
of said Operating Expense AdjustmenUTrue-Up amounts shall not be deemed a waiver by Landlord of the
right to make said Operating Expense AdjustmenUTrue-Up; the new Operating Expense Adjustment or any
(iv)
104
sums due pursuant to the Operating Expense True-Up for the previous Lease Year shall be payable,
retroactive to the effective date of said adjustment date, upon notification by Landlord to Tenant of the new
monthly Operating Expense payment amount and the total True-Up amount due.
1 6. Comprehensive General
Liability lnsurance (section 6.1): $2,000,000.00
17. Monthly Promotional Charge
(section 13.1): N/A
18. Broker(s) (section 14.12): N/A
19. Completion Date for Tenant's Work
(section 5.1): N/A
20. Trade Name (section 3.1): ArtConnection lnternational, lnc.
(v)
105
THlSLEASE(the,,LeaSe,'),datedthe-dayof-,2o15'ismadebetweenthe
Miami Beach Redevelopment Agency, a public body corporate and politic (the "Landlord"), and ArtConnection
lnternational, lnc. (the'Tenant").
RECITALS:
A. The Landlord is the fee simple owner of a certain facility (the "Facility'') containing a
municipal parking garage and appurtenances containing approximately eight hundred (800) parking spaces
(the "Garage") and certain retail space (the "Retail Space") located in an area bounded by Washington and Collins
Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade County, Florida, as more particularly
described in Exhibit "A," attached hereto and made a part hereof (the "Land"). The Landlord is the fee simple owner
of the Land and the Facility.
B. Landlord and Tenant desire to enter into this Lease for a portion of the Retail Space, on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
ARTICLE I. TERM.
1.1 Grant: Term. ln consideration of the performance by Tenant of its obligations under this Lease,
Landlord leases to Tenant, and Tenant leases from Landlord, for the Term, the "Premises." A site plan showing
the location of the Retail Space within the Facility, as well as the location of the Premises within the Retail Space,
is attached hereto and made a part hereof as Exhibit "B." The gross rentable area of the Premises and Retail
Space shown on the Lease Summary do not represent accurate measurements of the square footage contained
in the Premises or the Retail Space, but are mere estimates.
The 'Term" of the Lease is the period from the Commencement Date as specified in the Lease
Summary, through the Expiration Date, as specified in the Lease Summary.
1.2. Termination for Convenience bv Landlord. Notwithstanding any other term or condition in this
Lease, and effective no sooner than the commencement of the First Renewal Option Term, Landlord, through its
Executive Director, reserves the right to terminate this Lease, for convenience and without cause, and without
liability to Landlord, upon providing Tenant with prior written notice, at least 180 days prior to the effective date of
the termination for convenience.
1.3 Landlord's Work. Tenant acknowledges and agrees that it is accepting possession of the
Premises in as-is condition and that, except as otherwise expressly hereinafter set forth, Landlord has no
obligation to furnish, render, or supply any money, work, labor, material, fixture, equipment, or decoration with
respect to the Premises. Landlord has caused the completion of the shell improvements to the Retail Space
(the "Shell lmprovements"), with Tenant responsible for all improvements, including any and all utility impact fees
and connection fees, charges, and/or deposits as may be required in connection with Tenant's Work, as
hereinafter defined.
1.4 Tenant's Work. Landlord acknowledges that the Tenant has made improvements to the
Premises and has had signage installed, pursuant to the terms of a prior lease ("Tenant's Work"), and as such,
Tenant's Work is acceptable to Landlord, to the extent that same was properly permitted, and done in compliance
with all applicable building codes, and any other Municipal, County, State and Federal laws.
106
ARTICLE II. RENT.
2.1 Covenant to Pav. Tenant shall pay to Landlord all sums due hereunder from time to time from the
Rent Commencement Date without prior demand, together with all applicable Florida sales tax thereon; however,
unless otherwise provided in this Lease, payments other than Tenant's regular monthly payments of Minimum
Rent shall be payable by Tenant to Landlord within five (5) days following demand. All rent or other charges that
are required to be paid by Tenant to Landlord shall be payable at Landlord's address indicated on the Lease
Summary. Minimum Rent, and additional rent (which is all sums payable to Landlord other than Minimum Rent)
for any "Lease Year" consisting of less than twelve(12) months shall be prorated on a per diem basis, based
upon a period of 365 days. "Lease Year" means the twelve(12) full calendar months commencing on the
Commencement Date. However, the final Lease Year may contain less than twelve (12) months due to expiration
or sooner termination of the Term. Tenant agrees that its covenant to pay rent and all other sums under this
Lease is an independent covenant and that all such amounts are payable without counterclaim, set-off, deduction,
abatement, or reduction whatsoever, except as expressly provided for in this Lease.
2.2 Minimum Rent. Subject to any escalation which may be provided for in this Lease, Tenant shall
pay Minimum Rent for the Term in the initial amount specified in the Lease Summary, which, except for the first
installment, shall be payable throughout the Term in equal monthly installments in advance on the first day of
each calendar month of each year of the Term, such monthly installments to be in the amounts (subject to
escalation) specified in the Lease Summary. The first monthly installment of Minimum Rent shall be due on the
date of this Lease. The Minimum Rent described above shall be adjusted during the Term of this Lease as
provided in the Lease Summary.
2.3. PercentaoeRental. lntentionallyOmitted.
2.4 Ooeratino Exoenses: PropertvTaxes. lnsurance. and Common Area Maintenance.
Tenant shall remit together with regular monthly payments of Minimum Rent, its proportionate share of estimated
Operating Expenses for the Premises, as additional rent, as determined by Landlord, in its sole discretion and
judgment, including PropertyTaxes, lnsurance, and Common Area Maintenance, in accordance with Section 15
of the Lease Summary, and as more particularly described hereinafter.
Tenant's Proportionate Share means a fraction, the numerator of which is the square footage of rentable
space occupied by Tenant, and the denominator of which is the total square footage of rentable area in the Retail
Space as determined in Section 8 of the Lease Summary.
Tenant agrees and understands that the costs incurred for Operating Expenses may increase or
decrease and, as such, Tenant's Proportionate Share of Operating Expenses shall increase or decrease
accordingly.
2.4.1 Propertv Taxes: Operating Expenses includes Tenant's Proportionate Share of the Retail
Space's pro-rata share of the Property Taxes for the Facility.
The term 'Property Taxes" shall mean (i) the portion of real estate taxes, assessments, and special
assessments of any kind which may be imposed upon the Facility and (ii) any expenses incurred by the
Landlord in obtaining a reduction of any such taxes or assessments.
The term "Property Tax Year" shall mean the period of twelve (12) calendar months, beginning on
January 1s of each year.
Tenant shall pay its Proportionate Share of the Retail Space's pro-rata share of the Property Taxes for
the Facility, as determined by Landlord, in its sole discretion and judgement, based upon the real estate
tax bill for the Facility, by determining the ratio of the assessed taxable value (as determined by the
Miami-Dade County Property Appraiser's Office) that the Retail Space has to the assessed taxable value
of the Facility. lf a Property Tax Year ends after the expiration or termination of the term of this Lease,
107
the Property Tax Payment therefore shall be prorated to correspond to that portion of such Property Tax
Year occurring within the term of this Lease.
2.4.2 lnsurance. Operating Expenses shall also include Tenant's Proportionate Share of the
Retail Space's insurance costs for the Facility, as determined by the Landlord, in its sole discretion and
judgment, to be sufficient to insure and/or self-insure the Facility'for hazard, flood, windstorm, and liability
insurance for the following calendar year. Tenant acknowledges that Landlord may self-insure for any or
all of Landlord's lnsurance coverage's, including without limitation liability insurance. The Retail Space's
pro-rata share of the insurance cost shall be determined, based upon the ratio that the replacement value
of the Retail space has to the replacement value of the Facility. This insurance coverage is in addition to
the insurance required pursuant to Article Vl, which shall be obtained at Tenant's sole expense and
responsibility.
2.4.3 Common Area Maintenance ("CAM"). Operating Expenses shall also include Tenant's
Proportionate Share of the Retail Space's pro-rata share of the Facility's CAM (as hereinafter defined)
costs, as determined by Landlord, in its sole discretion and judgment, from the Facility's CAM costs. The
Retail Space's pro-rata share of the CAM costs shall be determine based upon the ratio that the usable
square feet of the Retail Space has to the usable square feet of the Facility.
Common Area Maintenance ('CAM') 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 Facility, sewer service to the Facility, trash removal from the
Facility, costs incurred for gardening and landscaping, repairing and maintaining elevator(s), painting,
janitorial services (except for areas within the Premises), lighting, cleaning, striping, policing, removing
garbage and other refuse and trash, removing ice and snow, repairing and maintaining sprinkler systems,
water pipes, air-conditioning systems, temperature control systems, and security systems, fire alarm
repair and maintenance and other equipment in the Common Facilities and the exterior and structural
portions of the Facility, paving and repairing, patching and maintaining the parking areas and walkways,
and cleaning adjacent areas, management fees and the City's employment expenses to employees
furnishing and rendering any services to the common areas, together with an additional administration
charge equal to fifteen percent (15o/o) of all expenses included in the annual Common Facilities'
expenses, provided by Landlord for the common or joint use and/or benefit of the occupants of the
Facility, their employees, agents, servants, customers and other invitees.
"Common Facilities" shall mean all Facility areas, spaces, equipment, as well as certain services,
available for use by or for the benefit of Tenant and/or its employees, agents, servants, volunteers,
customers, guests and/or invitees.
2.5 Pavment of Personal Prooertv Taxes: Sales Tax Reports. Tenant shall pay, when due, all taxes
attributable to the personal property, trade fixtures, business, occupancy, or sales of Tenant or any other
occupant of the Premises and to the use of the Retail Space by Tenant or such other occupant. Tenant shall
provide Landlord with copies of Tenant's sales tax reports provided to the State of Florida, as and when such
reports are provided to the State. Landlord shall have the right to disclose such reports to any person or entity
having an interest or prospective interest in the Retail Space.
2.6 Rent Past Due. lf any payment due from Tenant shall be overdue more than five (5) days, a late
charge of five (5%) percent of the delinquent sum may be charged by Landlord. lf any payment due from Tenant
shall remain overdue for more than fifteen (15) days, an additional late charge in an amount equal to the lesser of
the highest rate permitted by law or one and one-half (1 112%) percent per month (eighteen (18o/o) percent per
annum) of the delinquent amount may be charged by Landlord, such charge to be computed for the entire period
for which the amount is overdue and which shall be in addition to and not in lieu of the five (5%) percent late
charge or any other remedy available to Landlord.
108
2.7 Securitv Deposit. Landlord acknowledges receipt of a security deposit in the amount specified on the
Lease Summary to be held by Landlord, without any liability for interest thereon, as security for the performance
by Tenant of all its obligations under this Lease. Landlord shall be entitled to commingle the security deposit with
Landlord's other funds. lf Tenant defaults in any of its obligations under this Lease, Landlord may at its option,
but without prejudice to any other rights which Landlord may have, apply all or part of the security deposit to
compensate Landlord for any loss, damage, or expense sustained by Landlord as a result of such default. lf all or
any part of the security deposit is so applied, Tenant shall restore the security deposit to its original amount on
demand of Landlord. Within thirty (30) days following termination of this Lease, if Tenant is not then in default, the
security deposit will be returned by Landlord to Tenant.
2.8 Landlord's Lien. To secure the timely construction and installation of all improvements to the
Premises by tenant and to secure the payment of all rent and other sums of money due and to become due
hereunder and the faithful performance of this Lease by Tenant, Tenant hereby gives to Landlord an express first
and prior contract lien and security interest on all property now or hereafter acquired (including fixtures,
equipment, chattels, and merchandise) which may be placed in the Premises and also upon all proceeds of any
insurance which may accrue to Tenant by reason of destruction of or damage to any such property. Such
property shall not be removed there from without the written consent of Landlord until all arrearages in rental and
other sums of money then due to Landlord hereunder shall first have been paid; provided, Tenant may operate its
business in the ordinary course and the removal of merchandise from the Premises by customers of Tenant shall
not be a default under this section. All exemption laws are hereby waived in favor of said lien and security
interest. This lien and security interest is given in addition to Landlord's statutory lien and shall be cumulative
thereto. Landlord shall, in addition to all of its rights hereunder, also have all of the rights and remedies of a
secured party under the Uniform Commercial Code as adopted in the State in which the Premises is located. To
the extent permitted by law, this Lease shall constitute a security agreement under Article 9 of the Florida Uniform
CommercialCode.
ARTICLE III. USE OF PREMISES.
3.1 Permitted Use. The Premises shall be used and occupied only for the sale at retail of goods or
services as specified in the Lease Summary. The business of Tenant in the Premises shall be carried on under
the Trade Name specified in Section 20 of the Lease Summary and under no other name unless approved by
Landlord in writing. Tenant shall carry on its business on the Premises in a reputable manner and shall not do,
omit, permit, or suffer to be done or exist upon the Premises anything which shall result in a nuisance, hazard, or
bring about a breach of any provision of this Lease or any applicable municipal or other governmental law or
regulation, or would otherwise be inconsistent with a first-class retail center or incompatible with retail uses
ancillary to a first-class convention center hotel. Tenant shall observe all reasonable rules and regulations
established by Landlord from time to time for the Retail Space. The rules and regulations in effect as of the date
hereof are attached to and made a part of this Lease as Exhibit "C." Landlord will provide a copy of any
amendments to the rules and regulations at least seven (7) days prior to the effective date of any such
amendments. Tenant shall display such name as Landlord may from time to time designate for the Retail Space
in its stationery, materials, webpages, or social media sites, relevant to the Premises which is given, visible,
available, emailed, or any way communicated to customers of Tenant. Tenant shall promote such name in any
advertisements or promotional material published, initiated, or controlled by Tenant in regard only to its business
from the Premises. ln the event a name is designated by the Landlord, Tenant shall either be permitted to finish
distributing and displaying any advertisements or promotional material, or Landlord shall reimburse Tenant for
comparable replacement of said advertisements and promotional materials that were invoiced prior to Tenant
receiving written Notice from Landlord of such name to be advertised and promoted by Tenant. The names for
the Retail Space and the project of which the Retail Space is a part, which Landlord may from time to time adopt,
and every name or mark adopted by Landlord in connection with the Retail Space shall be used by Tenant only in
association with the business carried on in the Premises during the Term and Tenant's use thereof shall be
subject to such reasonable regulation as Landlord may from time to time impose.
109
3.2 Compliance with Laws. The Premises shall be used and occupied in a safe, careful, and proper manner
so as not to contravene any present or future laws, rules, regulations, constitutions, orders, ordinances, charters,
statutes, codes, executive orders, and requirements of all governmental authorities having jurisdiction over the
Premises or any street, road, avenue, or sidewalk comprising a part of, or lying in front of, the Premises or any vault in
or under the Premises (including, without limitation, any of the foregoing relating to handicapped access or parking,
the local Facility codes, and the laws, rules, regulations, orders, ordinances, statutes, codes, and requirements of any
applicable Fire Rating Bureau or other body exercising similar functions), the temporary and/or permanent certificate
or certificates of occupancy issued for the Premises as then in force, and any and all provisions and requirements of
any property, casualty, or other insurance policy required to be carried by Tenant under this Lease. lf due to
Tenant's use of the Premises, repairs, improvements, or alterations are necessary to comply with any of the
foregoing, Tenant shall pay the entire cost thereof.
3.3 Siqns. Tenant, at Tenant's expense, shall erect and maintain identification signage upon the
storefront of the Premises. The design and specification of such signage shall be subject to Landlord's approval
and such design and specification (including camera-ready artwork) shall be submitted for Landlord's prior
approval. Except with the prior written consent of Landlord, Tenant shall not erect, install, display, inscribe, paint,
or affix any signs, lettering, or advertising medium upon or above any exterior portion of the Premises or in or on
Tenant's storefront or storefront window.
3.4 Environmental Provisions.
(a) Tenant shall not knowingly incorporate into, use, or otherwise place or dispose of at the
Premise s or in the Retail Space (or allow others to incorporate into, use, or otherwise place or dispose of at the
Premises or in the Retail Space) any Hazardous Materials, as hereinafter defined, unless (i) such Hazardous
Materials are for use in the ordinary course of business (i.e., as with office or cleaning supplies), (ii) notice of and
a copy of the current material safety data sheet is provided to Landlord for each such Hazardous Material (except
for Hazardous Materials used by Tenant in the ordinary course of business (i.e., as with office or cleaning
supplies)), and (iii) such materials are handled and disposed of in accordance with all applicable governmental
laws, rules, and regulations. lf Landlord or Tenant ever has knowledge of the presence in the Premises or the
Retail Space of Hazardous Materials which affect the Premises, such party shall notify the other thereof in writing
promptly after obtaining such knowledge. For purposes of this Lease, "Hazardous Materials" shall mean:
(a) petroleum and its constituents; (b) radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; (c) any
substance, gas, material or chemical which is or may hereafter be defined as or included in the definition of
"hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or contaminants," "solid wastes," or
words of similar import under any applicable governmental laws, rules, and regulations including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. $ 9061 et
seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. S 1801, et seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. S 6901, et seo.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. S 1251, et seq.; and Florida Statutes, Chapters 376 and 403; and (d)any other chemical,
material, gas, or substance, the exposure to or release of which is regulated by any governmental or
quasi-governmental entity having jurisdiction over the Retail Space or the operations thereon.
(b) lf Tenant or its employees, agents, or contractors shall ever violate the provisions of
subsection (a), above, then Tenant shall clean-up, remove, and dispose of the Hazardous Material causing the
violation, in compliance with all applicable governmental standards, laws, rules, and regulations and repair any
damage to the Premises or Retail Space within such period of time as may be reasonable under the
circumstances after written notice by Landlord, provided that such work shall commence not later than thirty (30)
days from such notice and be diligently and continuously carried to completion by Tenant or Tenant's designated
contractors. Tenant shall notify Landlord of its method, time, and procedure for any clean-up or removal of
Hazardous Materials under this provision; and Landlord shall have the right to require reasonable changes in
such method, time, or procedure or to require the same to be done after normal business hours or when the
Retail Space is otherwise closed (i.e., holidays) if reasonably required for the protection of other tenants or
occupants of the Retail Space.
110
(c) Tenant agrees to defend, indemnify, and hold harmless Landlord, and the City of Miami
Beach (the "City") against any and all claims, costs, expenses, damages, liability, and the like, which Landlord
may hereafter be liable for, suffer, incur, or pay arising under any applicable environmental laws, rules, and
regulations and resulting from or arising out of any breach of the covenants contained in this section 3.4, or out of
any act, activity, or violation of any applicable environmental laws, rules, and regulations on the part of Tenant, its
agents, employees, or assigns. Tenant's liability under this section 3.4 shall survive the expiration or any
termination of this Lease.
3.5 Hours; Continued Occupancv. During the Term, Tenant shall conduct its business in the
Premises, at a minimum, on all days and during all hours established by Landlord from time to time as store hours
for the Retail Space. Tenant may conduct business on the Premises, in addition to the foregoing times, in
Tenant's reasonable judgment in order to maximize sales from the Premises, at Tenant's sole expense.
However, Landlord shall not be responsible for providing common area or other services during such additional
hours. Tenant shall open the whole of the Premises for business to the public, fully fixtured, stocked, and staffed
on the Commencement Date, and shall continuously, actively, and diligently carry on the business specified in
section 3.1 on the whole of the Premises during the Term, during such hours and upon such days as are herein
required, except when prevented from doing so by force majeure. Tenant acknowledges that its continued
occupancy of the Premises and the regular conduct of its business therein are of utmost importance to
neighboring tenants and to Landlord in the renting of space in the Retail Space, the renewal of other leases
therein, the efficient and economic supply of services and utilities. Tenant acknowledges that Landlord is
executing this Lease in reliance thereupon and that the same is a material element inducing Landlord to execute
this Lease. Tenant shall not keep or display any merchandise on or otherwise obstruct the common areas and
shall not sell, advertise, conduct, or solicit business anywhere within the Retail Space other than in the Premises.
Tenant shall ship and receive supplies, fixtures, equipment, furnishings, wares, and merchandise only through the
appropriate service and delivery facilities provided by Landlord; and shall not park its trucks or other delivery
vehicles or allow suppliers or others making deliveries to or receiving shipments from the Premises to park in the
parking areas, except in those parts thereof as may from time to time be allocated by Landlord for such purpose.
Tenant shall maintain available a substantial stock of goods, wares, and merchandise adequate to ensure
successful operation of Tenant's business, and shall employ and maintain sales and other personnel sufficient at
all times for proper service to customers.
3.6 Prohibited Uses. Notwithstanding any other provisions of this Lease, Tenant shall not use the
Premises nor permit them to be used for any of the following purposes: (A) for the sale by Tenant, as its principal
business purpose, of any merchandise which Tenant, in the course of its normal business practice, purchases at
manufacturers' clearances or purchases of ends-of-runs, bankruptcy stock, seconds, or other similar
merchandise; (B) for the sale of second-hand goods, war surplus articles, insurance salvage stock, fire sale stock,
merchandise damaged by or held out to be damaged by fire, except merchandise damaged by fire or smoke
occurring in the Retail Space, and then only for thirty (30) days after the date of any such damage; (C) as an
auction or flea market; (D) for a bankruptcy sale or going-out-of-business sale or liquidation sale or any similar
sale, unless Tenant is in fact in bankruptcy or is going out of business or is in liquidation, in which case such sale
shall not continue beyond thirty (30) days; (E) a business primarily used for an order office, mail order office, or
catalogue store; or (F) any business in which Tenant is engaged in intentionally deceptive or fraudulent
advertising or selling practices or any other act or business practice contrary to honest retail practices.
3.7 lntentionally Omitted.
3.8 Exclusive Use. So long as Tenant is in actual occupancy of the Premises and using the
Premises for the permitted use set forth in the Lease Summary, Landlord agrees not to enter into any leases for
space in the Retail Space with persons or entities whose primary business at the Retail Space would be the sale
of costume jewelry that may be made from or contains jewels and precious metal, but is not considered fine
jewelry.
111
ARTICLE IV. ACCESS AND ENTRY.
4.1 Riqht of Examination. Landlord shall be entitled at all reasonable times and upon reasonable
notice (but no notice is required in emergencies) to enter the Premises to examine them if Landlord reasonably
believes that Tenant is not complying with any of its obligations hereunder; to make such repairs, alterations, or
improvements thereto as Landlord considers necessary or reasonably desirable; to have access to underfloor
facilities and access panels to mechanical shafts and to check, calibrate, adjust, and balance controls and other
parts of the heating, air conditioning, ventilating, and climate control systems. Landlord reserves to itself (and
others acting on behalf of Landlord including, without limitation, the City) the right to install, maintain, use, and
repair pipes, ducts, conduits, vents, wires, and other installations leading in, through, over, or under the Premises
and for this purpose, Landlord may take all material into and upon the Premises which is required therefor. Tenant
shall not unduly obstruct any pipes, conduits, or mechanical or other electrical equipment so as to prevent
reasonable access thereto. Landlord reserves the right to use all exterior walls and roof area. Landlord shall
exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to
minimize interference with Tenant's use and enjoyment of the Premises and Tenant's property.
4.2 Riqht to Show Premises. Landlord and its agents have the right to enter the Premises at all
reasonable times and upon reasonable notice to show them to prospective purchasers, lenders, or anyone having
a prospective interest in the Retail Space, and, during the last six (6) months of the Term (or the last six (6)
months of any renewal term if this Lease is renewed), to show them to prospective tenants. Landlord shall
exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to
minimize interference with Tenant's use and enjoyment of the Premises and Tenant's property.
ARTICLE V. MAINTENANCE. REPAIRS. AND ALTERATIONS,
5.1. (lntentionallyOmitted)
5.2 Maintenance and Reoairs bv Landlord. lt is hereby acknowledged and agreed that Landlord shall
maintain and repair the base building, mechanical and electrical systems, and roof and foundation of the Retail
Space. Tenant will notify in writing of any necessary repairs that are the obligation of Landlord. Landlord shall not
be responsible for any damages caused to Tenant by reason of failure of any equipment or facilities serving the
Retail Space or delays in the performance of any work for which the Landlord is responsible to perform pursuant
to this Lease. Notwithstanding any other provisions of this Lease, if any part of the Retail Space is damaged or
destroyed or requires repair, replacement, or alteration as a result of the act or omission of Tenant, its employees,
agents, invitees, licensees, or contractors, Landlord shall have the right to perform same and the cost of such
repairs, replacement, or alterations shall be paid by Tenant to Landlord upon demand. ln addition, if, in an
emergency, it shall become necessary to make promptly any repairs or replacements required to be made by
Tenant, Landlord may re-enter the Premises and proceed forthwith to have the repairs or replacements made and
pay the costs thereof. Upon demand, Tenant shall reimburse Landlord for the cost of making the repairs.
Landlord shall exercise its rights under this section in a manner so as to minimize any disruption or interference
with the operation of Tenant's business and property.
5.3 Maintenance and Repairs bv Tenant. Tenant shall, at its sole cost, repair and maintain the
Premises exclusive of base Facility mechanical and electrical systems, all to a standard consistent with a first
class retail center, with the exception only of those repairs which are the obligation of the Landlord pursuant to
this Lease. Without limiting the generality of the foregoing, Tenant is specifically required to maintain, make
repairs and to replace as needed (i) the portion of any pipes, lines, ducts, wires, or conduits contained within the
Premises; (ii) windows, plate glass, doors, and any fixtures or appurtenances composed of glass (including,
without limitation, interior and exterior washing of windows and plate glass; (iii) Tenant's sign; (iv) any heating or
air conditioning equipment serving the Premises ("HVAC") (which shall include, without limitation, a preventive
maintenance HVAC service contract. Such service contract shall include, without limitation, preventive HVAC
maintenance no less than quarterly); and (v) the Premises or the Retail Space when repairs to the same are
necessitated by any act or omission of Tenant, or the failure of Tenant to perform its obligations under this Lease.
All repair and maintenance performed by Tenant in the Premises shall be performed by contractors or workmen
designated or approved by Landlord, which approval shall not be unreasonably withheld or delayed. At the
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expiration or earlier termination of the Term, Tenant shall surrender the Premises to Landlord in as good condition
and repair as Tenant is required to maintain the Premises throughout the Term, reasonable wear and tear
excepted. Tenant shall also furnish, maintain, and replace all electric light bulbs, tubes, and tube casings located
within or serving the Premises and Tenant's signage, all at Tenant's sole cost and expense.
5.4 Aooroval of Tenant's Alterations. No alterations (including, without limitation, improvements,
additions, or modifications to the Premises) shall be made by Tenant to the Premises without Landlord's prior
written approval, which, as to exterior or structural alterations may be withheld in Landlord's sole discretion. Any
alterations by Tenant shall be performed at the sole cost of Tenant, by contractors and workmen approved by
Landlord, which approval shall not be unreasonably withheld or delayed, in a good and workmanlike manner, and
in accordance with all applicable laws and regulations.
5.5 Removal of lmorovements and Fixtures. All leasehold improvements and fixtures (other than
unattached, movable trade fixtures which can be removed without damage to the Premises) shall at the expiration
or earlier termination of this Lease become Landlord's property. Tenant may, during the Term, in the usual course
of its business, remove its trade fixtures, provided that Tenant is not in default under this Lease; and Tenant shall,
at the expiration or earlier termination of the Term, at its sole cost, remove such of the leasehold improvements
(except for improvements installed by Landlord prior to the Commencement Date) and trade fixtures in the
Premises as Landlord shall require to be removed and restore the Premises to the condition existing prior to such
removal. Tenant shall at its own expense repair any damage caused to the Retail Space by such removal. lf
Tenant does not remove its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures
shall, at the option of Landlord, become the property of Landlord and may be removed from the Premises and
sold or disposed of by Landlord in such manner as it deems advisable without any accounting to Tenant.
5.6 Liens. Tenant shall promptly pay for all materials supplied and work done in respect of the
Premises by, through, or under Tenant so as to ensure that no lien is recorded against any portion of the Retail
Space or against Landlord's or Tenant's interest therein. lf a lien is so recorded, Tenant shall discharge it
promptly by payment or bonding. lf any such lien against the Retail Space or Landlord's interest therein is
recorded and not discharged by Tenant as above required within fifteen(15) days following written notice to
Tenant, Landlord shall have the right to remove such lien by bonding or payment and the cost thereof shall be
paid immediately from Tenant to Landlord. Landlord and Tenant expressly agree and acknowledge that no
interest of Landlord in the Premises or the Retail Space shall be subject to any lien for improvements made by
Tenant in or for the Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant,
such liability being expressly prohibited by the terms of this Lease. ln accordance with applicable laws of the
State of Florida, Landlord has filed in the public records of Dade County, Florida, a public notice containing a true
and correct copy of this paragraph, and Tenant hereby agrees to inform all contractors and material suppliers
performing work in or for or supplying materials to the Premises of the existence of said notice.
5.7 Utilities. Tenant shall pay to Landlord, or as Landlord directs, all gas, electricity, water, and other
utility charges, applicable to the Premises as separately metered. Additionally, if at Landlord's discretion,
Landlord provides waste collection services inclusive of recycling and any additional services deemed necessary
by Landlord to maintain the trash room for the Retail Space, Tenant shall pay its proportionate share of said
service(s). Tenant shall, at its own cost, install, maintain and repair, as required, its electrical meter for the
Premises. ln addition, Tenant's electrical equipment and lighting shall be restricted to that equipment and lighting
which individually does not have a rated capacity and/or design load greater than the rated capacity and/or design
load of the Retail Space. lf Tenant's consumption of electrical services exceeds either the rated capacity and/or
design load of the Retail Space, then Tenant shall remove the equipment and/or lighting to achieve compliance
within ten (10) days after receiving written notice from Landlord, or such equipment and/or lighting may remain in
the Premises, so long as (a) Tenant shall pay for all costs of installation and maintenance of submeters, wiring,
air-conditioning, and other items required by Landlord, in Landlord's reasonable discretion, to accommodate
Tenant's excess design loads and capacities; and (b) Tenant shall pay to Landlord, within thirty (30) days after
rendition of a bill, the cost of the excess consumption of electrical service at the rates charged to Landlord by
Florida Power & Light, which shall be in accordance with any applicable laws.
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ARTICLE VI. INSURANCE AND INDEMNITY.
6.1 Tenant's lnsurance. Tenant shall, throughout the Term (and any other period when Tenant is in
possession of the Premises), maintain at its sole cost the following insurance:
(A) All risks property insurance, containing a waiver of subrogation rights which Tenant's
insurers may have against Landlord and against those for whom Landlord is in law responsible including, without
limitation, its directors, officers, agents, and employees, and (except with respect to Tenant's chattels)
incorporating a standard New York mortgagee endorsement (without contribution). Such insurance shall insure
property of every kind owned by Tenant in an amount not less than the full replacement cost thereof (new), with
such cost to be adjusted no less than annually. Such policy shall include as additional insureds Landlord and its
affiliates and any mortgagee of Landlord, the City, and any mortgagee of the Landlord in connection with a mortgage
on the Facility.
(B) Comprehensive general liability insurance. Such policy shall contain inclusive limits per
occurrence of not less than the amount specified in the Lease Summary; provide for severability of interests; and
include as additional insureds Landlord and its affiliates and any mortgagee of Landlord, the City, and any
mortgagee of Landlord in connection with a mortgage on the Facility.
(C) Worker's compensation and employer's liability insurance in compliance with applicable
legal requirements.
(D) Business interruption insurance, sufficient to insure Tenant for no less than one (1) full
year of loss of business, with the Landlord named thereon as loss payee to the extent permitted by applicable law.
(E) Any other form of insurance which Tenant or Landlord, acting reasonably, requires from
time to time in form, in amounts, and for risks against which a prudent tenant would insure, but in any event not
less than that carried by comparable retail establishments in Dade County, Florida.
All policies referred to above shall: (i) be taken out with insurers licensed to do business in
Florida and reasonably acceptable to Landlord; (ii) be in a form reasonably satisfactory to Landlord; (iii) be
non-contributing with, and shall apply only as primary and not as excess to any other insurance available to
Landlord or any mortgagee of Landlord; (iv) contain an undertaking by the insurers to notify Landlord by certified
mail not less than thirty (30) days prior to any material change, cancellation, or termination, and (v) with respect to
subsection (A), contain replacement cost, demolition cost, and increased cost of construction endorsements.
Certificates of insurance on Landlord's standard form or, if required by a mortgagee, copies of such insurance
policies certified by an authorized officer of Tenant's insurer as being complete and current, shall be delivered to
Landlord promptly upon request. lf Tenant fails to take out or to keep in force any insurance referred to in this
section 6.1, or should any such insurance not be approved by either Landlord or any mortgagee, and Tenant does
not commence and continue to diligently cure such default within two (2) business days after written notice by
Landlord to Tenant specifying the nature of such default, then Landlord has the right, without assuming any
obligation in connection therewith, to effect such insurance at the sole cost of Tenant and all outlays by Landlord
shall be paid by Tenant to Landlord as additional rent without prejudice to any other rights or remedies of Landlord
under this Lease. Tenant shall not keep or use in the Premises any article which may be prohibited by any fire or
casualty insurance policy in force from time to time covering the Premises or the Retail Space.
6.2 Loss or Damaqe. Tenant acknowledges that the Landlord will be performing any maintenance
and repairs required of Landlord hereunder. Landlord shall not be liable for any death or injury arising from or out
of any occurrence in, upon, at, or relating to the Retail Space or damage to property of Tenant or of others located
on the Premises or elsewhere in the Retail Space, nor shall it be responsible for any loss of or damage to any
property of Tenant or others from any cause, unless such death, injury, loss, or damage results from the gross
negligence or willful misconduct of Landlord. Without limiting the generality of the foregoing, Landlord shall not be
liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, falling ceiling
tile, falling fixtures, steam, gas, electricity, water, rain, flood, or leaks from any part of the Premises or from the
pipes, sprinklers, appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of the Retail
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Space or from the street or any other place or by dampness, or by any other cause whatsoever, unless resulting
from the gross negligence or willful misconduct of Landlord. Tenant agrees to indemnify Landlord and hold it
harmless from and against any and all loss (including loss of Minimum Rent and additional rent payable in respect
to the Premises), claims, actions, damages, liability, and expense of any kind whatsoever (including attorneys'
fees and costs at all tribunal levels), unless caused by the gross negligence or willful misconduct of Landlord,
arising from any occurrence in, upon, or at the Premises, or the occupancy, use, or improvement by Tenant or its
agents or invitees of the Premises or any part thereof, or occasioned wholly or in part by any act or omission of
Tenant its agents, employees, and invitees or by anyone permitted to be on the Premises by Tenant.
6.3 Waiver of Subroqation. Landlord and Tenant each hereby waives on behalf of itself and its
insurers (none of which shall ever be assigned any such claim or be entitled thereto due to subrogation or
othenvise) any and all rights of recovery, claim, action, or cause of action, against the other, its agents, officers, or
employees, for any loss or damage that may occur to the Premises, or any improvements thereto or the Retail
Space, or any improvements thereto, or any personal property of such party therein, by reason of fire, the
elements, or any other causes which are, or could or should be insured against under the terms of the standard
fire and extended coverage insurance policies referred to in this Lease, regardless of whether such insurance is
actually maintained and regardless of the cause or origin of the damage involved, including negligence of the
other party hereto, its agents, officers, or employees. Landlord and Tenant shall each obtain from their respective
insurers, under all policies of fire, theft, public liability, worker's compensation, and other insurance maintained by
either of them at any time during the term hereof insuring or covering the Retail Space or any portion thereof or
operations therein, a waiver of all rights of subrogation which the insurer of one party might have against the other
party.
6.4 lndemnification. Tenant shall indemnify and hold harmless the Landlord and the City of Miami Beach, and
their respective officers, employees, agents and instrumentalities (collectively "lndemnitees') from any and all
liability, losses or damages, including attorneys' fees and costs of defense, which lndemnitees may incur as a
result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to
or resulting from the performance of this Lease by the Tenant or its employees, agents, servants, partners
principals or subcontractors, or relating to or resulting from the operation of Tenant's business at the Premises.
Tenant shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or
actions of any kind or nature in the name of any of the lndemnitees, where applicable, including appellate
proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. Tenant expressly
understands and agrees that any insurance protection required by this Lease or otherwise provided by Tenant
shall in no way limit the responsibility to indemnify, keep and hold harmless and defend lndemnitees as herein
provided.
ARTICLE VII. DAMAGE AND DESTRUCTION.
7.1 Damaqe to Premises. Tenant acknowledges that if the Premises are partially or totally destroyed
due to fire or other casualty, any repairs to the Facility of the damaged portions of the Retail Space will be performed
by Landlord and in any event only to the extent that Landlord is required to repair or rebuild the Retail Space. lf
Landlord repairs or rebuilds, Minimum Rent shall abate proportionately to the portion of the Premises, if any,
rendered untenantable from the date of destruction or damage until the repairs have been substantially
completed. Upon being notified that the repairs have been substantially completed, Tenant shall diligently
perform all other work required to fully restore the Premises for use in Tenant's business, in every case at
Tenant's cost and without any contribution to such cost by Landlord, whether or not Landlord has at any time
made any contribution to the cost of supply, installation, or construction of leasehold improvements in the
Premises. Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the
operation of its business within the Premises to the extent practicable. lf all or any part of the Premises shall be
damaged by fire or other casualty and the fire or other casualty is caused by the fault or neglect of Tenant or
Tenant's agents, guest, or invitees, rent and all other charges shall not abate.
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7.2 Termination for Damage. Notwithstanding section 7.1, if damage or destruction which has occurred to
the Premises or the Retail Space is such that in the reasonable opinion of Landlord such reconstruction or repair
cannot be completed within one hundred twenty(120) days of the happening of the damage or destruction.
Landlord may, at their option, terminate this Lease on notice to Tenant given within thirty (30) days after such
damage or destruction and Tenant shall immediately deliver vacant possession of the Premises in accordance
with the terms of this Lease.
ln addition, if Landlord undertakes the reconstruction or repair, and does not complete same within
nine (9) months after the date of the fire or other casualty (subject to the time required to prepare plans for
reconstruction, to obtain Facility permits, to receive distribution of insurance proceeds, and to complete the likely
contract bidding process and all other relevant factors, but not to exceed an additional ninety (90) days), then
Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within thirty (30) days
after the expiration of such nine (9) month period (or as extended), whereupon both parties shall be relieved of all
further obligations hereunder, except as otherwise expressly set forth herein.
ARTICLE VIII. ASSIGNMENT. LEASES. AND TRANSFERS.
8.1 Transfer bv Tenant. Tenant shall not enter into, consent to, or permit any Transfer, as hereinafter
defined, without the prior written consent of Landlord in each instance, which consent may be granted or withheld
in Landlord's sole and absolute discretion for any reason or for no reason. For purposes of this Lease, "Transfer"
means an assignment of this Lease in whole or in part; the execution of a management agreement relating to all
or any part of the Premises; a sublease of all or any part of the Premises; any transaction whereby the rights of
Tenant under this Lease or to the Premises are transferred to another; any mortgage or encumbrance of this
Lease or the Premises or any part thereof or other arrangement under which either this Lease or the Premises
become security for any indebtedness or other obligations; and if Tenant is a corporation or a partnership, the
transfer of a controlling interest in the stock of the corporation or partnership interests, as applicable. lf there is a
permitted Transfer, Landlord may collect rent or other payments from the transferee and apply the net amount
collected to the rent or other payments required to be paid pursuant to this Lease but no acceptance by Landlord
of any payments by a transferee shall be deemed a waiver of any provisions hereof regarding Tenant.
Notwithstanding any Transfer, Tenant shall not be released from any of its obligations under this Lease.
Landlord's consent to any Transfer shall be subject to the further condition that if the Minimum Rent and additional
rent pursuant to such Transfer exceeds the Minimum Rent and additional rent payable under this Lease, the
amount of such excess shall be paid to Landlord. lf, pursuant to a permitted Transfer, Tenant receives from the
transferee, either directly or indirectly, any consideration other than Minimum Rent and additional rent for such
Transfer, either in the form of cash, goods, or services, Tenant shall, upon receipt thereof, pay to Landlord an
amount equivalent to such consideration.
ARTICLE IX. DEFAULT.
9.1 Defaults. A default by Tenant shall be deemed to have occurred hereunder, if and whenever:
(i) any Minimum Rent is not paid when due whether or not any notice or demand for payment has been made by
Landlord; (ii) any other additional rent is in arrears and is not paid within five (5) days after written demand by
Landlord; (iii) Tenant has breached any of its obligations in this Lease (other than the payment of rent) and Tenant
fails to remedy such breach within thirty (30) days (or such shorter period as may be provided in this Lease), or if
such breach cannot reasonably be remedied within thirty (30) days (or such shorter period), then if Tenant fails to
immediately commence to remedy and thereafter proceed diligently to remedy such breach, in each case after
notice in writing from Landlord; (iv) Tenant becomes bankrupt or insolvent; (v) any of Landlord's policies of
insurance with respect to the Retail Space are canceled or adversely changed as a result of Tenant's use or
occupancy of the Premises; or (vi) the business operated by Tenant in the Premises shall be closed by
governmental or court order for any reason.
9.2 Remedies. ln the event of any default hereunder by Tenant, then without prejudice to any other
rights which it has pursuant to this Lease or at law or in equity, Landlord shall have the following rights and
remedies, which are cumulative and not alternative:
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(A) Landlord may cancel this Lease by notice to Tenant and retake possession of the
Premises for Landlord's account, or may terminate Tenant's right to possession of the Premises without
terminating this Lease. ln either event, Tenant shall then quit and surrender the Premises to Landlord. lf
Landlord terminates Tenant's right to possession of the Premises without terminating this Lease, Tenant's liability
under all of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any
re-entry, repossession, or disposition hereunder.
(B) Landlord may enter the Premises as agent of Tenant to take possession of any property
of Tenant on the Premises, to store such property at the expense and risk of Tenant or to sell or otherwise
dispose of such property in such manner as Landlord may see fit without notice to Tenant. Re-entry and removal
may be effectuated by summary dispossess proceedings, by any suitable action or proceeding, or otherwise.
Landlord shall not be liable in any way in connection with its actions pursuant to this section, to the extent that its
actions are in accordance with law.
(C) lf Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under subsection (A) above, Tenant shall remain liable (in addition to accrued liabilities) to the extent
legally permissible for all rent and all of the charges Tenant would have been required to pay until the date this
Lease would have expired had such cancellation not occurred. Tenant's liability for rent shall continue
notwithstanding re-entry or repossession of the Premises by Landlord. ln addition to the foregoing, Tenant shall
pay to Landlord such sums as the court which has jurisdiction thereover may adjudge as reasonable attorneys'
fees with respect to any successful lawsuit or action instituted by Landlord to enforce the provisions of this Lease.
(D) Landlord may relet all or any part of the Premises for all or any part of the unexpired
portion of the Term of this Lease or for any longer period, and may accept any rent then attainable; grant any
concessions of rent, and agree to paint or make any special repairs, alterations, and decorations for any new
tenant as it may deem advisable in its sole and absolute discretion. Landlord shall be under no obligation to relet
or to attempt to relet the Premises, except as expressly set forth below.
(E) lf Landlord terminates Tenant's right to possession of the Premises without terminating
this Lease under subsection (A) above, and Landlord so elects, the rent hereunder shall be accelerated and
Tenant shall pay Landlord damages in the amount of any and all sums which would have been due for the
remainder of the Term (reduced to present value using a discount factor equal to the stated prime lending rate on
the date of Tenant's default by Landlord's then existing mortgagee or, if there is no mortgagee, by Citibank, N.A.,
New York). Prior to or following payment in full by Tenant of such discounted sum promptly upon demand,
Landlord shall use good faith efforts to relet the Premises. lf Landlord receives consideration as a result of a
reletting of the Premises relating to the same time period for which Tenant has paid accelerated rent, such
consideration actually received by Landlord, less any and all of Landlord 's cost of repairs, alterations, additions,
redecorating, and other expenses in connection with such reletting of the Premises, shall be a credit against such
discounted sum, and such discounted sum shall be reduced if not yet paid by Tenant as called for herein, or if
Tenant has paid such discounted sum, such credited amount shall be repaid to Tenant by Landlord (provided said
credit shall not exceed the accelerated amount).
(F) Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the
account of Tenant and to enter upon the Premises for such purposes. No notice of Landlord's intention to perform
such covenants need be given Tenant unless expressly required by this Lease. Landlord shall not be liable to
Tenant for any loss or damage caused by the reasonable acts of Landlord in remedying or attempting to remedy
such default and Tenant shall pay to Landlord all expenses incurred by Landlord in connection with remedying or
attempting to remedy such default. Any expenses incurred by Landlord shall accrue interest from the date of
payment by Landlord until repaid by Tenant at the highest rate permitted by law.
9.3 Costs. Tenant shall pay to Landlord on demand all costs incurred by Landlord, including attorneys'
fees and costs at all tribunal levels, incurred by Landlord in enforcing any of the obligations of Tenant under this
Lease. ln addition, upon any default by Tenant, Tenant shall be also liable to Landlord for the expenses to which
Landlord may be put in re-entering the Premises; repossessing the Premises; painting, altering, or dividing the
Premises; combining the Premises with an adjacent space for any new tenant; putting the Premises in proper
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repair; protecting and preserving the Premises by placing watchmen and caretakers therein; reletting the
Premises (including attorneys'fees and disbursements, marshall's fees, and brokerage fees, in so doing); and
any other expenses reasonably incurred by Landlord.
9.4 Additional Remedies: Waiver. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereinafter provided by law. All rights and remedies shall be
cumulative and non-exclusive of each other. No delay or omission by Landlord in exercising a right or remedy
shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default.
9.5 Default bv Landlord. ln the event of any default by Landlord, Tenant's exclusive remedy shall be
an action for damages or injunction, but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall have a period of thirty (30) days following the date of such notice
in which to cure such default (provided, however, that if such default reasonably requires more than thirty (30)
days to cure, Landlord shall have a reasonable time to cure such default, provided Landlord commences to cure
within such thirty (30) day period and thereafter diligently prosecutes such cure to completion). Notwithstanding
any provision of this Lease, Landlord shall not at any time have any personal liability under this Lease. ln the
event of any breach or default by Landlord of any term or provision of this Lease, Tenant agrees to look solely to
the equity or interest then-owned by Landlord in the Retail Space, and in no event shall any deficiency judgment
be sought or obtained against Landlord. lt is expressly understood that the obligations of Landlord under this
Lease are solely corporate obligations, and that, except for conversion, fraud, or willful misconduct, no personal
liability will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, or
employees, as such, of the Landlord, or of any successor corporation, or any of them, under or by reason of the
obligations, covenants, or agreements of Landlord contained in this Lease or implied therefrom; and, except for
conversion, fraud, or willful misconduct, that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer, director, or employee, as such, or under or by reason of the obligations, covenants or
agreements contained in this Lease or implied therefrom are expressly waived and released as a condition of,
and as a consideration for, the execution of this Lease.
ARTICLE X. ESTOPPEL CERTIFICATE: SUBORDINATION.
10.1 Estoppel Certificate. Within ten (10) days after written request by Landlord, Tenant shall deliver in
a form supplied by Landlord, an estoppel certificate to Landlord as to the status of this Lease, including whether
this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full
force and effect as modified and identifying the modification agreements); the amount of Minimum Rent and
additional rent then being paid and the dates to which same have been paid; whether or not there is any existing
or alleged default by either party with respect to which a notice of default has been served, or any facts exist
which, with the passing of time or giving of notice, would constitute a default and, if there is any such default or
facts, specifying the nature and extent thereof; and any other matters pertaining to this Lease as to which
Landlord shall request such certificate. Landlord, and any prospective purchaser, lender, or ground lessor shall
have the right to rely on such certificate.
10.2 Subordination: Attornment. This Lease and all rights of Tenant shall be subject and subordinate
to any and all mortgages, security agreements, or like instruments resulting from any financing, refinancing, or
collateral financing (including renewals or extensions thereof), and to any and all ground leases, made or
arranged by Landlord of its interests in all or any part of the Retail Space, from time to time in existence against
the Retail Space, whether now existing or hereafter created. Such subordination shall not require any further
instrument to evidence such subordination. However, on request, Tenant shall further evidence its agreement to
subordinate this Lease and its rights under this Lease to any and all documents and to all advances made under
such documents. The form of such subordination shall be made as required by Landlord, its lender, ground
lessor, the City. Tenant shall, if requested by Landlord, or a mortgagee, owner, or purchaser, or by any person
succeeding to the interest of such mortgagee, owner, or purchaser, as the result of the enforcement of the
remedies provided by law or the applicable instrument held by Landlord, such mortgagee, owner, or purchaser,
automatically attorn to and become the tenant of Landlord or any such mortgagee, owner, purchaser, or
successor-in-interest, without any change in the terms or other provisions of this Lease; provided, however, that
Landlord, said mortgagee, owner, purchaser, or successor shall not be bound by (a) any payment of rent or
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additional rent for more than one (1) month in advance, or (b) any security deposit or the like not actually received
by Landlord, such mortgagee, owner, or purchaser, or successor, or (c) any amendment or modification in this
Lease made without the consent of Landlord, such mortgagee, owner, purchaser, or successor, or (d) any
construction obligation, free rent, or other concession or monetary allowance, or (e) any set-off, counterclaim, or
the like otheruvise available against Landlord, or (f) any act or omission of any prior landlord (including Landlord).
Upon request by Landlord, said mortgagee, owner, or purchaser, or successor, Tenant shall execute and deliver
an instrument or instruments confirming its attornment.
Notwithstanding the foregoing, any such subordination of this Lease shall be conditioned on the Landlord
obtaining a nondisturbance agreement in favor of Tenant from all mortgagees and ground lessors regarding any
financings or over leases entered into by Landlord with respect to the Retail Space, and no subordination shall be
effective without a corresponding nondisturbance agreement.
ARTICLE XI. CONTROL OF RETAIL SPACE BY LANDLORD.
11.1 Use and Maintenance of Common Areas. Tenant and those doing business with Tenant for
purposes associated with Tenant's business on the Premises, shall have a non-exclusive license to use the
common areas for their intended purposes during normal business hours in common with others entitled thereto
and subject to any rules and regulations imposed by Landlord. Landlord shall use reasonable efforts to keep the
common areas in good repair and condition and shall clean the common areas when necessary. Tenant
acknowledges that any common areas of the Retail Space shall at all times be under the exclusive control and
management of Landlord. For purposes of this Lease, "common areas" shall mean those areas, facilities, utilities,
improvements, equipment, and installations of the Retail Space which serve or are for the benefit of tenants of
more than one component of the Retail Space and which are not designated or intended by Landlord to be leased,
from time to time, or which are provided or designated from time to time by Landlord and/or the City for the benefit
or use of all tenants in the Retail Space, their employees, customers, and invitees, in common with others entitled
to the use or benefit of same. Tenant acknowledges that the Garage portion of the Facility is not a part of the
Retail Space, and that Tenant has no right or license to use the Garage pursuant to this Lease. Any use by
Tenant or its invitees of the Garage is subject to the rules and regulations in connection therewith imposed by
Landlord (or successor owner) and/or the operator of the Garage. No portion of the garage is under Landlord's
control or supervision, and Landlord shall not be liable for any damage to automobiles of any nature whatsoever
to, or any theft of, automobiles or other vehicles or the contents thereof, while in or about the Garage.
Additionally, Tenant acknowledges that although the Garage has.800 available parking spaces, the Garage is
subject to the following Garage Easement Agreements: 1. Lowe's Hotel Garage Easement Agreement, dated as
of September 20,1996 ('Lowe's Garage Easement Agreement"), recorded in Official Records Book 17362, at
Page 130, of the Public Records of Miami-Dade County, Florida; and 2. The Garage Easement Agreement
between RDP Royal Palm Hotel Limited partnership and Miami Beach Redevelopment Agency, dated as of May
28, 1998 and recorded in O.R. Book 18170, Page 1082, of the Public Records of Miami-Dade County, Florida.
These Garage Easement Agreements, if exercised simultaneously by both Grantees, to the fullest extent
possible, have the effect of reducing the available parking spaces at the Garage for use by the general public
(including monthly and daily parking users) from 800 to approximately 66 spaces.
11.2 Alterations bv Landlord. Landlord and/or the City may (but shall not be obligated to) (i) alter, add
to, subtract from, construct improvements on, re-arrange, and construct additional facilities in, adjoining, or
proximate to the Retail Space; (ii) relocate the facilities and improvements in or comprising the Retail Space or
erected on the Land; (iii) do such things on or in the Retail Space as required to comply with any laws, by-laws,
regulations, orders, or directives affecting the Land or any part of the Retail Space; and (iv) do such other things
on or in the Retail Space as Landlord and/or the City, in the use of good business judgment determines to be
advisable, provided that notwithstanding anything contained in this section 11.2, access to the Premises shall be
available at all times. Landlord shall not be in breach of its covenants for quiet enjoyment or liable for any loss,
costs, or damages, whether direct or indirect, incurred by Tenant due to any of the foregoing; provided, Landlord
shall exercise its rights under this section in a manner so as to minimize any disruption or interference with the
operation of Tenant's business and property.
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11.3 Tenant Relocation. Landlord shall have the right, at any time upon sixty (60) days' written notice
to Tenant, to relocate Tenant into other space within the Retail Space comparable to the Premises. Upon such
relocation, such new space shall be deemed the Premises and the prior space originally demised shall in all
respects be released from the effect of this Lease. lf Landlord elects to relocate Tenant as above described,
(i) the new space shall contain approximately the same as, or greater usable area than the original space,
(ii) Landlord shall improve the new space, at Landlord's sole cost, to at least the standards of the original space,
(iii) Landlord shall pay the reasonable costs of moving Tenant 's trade fixtures and furnishings from the original
space to the new space, (iv) as total compensation for all other costs, expenses, and damages which Tenant may
suffer in connection with the relocation, including but not limited to, lost profit or business interruption, no
Minimum Rent shall be due or payable for the first two (2) full calendar months of Tenant's occupancy of the new
space, and Landlord shall not be liable for any further indirect or special expenses of Tenant resulting from the
relocation, (v) Minimum Rent and all other charges hereunder shall be the same for the new space as for the
original space, notwithstanding that the new space may be larger than the original space, and (vi) all other terms
of this Lease shall apply to the new space as the Premises, except as otherwise provided in this paragraph.
ARTICLE XII. CONDEMNATION.
12.1 Total or Partial Takinq. lf the whole of the Premises, or such portion thereof as will make the
Premises unusable for the purposes leased hereunder, shall be taken by any public authority under the power of
eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease as of the
day possession or title shall be taken by such public authority, whichever is earlier ("Taking Date"), whereupon
the rent and all other charges shall be paid up to the Taking Date with a proportionate refund by Landlord of any
rent and all other charges paid for a period subsequent to the Taking Date. lf less than the whole of the
Premises, or less than such portion thereof as will make the Premises unusable for the purposes leased
hereunder, the Term shall cease only as to the part so taken as of the Taking Date, and Tenant shall pay rent and
other charges up to the Taking Date, with appropriate credit by Landlord (toward the next installment of rent due
from Tenant) of any rent or charges paid for a period subsequent to the Taking Date. Minimum Rent and other
charges payable to Landlord shall be reduced in proportion to the amount of the Premises taken.
12.2 Award. All compensation awarded or paid upon a total or partial taking of the Premises or Retail
Space including the value of the leasehold estate created hereby shall belong to and be the property of Landlord
without any participation by Tenant; Tenant shall have no claim to any such award based on Tenant's leasehold
interest. However, nothing contained herein shall be construed to preclude Tenant, at its cost, from
independently prosecuting any claim directly against the condemning authority in such condemnation proceeding
for damage to, or cost of removal of, stock, trade fixtures, furniture, and other personal property belonging to
Tenant and for Tenant's moving expenses; provided, however, that no such claim shall diminish or otherwise
adversely affect Landlord's award or the award of any mortgagee.
ARTICLE XIII. PROMOTION.
13.1 Promotional Fund: Merchants' Association. lntentionally Omitted.
ARTICLE XIV. GENERAL PROVISIONS.
14.1 Delav. Whenever a period of time is herein prescribed for the taking of any action by Landlord or
Tenant, as applicable, Landlord or Tenant, as applicable, shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, or governmental laws, regulations, or restrictions in the nature of a prohibition or
moratorium, or any bona fide delay beyond the reasonable control of Landlord or Tenant, as applicable. The
foregoing shall not apply to any payments of money due under this Lease.
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14.2 Holdino Over. lf Tenant remains in possession of the Premises after the end of the Term without
having executed and delivered a new lease or an agreement extending the Term, there shall be no tacit renewal
of this Lease or the Term, and Tenant shall be deemed to be occupying the Premises as a Tenant from month to
month at a monthly Minimum Rent payable in advance on the first day of each month equal to twice the monthly
amount of Minimum Rent payable during the last month of the Term, and otherwise upon the same terms as are
set forth in this Lease, so far as they are applicable to a monthly tenancy.
14.3 Waiver: Partial lnvaliditv. lf Landlord excuses or condones any default by Tenant of any
obligation under this Lease, this shall not be a waiver of such obligation in respect of any continuing or
subsequent default and no such waiver shall be implied. All of the provisions of this Lease are to be construed as
covenants even though not expressed as such. lf any provision of this Lease is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Lease and the remaining provisions of this
Lease shall remain in force and bind the parties as though the illegal or unenforceable provision had never been
included in this Lease.
14.4 Recordinq. Neither Tenant nor anyone claiming under Tenant shall record this Lease or any
memorandum hereof in any public records without the prior written consent of Landlord.
14.5 Notices. Any notice, consent, or other instrument required or permitted to be given under this
Lease shall be in writing and shall be delivered in person, or sent by certified mail, return receipt requested, or
overnight express mail courier, postage prepaid, addressed (i) if to Landlord, at the address set forth in the Lease
Summary; and (ii) if to Tenant, at the Premises or, prior to Tenant 's occupancy of the Premises, at the address
set forth on the Lease Summary. Any such notice or other instruments shall be deemed to have been given and
received on the day upon which personal delivery is made or, if mailed, then forty-eight (48) hours following the
date of mailing. Either party may give notice to the other of any change of address and after the giving of such
notice, the address therein specified is deemed to be the address of such party for the giving of notices. lf postal
service is interrupted or substantially delayed, all notices or other instruments shall be delivered in person or by
overnight express mail courier.
14.6 Successors: Joint and Several Liabilitv. The rights and liabilities created by this Lease extend to
and bind the successors and assigns of Landlord and the heirs, executors, administrators, and permitted
successors and assigns of Tenant. No rights, however, shall inure to the benefit of any transferee unless such
Transfer complies with the provisions of Article Vlll. lf there is at any time more than one Tenant or more than
one person constituting Tenant, their covenants shall be considered to be joint and several and shall apply to
each and every one of them.
14.7 Caotions and Section Numbers. The captions, section numbers, article numbers, and table of
contents appearing in this Lease are inserted only as a matter of convenience and in no way affect the substance
of this Lease.
14.8 Extended Meaninqs. The words "hereof," "hereto," "hereunder," and similar expressions used in
this Lease relate to the whole of this Lease and not only to the provisions in which such expressions appear. This
Lease shall be read with all changes in number and gender as may be appropriate or required by the context.
Any reference to Tenant includes, when the context allows, the employees, agents, invitees, and licensees of
Tenant and all others over whom Tenant might reasonably be expected to exercise control. This Lease has been
fully reviewed and negotiated by each party and their counsel and shall not be more strictly construed against
either party.
14.9 Entire Aoreement: Governino Law: Time. This Lease and the Exhibits and Riders, if any,
attached hereto are incorporated herein and set forth the entire agreement between Landlord and Tenant
concerning the Premises and there are no other agreements or understandings between them. This Lease and
its Exhibits and Riders may not be modified except by agreement in writing executed by Landlord and Tenant.
The Executive Director of the Miami Beach Redevelopment Agency shall have the authority to execute
modifications to the Lease, on behalf of the Landlord. This Lease shall be construed in accordance with and
governed by the laws of the State of Florida. Time is of the essence of this Lease.
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14.10 No Partnership. The parties hereby acknowledge that it is not their intention under this Lease to
create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership, or
agency relationship. Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this
Lease, whether based on the calculation of rental or otherwise, shall be construed or deemed to create, or to
express an intent to create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or
agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this section
shall survive expiration of the Term.
14.11 Quiet Eniovment. lf Tenant pays rent and other charges and fully observes and performs all of its
obligations under this Lease, Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the
Term without interruption or interference by Landlord or any person claiming through Landlord.
14.12 Brokeraqe. Landlord and Tenant each represent and warrant one to the other that except as set
forth in the Lease Summary, neither of them has employed any broker in connection with the negotiations of the
terms of this Lease or the execution thereof. Landlord and Tenant hereby agree to indemnify and to hold each
other harmless against any loss, expense, or liability with respect to any claims for commissions or brokerage
fees arising from or out of any breach of the foregoing representation and warranty. Landlord recognizes the
broke(s) specified in the Lease Summary as the sole broker(s) with whom Landlord has dealt in this transaction
and agrees to pay any commissions determined to be due said broker(s).
14.13 Radon Notice. Chapter 88-285, Laws of Florida, requires the following notice to be provided with
respect to the contract for sale and purchase of any Facility, or a rental agreement for any Facility:
'RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a Facility
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 Facilities in Florida. Additional information regarding
radon and radon testing may be obtained from your county public health unit.
14.14 Execution. This Lease has been submitted for discussion purposes only and shall not be
deemed an offer by either party to the other to enter into this Lease unless and until this Lease shall have been
executed by both parties, indicating their acceptance of the terms and conditions contained herein.
14.15 TRIAL BY JURY. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
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EXECUTED as of the day and year first above written.
WITNESSES:
Rafael E. Granado, Secretary
WITNESS
Print Name:
WITNESS
Print Name:
WITNESS
Print Name:
LANDLORD:
MIAMI BEACH REDEVELOPMENT AGENCY, a public
body corporate and politic
Philip Levine, Chairperson
Date:
TENANT:
ARTCONNECTION INTERNATIONAL, INC.
Name:
Title:
Date:
APPROVED AS TO
FORM & LANGUAGE
By:
By:
& FRR qxECUTtON.'&{t'Y e(}r\
-
CityAttorney ,Mf Dote
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EXHIBIT "A"
Legal Description
Lots 8, 9, 10, 11,12 and 13, Block 57, Fisher's First Subdivision of Alton Beach, according to the Plat thereof, as
recorded in Plat Book 2, Page77 of the Public Records of Dade County, Florida, together with all of 16th Street
(Avenue "C"), less and except the following described parcel:
BEGINNING at the Southwest corner of Block 54 of said Fisher's First Subdivision of Alton Beach Plat; thence
North 88" 0' 53" East along the South line of said Block 54, a distance of 443.08 feet, to the Southeast corner of
said Block 54; thence South 07' 35' 04" West, a distance of 96.26 feet, to a point of cusp with a tangent curve
concave to the Southwest; thence along the arc of said curve to the left, having a radius of 25.00 feet and a
central angel of 90' 00' 00", an arc distance of 39.27 feet, to a point of tangency; thence North 82' 24' 52" West, a
distance of 24.75 feet; thence South 88" 00' 53" West along a line 8.00 feet North of and parallel with, as
measured at right angles to the North line of Block 57 of said plat, a distance of 382.18 feet to a point on the
Easterly Right-of-Way line of Washington Avenue; thence North 01'59'11" West along said Easterly
Right-of-Way line, a distance of 62.00 feet to the Southwest corner of said Block 54 and the Point of beginning.
Said lands lying and being in the City of Miami Beach and containing 65,910 square feet (1.5131 Acres) more or
less.
Exhibit A Artconneclion Lese Agreement @inal ) 8-25-20 1 5. docx
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EXHIBIT "B"
Site Plan of Retail Space and Location of Premises
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EXHIBIT "C"
RULES AND REGULATIONS
1. Securitv. Landlord may from time to time adopt appropriate systems and procedures for the
security or safety of the Retail Space, any persons occupying, using, or entering the same, or any equipment,
furnishings, or contents thereof, and Tenant shall comply with Landlord's reasonable requirements relative
thereto.
2. Return of Kevs. At the end of the Term, Tenant shall promptly return to Landlord all keys for the
Retail Space and Premises which are in the possession of Tenant. ln the event any Tenant fails to return keys,
Landlord may retain $100.00 of Tenant's security deposit for locksmith work and administration.
3. Repair. Maintenance. Alterations. and lmprovements. Tenant shall carry out Tenant's repair,
maintenance, alterations, and improvements in the Premises only during times agreed to in advance by Landlord
and in a manner which will not interfere with the rights of other Tenant's in the Retail Space.
4. Water Fixtures. Tenant shall not use water fixtures for any purpose for which they are not
intended, nor shall water be wasted by tampering with such fixtures. Any cost or damage resulting from such
misuse by Tenant shall be paid for by Tenant.
5. Personal Use of Premises. The Premises shall not be
residential, lodging, or sleeping purposes or for the storage of personal
business purposes.
used or permitted to be used for
effects or property not required for
6. Heavv Articles. Tenant shall not place in or move about the Premises without Landlord's prior
written consent any safe or other heavy article which in Landlord's reasonable opinion may damage the Premises,
and Landlord may designate the location of any such heavy articles in the Premises.
7. Bicvcles. Animals. Tenant shall not bring any animals or birds into the Retail Space, and shall not
permit bicycles or other vehicles inside or on the sidewalks outside the Retail Space except in areas designated
from time to time by Landlord for such purposes.
8. Deliveries. Tenant shall ensure that deliveries of supplies, fixtures, equipment, furnishings, wares,
and merchandise to the Premises are made through such entrances, elevators, and corridors and at such times
as may from time to time be designated by Landlord, and shall promptly pay or cause to be paid to Landlord the
cost of repairing any damage in the Retail Space caused by any person making improper deliveries.
9. Solicitations. Landlord reserves the right to restrict or prohibit canvassing, soliciting, or peddling in
the RetailSpace.
10. Food and Beveraqes. Only persons approved from time to time by Landlord may prepare, solicit
orders for, sell, serve, or distribute foods or beverages in the Retail Space, or use the common areas for any such
purpose. Except with Landlord's prior written consent and in accordance with arrangements approved by
Landlord, Tenant shall not permit on the Premises the use of equipment for dispensing food or beverages or for
the preparation, solicitation of orders for, sale, serving, or distribution of food or beverages.
11. Refuse. Tenant shall place all refuse in proper receptacles provided byTenant at its expense in
the Premises or in receptacles (if any) provided by Landlord for the Retail Space, and shall keep sidewalks and
driveways outside the Retail Space, and lobbies, corridors, stairwells, ducts, and shafts of the Retail Space, free
of all refuse.
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12. Obstructions. Tenant shall not obstruct or place anything in or on the sidewalks or driveways
outside the Retail Space or in the lobbies, corridors, stairwells, or other common areas, or use such locations for
any purpose except access to and exit from the Premises without Landlord's prior written consent. Landlord may
remove at Tenant's expense any such obstruction or thing caused or placed by Tenant (and unauthorized by
Landlord) without notice or obligation to Tenant.
13. Proper Conduct. Tenant shall not conduct itself in any manner which is inconsistent with the
character of the Retail Space as a first quality retail center or which will impair the comfort and convenience of
other Tenant's in the Retail Space.
14. Emplovees. Aqents, and lnvitees. ln these Rules and Regulations, "Tenant" includes the
employees, agents, invitees, and licensees of Tenant and others permitted by Tenant to use or occupy the
Premises.
15. Pest Control. ln order to maintain satisfactory and uniform pest control throughout the Retail
Space, Tenant shall engage for its own Premises and at its sole cost, a qualified pest extermination contractor
either designated or approved by Landlord, who shall perform pest control and extermination services in the
Premises at such intervals as reasonably required or as may be directed by Landlord.
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EXHIBIT ''D"
Prohibited Uses
1) ln no event may the primary business at the Premises engage in the sale of food, alcoholic and non-
alcoholic beverage items.
2) ln no event may the primary business at the Premises be the sale of clothing for men, women and juniors,
resort wear, souvenirs, and designer shoes.
3) ln no event may the primary business at the Premises engage in the sale of swimwear, beach attire or
related beach apparel accessories.
4) ln no event may the primary business at the Premises be used to display and sell athletic footwear,
apparel, and athletic apparel accessories.
aSe Dfaft - 201 5f,fnOeruDA\2015\Septembe^TcED\Unit 6 Artconnection Lease RoA\Exhibit A Artconn*tion Lease Agreement (Final ) 8-25-2015.docx
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