HomeMy WebLinkAboutResolution 2026-34129RESOLUTION NO. 2026-34129
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE FOLLOWING REVISIONS TO THE
PROPOSED LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH,
FLORIDA (LANDLORD) AND SOBE TOSCANA, LLC (TENANT), WHICH WAS
APPROVED THROUGH RESOLUTION NO. 2025-33790 ON JUNE 25, 2025 FOR
USE OF THE OUTDOOR CAFE AREA AT 22 WASHINGTON AVENUE: (1)
MODIFYING SECTION 2.3 TO CLARIFY TENANT'S TERMINATION RIGHT IF
THE 816 COMMERCE STREET RESTAURANT LEASE OR THE EASEMENT
AGREEMENT TERMINATES; (11) MODIFYING SECTION 8.1 TO ALLOW
MODIFICATION OF HOURS OF OPERATION CONSISTENT WITH LAW AND
ADMINISTRATIVE APPROVALS; AND (III) MODIFYING SECTION 8.4 TO
GRANT TENANT A REVOCABLE LICENSE TO PLAY PRE-RECORDED
BACKGROUND MUSIC AT AMBIENT LEVELS SUBJECT TO ALL APPLICABLE
LAWS AND CITY REGULATIONS; AND FURTHER, AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE THE LEASE AGREEMENT.
WHEREAS, on August 9, 2017, the City of Miami Beach (the "City") and Sobe Toscana, LLC
("Tenant") entered into an original lease for approximately 2,216 square feet of outdoor caf6 space
at 22 Washington Avenue, ancillary to the Tenant's adjoining restaurant at 816 Commerce Street
("816 Commerce Street Restaurant"); and
WHEREAS, on December 8, 2021, the Mayor and City Commission adopted Resolution No.
2021-31926, approving a non-exclusive subterranean Easement Agreement, authorizing a 500-
gallon grease trap beneath a portion of the outdoor cafe area to support the restaurant's kitchen
infrastructure; and
WHEREAS, on December 17, 2021, the parties executed an amendment exercising the
renewal option through May 31, 2027; and
WHEREAS, on June 25, 2025, after a duly advertised public hearing, the Mayor and City
Commission adopted Resolution No. 2025-33790, waiving the formal competitive bidding
requirements in with Section 82-39(a) of the City Code, having found such waiver to be in the best
interest of the City and approving, in substantial form, a new lease for the same outdoor cafe space
for a term of nine (9) years and three hundred sixty-four (364) days beginning June 1, 2027, with
three percent (3%) annual rent escalation and continued compliance with the Easement Agreement;
and
WHEREAS, after adoption of Resolution No. 2025-33790, and in preparing for the new term,
the City identified certain essential operational items that warrant clarification to better support the
outdoor cafe's future operations; and
WHEREAS, revisions to the approved Lease Agreement is limited to four (4) targeted
updates that preserve the Lease's structure while providing operational clarity:
(i) modifying Section 2.3 to clarify Tenant's termination right if the 816 Commerce
Street Restaurant lease or the Easement Agreement terminates;
(ii) modifying Section 8.1 to allow modification of hours of operation consistent
with law and administrative approvals; and
(iii) modifying Section 8.4 to grant Tenant a revocable license to play pre-recorded
background music at ambient levels subject to all applicable laws and city
regulations; and
WHEREAS, the City Manager recommends that the Mayor and City Commission approve
the foregoing modifications to the essential terms of the Lease Agreement, which have been
incorporated in the final version of the Lease Agreement, a copy of which is attached to the City
Commission Memorandum accompanying this Resolution; and further, authorize the City Manager
and City Clerk to execute the Lease Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve
the following revisions to the proposed Lease Agreement between the City of Miami Beach, Florida
(Landlord) and Sobe Toscana, LLC (Tenant), which was approved through Resolution No. 2025-
33790 on June 25, 2025 for use of the outdoor cafe area at 22 Washington Avenue: (i) modifying
Section 2.3 to clarify tenant's termination right if the 816 Commerce Street Restaurant Lease or the
Easement Agreement terminates; (ii) modifying Section 8.1 to allow modification of hours of
operation consistent with law and administrative approvals; and (iii) modifying Section 8.4 to grant
Tenant a revocable license to play pre-recorded background music at ambient levels subject to all
applicable laws and City regulations; and further, authorize the City Manager and City Clerk to
execute the Lease Agreement.
PASSED and ADOPTED this .?S day of �Pdruur 2026.
ATTEST:
ill
MAR 0 3 2026
Rafael E. Granado, Secretary
f
i Meiner, Mayor
APPROVED AS TO
FORM & LANGUAGE
rl,I�OR EXECUTION
City Attorney Date
Resolutions - C7 G
MIAMI BEACH
COMMISSION MEMORANDUM
TO Honorable Mayor and Members of the City Commission
FROM: Eric Carpenter, City Manager
DATE February 25, 2026
TITLE A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE FOLLOWING REVISIONS TO THE
PROPOSED LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH.
FLORIDA (LANDLORD) AND SOBE TOSCANA, LLC (TENANT), WHICH WAS
APPROVED THROUGH RESOLUTION NO 2025-33790 ON JUNE 25, 2025 FOR
USE OF THE OUTDOOR CAFE AREA AT 22 WASHINGTON AVENUE: (1)
MODIFYING SECTION 2.3 TO CLARIFY TENANT'S TERMINATION RIGHT IF THE
816 COMMERCE STREET RESTAURANT LEASE OR THE EASEMENT
AGREEMENT TERMINATES, (II) MODIFYING SECTION 8.1 TO ALLOW
MODIFICATION OF HOURS OF OPERATION CONSISTENT WITH LAW AND
ADMINISTRATIVE APPROVALS; AND (III) MODIFYING SECTION 8.4 TO GRANT
TENANT A REVOCABLE LICENSE TO PLAY PRE-RECORDED BACKGROUND
MUSIC AT AMBIENT LEVELS SUBJECT TO ALL APPLICABLE LAWS AND CITY
REGULATIONS, AND FURTHER, AUTHORIZING THE CITY MANAGER AND CITY
CLERK TO EXECUTE THE LEASE AGREEMENT.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission adopt the Resolution
BACKGROUND/HISTORY
On August 9, 2017, the City of Miami Beach (the "City") and Sobe Toscana, LLC ("Tenant")
entered into an original lease for approximately 2,216 square feet of outdoor cafe space at 22
Washington Avenue, ancillary to the Tenant's adjoining restaurant at 816 Commerce Street. and
on December 17, 2021, the parties executed an amendment exercising the renewal option
through May 31, 2027, and the City later approved a non-exclusive subterranean Easement
Agreement authorizing a 500-gallon grease trap beneath a portion of the outdoor cafe area to
support the restaurant's kitchen infrastructure.
On June 25, 2025, after a duly advertised public hearing, the Mayor and City Commission adopted
Resolution No. 2025-33790, approving, in substantial form. a new lease for the same outdoor
cafe space for a term of nine years and 364 days beginning June 1, 2027, with 3% annual rent
escalation and continued compliance with the Easement Agreement. The resolution formalizes
the transition to the forthcoming long-term lease aligned with the Tenant's ongoing operations at
816 Commerce Street
ANALYSIS
After adoption of Resolution 2025-33790, and in preparing for the new term, the City and the
Tenant identified certain operational items that warrant clarification to better support the outdoor
caf&s future operations. Specifically: (i) modify Section 2.3 to clarify Tenant's termination right if
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the 816 Commerce Street Lease or the Easement Agreement terminates; (ii) modify Section 8.1
to allow modification of hours of operation consistent with law and administrative approvals: and
(iii) modify Section 8.4 to grant a revocable license to play pre-recorded background music at
ambient levels subject to all applicable laws and City regulations. These modifications have been
incorporated in the final version of the Lease Agreement, a copy of which is attached hereto
FISCAL IMPACT STATEMENT
NA
Does this Ordinance require a Business Impact Estimate?
(FOR ORDINANCES ONLY)
If applicable, the Business Impact Estimate (BIE) was published on:
See BIE at: https://www miamibeachfi.gov/city-hall/city-clerk/meeting-notices/
FINANCIAL INFORMATION
CONCLUSION
The Administration recommends that the Mayor and City Commission approve the Lease
Agreement revisions to (i) modify section 2.3 to clarify Tenant's termination right if the 816
commerce street Lease or the Easement Agreement terminates. (ii) modify section 8.1 to allow
modification of hours of operation consistent with law and administrative approvals, and (iii)
modify section 8.4 to grant Tenant a revocable license to play pre-recorded background music at
ambient levels subject to all applicable laws and city regulations: and authorize the City Manager
and City Clerk to execute the final Lease Agreement
Applicable Area
South Beach
Is this a "Residents Right to Know" item,
pursuant to City Code Section 2-17?
m
Is this item related to a G.O. Bond
Project?
No
Was this Agenda Item initially requested by a lobbyist which as defined in Code Sec. 2-481,
includes a principal engaged in lobbying? No
If so, specify the name of lobbyist(s) and principal(s):
Department
Parks, Facilities, Fleet & Beaches
Sponsor(s)
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Co-sponsor(s)
Condensed Title
Approve Revisions to Lease Agreement w/ Sobe Toscana, LLC. PFFB
Previous Action (For City Clerk Use Only)
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LANDLORD:
TENANT:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Sobe Toscana, LLC
816 Commerce Street
Miami Beach, Florida 33139
SOBE TOSCANA, LLC LEASE AGREEMENT
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made this day of , 2026, by and between
the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation organized and existing under the
laws of the State of Florida (hereinafter referred to as "City"), and SOBE TOSCANA LLC, a Florida
limited liability company (hereinafter referred to as "Tenant").
1. Demised Premises.
The City, in consideration of the rentals hereinafter reserved to be paid and of the
covenants, conditions and agreements to be kept and performed by the Tenant, hereby
leases, lets and demises to the Tenant, and Tenant hereby leases and hires from the City,
those certain premises hereinafter referred to as the Demised Premises", located at 22
Washington Avenue, Miami Beach, Florida 33139, and more fully described as follows:
Approximately two thousand two hundred sixteen (2,216) square feet of land with any
existing improvements. Such Demised Premises are specified in Exhibit A, which is
hereby made a part of this Lease.
Tenant is currently leasing the Demised Premises from the City pursuant to that certain
Lease Agreement dated August 9, 2017, as amended by that certain Amendment No. 1 to
Lease Agreement dated December 17, 2021 (collectively, the "Existing City Lease").
Tenant is also currently leasing from Miami Beach, LLC, a Florida limited liability company
("816 Commerce Street Owner"), and shall, during the Term of this Lease, continue to
lease the restaurant space adjacent to the Demised Premises having a physical address
of 816 Commerce Street, Miami Beach, Florida 33139 ("Restaurant at 816 Commerce
Street") pursuant to that certain Lease dated May 2017 by and between Tenant, as tenant,
and 816 Commerce Street Owner, as landlord (the "816 Commerce Street Lease").
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises for a term of nine (9)
years and three hundred sixty-four (364) days, commencing on June 1, 2027 (the
"Commencement Date"), and ending on May 30, 2037 (the "Term"). (The Commencement
Date is the day after the last day of the term of the Existing City Lease.") Notwithstanding
anything to the contrary herein, if the Existing City Lease has been terminated prior to the
Commencement Date, then this Lease shall be null and void and of no further force or
effect.
2.2 Termination for Convenience.
This Lease may be terminated, in whole or in part, by the City or Tenant, for convenience
and without cause, upon the furnishing of sixty (60) days prior written notice to the other
party; provided, however, that neither the City nor the Tenant shall exercise its right to
terminate under this provision at any time during the first three (3) years of the Lease Term.
In addition to the foregoing, the City shall not exercise this Termination for Convenience
without prior formal consent from the City Commission.
In the event of termination by either party pursuant to this subsection, both parties herein
acknowledge and agree that they shall not have any claim, demand, or cause of action of
whatsoever kind or nature, against the other party, its agents, servants and employees
(including, but not limited to, claims for any start-up costs, interference in business or
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damages for interruption of services, or interference in its concession
operations)(collectively, "Claims") other than any Claims related to any liabilities and
obligations which have accrued as of the effective date of the termination or obligations
which survive the expiration or termination of this Lease. In no event shall either parry be
liable to the other party for any indirect, incidental, special, lost profits or consequential
damages.
2.3 Termination of 816 Commerce Street Lease and/or Easement Agreement.
Notwithstanding anything contained herein to the contrary, in the event either the 816
Commerce Street Lease or the Easement Agreement (as further described in Section 8.9
hereof) is terminated or no longer in effect for any reason, Tenant shall have the right, in
its sole discretion, to terminate this Lease for convenience with not less than thirty (30)
days' written notice to City.
In the event that the 816 Commerce Street Lease expires, is terminated or is no longer in
effect for any reason, the City, at the sole discretion of the City Manager, shall have the
right to terminate this Lease for Convenience with no less than thirty (30) days' written
notice to Tenant.
3. Rent.
3.1 Base Rent.
Base Rent for the Demised Premises during the Term shall begin to accrue as of the
Commencement Date; based upon the total leasable space of 2,216 square feet as
follows:
The Base Rent for the Demised Premises during the Term shall be as follows:
Square Feet:
2,216
Base Rent:
$30.72 PSF
Annual Increase:
3%
Monthly
Annual
Year
Period
Base Rent
Base Rent
1
06/01/27 - 05/31/28
$
5.672.96
$
68.075.52
2
06/01/28 - 05/31/29
$
5.843.15
$
70.117.79
3
06/01/29 - 05/31/30
$
6,018.44
$
72.221.32
4
06/01/30 - 05/31/31
$
6.199.00
$
74.387.96
5
06/01/31 - 05/31/32
$
6.384.97
$
76,619.60
6
06/01/32 - 05/31/33
$
6.576.52
$
78,918.19
7
06/01/33 - 05/31/34
$
6,773.81
$
81,285.73
8
06/01/34 - 05/31/35
$
6.977.03
$
83,724.30
9
06/01/35 - 05/31/36
$
7,186.34
$
86.236.03
10
06/01/36 - 05/30/37
$
7.401.93
$
88.579.76
$
780,166.19
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TOTAL BASE RENT $780,166.19
3.1.1 Base Rent shall be due and payable on the first day of each month throughout the Term
of this Lease, along with applicable sales tax. The Rent shall escalate annually on June
1" of each year by three percent (3%).
3.2 Late Payment.
If any payment due from Tenant shall be overdue more than five (5) business days, a late
charge of five percent (5%) of the delinquent sum may be charged by City. If any payment
due from Tenant shall remain overdue for more than fifteen (15) calendar days, an
additional late charge in an amount equal to the lesser of the highest rate permitted by law
or one and one-half percent (1'/2%) per month (eighteen percent (18%) per annum) of the
delinquent amount may be charged by City, 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 percent (5%) late charge or any other remedy available to City.
3.3 Sales and Use Tax.
It is also understood that Tenant shall also include and forward to the City any and all
additional sums for all applicable sales and use tax, now or hereafter prescribed by State,
Federal or local law, and now described by Florida Statute 212.031. It is the City's intent
that it is to receive all payments due from Tenant as net of such Florida State Sales and
Use Tax.
3.4 Location for Payments.
All rents or other payments due hereunder shall be paid to the City of Miami Beach at the
following address:
City of Miami Beach
Finance Department
1700 Convention Center Drive
Miami Beach, Florida 33139
4. Maintenance and Examination of Records.
Tenant shall maintain current, accurate, and complete financial records on an accrual
basis of accounting related to its operations pursuant to this Lease, including such records
and accounting related to the Restaurant at 816 Commerce Street. Systems and
procedures used to maintain these records shall include a system of internal controls and
all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit by the City Manager or his
designee upon reasonable prior request and during normal business hours. Such records
and accounts shall include a breakdown of gross receipts, expenses, and profit and loss
statements, and such records shall be maintained as would be required by an independent
CPA in order to audit a statement of annual gross receipts and profit and loss statement
pursuant to generally accepted accounting principles.
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5. Inspection and Audit.
Tenant shall maintain its financial records pertaining to its operation pursuant to this Lease
and including the Restaurant at 816 Commerce Street for a period of three (3) years after
the conclusion of the Term and such records shall be open and available to the City
Manager or his designee, as deemed necessary by the City Manager or his designee.
Tenant shall maintain all such records at its principal office, currently located at 816
Commerce Street, Miami Beach, Florida, 33139 or, if moved to another location, all such
records shall be relocated, at Tenant's expense, to a location within the City of Miami
Beach, within ten (10) days' written notice from the City Manager or his designee that the
City desires to review said records.
6. Taxes, Assessments, and Utilities.
6.1 Tenant agrees to and shall pay before delinquency all taxes (including but not limited to
Resort Taxes) and assessments of any kind assessed or levied upon Tenant by reason of
this Lease or by reason of the business or other activities and operations of Tenant upon
or in connection with the Demised Premises and/or the adjoining Restaurant at 816
Commerce Street.
Tenant shall also pay for any fees imposed by law for licenses or permits for any business,
activities, or operations of Tenant upon the Demised Premises and/or the adjoining ground
level Restaurant at 816 Commerce Street and shall maintain same current and in good
standing throughout the Term of this Lease.
6.2 Utilities.
The City shall not be responsible for providing electrical or water service, or any and all
other utilities to and/or for, and/or in connection with, the Demised Premises.
Requests for installation of electrical, water and/or any and all other utilities shall be
submitted in writing to the City Manager or his designee. Installation and connection of
any and all utilities, as and if approved by the City, will be performed at Tenant's sole cost
and expense.
Tenant shall be responsible for payment of all utility bills for the Demised Premises.
6.3 Ad Valorem Taxes.
During the term of this Lease, Tenant shall be solely responsible for all taxes of whatever
nature lawfully levied upon or assessed against the Demised Premises and
improvements, sales, or operations thereon, including but not limited to, Ad Valorem taxes.
7. Security Deposit.
7.1 In connection with the Existing City Lease, Tenant paid to the City Twelve Thousand Four
Hundred Seventy and 55/100 Dollars ($12,470.55) as the original security deposit (the
"Original Deposit"). The City is still holding the Original Deposit, which shall be applied to
the Security Deposit required pursuant to this Lease, which is Twelve Thousand Four
Hundred Seventy and 55/100 Dollars ($12,470.55) (the "Security Deposit"). The City
acknowledges and agrees that no additional security deposit is required. Said Security
Deposit is to ensure the full and faithful performance by the Tenant of each and every
term, covenant and condition of this Lease. In the event that Tenant defaults with respect
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to any of the terms, provisions, covenants and conditions of this Lease, including but not
limited to, the payment of any rent, the City may use, apply or retain the whole or any part
of the Security Deposit for the payment of such rents in default or any other sum which
the City may expend or be required to expend by reason of the Tenant's default, including
any damages or deficiency in the re -letting of the Demised Premises, whether such
damages or deficiency may accrue or after summary proceedings or other re-entry by City.
If the Security Deposit is reduced by such use or application, Tenant shall deposit with the
City within ten (10) days after written notice, an amount sufficient to restore the full amount
of the Security Deposit. In addition, if the City receives any check from Tenant which is
returned by Tenant's bank for insufficient funds, uncollected funds, or otherwise, the City
may require that the Security Deposit be increased by an amount of up to two installments
of the then current Base Rent, in which event Tenant shall pay such amount to the City
within ten (10) days after written notice and such sum shall be part of the Security Deposit.
7.2 In the event that the Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the Security Deposit or any balance thereof shall
be returned to the Tenant, without interest, upon the expiration of the Lease and peaceful
surrender of the Demised Premises.
7.3 City shall not be required to keep the Security Deposit in a segregated account and the
Security Deposit may be commingled with other funds of City and in no event shall the
Tenant be entitled to any interest on the Security Deposit.
7.4 In the event of a bona fide sale of the Demised Premises, as delineated in this Lease, the
City shall have the right to transfer the Security Deposit to the purchaser for the benefit of
the Tenant and the City shall be considered by the Tenant free from all liability for the return
of such Security Deposit, and the Tenant agrees to look to the new owner/landlord solely
for the return of the Security Deposit, if such Security Deposit is actually transferred, and
it is agreed that this shall apply to every transfer or assignment made of the Security
Deposit to any new owner/landlord.
It is expressly understood that the issuance of a warrant and the lawful re-entry to the
Demised Premises by the City for any default on the part of the Tenant, prior to the
expiration of the term of this Lease, shall not be deemed such termination of this Lease
as to entitle the Tenant to recovery of the Security Deposit and the Security Deposit shall
be retained and remain the possession of the City.
7.5 Tenant shall provide a Limited Guaranty (the "Guaranty") by the principal of SOBE
TOSCANA LLC, Catherine Arrighi Guitera, for the entire Term of this Lease but liability
under the Guaranty shall be limited to the amount of Forty -Three Thousand One Hundred
Eighteen and 04/100 Dollars ($43,118.04). A copy of the Guaranty is attached as Exhibit
C hereto.
8. Use and Possession of Demised Premises.
8.1 The Demised Premises shall be used by the Tenant solely as an outdoor cafe to serve the
patrons and guests of Tenant's adjoining Restaurant at 816 Commerce Street. The
outdoor cafe shall have days and hours of operation from Sunday through Saturday,
commencing at 12:OOpm and ending no later than 12:OOam midnight. Notwithstanding the
preceding hours of operation, the outdoor cafe on the Demised Premises shall only be
open when the Restaurant at 816 Commerce Street is open for business (and, conversely,
it should be closed when the restaurant is closed). Hours of operation will at all times
comply with all applicable City regulations that may exist from time to time to the extent
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more restrictive than those set forth above and elsewhere in this Lease, including noise
ordinances.
8.2 Tenant and owner/tenant of the Restaurant at 816 Commerce Street shall at all times
throughout the Term of the Lease be one and the same and cannot exist independently of
each other. Tenant acknowledges and agrees that its use of the Demised Premises shall
be, and remain at all times throughout the Term, an ancillary use to Tenant's Restaurant
at 816 Commerce Street. Additionally, Tenant's operation will not interfere with pedestrian
traffic.
The number of seats on the Demised Premises shall not exceed 93 and shall be included
in the overall seating count of Tenant's Restaurant at 816 Commerce Street. There shall
be no bar counter of any kind as part of the Demised Premises and all food served shall
be prepared within the interior kitchen of the Tenant's restaurant, with the exception of
tableside preparation of certain dishes, and only when the interior kitchen is operational.
Any and all alcoholic beverages served at the outdoor cafe shall be serviced by Tenant's
restaurant. All tables and chairs will be locked each night at close of business. Any
exception to this requirement shall be at the sole and absolute discretion of the City
Manager or his designee. Tenant shall further maintain the Demised Premises and abide
by the conditions set forth in Exhibit B of the Lease.
The City Manager or his/her designee may cause the immediate removal, relocation
and/or storage of all or part of any furniture located on the Demised Premises in
emergency situations or for public safety considerations. Upon written and/or verbal
notification by the City Manager of a hurricane or other major weather event, or the
issuance of a hurricane warning by Miami -Dade County (or other government agency),
whichever occurs first, the Tenant shall, within not more than four (4) hours of same,
remove and place indoors all tables, chairs, umbrellas and any other outdoor furniture
located on the Demised Premises. The notification by the City Manager of a hurricane or
other major weather event, or the issuance of a hurricane warning, shall constitute a public
emergency situation as referenced in this division. The City Manager may remove,
relocate, and/or store any outdoor furniture found on the Demised Premises that has
otherwise not been removed by the Tenant pursuant to this subsection. Any and all costs
incurred by the City for removal, relocation and/or storage of Tenant's furniture shall be
the responsibility of the Tenant.
8.3 Tenant hereby warrants and represents that SOBE TOSCANA LLC is the owner of the
Restaurant at 816 Commerce Street and shall, throughout the Term of the Lease, remain
as the owner of said restaurant, unless any change in ownership is approved by the City
Manager, in writing, prior to such change taking place. Change of ownership for purposes
hereof shall include, without limitation, a sale, exchange, assignment, transfer or other
disposition by Tenant of all or a portion of Tenant's interest in the restaurant, whether by
operation of law or otherwise.
8.4 Tenant agrees not to place any televisions or other screens for the projection of images
on or around the Demised Premises. Tenant further agrees to not attach any televisions
or other screens to the exterior of the Restaurant building at 816 Commerce Street.
Furthermore, Tenant shall in no manner use the Demised Premises, or Tenant's
Restaurant at 816 Commerce Street, as an outdoor entertainment or open-air
entertainment establishment, and hereby acknowledges that such uses are prohibited
(whether as main or accessory uses). However, subject to the next sentence in this
Section 8.4, Landlord grants Tenant a revocable license to 1W__Le99rded, background
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music at ambient levels, subject to compliance with all applicable law and regulations,
including without limitation City noise ordinances. The City Manager may, in his or her
sole discretion, revoke the foregoing license to play recorded, background music at
ambient levels at any time by written notice to Tenant and if the City Manager revokes this
permission, then Tenant shall immediately discontinue playing any music at the Demised
Premises and remove any speakers or other device(s) used to amplify sound into the
Demised Premises, including any such equipment installed on the exterior of the
Restaurant building at 816 Commerce Street.
8.5 Tenant agrees that any valet parking operation and/or taxicab stand may be conducted
either from Washington Avenue or Commerce Street, subject to Tenant securing the
required approvals from the City's Parking Department. Any outdoor concession area, if
approved by the City in conjunction with the Tenant's operations at the Restaurant at 816
Commerce Street, shall not utilize Washington Avenue and will be limited to Commerce
Street. Furthermore, any and all deliveries to the restaurant shall be limited to the alley
located on the south side of 816 Commerce Street.
8.6 Tenant shall follow City procedure and policy in applying for any special event permits,
provided, Tenant acknowledges and agrees that the City shall have no obligation to
approve any special event permit for the Demised Premises.
8.7 It is understood and agreed that the Demised Premises shall be used by the Tenant during
the Term of this Lease only for the uses contemplated herein, and for no other purpose or
use whatsoever. Tenant will not make or permit any use of the Demised Premises that,
directly or indirectly, is forbidden by public law, ordinance or government regulation, or that
may be dangerous to life, limb or property. Tenant may not commit waste on the Demised
Premises, use the Demised Premises for any illegal purpose, or commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised Premises for any
purpose not expressly permitted herein, then the City may declare this Lease in default
pursuant to Section 18, or without notice to Tenant, restrain such improper use by
injunction or other legal action.
8.8 Notwithstanding anything to the contrary contained herein, in the event of a breach by
Tenant of any conditions in this Section 8.7, the City Manager, in his sole determination
and judgment, shall have the right to automatically terminate this Lease, without any
liability to the City; said termination effective upon three (3) days written notice to Tenant.
By executing the Lease, Tenant hereby agrees to this condition, and further voluntarily and
knowingly waives and releases any and all rights now or hereinafter conferred upon
Tenant pursuant to Florida Statutes including, without limitation, the procedures set forth
in Chapter 83, Florida Statutes' for removal in nonresidential tenancies; the Miami -Dade;
and the Miami Beach Code (respectively); to the extent this and applicable law(s) would
have the effect of limiting or modifying the City's rights to terminate this Lease pursuant to
this Subsection.
8.9 Subterranean Grease Trap Easement Use.
Tenant acknowledges that a subterranean grease trap system (the "Facilities") has been
installed beneath a portion of the Demised Premises (the "Easement Area"), measuring
approximately 204 square feet, pursuant to an Easement Agreement executed between
the City, the Tenant, and the Restaurant Owner, incorporated herein by reference and
attached hereto as Exhibit F. The Easement Agreement grants a non-exclusive,
subterranean easement for the operation and maintenance of a 500-gallon grease trap to
support Tenant's Restaurant at 816 Commerce Street. Tenant agrees to comply with the
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terms and conditions of said Easement Agreement and specifically all obligations of the
"Tenant" and "Grantee" under said Easement Agreement including, without limitation, the
obligation to pay the annual use fee, as described in Section 6 of the Easement
Agreement.
9. Improvements.
9.1 Any improvements on the Demised Premises shall be subject to the prior written approval
of the City Manager, which approval, if given at all, shall be at their sole discretion. As part
of such approval, the City Manager may require a Performance Bond for any proposed
Improvements. All permanent (fixed) improvements to the Demised Premises shall
become the property of the City upon termination of the Lease. Notwithstanding the
preceding sentence, the City, at the C#y Mgnaaer's sole discretion, may require that
Tenant, upon termination of the Lease, remove all permanent (fixed) improvements to the
Demised Premises, without damage to the Demised Premises or cost to the City.
Furthermore, upon the lawful termination of this Lease, all personal property and trade
fixtures may be removed by the Tenant from the Demised Premises without damage to
the Demised Premises. Tenant will permit no liens to attach to the Demised Premises
arising from, connected with or related to the construction of any improvements. Moreover,
such construction shall be properly permitted and done in compliance with all applicable
Municipal, County, State and Federal regulatory requirements, and shall be accomplished
through the use of licensed, reputable contractors who are acceptable to the City. Any and
all costs, permits and or licenses required for the installation and maintenance of
improvements shall be the sole responsibility of Tenant.
9.2 Performance Bond. (INTENTIONALLY OMITTED)
9.3 City's Right of Entry.
The City, or its authorized agent or agents, shall have the right to enter upon the Demised
Premises at all reasonable times for the purpose of inspecting same, preventing waste,
making such repairs as the City may consider necessary and for the purpose of preventing
fire, theft or vandalism. However, the City agrees that whenever possible, the City shall
provide reasonable notice, in writing, to Tenant, unless the need to enter the Demised
Premises is an emergency, as deemed by the City at its sole discretion, which if not
immediately addressed could cause property damage, loss of life or limb, or other injury
to persons. Nothing herein shall imply any duty on the part of the City to do any work that
under any provisions of this Lease the Tenant may be required to perform, and the
performance thereof by the City shall not constitute a waiver of the Tenant's default.
9.4 If the Tenant shall not be personally present to permit entry onto the Demised Premises
at any time, for any reason, and any entry thereon shall be necessary or permissible, the
City, or its agents, may enter the Demised Premises, including, without limitation, forcibly
entering the Demised Premises, without rendering the City or such agents liable therefore.
10. Tenant's Insurance Requirements.
10.1 The Tenant shall procure prior to the Commencement Date and maintain throughout the
Term, the below required insurance. The maintenance of proper insurance coverage is a
material element of the Lease and failure to maintain or renew coverage may be treated
as a material breach of the Lease, which could result in withholding of payments or
termination of the Lease.
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(A) Worker's Compensation Insurance for all employees of the vendor as required by
Florida Statute 440, and Employer Liability Insurance for bodily injury or disease.
Should the Tenant be exempt from this Statute, the Tenant and each employee
shall hold the City harmless from any injury incurred during performance of the
Lease. The exempt Tenant shall also submit (1) a written statement detailing the
number of employees and that they are not required to carry Workers'
Compensation insurance and do not anticipate hiring any additional employees
during the Term of this Lease or (ii) a copy of a Certificate of Exemption.
(B) Commercial General Liability Insurance on an occurrence basis, to include:
Premises Operations; Independent Contractors; Contractual Liability; Personal &
Advertising Injury; Products -Completed Operations; Broad Form Property Damage
including Completed Operations; and Underground, Explosion and Collapse
Property Damage, with limits no less than $1,000,000 per occurrence and
$2,000,000 aggregate, for bodily injury and property damage. City of Miami Beach
must be included as an additional insured by endorsement with respect to this
coverage.
(C) All -Risk property and casualty insurance, written at a minimum of eighty (80%)
percent of replacement cost value and with replacement cost endorsement,
covering all leasehold improvements installed in the Demised Premises by or on
behalf of Tenant and including without limitation all of Tenant's personal property
in the Demised Premises (including, without limitation, inventory, trade fixtures,
floor coverings, furniture, and other property removable by Tenant under the
provisions of this Lease).
(D) Liquor Liability Insurance on an occurrence basis, including property damage,
bodily injury and personal & advertising injury with limits no less than $1,000,000
per occurrence.
(E) Business interruption insurance, sufficient to insure Tenant for no less than one (1)
full year of loss of business, with the City named thereon as loss payee to the
extent permitted by applicable law.
10.2 Additional Insured. The City of Miami Beach must be included by endorsement as an
additional insured with respect to all liability policies (except Professional Liability and
Workers' Compensation) arising out of work or operations performed on behalf of the
contractor including materials, parts, or equipment furnished in connection with such work
or operations and automobiles owned, leased. hired or borrowed in the form of an
endorsement to the contractor's insurance
10.3 Notice of Cancellation. Each insurance policy required above shall provide that coverage
shall not be cancelled, except with notice to the City of Miami Beach C/O EXIGIS
insurance Compliance Services.
10.4 Waiver of Subrogation. Vendor agrees to obtain any endorsement that may be necessary
to affect the waiver of subrogation on the coverages required. However, this provision
applies regardless of whether the City has received a waiver of subrogation endorsement
from the insurer.
10.5 Acceptability of Insurers. Insurance must be placed with insurers with a current AM. Best
rating of A: VI I or higher. If not rated, exceptions may be made for members of the Florida
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Insurance Funds (i.e. FWCIGA. FAJUA). Carriers may also be considered if they are
licensed and authorized to do insurance business in the State of Florida.
10.6 Verification of Coverage. Tenant shall furnish the City with original certificates and
amendatory endorsements, or copies of the applicable insurance language, effecting
coverage required by this contract. All certificates and endorsements are to be received
and approved by the City before work commences. However, failure to obtain the required
documents prior to the work beginning shall not waive the Contractor's obligation to
provide them. The City reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, required by these specifications, at
any time.
CERTIFICATE HOLDER MUST READ:
MIAMI BEACH REDEVELOPMENT AGENCY and
CITY OF MIAMI BEACH
c/o EXIGIS Insurance Compliance Services
P.O. Box 4668- ECM #35050
New York, NY 10163-4668
Kindly submit all certificates of insurance, endorsements, exemption letters to our
seining agent, EXIGIS, at: Certificate-miamibeach@riskworks.com
10.7 Special Risks or Circumstances. The City of Miami Beach reserves the right to modify
these requirements, including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances.
10.8 Compliance with the foregoing requirements shall not relieve the Tenant of his liability and
obligation under this section or under any other section of this Lease.
11. Assignment and Subletting.
11.1 Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in
part, without the prior written consent of City which shall not be unreasonably withheld.
Such written consent is not a matter of right and City is not obligated to give such consent.
If granted as provided herein, the making of any assignment or sublease will not release
Tenant from any of its obligations under this Lease. A sale or transfer of a majority interest
of the stock of Tenant's corporate entity shall be deemed an assignment, and for purposes
of this Lease, the City shall have the right to approve the new majority owner. Said
approval shall be provided in writing. Tenant is prohibited from assigning or subletting this
Lease to any person or entity which is not of the same or higher financial responsibility as
Tenant, as shall be determined by City, in its sole judgment and discretion. Further, Tenant
shall be prohibited from any changes in ownership, whether in the Demised Premises or
the Restaurant located at 816 Commerce Street, as set forth in Subsections 8.2 and 8.3.
11.2 Any consent by the City to any act of assignment shall apply only to the specific transaction
thereby authorized. Such consent shall not be construed as a waiver of the duty of the
Tenant or the legal representatives or assigns of the Tenant, to obtain from the City
consent to any other or subsequent assignment, or as modifying or limiting the rights of
the City under the foregoing covenants of the Tenant not to assign without such consent.
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11.3 Any violation of the provisions of this Lease, whether by act or omissions, by assignee,
sub -tenant, or under -tenant or occupant, shall be deemed a violation of such provision by
the Tenant, it being the intention and meaning of the parties hereto, that the Tenant shall
assume and be liable to the City for any and all acts and omissions of any and all
assignees, sub -tenants, or under -tenants or occupants. If the Lease be assigned, the City
may and is hereby empowered to collect rent from the assignee; if the Demised Premises
or any part thereof be underlet or occupied by any person, other that the Tenant, the City,
in the event of the Tenant's default, may, and is hereby empowered to, collect rent from
the under -tenant or occupants; in either of such events, the City may apply the net amount
received by it for rent herein reserved, and no such collection shall be deemed a waiver
of the covenant herein against assignment or the acceptance of the assignee, under -
tenant or occupant as tenant, or a release of the Tenant from the further performance of
the covenants herein contained on the part of the Tenant.
11.4 In case the City or any successor owner of the Demised Premises shall convey or
otherwise dispose of any portion thereof to another parry (and nothing herein shall be
construed to restrict or prevent such conveyance or disposition), such other party shall
thereupon be and become landlord hereunder and shall be deemed to have fully assumed
and be liable for all obligations of this Lease to be performed by the City, including the
return of any Security Deposit. Tenant shall attorn to such other party, and the City or such
successor owner shall, from and after the date of conveyance, be free of all liabilities and
obligations hereunder. The City shall use commercially reasonable efforts to cause any
transferee of the property to execute an assumption agreement in customary form.
12. Maintenance and Repair.
12.1 Tenant shall maintain the Demised Premises and any fixtures and appurtenances thereon,
and, at its sole cost and expense, shall make all repairs thereto as and when needed to
preserve them in good working order and condition. This shall include, but not be limited
to, Tenant being responsible for maintenance and repair of any and all improvements,
such as fences, walkways, pavers, ground -coverings, landscaping, and gates. For the
sake of clarity, Tenant shall have no obligation to maintain, repair or replace any
underground improvements belonging to the City or any utility or anything below ground
(hereinafter referred to as "Underground Infrastructure") other than the Facilities (as
defined in Section 8.9) and any other equipment installed by or at Tenant's direction or
request.
12.2 All damage or injury of any kind to the Demised Premises shall be the obligation of Tenant,
and shall be repaired, restored or replaced promptly by Tenant at its sole cost and expense
to the satisfaction of the City, but shall not include any damage or injury of any kind arising
from the Underground Infrastructure other than the Facilities and any other equipment
installed by or at Tenant's direction or request.
12.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class
equal to the original work or installations and shall be done in good and workmanlike
manner.
12.4 If Tenant fails to make such repairs or restorations or replacements, the same may be
made by the City, at the expense of the Tenant, and all sums spent and expenses incurred
by the City shall be collectable and shall be paid by the Tenant within ten (10) days after
rendition of a bill or statement thereof.
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12.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or improvements
made by Tenant to the Demised Premises comply with all applicable building codes and
life safety codes of governmental authorities having jurisdiction.
12.6 THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION. Tenant may construct or cause to be constructed, such exterior
improvements to the Demised Premises, as reasonably necessary for it to carry on its
permitted use(s); provided, however, that any plans for such improvements shall be first
submitted to the City Manager for his prior received written approval, which approval, if
granted at all, shall be at the City Manager's sole and absolute discretion. Additionally, any
and all approved improvements shall be made at Tenant's sole cost and expense. All
permanent (fixed) improvements to the Demised Premises shall remain the property of
the City upon termination and/or expiration of this Lease. Upon termination and/or
expiration of this Lease, all personal property and non -permanent trade fixtures may be
removed by the Tenant from the Demised Premises, provided that they can be (and are)
removed without damage to the Demised Premises. Tenant will permit no liens to attach
to the Demised Premises arising from, connected with, or related to the design and
construction of any improvements. Moreover, such construction shall be accomplished
through the use of licensed, reputable contractors who are acceptable to the City Manager.
Any and all permits and or licenses required for the construction and/or installation of
improvements shall be the sole cost and responsibility of Tenant.
13. Governmental Regulations.
The Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules,
orders, regulations, and requirements of any and all governmental bodies, including but
not limited to Federal, State, Miami -Dade County, and City governments, and any and all
of their departments and bureaus applicable to the Demised Premises and shall also
comply with and fulfill all rules, orders, and regulations for the prevention of fire, all at
Tenant's own cost and expense. Tenant shall pay all costs, expenses, claims, fines,
penalties, and damages that may be imposed because of Tenant's failure to comply with
this Section, and shall indemnify and hold harmless the City from all liability arising from
each non-compliance.
14. Intentionally Omitted.
15. Condemnation.
15.1 If at any time during the term of this Lease all or any part or portion of the Demised
Premises are taken, appropriated, or condemned by reason of Eminent Domain
proceedings (except if the Eminent Domain proceedings are initiated by the City of Miami
Beach), then this Lease shall be terminated as of the date of such taking, and shall
thereafter be completely null and void, and neither of the parties hereto shall thereafter
have any rights against the other by reason of this Lease or anything contained therein,
except that any rent prepaid beyond the date of such taking shall be prorated to such date,
and the Tenant shall pay any and all rents, additional rents, utility charges, or other costs
including excess taxes for which it is liable under the terms of this Lease, up to the date
of such taking.
15.2 Except as hereunder provided, Tenant shall not be entitled to participate in the proceeds
of any award made to the City in any such Eminent Domain proceeding, excepting,
however, the Tenant shall have the right to claim and recover from the condemning
authority, but not from the City, such compensation as may be separately awarded or
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recoverable by Tenant in Tenant's own right on account of any and all damage to Tenant's
business by reasons of the condemnation and for or on account of any cost or loss which
Tenant might incur in removing Tenant's furniture and fixtures.
16. Default.
16.1 Default by Tenant.
At the City's option, any of the following shall constitute an Event of Default under this
Lease:
16.1.1 Rent, or any installment thereof is not paid promptly when and where due within
fifteen (15) days of due date and if Tenant shall not cure such failure within five (5)
days after receipt of written notice from the City specifying such default;
16.1.2 Any other payment provided for under this Lease is not paid promptly when and
where due within fifteen (15) days of due date and if Tenant shall not cure such
failure within five (5) days after receipt of written notice from the City specifying
such default;
16.1.3 Demised Premises shall be deserted, abandoned for a period of thirty (30) days or
more, or vacated;
16.1.4 Tenant shall fail to comply with any term, provision, condition or covenant
contained herein other than the payment of rent and shall not cure such failure
within thirty (30) days after the receipt of written notice from City specifying any
such default; unless such default is one which cannot be cured within thirty (30)
days because of circumstances beyond the Tenant's control, and the Tenant within
such thirty (30) day period shall have commenced and thereafter shall continue
diligently to prosecute all actions necessary to cure such default and Tenant cures
such default within sixty (60) days from the date of receipt of the City's default
notice. However, in the event the Tenant fails to cure such default within the
foregoing cure period, Tenant shall be in default.
16.1.5 Receipt of notice of violation from any governmental authority having jurisdiction
dealing with a code, regulation, ordinance or the like, which remains uncured
within the time specified in such notice of violation (subject to appeal periods
exercised by Tenant)or such period of time acceptable to the City Manager, at his
sole discretion;
16.1.6 Any petition is filed by or against Ten, ant under a section or chapter of the
Bankruptcy Act, as amended, which remains pending for more than sixty (60) days,
or any other proceedings now or hereafter authorized by the laws of the United
States or of any state for the purpose of discharging or extending the time for
payment of debts;
16.1.7 Tenant shall become insolvent;
16.1.8 Tenant shall make an assignment for benefit of creditors;
16.1.9 A receiver is appointed for Tenant by any court and shall not be dissolved within
thirty (30) days thereafter; or
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16.1.10The leasehold interest is levied on under execution.
16.1.11Tenant's violation of the provision of Subsection 8.8 herein, which shall result in an
automatic termination of the Lease, as further provided in said subsection.
17. Rights on Default.
17.1 Rights on Default.
17.1.1 In the event of any default by Tenant as provided herein, the City, after expiration
of all applicable notice and cure periods, shall have the option to do any of the
following in addition to and not in limitation of any other remedy permitted by law,
in equity or by this Lease;
17.1.2 Terminate this Lease, in which event Tenant shall immediately surrender the
Demised Premises to the City, but if Tenant shall fail to do so the City may, without
further notice, and without prejudice to any other remedy the City may have for
possession or arrearages in rent or damages for breach of contract, enter upon
Demised Premises and expel or remove Tenant and his effects in accordance with
law, without being liable for prosecution or any claim for damages therefore, and
Tenant agrees to indemnify and hold harmless the City for all loss and damage
which the City may suffer by reasons of such termination, whether through inability
to re -let the Demised Premises, or through decrease in rent, or otherwise.
17.1.3 Declare the entire amount of the rent which would become due and payable during
the remainder of the Term of this Lease to be due and payable immediately, in
which event Tenant agrees to pay the same at once, together with all rents
therefore due, at the address of the City, as provided in the Notices section of this
Lease; provided, however, that such payment shall not constitute a penalty,
forfeiture, or liquidated damage, but shall merely constitute payment in advance of
the rents for the remainder of said Term and such payment shall be considered,
construed and taken to be a debt provable in bankruptcy or receivership.
17.1.4 Enter the Demised Premises as the agent of Tenant, by force if necessary, without
being liable to prosecution or any claim for damages therefore, remove Tenant's
property there from, and re -let the Demised Premises, or portions thereof, for such
terms and upon such conditions which the City deems, in its sole discretion,
desirable, and to receive the rents therefore, and Tenant shall pay the City any
deficiency that may arise by reason of such re -letting, on demand at any time and
from time to time at the office of the City; and for the purpose of re -letting, City may
(i) make any repairs, changes, alterations or additions in or to said Demised
Premises that may be necessary or convenient; (ii) pay all costs and expenses
therefore from rents resulting from re -letting; and (iii) Tenant shall pay the City any
deficiency as aforesaid.
17.1.5 Take possession of any personal property owned by Tenant on said Demised
Premises and sell the same at public or private sale, and apply same to the
payment of rent due, holding the Tenant liable for the deficiency, if any.
17.1.6 It is expressly agreed and understood by and between the parties hereto that any
installments of rent or any other amounts accruing under the provisions of this
Lease which shall not be paid when due shall bear interest at the rate of eighteen
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percent (18%) per annum, not to exceed the maximum legal rate of interest per
annum then prevailing in Florida, from the date when the same was payable by the
terms hereof, until the same shall be paid by Tenant. Any failure on the City's behalf
to enforce this Section shall not constitute a waiver of this provision with respect
to future accruals of past due rent or other amounts due under this Lease. No
interest will be charged for payments made within the grace period, such grace
period to be defined as within five (5) days of the due date. In addition, there will
be a late charge of five percent (5%) for any payments submitted after the grace
period.
17.1.7 If Tenant shall default in making any payment of monies to any person or for any
purpose as may be required hereunder, the City may pay such expense but the
City shah not be obligated to do so. Tenant, upon the City's paying such expense,
shall be obligated to forthwith reimburse the City for the amount thereof. All sums
of money payable by Tenant to the City hereunder shall be deemed as rent for use
of the Demised Premises and collectable by the City from Tenant as rent, and shall
be due from Tenant to City on the first day of the month following the payment of
the expense by the City.
17.1.8 The rights of the City under this Lease in the event of a default by Tenant shall be
distinct, separate and cumulative with and in addition to those given by law. The
failure on the part of the City to exercise promptly any rights given hereunder shall
not operate to waive or to forfeit any of the said rights.
17.1.9 Notwithstanding anything in this Section 17 or this Lease, in the event of a default
by the Tenant, the City hereby agrees and acknowledge that in no event shall the
Tenjanl g liable for any incidental, indirect, special or consequential damages,
including without limitation loss of revenue and lost profits, of City which may be
alleged as a result of the Tenant's default.
17.2 Default by City.
Failure of the City to perform any of the covenants, conditions and agreements of the
Lease which are to be performed by the City and the continuance of such failure for a
period of thirty (30) days after notice thereof in writing from Tenant to the City (which notice
shall specify the respects in which Tenant contends that the City failed to perform any such
covenant, conditions and agreements) shall constitute a default by the City, unless such
default is one which cannot be cured within thirty (30) days because of circumstances
beyond the City's control, and the City within such thirty (30) day period shall have
commenced and thereafter shall continue diligently to prosecute all actions necessary to
cure such defaults and cured such default within sixty (60) days from the date the City
receives notice of the default f[m Tenant —However, in the event the City fails to cure
such default during the foregoing cure period, the City shall be in default.
Subject in all cases to the limitation of liability set forth in Section 30, the rights of the
Tenant under this Lease in the event of a default by the City shall be distinct, separate and
cumulative with and in addition to those given by law. The failure on the part of the Tenant
to exercise promptly any rights given hereunder shall not operate to waive or to forfeit any
of the said rights.
17.3 Tenant's Rights on Default:
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If an event of the City's default shall occur, Tenant, to the fullest extent permitted by law,
shall have the right and option to terminate this Lease and all of its obligations hereunder
by giving written notice of such election to the City, and shall further have the right to
pursue any actions at law to obtain damages resulting from the City's default subject to
the limitation upon the City's liability, as set forth in Section 30. Notwithstanding anything
in this Section 17.3 or the Lease, in the event of a default by the City, Tenant hereby agrees
and acknowledges that in no event shall the City be liable for any incidental, indirect,
special or consequential damages, including without limitation loss of revenue and lost
profits, of Tenant which may be alleged as a result of the City's default.
18. Indemnity Against Costs and Charges.
18.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable attorney's
fees, and damages which may be incurred or sustained by the City, by reason of the
Tenant's breach of any of the provisions of this Lease. Any sums due the City under the
provisions of this item shall constitute a lien against the interest of the Tenant in the
Demised Premises and all of Tenant's trade fixtures and personal property situated
thereon to the same extent and on the same conditions as delinquent rent would constitute
a lien on Tenant's property.
18.2 If either party shall at any time be in default hereunder, and if the other party shall deem it
necessary to engage an attorney to file suit to enforce such party's rights and the other
party's obligations hereunder, the prevailing party will be entitled to be reimbursed for its
reasonable expenses incurred thereby, including, but not limited to, court costs and
reasonable attorney's fees, at both the trial and appellate levels.
19. Indemnification Against Claims.
19.1 Tenant shall indemnify and save the City harmless from and against any and all claims or
causes of action (whether groundless or otherwise) by or on behalf of any person, firm, or
corporation, for personal injury or property damage occurring upon the Demised Premises
or upon any sidewalk, parking lot or other facility or appurtenance used in connection with
the Demised Premises, occasioned in whole or in part by any of the following:
19.1.1 An act or omission on the part of the Tenant, or any employee, agent, contractor,
invitee, or guest, assignee or sub -tenant of the Tenant;
19.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or any of its facilities
by the Tenant, or any employee, agent, contractor, invitee, or guest, assignee or
sub -tenant of the Tenant, but not to include trespassers upon the Demised
Premises during the time when Tenant is closed for business and/or Tenant and
none of its employees, agents, contractors, invitees, assignees or subtenants are
not present at the Demised Premises;
19.1.3 Any breach, violation, or non-performance of any undertaking of the Tenant under
this Lease;
19.1.4 Anything arising out of or related to the use or occupancy of the Demised Premises
by the Tenant or anyone holding or claiming to hold through or under the Lease.
19.2 Tenant agrees to pay all damages to the Demised Premises or other facilities used in
connection therewith, caused by the Tenant or any employee, agent, contractor, assignee,
subtenant, guest, or invitee of the Tenant.
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19.3 Notwithstanding anything contained in this Lease to the contrary, Tenant's indemnification
obligations hereunder shall not apply to any claims or causes of action to the extent they
arise from the City's, and/or its employees' or agents', gross negligence or willful
misconduct.
19.4 Tenant's obligations to indemnify the City pursuant to the foregoing provisions and
Sections 13, 17.1.2, 18, and 31 shall survive the expiration or earlier termination of this
Lease.
20. Signs and Advertising.
Without the prior written consent of the City, at the City's sole but reasonable discretion,
Tenant shall not permit the painting and display of any signs, plaques, lettering or
advertising material of any kind on or near the Demised Premises. All additional signage
shall comply with signage standards established by the City and comply with all applicable
building codes, and any other Municipal, County, State and Federal laws
21. Damage to the Demised Premises and/or Restaurant at 816 Commerce Street.
If the Demised Premises shall be damaged by the elements or other casualty (collectively,
"Casualty"), but the Demised Premises are not thereby rendered untenantable, as
determined by the City Manager, in whole or in part (hereinafter referred to as "such
occurrence"), Tenant shall as soon as possible after such occurrence, utilize its insurance
proceeds to cause such damage to be repaired and the rent for the Demised Premises
shall not be abated. If by reason of such Casualty, the Demised Premises shall be
rendered untenantable, as determined by the City Manager, only in part, Tenant shall as
soon as possible utilize its insurance proceeds to cause the damage to the Demised
Premises to be repaired, and the rent for the Demised Premises shall be abated
proportionately as to the portion of the Demised Premises rendered untenantable ("Partial
Abatement"): provided however, that the Partial Abatement period shall not exceed such
period as would be reasonable to repair the damage to the Demised Premises but not to
exceed sixty (60) days. If the City Manager determines the Demised Premises is by
reason of such Casualty, rendered more than 50% untenantable ("Materially
Untenantable"), as determined by the City Manager, unless the parties agree otherwise,
then rent shall be fully abated for 60 days from the date of the occurrence of a Casualty,
after which Tenant shall pay the full amount of rent. The fact that Tenant shall be obligated
to pay rent shall not serve to modify the requirements set forth in Section 8.2.
22. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or
disturbed in possession of the Demised Premises so long as Tenant complies with the
terms of this Lease.
23. Waiver.
23.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of
the either party to insist upon the strict performance of any of the conditions, covenants,
terms or provisions of this Lease, or to exercise any option herein conferred, will not be
considered or construed as a waiver or relinquishment for the future of any such
conditions, covenants, terms, provisions or options but the same shall continue and
remain in full force and effect.
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23.2 A waiver of any term expressed herein shall not be implied by any neglect of either party
to declare a forfeiture on account of the violation of such term if such violation by continued
or repeated subsequently and any express waiver shall not affect any term other than the
one specified in such waiver and that one only for the time and in the manner specifically
stated.
23.3 The receipt of any sum paid by Tenant to the City after breach of any condition, covenant,
term or provision herein contained shall not be deemed a waiver of such breach, but shall
be taken, considered and construed as payment for use and occupation, and not as rent,
unless such breach be expressly waived in writing by the City.
24. Notices.
The addresses for all notices required under this Lease shall be as follows, or at such
other address as either party shall be in writing, notify the other:
CITY: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to: City Attorney
City of Miami Beach
1700 Convention Center Drive, 41" floor
Miami Beach, Florida 33139
TENANT: SOBE TOSCANA LLC
816 Commerce Street
Miami Beach, Florida 33139
Attn: Catherine Arrighi Guitera
With copies to: Shutts & Bowen LLP
200 S. Biscayne Boulevard, Suite 4100
Miami, Florida 33131
Attn: Alexander I. Tachmes, Esq.
All notices shall be hand delivered and a receipt requested, or by certified mail with return
receipt requested, and shall be effective upon receipt.
25. Entire and Binding Agreement.
This Lease, together with all exhibits hereto, contains all of the agreements between the
parties hereto relating to the matters set forth herein, and it may not be modified in any
manner other than by agreement in writing signed by all the parties hereto or their
successors in interest. The terms, covenants and conditions contained herein shall inure
to the benefit of and be binding upon the City and Tenant and their respective successors
and assigns, except as may be otherwise expressly provided in this Lease.
26. Provisions Severable.
If any term or provision of this Lease or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to persons or circumstances other than those
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as to which it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Lease shall be valid and be enforced to the fullest extent permitted
by law.
27. Captions.
The captions contained herein are for the convenience and reference only and shall not
be deemed a part of this Lease or construed as in any manner limiting or amplifying the
terms and provisions of this Lease to which they relate.
28. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural shall
include the singular, and the use of one gender shall include all genders.
29. Governing Law.
This Lease shall be governed by and construed in accordance with the law of the State of
Florida.
30. Limitation of Liability.
The City desires to enter into this Lease only if in so doing the City can place a limit on the
City's liability for any cause of action for money damages due to an alleged breach by the
City of this Lease, so that its liability for any such breach never exceeds the sum of Ten
Thousand ($10,000.00) Dollars and no/100. Tenant hereby expresses its willingness to
enter into this Lease with the Tenant's recovery from the City for any damage action for
breach of contract to be limited to a maximum amount of Ten Thousand ($10,000.00)
Dollars. Accordingly, and notwithstanding any other term or condition of this Lease, Tenant
hereby agrees that the City shall not be liable to Tenant for damage in an amount in excess
of Ten Thousand ($10,000.00) Dollars for any action or claim for breach of contract arising
out of the performance or non-performance of any obligations imposed upon the City by
this Lease. Nothing contained in this Section or elsewhere in this Lease is in any way
intended to be a waiver of the limitation placed upon City's liability as set forth in Florida
Statutes, Section 768.28. Notwithstanding the foregoing, in the event the City terminates
this Lease during the first three (3) years other than as a result of a default by Tenant, the
limitation of liability in any claim or action for breach of contract shall be One Hundred
Thousand Dollars ($100,000.00).
31. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the City the
Demised Premises, together with any and all equipment, fixtures, furnishings, appliances
or other personal property, if any, located at or on the Demised Premises and used by
Tenant in the maintenance, management or operation of the Demised Premises, excluding
any trade fixtures or personal property, if any, which can be removed without material injury
to the Demised Premises, free of all liens, claims and encumbrances and rights of others,
and in a broom -clean condition, together with all structural changes, alterations, additions,
and improvements which may have been made upon the Demised Premises, in good
order, condition and repair, reasonable wear and tear excepted, subject, however, to the
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subsequent provisions of this Article. Any property which pursuant to the provisions of this
Section is removable by Tenant on or at the Demised Premises, upon the termination of
this Lease and is not so removed may, at the option of the City, be deemed abandoned by
the Tenant, and either may be retained by the City as its property or may be removed and
disposed of at the sole cost of the Tenant in such manner as the City may see fit. If the
Demised Premises and personal property, if any, be not surrendered at the end of the term
as provided in this Section, the Tenant shall make good the City all damages which the
City shall suffer by reason thereof, and shall indemnify and hold harmless the City against
all claims made by any succeeding tenant or purchaser, so far as such delay is occasioned
by the failure of the Tenant to surrender the Demised Premises as and when herein
required.
32. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to pay
money is involved.
33. Venue.
This Lease shall be enforceable in Miami -Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami -Dade
County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT
MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS LEASE.
34. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES OR PLASTIC STRAWS. Pursuant to Section 82-7 of the City Code,
as may be amended from time to time, effective August 2, 2014, the City has prohibited
the use of expanded polystyrene food service articles by City Contractors, in connection
with any City contract, lease, concession agreement or Special event permit. Additionally,
pursuant to Section 82-385 of the City Code, as may be amended from time to time, no
polystyrene food service articles will be allowed in the right-of-way, and no polystyrene
food service articles can be provided to sidewalk cafe patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam.
Expanded polystyrene is more particularly defined as blown polystyrene and expanded
and extruded foams that are thermoplastic petrochemical materials utilizing a styrene
monomer and processed by any number of techniques including, but not limited to, fusion
of polymer spheres (expandable bead foam), injection molding, foam molding, and
extrusion -blown molding (extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids,
trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene.
Tenant agrees not to sell, use, provide food in, or offer the use of expanded polystyrene
food service articles at the Demised Premises or in connection with this Lease. Tenant
shall ensure that all vendors operating in the Demised Premises abide by the restrictions
contained in this Section 35. A violation of this section shall be deemed a default under
the terms of this Lease. This subsection shall not apply to expanded polystyrene food
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399 of 1589
service articles used for prepackaged food that have been filled and sealed prior to receipt
by the Tenant or its vendors.
Additionally, Tenant agrees to comply (and ensure compliance by its vendors) with Section
46-92 (c) of the City Code, which states that it is unlawful for any person to carry any
expanded polystyrene product onto any beach or into any park within the City or for any
business to provide plastic straws with the service or delivery of any beverage to patrons
on the beach.
35. Inspector General Audit Rights
35.1 Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis, perform
reviews, audits, inspections and investigations on all City contracts, throughout the
duration of said contracts. This random audit is separate and distinct from any other audit
performed by or on behalf of the City.
35.2 The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs accounts, records,
contracts and transactions. In addition, the Inspector General has the power to
subpoena witnesses, administer oaths, require the production of witnesses and monitor
City projects and programs. Monitoring of an existing City project or program may
include a report concerning whether the project is on time, within budget and in
conformance with the contract documents and applicable law. The Inspector General
shall have the power to audit, investigate, monitor, oversee, inspect and review
operations, activities performance and procurement process including but not limited
to project design, bid specifications, (bid/proposal) submittals, activities of the Tenant.
its officers, agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption. Pursuant
to Section 2-378 of the City Code, the City is allocating a percentage of its overall annual
contract expenditures to fund the activities and operations of the Office of Inspector
General.
35.3 Upon ten (10) days, written notice to the Tenant. the Tenant shall make all requested
records and documents available to the Inspector General for inspection and copying.
The Inspector General is empowered to retain the services of independent private
sector auditors to audit. investigate, monitor oversee, inspect and review operations
activities. performance and procurement process including but not limited to project
design, bid specifications, (bid/proposal) submittals, activities of the Tenant its officers,
agents and employees, lobbyists, City staff and elected officials to ensure compliance
with the contract documents and to detect fraud and corruption.
35A The Inspector General shall have the right to inspect and copy all documents and
records in the Tenant's possession, custody or control which in the Inspector General's
sole judgment. pertain to performance of the contract. including. but not limited to
original estimate files, change order estimate files, worksheets. proposals and
agreements from and with successful subcontractors and suppliers, all oroiect-related
correspondence, memoranda, instructions, financial documents, construction
documents, (bid/proposal) and contract documents, back- change documents, all
documents and records which involve cash, trade or volume discounts, insurance
proceeds, rebates, or dividends received, payroll and personnel records and supporting
documentation for the aforesaid documents and records.
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400 of 1589
35.5 The Tenant shall make available at its office at all reasonable times the records,
materials. and other evidence regarding the acquisition (bid preparation) and
performance of this Agreement for examination, audit, or reproduction, until three (3)
years after final payment under this Agreement or for any longer period required by
statute or by other clauses of this Agreement. In addition:
(a) If this Agreement is completely or partially terminated, the Tenant shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
(b) The Tenant shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such
appeals, litigation, or claims are finally resolved.
35.6 The provisions in this section shall apply to the Tenant, its officers, agents, employees,
subcontractors and suppliers. The Tenant shall incorporate the provisions in this section
in all subcontracts and all other agreements executed by the Tenant in connection with
the performance of this Agreement.
35.7 Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Tenant or third parties.
36. Tenant's Compliance with Anti -Human Trafficking Laws.
Tenant agrees to comply with Section 787.06, Florida Statutes, as may be amended from
time to time, and has executed the Certification of Compliance with Anti -Human Trafficking
Laws, as required by Section 787.06(13), Florida Statutes, incorporated herein by
reference and attached hereto as Exhibit D.
37. Prohibition on Contracting with a Business engaging in a Boycott.
Tenant warrants and represents that it is not currently engaged in, and will not engage
in, a boycott, as defined in Section 2-375 of the City Code. In accordance with Section
2-375.1(2)(a) of the City Code, Tenant hereby certifies that Tenant is not currently
engaged in, and agrees for the duration of the Agreement to not engage in, a boycott of
Israel, as certified in the affidavit attached hereto as Exhibit G.
38. Prohibition Against Contracting with Foreign Countries of Concern When an
Individual's Personal Identifying Information May Be Accessed.
Tenant hereby agrees to comply with Section 287.138, Florida Statutes, as may be amended from
time to time, which states that as of January 1, 2024, a governmental entity may not accept a bid
on, a proposal for, or a reply to, or enter into, a contract with an entity which would grant the entity
access to an individual's personal identifying information (PII), unless the entity provides the
governmental entity with an affidavit signed by an officer or representative of the entity under
penalty of perjury attesting that the entity does not meet any of the criteria in Paragraphs 2(a�(c)
of Section 287.138, Florida Statutes: (a) the entity is owned by a government of a foreign country
of concern; (b) the government of a foreign country of concern has a controlling interest in the
entity; or (c) the entity is organized under the laws of or has its principal place of business in a
foreign country of concern (each a "Prohibited Entity"). A foreign country of concern is defined in
Section 287.138 (1)(c), Florida Statutes, as may be amended from time to time, as the People's
Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People's
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Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Maduro, or the Syrian
Arab Republic, including any agency of or any other entity of significant control of such foreign
country of concern. Additionally, beginning July 1, 2025, a governmental entity may not extend or
renew a contract with a Prohibited Entity. Tenant warrants and represents that it does not fall
within the definition of a Prohibited Entity, and as such, has caused an authorized representative
of Tenant to execute the "Prohibition Against Contracting with Entities of Foreign Countries of
Concern Affidavit", incorporated herein by reference and attached hereto as Exhibit E.
39. Prohibition on Contracting with an Individual or Entity which has Performed
Services for Compensation to a Candidate for City Elected Office.
Tenant warrants and represents that, within two (2) years prior to the Commencement Date,
Tenant has not received compensation for services performed for a candidate for City elected
office, as contemplated by the prohibitions and exceptions of Section 2-379 of the City Code.
For the avoidance of doubt, the restrictions on contracting with the City pursuant to Section 2-
379 of the City Code shall not apply to the following:
(a) Any individual or entity that provides goods to a candidate for office.
(b) Any individual or entity that provides services to a candidate for office if those same
services are regularly performed by the individual or entity in the ordinary course of
business for clients or customers other than candidates for office. This includes, without
limitation, banks, telephone or internet service providers, printing companies, event
venues, restaurants, caterers, transportation providers, and office supply vendors.
(c) Any individual or entity which performs licensed professional services (including for
example, legal or accounting services.
40. Florida Public Records Law.
40.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
40.2 The term "public records" shall have the meaning set forth in Section 119.011(12),
which means all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or received
pursuant to law or ordinance or in connection with the transaction of official business
of the City.
40.3 Pursuant to Section 119,0701 of the Florida Statutes, if Tenant meets the definition
of "Contractor" as defined in Section 119.0701(1)(a), Tenant shall:
40.3.1 Keep and maintain public records required by the City to perform the service;
40.3.2 Upon request from the City's custodian of public records, provide the City with
a copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, Florida Statutes or as otherwise provided by law;
40.3.3 Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed, except as authorized
by law, for the duration of the contract term and following completion of the Lease
if Tenant does not transfer the records to the City;
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402 of 1589
40.3.4 Upon completion of the Lease, transfer, at no cost to the City, all public records
in possession of Tenant or keep and maintain public records required by the City
to perform the service. If Tenant transfers all public records to the City upon
completion of the Lease, Tenant shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements. If Tenant keeps and maintains public records upon completion of
the Lease, Tenant shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the City, upon
request from the City's custodian of public records, in a format that is compatible
with the information technology systems of the City.
40.4 Request for Records; Noncompliance.
40.4.1 A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify Tenant of the request, and
Tenant must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
40.4.2 Tenant's failure to comply with the City's request for records shall constitute a
breach of this Lease, and the City, at its sole discretion, may: (1) unilaterally
terminate the Lease; (2) avail itself of the remedies set forth under the Lease;
and/or (3) avail itself of any available remedies at law or in equity.
40.4.3 A Tenant who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
40.5 Civil Action.
40.5.1 If a civil action is filed against a Tenant to compel production of public records
relating to the City's contract for services, the court shall assess and award
against Tenant the reasonable costs of enforcement, including reasonable
attorney fees, if:
40.5.1.1 The court determines that Tenant unlawfully refused to comply with the
public records request within a reasonable time; and
40.5.1.2 At least 8 business days before filing the action, the plaintiff provided
written notice of the public records request, including a statement that
Tenant has not complied with the request, to the City and to Tenant.
40.5.2 A notice complies with subparagraph 40.5.1.2 if it is sent to the City's custodian
of public records and to Tenant at Tenant's address listed on its contract with the
City or to Tenant's registered agent. Such notices must be sent by common carrier
delivery service or by registered, Global Express Guaranteed, or certified mail,
with postage or shipping paid by the sender and with evidence of delivery, which
may be in an electronic format.
40.5.3 A Tenant who complies with a public records request within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
40.6 IF THE TENANT HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA
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STATUTES, TO THE TENANT'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
41. Existing City Lease for Demised Premises.
As of the date of execution of this Lease, the Existing City Lease remains unchanged
and in full force and effect.
42. City's Proprietary and Regulatory Capacity.
In all respects hereunder, City's obligations and performance is pursuant to City's position as the
owner of the Demised Premises acting in its proprietary capacity. In the event City exercises its
regulatory authority as a governmental body, the exercise of such regulatory authority and the
enforcement of any rules, regulations, laws and ordinances (including through the exercise of the
City's building, fire, code enforcement, police department or otherwise) shall be deemed to have
occurred pursuant to City's regulatory authority as a governmental body and shall not be
attributable in any manner to City as a party to this Lease or in any way be deemed in conflict
with, or a default under, the City's obligations hereunder.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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404 of 1589
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by
the respective duly authorized officers and the respective corporate seals to be affixed this
day of 20_
ATTEST:
Bv:
Rafael E. Granado, City Clerk
Date:
ATTEST:
By: _
Nam
Date:
CITY:
CITY OF MIAMI BEACH, FLORIDA
Bv:
Eric T. Carpenter, City Manager
TENANT:
SOBE TOSCANA, LLC
By: _
Name:
Title:
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405 of 1589
EXHIBIT A
Description of Demised Premises
A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No. 3, according to the plat thereof,
recorded in Plat Book 2, at page 81, of the Public Records of Dade County, Florida, being more
particularly described as follows: Bounded on the North by the South R/W line of Commerce St.;
Bounded on the West by the East line of Lot 2; Bounded on the South by the North R/W line of
Biscayne Court; Bounded on the East by a line that is a perpendicular distance of 100 feet
westerly and parallel to the East R/W line of Washington Avenue.
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406 of 1589
EXHIBIT B
Additional Requirements
The Demised Premises shall be maintained in a clean, neat and orderly appearance at all times
by the Tenant. The area of the sidewalk, curb and gutter immediately adjacent to the Demised
Premises shall be cleared of all debris during hours of operation, and again at the close of each
business day, or as may otherwise be determined by the City Manager. The Tenant shall be
responsible for cleaning the floor surface on which the outdoor seating is located at the close of
each business day. In addition, the following conditions shall apply:
a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be maintained in a
clean, attractive, and orderly appearance, and shall be maintained and kept in good repair
at all times;
b. All outdoor furniture shall be of high quality, design, materials, and workmanship so as to
ensure the safety and convenience of the public;
C. Tenant must obtain approvals from the Planning Department and the City Administration
in the design and layout of the outdoor cafe pavers, tables, chairs and umbrellas. Only the
outdoor cafe furniture specifically shown on the approved site plan shall be allowed in the
Demised Premises;
d. All tables, chairs, umbrellas, and any other outdoor furniture shall not be physically
attached, chained, or in any other manner affixed to any public structure, street furniture,
signage, and/or other public fixture, or to a curb and/or public right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Demised Premises;
f. At close of business, all tables, chairs and any other outdoor furniture shall be locked. Any
exception to this requirement shall be at the sole and absolute discretion of the City
Manager and/or his/her designee.
g. No storage of dishes, silverware, bussing stations or other similar restaurant equipment
shall be allowed in the Demised Premises, or in any other portion of the public right-of-
way, or outside the structural confines of the building in which the restaurant is located,
during non -business hours,
h. There shall be no live entertainment in the Demised Premises; Tenant has permission to
play recorded, background music at ambient level pursuant to the provisions set forth in
Section 8.4 and subject to the City Manager's right to revoke such permission in the City
Manager's sole discretion at any time upon written notice to Tenant;
i. Only one menu board shall be permitted to be displayed on the Demised Premises, the
location of which shall be set back next to the main entrance door of the enclosed area of
the restaurant;
With the exception of tableside preparation of certain dishes, no food preparation, food
storage, refrigeration apparatus or equipment, or fire apparatus or equipment, shall be
allowed on the Demised Premises;
No food displays shall be permitted on Demised Premises. No advertising signs or
business identification signs shall be permitted, except that the restaurant name and/or its
logo may be permitted on umbrellas but such logos and/or lettering may not exceed six
inches in height;
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407 of 1589
I. Plants shall be properly maintained. Distressed plants shall be promptly replaced. Plant
fertilizers which contain material that can stain the sidewalks shall not be allowed;
M. The City Manager or his/her designee may cause the immediate removal, relocation
and/or storage of all or part of any furniture located on the Demised Premises in
emergency situations or for public safety considerations. Upon written and/or verbal
notification by the City Manager of a hurricane or other major weather event, or the
issuance of a hurricane warning by Miami -Dade County, whichever occurs first, the Tenant
shall, within no more than four hours of same, remove and place indoors all tables, chairs
and any other outdoor furniture located on the Demised Premises. The notification by the
City Manager of a hurricane or other major weather event, or the issuance of a hurricane
warning, shall constitute a public emergency situation as referenced in this division. The
City Manager may remove, relocate, and/or store any outdoor furniture found on the
Demised Premises that has otherwise not been removed by the Tenant pursuant to this
subsection. Any and all costs incurred by the City for removal, relocation and/or storage
of Tenant's furniture shall be the responsibility of the Tenant.
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408 of 1589
EXHIBIT C
Limited Guaranty
THIS LIMITED GUARANTY (the "Guaranty") is made as of this day of
20 , by Catherine Arrighi Guitera, individually (the "Guarantor"), in favor of CITY OF
MIAMIBEACH, FLORIDA, a municipal corporation organized and existing under the laws of the
State of Florida (the "City"), and is executed pursuant to that certain Lease Agreement, dated
, 20_ (the "Lease"), between the City and SOBE TOSCANA LLC (the
"Tenant"), involving unimproved city -owned land as defined in the Lease as the Demised
Premises, having a physical address of 22 Washington Avenue, Miami Beach, Florida 33139 (the
"Demised Premises"). All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Lease.
FOR VALUE RECEIVED, the receipt whereof is hereby acknowledged, in consideration
of, and as an inducement to the City's entering into the Lease with Tenant, the undersigned
Guarantor, in consideration of the benefits to flow to the Tenant and to the undersigned as
stockholder, officer, and/or director of said Tenant, do hereby irrevocably and unconditionally
guarantee to the City for the entire Term of the Lease (the "Guaranty Term") the full and faithful
performance of all of the obligations, duties and liabilities of the Tenant under that certain Lease
for the Demised Premises, provided that the liability under this Guaranty is limited to the amount
of Forty -Three Thousand One Hundred Eighteen and 04/100 Dollars ($43,118.04) (the "Guaranty
Cap"), which equates to the last six (6) months' of Base Rent (as defined in the Lease).
This Guaranty is a guarantee of payment and not of collectability is not in any way
conditional or contingent and constitutes a valid obligation of Guarantor, and shall not be
terminated, affected or impaired by reason of the assertion by the City against Tenant of any of
the rights and remedies reserved to the City pursuant to the provisions of the Lease. The validity
of this Guaranty shall not be terminated, affected or impaired by reason of any action which the
City may take or fail to take against Tenant or by reason of any waiver of or failure to enforce any
of the rights or remedies reserved to the City in the Lease or for any other cause or circumstance
whatsoever, including but not limited to any subletting of the Demised Premises, assignment of
the Lease or waiver of any breach by the Tenant.
This liability of Guarantor hereunder shall be primary and independent of the obligations
of Tenant, and the City may proceed against Guarantor without commencing any action against
Tenant. The City shall not be required to make any demand upon or pursue and exhaust any of
its rights or remedies against Tenant, before, simultaneously with, or after enforcing its rights or
remedies against Guarantor under this Guaranty; and Guarantor agrees that the City may enforce
any or all of its remedies hereunder at such time or times or in such manner as it shall deem
appropriate.
This Guaranty shall remain and continue in full force and effect during the Guaranty Term,
notwithstanding any modification, amendment, renewal or extension of the Lease or any provision
thereof and notwithstanding any assignment of interest therein.
The Guarantor consents to all of the terms and provisions of the Lease, as the same may
be from time to time hereafter amended, and expressly waive (i) any and all notices of non-
payment, non-performance or non -observance by Tenant of any covenant or provision of the
Lease, (ii) any and all demands, 9Lnotices of any kind which may be required to be given or which
may inure to the benefit of Guarantor under applicable law, and (iii) any and all notices of default
or events of default hereunder or under the Lease.
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The City and Guarantor agree that in any action or proceeding brought by either the City
or Guarantor against the other on any matters whatsoever arising out of, under, or by virtue of
this Guaranty ("Legal Proceeding"), the City and Guarantor shall and do hereby waive trial by jury.
In addition, the venue, in connection with any such Legal Proceeding, shall be in Miami -Dade
County, Florida. Should it become necessary to enforce the terms and conditions of this Guaranty,
the prevailing party shall be entitled to collect court costs and attorney's fees in connection with
said prosecution, including any appeals resulting from said Legal Proceeding.
Following the expiration of the Guaranty Term, upon written request by Tenant, the original
of this Guaranty shall be marked as "cancelled" and returned to Guarantor. This Guaranty shall
inure to the benefit of the City, its heirs, executors, successors and assigns and shall bind the
heirs, executors, successors and assigns of Guarantor.
Notwithstanding anything contained herein to the contrary, the liability under this Guaranty
shall not exceed the Guaranty Cap, and the parties acknowledge and agree that the Guarantor's
liability and responsibility hereunder shall not exceed the Guaranty Cap.
EXECUTED as of the day and year first above written, to be effective as of the date of the
Lease.
GUARANTOR:
Name: Catherine Arrighi Guitera
STATE OF FLORIDA
MIAMI-DADE COUNTY
The foregoing instrument was acknowledged before me this day of , 20_by
Catherine Arrighi Guitera, personally known to me or who has produced a valid
driver's license as identification.
My Commission Expires:
Notary Public, State of Florida
Print Name:
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410 of 1589
EXHIBIT D
Anti -Human Trafficking Affidavit
In accordance with Section 787.06 (13), Florida Statutes, the undersigned, on behalf of Tenant
hereby attests under penalty of perjury that Tenant does not use coercion for labor or services
as defined in Section 787.06, Florida Statutes, entitled "Human Trafficking".
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in
this affidavit and that the punishment for knowingly making a false statement includes fines
and/or imprisonment.
The undersigned is authorized to execute this affidavit on behalf of Tenant.
TENANT:
SOBE TOSCANA LLC, a Florida limited liability company.
Name/Title:
State of
County of
(Address)
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this day of 202_ by
, as , of SOBE TOSCANA
LLC, a Florida limited liability company, known to me to be the person described herein, or who
produced as identification, and who did/did not take an
oath
NOTARY PUBLIC:
(Signature)
(Print Name)
My commission expires:
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411 of 1589
EXHIBIT E
Prohibition Against Contracting with Foreign Countries of Concern Affidavit
In accordance with Section 287.138, Florida Statutes, incorporated herein by reference, the
undersigned, on behalf of Tenant, hereby attests under penalty of perjury that Tenant does not
meet any of the following criteria in Paragraphs 2(a�(c) of Section 287.138, Florida Statutes: (a)
Tenant is owned by a government of a foreign country of concern; (b) the government of a
foreign country of concern has a controlling interest in Tenant; or (c) Tenant is organized under
the laws of or has its principal place of business in a foreign country of concern.
I understand that I am swearing or affirming under oath, under penalties of perjury, to the
truthfulness of the claims made in this affidavit and that the punishment for knowingly making a
false statement includes fines and/or imprisonment.
The undersigned is authorized to execute this affidavit on behalf of Tenant.
TENANT:
SOBE TOSCANA LLC, a Florida limited liability company.
NameFFtle:
State of
County of
(Address)
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this day of , 202_ by
as , of SORE TOSCANA
LLC, a Florida limited liability company, known to me to be the person described herein, or who
produced as identification, and who did/did not take an
oath
NOTARY PUBLIC:
(Signature)
(Print Name)
My commission expires:
34
412 of 1589
EXHIBIT F
Easement Agreement
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413 of 1589