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99-23353 RESO RESOLUTION NO. 99-23353 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A SUBLEASE BETWEEN THE CONCERT ASSOCIATION OF FLORIDA, INC. AND COLONY THEATER CAFE, INC., FOR THE RESTAURANT PORTION OF THE COLONY THEATER, LOCATED AT 1040 LINCOLN ROAD, MIAMI BEACH, FLORIDA; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SUBLEASE FOR THE PURPOSES OF AGREEING TO THE NON-DISTURBANCE AND ATTORNMENT OF THE SUBLEASE. WHEREAS, on July 27, 1988, the Mayor and City Commission adopted Resolution No. 88- 19309, approving a Lease Agreement between the City and the Concert Association of Greater Miami, Inc. (Concert Association), for the use ofthe Colony Theater, located at 1040 Lincoln Road, which expired on August 31, 1994; and WHEREAS, on December 15,1993, the Mayor and City Commission adopted Resolution No. 93-20990, approving the execution of a new Lease Agreement, with the Concert Association, which expired on August 31, 1997; and WHEREAS, on July 16, 1997, the Mayor and City Commission adopted Resolution No. 97- 22464, approving an Amendment to the aforestated Lease Agreement, extending its term for one three (3) year period; which commenced on September 1, 1997, and ends on August 31, 2000; and WHEREAS, pursuant to the terms of the amended Lease Agreement the City has provided an operating subsidy to the Concert Association as follows: $55,000 in 1998; $50,000 in 1999; and $45,000 in 2000; and WHEREAS, the City is responsible for the maintenance of the facility and, in accordance with a Second Amendment to the Lease Agreement, seventy percent (70%) of the revenue derived from the cafe adjacent to the theater is remitted to the City, and thirty percent (30%) is to be retained by the Concert Association to offset the City's annual subsidy of the Colony Theater; and WHEREAS, the Concert Association has negotiated a new sublease agreement with Colony Theater Cafe, Inc. (a corporation owned 100% by Mark Soyka) to operate the adjoining cafe; and WHEREAS, the proposed sublease is for approximately 800 square feet of restaurant space, for a term of six (6) years, at a rent of$4,000/per month, subject to annual Consumer Price Index (CPI) adjustments, for a total annual rent of $48,000 ($60/per square foot monthly); and WHEREAS, the proposed subtenant will accept the premises in their "as is" condition and will perform the necessary improvements; and WHEREAS, it is also proposed that during the future renovation of the Colony Theater, if the Cafe is unable to operate, rent paid by the subtenant shall be abated during such period; and WHEREAS, it is estimated that a minimum of$48,000, will be derived from the cafe during Fiscal Year 1999/00; and WHEREAS, it is necessary for the City to approve the proposed sublease; and WHEREAS, since the proposed sublease is for a term in excess ofthe Concert Association's remaining Lease term, which expires on August 31, 2000, it is also necessary for the City to approve and execute a non-disturbance and attornment of the sublease. 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 herein approve the attached Sublease between the Concert Association of Florida, Inc. and Colony Theater Cafe, Inc., for the restaurant portion of the Colony Theater, located at 1040 Lincoln Road, Miami Beach, Florida; and further authorize the Mayor and City Clerk to execute the Sublease for the purposes of agreeing to the non-disturbance and attornment of the Sublease. PASSED and ADOPTED this 20th day of October, 1999. fJ MAYOR ATTEST: rlrlu~t f(U~ CITY CLERK SR/CMC/rar T:IAGENDA 1199910CT0699ICONSENT\CONCOLNYRES APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~~Qt,at I .. Ai. orney 3/ 6i ~/ CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 http \\cLmiami-beach.f1.us COMMISSION MEMORANDUM No.1 G,3 -9<J TO: Mayor Neisen Kasdin and Members of the City C mission DATE: October 20,1999 FROM: Sergio Rodriguez City Manager SUBJECT: A RESOL I OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A SUBLEASE BETWEEN THE CONCERT ASSOCIATION OF FLORIDA, INC. AND COLONY THEATER CAFE, INC., FOR THE RESTAURANT PORTION OF THE COLONY THEATER, LOCATED AT 1040 LINCOLN ROAD, MIAMI BEACH, FLORIDA; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SUBLEASE FOR THE PURPOSES OF AGREEING TO THE NON-DISTURBANCE AND ATTORNMENT OF THE SUBLEASE. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. BACKGROUND: On July 27, 1988, the Mayor and City Commission adopted Resolution No. 88-19309 approving a Lease Agreement between the Concert Association of Greater Miami, Inc. (Concert Association) and the City of Miami Beach (City), for the use of the Colony Theater. Said Lease Agreement was to expire on August 31, 1994. On December 15, 1993, the Mayor and City Commission waived the provisions of Ordinance No. 92-2783, which require public bidding and an independent appraisal, and adopted Resolution No. 93-20990 approving the execution of a new Lease Agreement, with the Concert Association. Said Lease Agreement was to expire on August 31, 1997. On July 16, 1997, the Mayor and City Commission adopted Resolution No, 97-22464 approving an Amendment to the Lease Agreement extending its term for one three (3) year period which commenced on September 1, 1997 and ends August 31, 2000. Pursuant to the terms ofthe amended Lease Agreement, the City is providing an operating subsidy to the Concert Association of$55,000 in 1998, $50,000 in 1999, and $45,000 in 2000. Additionally, the City is responsible for the maintenance ofthe facility. In turn, the Concert Association remits to the City all revenue derived from the adjoining cafe, which has been closed during the past year. AGENDA ITEM ClC I'D - 21') ~9.S DATE Concert Association/Colony Theater Cafe October 20, 1999 Page 2 ANALYSIS: The Concert Association has negotiated a new sublease agreement with Colony Theater Cafe, Inc. (a corporation owned 100% by Mark Soyka). The proposed sublease is for approximately 800 sf of restaurant space, for a term of six (6) years, at a rent of $4,000/month, subject to annual cpr adjustments, for a total annual rental of $48,000, $60/sf; with an option to renew for an additional three (3) years. The proposed sublease provides for a ninety (90) days rent free period. The proposed subtenant will accept the premises "as is" and perform the necessary improvements to the premises. It is also proposed that during the future renovation of the Colony, if the Cafe is unable to operate, rent paid by the subtenant shall be abated during such period. This sublease is conditioned upon the sub-tenant obtaining a liquor license. Concerns have been raised regarding a security deposit, the minimum investment required, and the reduction in rent if there are less than eight (8) performances. The sub-tenant has agreed to provide a one-month security deposit and has committed to invest a minimum of$200,000 in improvements. Additionally, the rent may be reduced to $2,500/month ifthere are five (5) to seven (7) performances per month and $1 ,500/month if there are under five (5) performances per month. These items will be reflected in revised language to the attached lease. Revenues from the cafe were approximately $5,300 in Fiscal Year 1994/95 (June-September only), $20,000 in FY 1995/96, and $21,000 (non-auditable estimate) in FY 1996/97. Based on the proposed sublease, it is estimated that a minimum of $48,000, will be derived from the cafe during FY 1999/00. In accordance with the Second Amendment to the Lease Agreement between the City of Miami Beach and the Concert Association, seventy percent (70%) of the revenue derived from the cafe is remitted to the City and thirty percent (30%) be retained by the Concert Association to offset the City's annual subsidy of the Colony. The original Lease Agreement, dated September 27, 1994, did not provide for assignment or subletting, although it always contemplated the operation of the cafe. As the Concert Association does not own or operate said cafe, but rather subleases same, it is necessary for the City to approve the proposed sublease. Furthermore, since the proposed sublease is for a term in excess of the Concert Association's remaining lease term which expires on August 31, 2000, it is necessary for the City to approve and execute a non-disturbance and attornment of the sublease. CONCLUSION: It is recommended that the resolution approving the proposed sublease, for purposes of agreeing to the non-disturbance and attornment of the sublease, be adopted. SR/C~~r T:IAGENDA\ I 999\OCTZ099\CONSENTlCONCOLNY CM L:~7-_.2-1999 TUE 16: 11 ID:8EATRIZ/CAPOTE TEL: 3740908 P:01/02 IIEATIUZ M. CAPOTE, P.A. lto I RRICKELL AVENUE, 17TH }-fLOOR MIAMI, PL 33131 (305) 374-1555 (305) 374-0908 )i'AX IMPonTANT: This message is intended only for the use of the individual or clItiLy to which it is addressed and may contain inf<>r1uatioll that is privileged, couf delllial ami exempt from disclosure under applicahle Jaw: DATE: 10/12/99 TO: CRISTINA CUD.RVO I,'AX #:,~Q5."673-77P,2. cc: MARK SOYKA l"AX #:305-759-4115: ~ROM: ~--B~TTY CAPOTE. ESQ. RE: " _SOY.KA/COLO.NY_ THEATER LEASE T(1l.al numher of pages (including cover page):, 2 AQ!?J'nONAL COMMENTS;, I just spoke with Commissioner Jose Smith and Mark Soyka ami they have agreed to 1.Iw following: 1. One month's security 2. Regular rent if there are !.{ or more pcrH)J'manccs per Illouth; $2, 500.()() rent if there arc 5 to 7 perforl11anee~ per month; and $1.500,00 nm{ if tbere Hre ulluer 5 performances per month. 3. Mark will commit to $200,000,00 in improvements whieh i ldude~ Llle liquor license, furniture, tableware, l:quipmerlt, etc., In other we rds, he will have to spend at least $200,000.00 to open the restaurant. As to the space being more than 800 square teet, Commissioner Smith said h~ just wants the commissioners to understand what area composes the leased prcmises wllkll, of course, is Items 2(a) through (d) attached. Pkasc call me if you have any questions or comments. 1'1- I )'> ~J fO;;~ <'If '/ COMMERCIAL LEASE AGREEMENT ,;2 d I" 1. Parties. This Lease is made effective as at the (: day of October, 1999 between CONCERT ASSOCIA nON OF FLORIDA, INC. ("Landlord") and COLONY THEATER CAFE, INC., a Florida corporation ("Tenant"). 2. Demised Premises. Subject to the terms and provision of this Lease, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, a portion of the Colony Theater located at 1040 Lincoln Road (Lenox Avenue and Lincoln Road), Miami Beach, Florida (the "Building") consisting of space as follows: (a) approximately eight hundred (800) square feet restaurant space adjacent to the Colony Theater; (b) Rear storage room above cafe only when shows are not in process; (excess equipment in this room not being utilized by Landlord may be removed, but this area must be padlocked every evening with a key provided to the Colony Theater Technical Director); Front storage room must be kept clean of all cafe equipment as it is to be utilized by the Colony Theater staff only. (c) bar extending between the cafe and Colony Theater lobby; and (d) seating area in the Colony lobby (the "Prcmises"). 3. Use of Premises. 3.1 Permitted Use and Business Name. The Premises shall be used and occupied only as a restaurant/cafe. This Lease shall be contingent upon Tenant obtaining an alcoholic beverage license and being able to serve liquor, beer and wine. 3.2 Hours of Business and Continuous Occupancy. continuously occupy and utilize the premises during the term of this Lease. Tcnant shall 3.3 Opening and Continuous Occupancy. The Tenant shall continuously, actively and diligently carry on the business specified in Section 3.l on the whole of the Premises during the term, during such hours and upon such days as are herein required, except when prevented from doing so by force majeure. The Tenant acknowledges that its continued occupancy of the Premises and the regular conduct of its business therein are of utmost importance to the Landlord. The Tenant acknowledges that the Landlord is cxecuting this Lease in reliance thereupon and that the same is a material element inducing the Landlord to execute this Lease. 3.4 Tenant's Covenants as to Use and Occupancy. Tenant shall exercise reasonable care in its use of the Premises or Building and shall not do or permit anything to be done in or about the Premises or Building, nor bring nor keep anything in the Premises or Building which will in any way affect the fire or other insurance upon the Building, or any of its contents, or which shall in any way conflict with any statute, ordinance, rule, regulation, order, law or other requirement (collectively the "Laws") affecting the occupancy and use of the Premises or Building, which is now, or may hereafter be, enacted or promulgated by any public authority. Tenant recognizes that the use of the Premises is an adjunct to the use of the Colony Theater as a theater and must, at all times, be compatible with the operation of the Colony Theater and sensitive to the needs and requirements thereof. Tenant shall not obstruct or interfere with the rights of other occupants ofthe Building, or injure or annoy them. Tenant shall not use, or allow the Premises to be used, for any illegal purpose or purpose constituting a public or private nuisance or for sleeping purposes, and nothing shall be prepared, manufactured, or mixed in the Premises which would emit an odor and/or fumes of any type into or around the Theater, nor will the Tenant permit any noise levels to emanate from the Premises that will interfere with any other occupant of the Building. Tenant shall promptly comply with and execute all of the aforesaid, and any Laws and all rules, orders and reasonable regulations of the Southeastern Underwriters Association for the prevention of fires, at Tenant's own cost and expense. At all times during the term of this Lease and any extensions or renewals thereof, Tenant shall, at its expense, obtain and maintain all permits, licenses and other governmental authorizations which are necessary for the operation of its business in accordance with Section 3.1. 3.5 Lobby Use. The Colony lobby may not be used to store any cafe equipment, freezers, food or office supplies. All cafe materials must be stored in the cafe, behind the cafe bar or in the upstairs storage room. The small lobby bar must remain accessible for Renters to use for T-shirt, music or other sales approved by the Theater management. Renters are not permitted to sell or serve any food or beverages in the premises, except for Renters that have sponsors or product underwriters who may serve food or beverages at no charge. Renters shall be limited to persons or entities renting the theater for performances. During a performance, the only cafe transactions to be conducted in the Colony lobby are the selling of concession food, and/or beverage service to Colony patrons. Any other food or bar service from one hour prior to advertised curtain time is limited to the cafe premises only. From one hour prior to curtain, the sound system in the cafe must be turned to a minimal until the performance conclusion. When a performance is in session, the cafe partition must remain closed and blocked off with stanchions. All restaurant patrons and employees must use the cafe restroom during this time, but may use the Colony Theater restrooms at such other times and under such circumstances as are reasonably agreed to by the Theater management, considering security matters, among other things. Notwithstanding the foregoing, in the event Tenant requires the use of such Colony Theater restrooms in order to comply with code requirements, Tenant and Tenant's patrons and employees shall have the right to use the Colony Theater restrooms so long as such use does not conflict with any performances in progress or create a problem with restaurant patrons attempting to gain access to the Theater auditorium. It is the intention of the parties that tenant will not need to construct any bathrooms for the operation of its business at the Premises. Tenant, at Tenant's option and expense, may construct a glass wall and door in the lobby to separate the lobby area from the Theater area in order to minimize noise levels. Landlord agrees to use its best efforts to have Tenant reimbursed for the cost of such wall and door from restoration grants to be applied for. 3.6 Outside Theater Use. Tenant is granted the right to utilize the space outside of the Building to the extent permitted by law, without additional charge by the Landlord. However, no such use shall interfere with the operations of the Theater, the box office, or in any way interfere with the normal and appropriate access, ingress and egress of our Theater patrons. 4. Term. The term of this Lease shall be for a period of six (6) years commencing on the execution by both parties of this Lease and ending on the 6th anniversary thereafter. 5. Rent. As rental for the lease of the Premises, Tenant shall pay to Landlord, at Landlord's address set forth in Paragraph 15 hereof, for the initial term of this Lease, base rent ("Base Rent") in the monthly amount of FOUR THOUSAND and 00/100 ($4,000.00) DOLLARS. All rent during the term of this Lease shall be due on the first day of each calendar month during the term of this Lease, free from all claims, demands or setoffs against Landlord of any kind or character whatsoever. If the term of this Lease shall begin or terminate on other than the first or last day respectively of a calendar month, all rent and other charges accruing under this Lease for such portion of the partial calendar month shall be apportioned and paid on the basis of a thirty day month. In the event any installment of Base Rent or other charges accruing under this Lease is not paid within ten (10) days of the due date, a late charge of five percent (5%) of the delinquent sum may be charged by Landlord. If any installment of Base Rent or other charges accruing under this Lease remain overdue for more than twenty (20) days, an additional late charge in an amount equal to 1-112% per month or part thereof (18% per annum) of the delinquent amount may be charged by zina/ caofl co lonlse.doc -2- Landlord, such charge to be computed for the entire period for which the amount is overdue. All late charges shall be due immediately upon demand by Landlord without set-off or defense. 5.1 Base Rent Increases. The Base Rent shall be increased annually commencing on the first anniversary date of each Lease and shall be adjusted annually on each anniversary date of each year thereafter, (the "Change Date") by an amount equal to any increase in the cost of living as reflected by the United States Department of Labor, Consumer Price Index for All Urban Consumers: U.S. Southern City Average, as applicable to Miami, Florida all items (1982-84 = 100) (hereinafter referred to as the "Index"). Such adjustment shall be accomplished by multiplying the then current annual rent by a fraction, the numerator of which shall be the Index for the month which is three (3) months prior to the Change Date for which such adjustment is to be made, and the denominator of which fraction shall be the corresponding monthly index for the same month of the preceding calendar year. In the event such Index shall be discontinued with no successor or comparable successor Index, Landlord shall select a reasonable substitute index. In no event shall the Base Rent, as adjusted from time to time, be decreased at any time during any Lease or Option year. Such rent always being paid in advance in equal monthly installments on the first day of each month. A lease year shall be each period of 12 calendar months beginning on the date of the signing of this Lease by both parties. 5.2 Payment of Rent. Tenants rent shall be payable on the following schedule: Monthly in advance commencing ninety (90) days after the execution of this Lease by the Tenant, Landlord and Owner, it being the intention that the Tenant shall have three (3) months occupancy without paying rent. 6. Sales Tax. All payments of Base Rent and any other charges arising under this Lease shall be considered to be rent and shall be paid by Tenant together with applicable Florida Sales Tax, and any other tax on rent payments that may be imposed by any governmental agency or authority, excluding income taxes. 7, Improvements and Delivery of Possession. Tenant acknowledges that Tenant has inspected the Premises and Tenant is accepting the same in "as is" condition. No representations except those expressly contained herein have been relied on by Tenant with respect to the condition, design, amenities of the Building or Premises. Tenant will make no claim against Landlord on account of any representation of any kind, whether made by any renting agent, broker, officer or other representative of Landlord or which may be contained in any advertisement relating to the Building unless such representation is specifically set forth in this Lease. Notwithstanding anything to the contrary contained in this Lease (including, without limitation, Section 3.4), the obtaining and maintenance of all permits, licenses, zoning and governmental authorizations required for Tenant's occupancy or business operations shall be Tenant's sole responsibility and at Tenant's sole cost and expense and, except as to the alcoholic beverage license in no case shall the obtaining or maintenance of such be a condition to Tenant's obligations hereunder. 8. Assignment and Subletting. Tenant shall not assign, mortgage, pledge, or hypothecate this Lease, or any interest therein, nor shall Tenant permit the use of the Premises by any person or persons other than Tenant, nor shall Tenant sublet the Premises, or any part thereof. Any sale of stock of Tenant (if a corporation), assignment of partnership interest (if a partnership), assignment of beneficial interest (if a trust), or other device which has the effect of transferring the practical benefits of this Lease from the parties currently controlling Tenant, shall be a prohibited transfer and will be considered a default. Tenant may, however, transfer stock or other ownership indicia between present stockholders or partners upon written notice to Landlord without it being deemed an assignment for the purposes of this paragraph. Tenant shall furnish Landlord with the names of its Stockholders, if applicable, upon execution of this Lease. 9. Condition of Demised Premises: Maintenance and Repairs. zinal caofl co lonlse. doc -3- 9.1 Notwithstanding anything herein to the contrary, the Tenant recognizes that the Colony Theater is scheduled to undergo a major restoration during the term of this Lease and agrees to cooperate and understands that such restoration will result in inconveniences to the Tenant, none which should prohibit the Tenant from continuing with the operation of its business. Should the Tenant be precluded from operating its business during such periods, the Landlord will endeavor to restrict such times to the summer months, and Tenant's rent shall be abated during such periods. Further, in the event of a restoration ofthe facade and/or lobby of the Colony Theater, the space allocated to the Tenant in the present lobby, as the existing bar, may be relocated, at Landlord's expense, however the space in the lobby currently used for restaurant seating may be reoriented as lobby space and may be discontinued for restaurant use, moved or even eliminated, and such action shall not give rise to any cause of action or claim for rent reduction or otherwise by the Tenant for any reason. However, such renovation shall not in any way restrict the use of the two (2) Colony Theater bathrooms (or replacements thereof) by Tenant and Tenant's employees and customers. Landlord represents that the two (2) Colony Theater bathrooms are in compliance with all code and handicap requirements for use for the Colony Theater or, if not in compliance, it will be Landlord's responsibility, at Landlord's expense, to bring the bathrooms up to code and in compliance with handicap requirements if required by any governmental authority. 10. Alterations, Additions or Improvements. Tenant shall not commence any work or make or allow any other repairs, replacements, additions or modifications to the Premises (collectively the "Alterations") without the Landlord's prior written approval. All such work, if allowed, shall be performed: (i) at the sole cost of the Tenant; (ii) by licensed contractors and subcontractors and workmen approved in writing by the Landlord; (iii) in good and workmanlike manner; (iv) in accordance with the drawings and specifications approved in writing by the Landlord; (v) in accordance with all applicable laws and regulations; (vi) subject to the reasonable regulations, supervision, control and inspection of the Landlord; and (vii) subject to such indemnification against liens and expenses as the Landlord reasonably requires. If any alterations would affect the structure of the Building or any of the electrical, plumbing, mechanical, gas, water, heating, ventilating or air conditioning systems or other base Building systems, such work shall be performed by licensed contractors and architects and engineers, as reasonably required by the Landlord. Plans shall be submitted to Landlord in advance and shall be subject to Landlord's approval. If such plans contemplate work affecting the structure or any base systems, Landlord may employ a consulting architect and/or engineer as Landlord reasonably may require to evaluate such plans and/or construction, and any expenses or fees incurred by the Landlord shall be reimbursed or paid by Tenant upon presentation. Notwithstanding the foregoing, Tenant may construct or remodel the Premises during the term of this Lease without Landlord's prior consent so long as such construction or remodeling is to the interior of the Premises, is non-structural and is in the area East of the partition only and not in the Lobby. Upon installation, all alterations such as walls, ceilings, and any fixtures shall become the property of Landlord and shall remain upon and be surrendered with the Premises. Tenant shall have no right or power to create mechanics' liens on the Premises, Building, underlying property, or attached fixtures and shall so advise any suppliers of material or labor for work on the Premises. 11. Damage by Fire or Other Cause. 11.1 If the Demised Premises shall be partially damaged by fire or other cause without the fault or neglect of Tenant, Tenant's servants, employees, agents, visitors or licensees, such damages shall be repaired by and at the expense of Landlord and the base minimum rent and Tenants share of operating costs, until such repairs shall be made, shall be abated according to the part of the Demised Premises which is usable by Tenant. However, if such partial damage is due to the fault or neglect of Tenant, Tenant's servants, employees, agents, visitors or licensees, without prejudice to any other rights and remedies of Landlord and without prejudice to the rights of subrogation of Landlord's insurer, the damages shall be repaired by Landlord but there shall be no apportionment or abatement of rent. No penalty shall accrue for reasonable delay which may arise by reason of adjustment of insurance on the part of Landlord and for reasonable delay on account of "labor troubles", or any other cause beyond Landlord's control. zinal caofl co lonlse.doc -4- Tenant shall give immediate notice to Landlord in case of fire in the Demised Premises. Notwithstanding the foregoing, if the Demised Premises are totally or substantially damaged or are rendered wholly or substantially untenantable by fire or other cause, and if Landlord shall decide not to restore or not to rebuild the same, or if 50% or more of the Building shall be so damaged (whether or not the Demised Premises have been damaged), or if the Building shall be so damaged that Landlord shall decide to demolish it or to rebuild it (whether or not the Demised Premises have been damaged), then, or in any of such events, Landlord may, within forty five (45) days after such fire or other cause, give Tenant a notice in writing of such decision (which notice shall be given as herein provided), and thereupon the term of this Lease shall expire by lapse of time upon the third day after such notice is given, and Tenant shall vacate the Demised Premises and surrender the same to Landlord. I Upon the termination of this Lease under the conditions provided for in the sentence immediately preceding, Tenant's liability for rent shall cease as of the day following the casualty. In no event shall the Landlord be liable to the Tenant for damages for the casualty, cause thereof, or termination of the Lease. If the damage or destruction be due to the fault or neglect of Tenant, the debris shall be removed by, and at the expense of, Tenant and, if Tenant shall fail to remove same, such removal may be done by Landlord at the expense of Tenant. 11.2 No damages, compensation or claims shall be payable by Landlord for inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Demised Premises or of the Building. Landlord shall use its best efforts to effect such repairs promptly and in such manner as not unreasonably to interfere with Tenant's occupancy. 12. Entry and Inspection. Tenant will permit Landlord and its agents to enter the Premises at all reasonable times for the purpose of examining or inspecting the same, or for the purpose of protecting Landlord's reversions, or to make alterations, repairs, or additions to the Premises or to any other portion of the Building, or for maintaining any service provided by Landlord to tenants in the Building, or for the purpose of removing placards, signs, fixtures, alterations or additions which do not conform to this Lease or the rules and regulations of the Building, or for any other purpose which Landlord reasonably deems necessary for the safety, comfort or preservation of the Premises or Building. Tenant will permit Landlord at any time within six (6) months prior to the expiration of this Lease to bring prospective tenants upon the Premises for purposes of inspection and to put or keep upon the doors or windows thereof a "For Rent" and/or "For Sale" notice. In furtherance of such rights, Landlord shall retain a key to the Premises and Tenant shall not install any new locks to the Premises without the prior written consent of Landlord and unless Tenant furnishes Landlord with a copy of such key. No entry pursuant to this Paragraph shall in any way be deemed a breach of the covenant of quiet enjoyment. 13. Indemnity. Except in the event of Landlord's gross negligence or intentional acts, Landlord shall not be liable to Tenant, Tenant's agents, employees, or invitees for any injury or damage that may result to any person or property (including, without limitation, any of Tenant's property) by or from any cause whatsoever, including, without limitation, any act or omission of any co-tenant or occupants of the Building or of any other entity or person whomsoever (without limiting the generality of the foregoing, whether caused by gas, fire, oil, electricity, bursting of pipes or defective construction or maintenance) in, on or about the Premises, or any part thereof, and Tenant covenants not to bring or abet any such action. Tenant agrees to indemnify, defend and hold Landlord and its officers, directors, agents and employees harmless from and against any and all claims, liabilities, costs or expenses whatsoever (including attorneys' fees and court costs at all tribunal levels) for any injury or damage to any person or property whatsoever arising from any occurrence at the Premises occasioned by any act or omission of Tenant, its agents, contractors, employees, or invitees.. 14. Utilities and Services. Electricity is billed to Landlord and there is an internal meter to monitor montWy electric consumption to Tenant thus Landlord will bill Tenant for its portion of the electricity. Garbage is $590.20 per month for a 5 day week pick-up and the Landlord uses $233.70 two days a week so the Tenant will pay the difference. Water consumption will be billed by the Landlord and will be split 50/50. The cost and performance of janitorial, telephone, and security service for the Premises shall be Tenant's sole responsibility. Landlord shall not be liable to Tenant for any interruption in the service of any utility. No interruption or failure of such utilities or services shall relieve Tenant from the obligation to pay zinal caofl co lonlse.doc -5- the full amount of rent and other charges herein reserved, nor shall the same constitute a constructive or other eviction of Tenant unless caused by the Landlord. 15. Notices. All notices required or permitted to be given under this Lease by either party to the other shall be given in writing and shall be given by personal delivery or by registered or certified mail, return receipt requested, or by Federal Express, postage prepaid, sent to Landlord c/o Concert Association of Florida, Inc., 55 17th Street, Miami Beach, FL 33139 or at such other place and to such other person as Landlord may from time to time designate in writing. Any notice to be given to Tenant under this Lease, if given by registered or certified mail or Federal Express, as above provided, shall be sent to Tenant, with a copy to Betty M. Capote, Esq., 1101 Brickell Avenue, 17th floor, Miami, Florida 33131. Notice given by personal delivery shall be effective as of the date of delivery; notice mailed shall be effective as of the third day (not a Saturday, Sunday or legal holiday) next following the date of mailing; notice by Federal Express shall be effective on the next business day following the date of sending. 16. Default. Tenant covenants and agrees that any of the following events shall be a default under this Lease: (i) if Tenant or any guarantor of any of Tenant's obligations hereunder shall fail to perform or observe any covenant, condition or agreement to be performed or observed by such party hereunder or under any guaranty agreement; or (ii)if Tenant or any guarantor of any of Tenant's obligations hereunder shall cease doing business as a going concern, make an assignment for the benefit of creditors, admit in writing its inability to pay its debts as they become due, become insolvent (i.e., greater liabilities than assets), or take any action looking to its dissolution of liquidation; or (iii) if Tenant or any guarantor of Tenant's obligations should file for relief, or have filed against them, an action under any provision of any state or federal bankruptcy or insolvency law; (iv) if Tenant shall abandon or vacate the Premises; (v) if Tenant fails to pay all charges for gas, sewer, electricity and other utilities which are separately metered for the Premises within fifteen (15) days after such are due; or (vi) if Landlord determines, in its reasonable discretion, that unpleasant noises or odors emanate from the Premises and Tenant does not eliminate such noises and odors permanently within five (5) days after written notice from Landlord, then, in the event of any such default, Landlord may, at its option, elect any of the following remedies: (a) Re-take and recover possession of the Premises, terminate this Lease, and retain Tenant's security deposit. (b) Re-take and recover possession of the Premises, without terminating this Lease, in which event Landlord may re-rent the Premises as agent for and for the account of Tenant and recover from Tenant the difference between the rental herein specified and the rent provided in such re-rental including, without limitation, attorneys' fees. (c) Permit the Premises to remain vacant in which event Tenant shall continue to be responsible for all rental and other payments thereunder. (d) Re-take and recover possession of the Premises, and accelerate and collect all rent due hereunder for the balance of the term of this Lease. (e) Take any other action as may be permitted under applicable law. Except as provided in paragraph (vi) above, the remedies available to Landlord in the event of Tenant's default shall not be available to it, in the event of non-monetary defaults only, until after Landlord has delivered written notice of such default to Tenant and Tenant has failed to cure same within fifteen (15) days after receipt of such notice, or has undertaken such cure, assuming that same cannot be completed within the 15 day period. All of the Landlord's remedies contained in this Lease shall be cumulative and election by Landlord to take anyone remedy shall not preclude Landlord from taking any other remedy not by its nature absolutely incompatible with any previously or contemporaneously elected remedy. 17. Attorneys' Fees and Costs. Prevailing party shall be entitled to recover all costs, including reasonable attorneys' fees at all tribunal levels, incurring by such party in enforcing this Lease or any covenant hereof or in the collection of any rent, or other sum of money, becoming due hereunder or in the recovery of possession of the Premises, in the event of the breach by Tenant of any of the terms or zinal caofl co lonlse. doc -6- provisions of this Lease, or any other dispute between the parties relating to the interpretation or enforcement of this Lease. 18. Non-Waiver of Breach. Landlord's failure to take advantage of any default or breach of covenant on the part of Tenant shall not be construed as a waiver thereof, nor shall any custom or practice which may grow between the parties in the course of administering this Lease be construed or to waived or to lessen the right of Landlord to insist upon the strict performance by Tenant of any term, covenant or condition hereof, or to exercise any rights of Landlord on account of any such default. A waiver of a particular breach or default shall not be deemed to be a waiver of the same or any other subsequent breach or default. The acceptance of rent hereunder shall not be, or be construed to be, a waiver of any breach of any term, covenant or condition of this Lease. The presentation of any rent or other charge hereunder in the form of a check marked by Tenant to constitute a waiver of any default shall not constitute such waiver even though endorsed and cashed by Landlord unless Landlord expressly agrees to waive such default by separate written instrument. No surrender of the Premises for the remainder of the term hereof shall operate to release Tenant from liability hereunder. 19. Subordination, Attornment and Non-Disturbance This Lease and Tenant's rights hereunder, are hereby made expressly subject and subordinate to any and all security agreements, mortgages, ground or underlying leases, or like instruments resulting from any financing or refinancing affecting the Premises or Building which are currently in existence or which may hereafter be created by Landlord, or its successors or assigns, including any and all extensions and renewals, substitutions, and amendments thereof, and to any and all advances made or to be made under same (collectively the "Mortgage"). Tenant agrees to execute any instrument or instruments which the Landlord may deem necessary or desirable to further evidence the foregoing subordination. Tenant agrees that in the event of any act or omission by Landlord which could constitute a default by Landlord or give Tenant the right to terminate this Lease or claim a partial eviction, Tenant shall not exercise any such right until (i) Tenant notifies Landlord in writing of such default and Landlord fails to cure such default within fifteen (15)days of such notice. This Lease is subordinate and subject to all of the terms and conditions of the Lease between the Landlord, as Lessee, and the City of Miami Beach (the "Owner") dated September 27, 1994, as amended and extended, (the "Master Lease"). The Owner, by its joinder herein, agrees for itself and on behalf of any future tenant that so long as Tenant is not in default under this Lease this Lease shall remain in full force and effect and the Tenant shall not be disturbed and in the event the Master Lease is terminated, Owner shall succeed to the interest of Landlord under this Lease, and the Tenant agrees to attorn to the rights of the Owner or any future lessee of the Owner so long as the rights of the Tenant are not affected, it being the intention that the Tenant shall have and remain with all of the rights, obligations, terms and conditions of this Lease in full force and effect during the entire term of this Lease, including any option periods, notwithstanding any change in the Landlord. Upon the termination of the Master Lease with the Owner, the Landlord shall be released from any further liability or responsibility to the Tenant so long as Owner assumes such liability and responsibility and the Tenant agrees to look to the Owner or substituted Landlord exclusively for all matters. 20. Time. It is understood and agreed between the parties hereto that time is of the essence of this Lease, and to all of the terms, conditions and provisions contained herein. any time period herein described of ten (10) days or more shall mean calendar days; less than ten (10) days shall mean business days. 21. Sublease. This is a Sublease. The Landlord's interest in the Premises is as Lessee under the Master Lease between it and the City of Miami Beach dated September 27, 1994, as amended and extended, a copy of which initialed for identification, is attached hereto. This Sublease is expressly made subject to all the terms and conditions of the Master Lease. The Lessee shall use the Premises in accordance with the terms of the Master Lease and not do or omit to do anything which will breach any of its terms. The Tenant shall assume the obligation for performance of all the Landlord's obligations under the Master Lease regarding and restricted to the Premises leased hereby, excluding paragraphs 22 and 28 thereof, and Landlord shall assume the obligations for performance of Owner's obligations under paragraph 9 thereof. zinal caofl co lonlse.doc -7- 22. Amendment of Lease. This Lease may not be altered, changed, or amended, except by an instrument in writing, signed by the party against whom enforcement is sought. This Lease and any exhibits contain the entire agreement reached in all previous negotiations between the parties hereto and there are not other representations, agreements or understandings except as specifically set forth herein. 23. Condemnation. 23.1 In the event that the whole of the Demised Premises shall be condemned or taken in any manner for any public or quasi-public use, this Lease and the term and estate hereby granted shall forthwith cease and terminate as of the date of vesting of title. In the event that only a part of the Demised premises shall be so condemned or taken, then effective as of the date of vesting of title, the base minimum rent hereunder for such part shall be equitably abated and this Lease shall continue as to such part not so taken; provided, however, that if Tenant shall, in its reasonable judgment, decide that its business is not economically viable as a result of such taking, Tenant shall have the right to terminate the Lease. In the event that only a part of the Building shall be so condemned or taken, then (a) if substantial structural alteration or reconstruction of the Building shall, in the reasonable opinion of Landlord, be necessary or appropriate as a result of such condemnation or taking (whether or not the Demised Premises be affected), Landlord may, at its option, terminate this Lease and the term and estate hereby granted as of the date of such vesting of title by notifying Tenant in writing of such termination within 60 days following the date on which Landlord shall have received notice of vesting of title, or (b) if Landlord does not elect to terminate this Lease, as aforesaid, this Lease shall be and remain unaffected by such condemnation or taking, except that the base minimum rent shall be abated to the extent, if any, hereinbefore provided. In the event that only a part of the Demised Premises shall be so condemned or taken and this Lease and the term and estate hereby granted are not terminated as hereinbefore provided, Landlord will, at its expense, restore with reasonable diligence the remaining structural portions of the Demised Premises as nearly as practicable to the same condition as it was in prior to such condemnation or taking. 23.2 In the event of termination in any of the cases in this Article provided, this Lease and the term and estate hereby granted shall expire as of the date of such termination with the same effect as if that were the date hereinbefore set for the expiration of the term of this Lease, and the base minimum rent hereunder shall be apportioned as of such date. 23.3 In the event of any condemnation or taking of all or part of the Building or the Demised Premises, Landlord shall be entitled to receive the entire award in the condemnation proceeding, including any award made for the value of the estate vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord any and all right, title and interest of Tenant now or hereafter arising in or to any such award or any part thereof, and Tenant shall be entitled to receive no part of such award. Notwithstanding the foregoing, Tenant may file a claim and receive a separate award for the unamortized value of its leasehold improvements, personal property and fixtures, business dislocation damages, and all expenses involved in relocation. 24. Surrender of Demised Premises. Tenant agrees to surrender the Premises and the Inventory at the termination of the tenancy herein created in the same condition as received by Tenant, reasonable use and wear thereof excepted. 25. Holding Over. In case of holding over by Tenant after expiration or termination of this Lease, Tenant will pay for each month of such holdover period double the amount of the rent and other charges accruing for the last month during the term of this Lease. No holding over by Tenant after the term of this Lease shall operate to extend the Lease, except that any holding over with the consent of Landlord in writing shall thereafter constitute this Lease as a month to month tenancy. 26. Interpretation. The parties hereto intend that the interpretation and enforcement of this Lease be governed by the laws of the State of Florida. If there is more than one Tenant, the obligations hereunder imposed upon Tenant shall be joint and several. The words "Landlord" and "Tenant" shall also extend to and mean the successors in interest of the respective parties hereto although this shall not zina/ caofl co lonlse. doc -8- be construed as conferring upon the Tenant the right to assign this Lease or sublet the Premises or confer rights of occupancy upon anyone other than Tenant. All charges due from Tenant to Landlord hereunder, including, without limitation, any charges against Tenant by Landlord for services or work done on the Premises by order of Tenant, except sales tax, shall be deemed additional rent, shall be included in any lien for rent, and shall be paid (including sales tax) without setoff or defense of any kind. This Lease has been fully negotiated and reviewed by the parties and their counsel and is the work product of both Landlord and Tenant; it shall not be more strictly construed against either party. 27. Quiet Enjoyment. Tenant shall and may peaceably have, hold and enjoy the Premises subject to the terms of this Lease and provided Tenant pays the rental herein reserved and performs all the covenants and agreements herein contained. However, this covenant shall be subject to the terms of the underlying Lease and of any mortgages which may now or later affect the Premises. 28. Estoppel Certificate. Within five (5) days after request therefor by Landlord, Tenant shall deliver to Landlord, in a form satisfactory to Landlord, a certificate certifying (i) the good standing and absence of default under this Lease; (ii) the absence of set-offs to charges hereunder; (iii) the validity and completeness of a copy of this Lease and all amendments to be attached to the certificate; (iv) the amount of pre-paid rent; (v) the amount of security deposit; (vi) the commencement and expiration dates hereof; (vii) the dates and amounts of the last made and next due rental installments; and (viii) such other matters as Landlord shall request. 29. Signage. Except with the prior written consent of Landlord, the Tenant shall not erect, install, display, inscribe, paint or affix any signs, lettering or advertising mediums, in, upon, or above any exterior or interior portion of the Premises including, without limitation, the storefront as well as the exterior glass surfaces thereof. Nevertheless, it is contemplated that signage will be allowed by the Landlord, in keeping with Landlord's building standards in Landlord's sole and uncontrolled discretion, and in keeping with a first class arts/business district and the design of the Colony Theater. 30. Parking. Tenant shall be responsible, at Tenant's sole cost and expense, for the payment of all parking, impact or other fees, if any, related to Tenant's use or occupancy of the Premises or Building. 31. All attachments and exhibits to this Lease shall be considered a part hereof. 32. Brokerage. The parties represent and warrant to each other that there are no brokers involved in this Lease transaction and agree to indemnify, defend and hold harmless the indemnified party from and against all costs, claims, liabilities, expenses or damages of any kind whatsoever (including but not limited to attorneys' fees and costs at all tribunal levels ) arising from any such brokerage claim made against the indemnified party by anyone claiming a commission or fee of any kind as a result of actions by the indemnifying party. 33. Recording. Landlord may record a short form of memorandum (the "Memorandum") of this Lease. Within five (5) days of written request by Landlord, Tenant shall execute Landlord's form Memorandum and promptly return such to Landlord for recordation. 34. Authority. Tenant and person signing on behalf of Tenant have full right and authority to enter into this Lease, and each of the persons signing on Tenant's behalf are authorized to do so. In addition, Tenant warrants that it is not necessary for any other person, firm, corporation, or entity to join in the execution of this Lease to make the Tenant's execution complete, appropriate and binding. 35. Severability. Inapplicability, invalidation, or unenforceability of anyone or more of the provisions of this Lease or any instrument executed and delivered pursuant hereto, by judgment, court order or otherwise, shall in no way affect any other provision of this Lease or any other such instrument, which shall remain in full force and effect. zina! caofl co lonlse.doc -9- 36. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 37. Rules and Regulations. The rules and regulations as may be hereafter adopted by Landlord for the safety, cleanliness and operation of the Building and the preservation of good order therein and for the most efficient use by all tenants, agents, employees, invitees and visitors of the automobile parking spaces provided by Landlord, if any, are expressly made a part of this Lease and Tenant agrees to comply with such rules and regulations. No rules and regulations shall prohibit the reasonable use of the Premises by Tenant, its agents, employees, invitees and visitors for the purposes permitted by this Lease. The Landlord shall not be responsible to Tenant for any nonobservance of such rules and regulations by any other tenant of the Building. The rules and regulations shall be binding upon the Tenant upon delivery of a copy ofthem to Tenant. 38. Lien Upon Tenant's Property. Landlord hereby waives its Landlord's statutory lien on all of the furniture, fixtures, equipment, goods and chattels of Tenant which shall or may be brought or put into the Premises with the exception of those items identified on Exhibit I and any replacements thereof/ Tenant hereby expressly waives and renounces for himself and family any and all homestead and exemption rights he may now or hereafter acquire under or by virtue of the constitution and laws of the State of Florida or of any other state, or of the United States, as against the payment of said rent or any other obligation or damage that may accrue under the terms of this Lease. 39. Trial by Jury. Tenant and Landlord hereby waive any and all right to a jury trial of any issue or controversy arising under this Lease. 40. Displays. The Tenant may not display or sell merchandise or allow grocery carts or other similar devices within the control of Tenant to be stored or to remain outside the defined exterior walls and permanent doorways of the Premises. Tenant further agrees not to install any exterior lighting, amplifiers or similar devices or use in or about the Premises any advertising medium which may be heard or seen outside the Premises, such as flashing lights, searcWights, loudspeakers, phonographs or radio broadcasts. 41. Covenant of Rent. Tenant agrees that the provisions for payment of Rent herein are independent covenants of Tenant and Tenant shall not interpose any counterclaim or counterclaims in a summary proceeding or in any action based upon non-payment of rent or any other payment required of Tenant hereunder. 42. Indemnity for Toxic Waste. Tenant (and any guarantor) hereby agree not to emit or discharge or cause to be emitted or discharged any toxic or hazardous waste or environmental pollution and to indemnify, defend and hold the Landlord, any Mortgagee as hereinafter defined, and their successors and assigns harmless from and against any cost, claim, damage, expense or liability of any kind whatsoever including, but not limited to, attorney's fees and costs at all tribunal levels arising out of any act or omission of Tenant, its agents or any other person on the Premises under color of authority of Tenant, giving rise to any toxic waste, chemical pollution, or similar environmental hazard regardless of whether any such act or omission is, at the time of occurrence, a violation of any law or regulation. The foregoing indemnity shall survive the termination or expiration of this Lease, anything else herein to the contrary notwithstanding. 43. Option to Renew: A. In the event that the Tenant is not then in default hereunder, Landlord grants Tenant the option to renew this Lease for an additional term of three (3) years under all of the same terms and conditions of this Lease with the exception of rent. The rent to be charged for the first Option Year (Base Rent) of the renewal (Option) period shall be the rent charged during the sixth (6th) year plus an zina! caofl co lonlse. doc -10- adjustment pursuant to Paragraph 5.1 hereof. Such Base Rent shall further be adjusted annually pursuant to Paragraph 5.1 hereof, and all other terms and conditions of this Lease shall remain in full force and effect. Tenant shall give Landlord written notice of its intention to exercise this option during the last six months of the last Lease year. If the Tenant fails to furnish such notice within such time, this renewal Option shall terminate and be null-and-void. 44. Tenant Improvements. Tenant agrees to make improvements to the Premises for a minimum of $50,000.00. 45. Inventory. All of the property set forth in Exhibit I attached hereto shall remain at the Premises and Tenant shall have the right to use such property in connection with Tenant's operation of its business at the Premises. Tenant agrees to replace such items as required by wear and tear, and all such items (including the replacements) shall remain the property of the Landlord and returned to the Landlord at the termination of this Lease. In the event there are less than eight (8) performances in any given month during the term of this Lease, the Base Rent for any and all such months shall be reduced to $1,500.00 per month. 46. During the term of this Lease, Tenant shall be the exclusive concessionaire and caterer for the Theater, and agrees to service the patrons of the Theater at all intermissions with appropriate Theater concession services. Landlord further agrees that except as to Tenant, no part of the Building (including outside the Building) shall be leased or used for the sale of food or food products. IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease in several counterparts effective as of the day and year first above written, each of which counterpart shall be considered an executed original. In making proof of this Lease it shall not be necessary to produce or account for more than one counterpart. WITNESSES: LANDLORD/LESSOR: CONCERT ASSOCIATION OF FLORIDA, INC. nntName: ? y~V 9::t:::1d~nrJ (, I By: "-4. Titl~.;' !/ ~C?ta~' + C,).f, (). TENANT/LESSEE: COLONY THEATER CAFE, INe., a Florida corporation '9...7 /?1. (AftJlt!- zina! caof! co lonlse.doc -11- JOINED BY THE CITY OF MIAMI BEACH ("OWNER") PURSUANT TO PARAGRAPH 19 OWNER: CITY OF I BEACH (Aslftwner) ~ " J i,1 {,{,'\ } ,l/{ [~L~--.-' By: Title Print Name Robert Parcher City Clerk APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION Ai; IftIJ/_P l. -/J!fy~ If'-9-~ Dote zi na! caof! co Ion Ise. doc -12- ~ ,'llV. IJ I \I" (MUN) 11: 34 In the Cat, Area behind the rounter: 1 Sink with Drainer attached 1 Largo CciliD& Li&ht Fixture 5 Smaller Hanging Light Fixtures In KlteheD Area: 1 Char:coal Grill 1 6b Burner Gas Stove 2 Metal Cooler type Cabinets 1 Walk-In 2 Big Hot/Cold sinks 1 Dishwasher (Hobart) m ". Bar Area: 1 SodaIBeer Cooler 1- 3 Tier Sink Hot/Cold 30!> 372 1;)52 PAGE. 2/2 EXHIBIT I INVENTORY i~ . ~. " , "'J' I'... ': ' ',' . '" .. : [' ..:.; "" r ~ ':. ....' ': ..,:. '~ . I oJ..' .. . " ~ '. . ~. . f :"::1 ; " .' i:,:,':, I " ". ~.' . ';" ,- " " ,1.,'".1 .r ..... ,''J..l.,' " . -, j ~. ! :',~~ ~ . 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