HomeMy WebLinkAboutReso 2016-2537 RESOLUTION NO. 2016-253/7
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, APPROVING A SECOND
AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE
CITY OF SUNNY ISLES BEACH AND FLY ME TO THE MOON,
LLC, IN SUBSTANTIALLY THE SAME FORM ATTACHED
HERETO AS EXHIBIT "A"; AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY
ATTORNEY AND THE CITY MANAGER TO DO ALL THINGS
NECESSARY TO EFFECTUATE THE TERMS OF THIS
AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Sunny Isles Beach (the "City") and Fly Me to the Moon, LLC
entered into Lease Agreement to lease restaurant space at Gateway Park; and
WHEREAS, the parties desire to amend certain provisions in the Lease Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approving the Second Amendment to the Lease Agreement. The Second
Amendment to the Lease Agreement between the City of Sunny Isle Beach and Fly Me to the
Moon, LLC, is hereby approved in substantially the same form as the attached Exhibit "A".
Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute the Second
Amendment to the Lease Agreement in substantially the same form as the attached Exhibit "A".
Section 3. Authorization of City Manager and City Attorney. The City Manager and City
Attorney are authorized to do all things necessary to effectuate the terms of this Resolution.
Section 4. Effective Date. This Resolution shall become effective upon adoption.
PASSED AND ADOPTED this 17th day of March 2016.
George H. holl, Mayor
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ATTESTS: • - '•s
Jane A: r -
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MMC, City•Clerk
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Approving Second Amendment to Lease Agreement 1 of 2
APPROVED AS TO FORM
AND LEGAL SUF ICIENCY:
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H.ns 0 'i n.
Moved by:
Seconded by: 0.0
Vote:
Mayor Scholl Yes) (No)
Vice Mayor Gatto Yes) (No)
Commissioner Aelion (Yes) (No)
Commissioner Goldman es) (No)
Commissioner Levin (Yes) (No)
Approving Second Amendment to Lease Agreement 2 of 2
SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement, effective as of March 1 , 2016, entered
into by and between CITY OF SUNNY ISLES BEACH, FLORIDA, a municipal corporation of
the State of Florida ("Lessor"), and FLY ME TO THE MOON, LLC, a Florida limited liability
company ("Lessee"), (collectively referred to herein as the "Parties").
PRELIMINARY STATEMENTS
WHEREAS, the Lessor and Lessee entered into that certain LEASE AGREEMENT on
February 23, 2015 ("Lease") in connection with the real property consisting of 15,500 square feet
indoor restaurant facility with an adjacent outdoor dining area consisting of 2,500 square feet
located on the ground level at the restaurant space at Gateway Park in the City of Sunny Isles
Beach, Florida ("Premises").
WHEREAS, the Parties wish to amend the certain provisions contained in the Lease, and:
NOW THEREFORE, in consideration of the receipt of Ten and 00/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and adequacy is hereby acknowledged by
the parties hereby agree as follows:
1. Section 1 entitled Leased Premises, Use, and Common Area is amended to include
permitted uses of the Premises by the Lessee to be that of a gourmet marketplace containing multi-
unit quick serve restaurants and gourmet food kiosks.
2. Section 3 entitled Term is amended to change the notice provision for the Lessee
to advise the City that it intends to extend the Lease from One Hundred and Fifty (150) days to
Two Hundred-and Seventy (270) days.
3. Section 4.1 entitled Base Rent is deleted in its entirety and replaced with the
following:
a. 4.1 Base Rent. Lessee shall pay directly to Lessor, in lawful United States
currency, a guaranteed monthly payment as indicated below and as set forth in
Table 1.1, attached hereto as Exhibit "A" (the "Base Rent") plus all applicable
sales tax. Rent is due no later than the fifteenth (15`h) day of each month. Rent
shall be payable to the City of Sunny Isles Beach C/O the City's Finance
Department located at 18070 Collins Avenue, Sunny Isles Beach, FL 33160.
Rent shall commence upon issuance of the Temporary Certificate of Occupancy
("Rent Commencement Date"), as hereinafter defined.
i. Year One. Commencing on the Rent Commencement Date and for one
(1)year thereafter subject to the Rent Abatement Period below the Base
Rent shall be Twenty Nine Thousand One Hundred and Sixty Six and
67/100 Dollars ($29,166.67) per month or $350,000 annually;
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ii. Rent Abatement Period. Lessor and Lessee agree that the Base Rent as
reflected in Table 1.1 shall be fully abated during the period beginning
from the Rent Commencement Date and ending six (6) months from
said Rent Commencement Date ("Rent Abatement Period").
Notwithstanding the foregoing, Lessee shall be responsible for real
estate taxes or any other governmental impositions during the Rent
Abatement Period:
iii. Year Two. Commencing the second (2nd) year after the Rent
Commencement Date the Base Rent shall be Thirty Seven Thousand
Five Hundred and 00/100 Dollars ($37,500.00) per month or $450,000
annually; and
iv. Year Three and Thereafter. Commencing the third (3`d) year after the
Rent Commencement date and throughout the Term of the Lease, the
Base Rent shall be Forty One Thousand Six Hundred and Sixty Six and
67/100 Dollars ($41,666.67) per month or $500,000 annually.
4. Section 4.2 entitled Rent Commencement Date is amended to change the "Rent
Commence Date" from 180 days from the issuance of the Temporary Certificate of
Occupancy or Certificate of Occupancy to the date of issuance of the Temporary
Certificate of Occupancy to the Lessee.
5. Section 4.3 entitled Percentage Rent is deleted in its entirety and replaced with the
following:
a. 4.3 Percentage Rent. Commencing the fourth (4th) year after the Rent
Commencement Date the Lessee shall pay the Lessor as additional Rent the
amount ("Percentage Rent"), by which (a) the product of the (i) Gross Sales
from the restaurant and the gross sales from the marketplace, as hereinafter
defined, for a particular calendar quarter of a full or partial Lease Year,
multiplied by (ii) the respective percentage (%) amounts described below and
then added together. (See example below).
The Percentage Rent shall be paid on a quarterly basis during the Lease year,
on or before the thirtieth(30`h)day of the month following the end of each Lease
Year quarter. Lessee shall pay the Base Rent as contained in Section 4.1 on a
monthly basis. If, at the end of an applicable quarter, the Percentage Rent
exceeds the Base Rent,the Lessee shall make a payment of the difference of the
Base Rent and the Percentage Rent in the manner described in this Section 4.3.
In order to calculate the Percentage Rents, the Lessee and any sub-lessee shall
install and maintain a centralized Point of Sale (POS) system. The amount of
the Percentage Rent shall be determined as follows:
i. Years Four Through Six. Starting at the fourth (4th) year after the Rent
Commencement Date and through year six (6), the Percentage Rent
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shall be 8%of the restaurant Gross Sales and 5.5%of marketplace Gross
Sales.
ii. Years Seven and Thereafter. Commencing the seventh (7 ) year after
the Rent Commencement Date and throughout the Term of the Lease,
the Percentage Rent shall be calculated as 8% of the restaurant Gross
Sales and 6% of the marketplace Gross Sales.
By way of example, in year seven of the Lease, when Base Rent for a calendar
quarter totals one hundred twenty-five thousand dollars ($125,000); and the
Gross Sales from the restaurant is one million dollars ($1,000,000) and the
Gross Sales from the marketplace is two million two hundred and fifty thousand
dollars ($2,250,000), the Lessee shall pay to City the difference between
Percentage Rent and the Base Rent. This is calculated as follows: ($1,000,000
x .08 =$80,000)+($2,250,000 x .06=$135,000)=$215,000. During the same
quarter, the Base Rent is $125,000, as such, at the end of said quarter, Lessee
shall pay the difference between the Percentage Rent and the Base Rent as
additional rent to the Lessor ($215,000 - $125,000 = $90,000). The total sum
the Lessee shall pay to the Lessor as Base Rent and additional rent is $215,000
($125,000 + $90,000).
6. Section 8 entitled Sale of Food, Liquor, and Concession is amended to delete the
following sentences:
The Lessee shall be provided with the opportunity to operate the
during the term of this Lase, unless Lessee is in default
("Concession"). The right to operate the Concession shal4-19c
granted in one (1) year increments commencing the date the
restaurant opens for business. The Lessor reserves the absolute
right to take over the operation of the Concession at the end of any
one year increment provided the Lessor notifies the Lessee at least
thirty (30) days prior to the expiration of any one year increment,
even if no default by Lessee occurs under this Lease. If the Lessor
has not taken over the operation of the Concession as indicated
herein, the Lessee's right to operate the Concession shall
automatically renew each year for the term of this Lease.
Notwithstanding the deletions, the parties may enter into yearly operational
agreements for the concession area.
7. Section 13 entitled Alterations is amended to allow the Lessee to make alterations,
additions, or improvements costing up to Ten Thousand Dollars ($10,000.00)
without first obtaining the written consent of City provided that Lessee obtains all
necessary governmental permits.
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8. Section 15 entitled Assignment and Subletting is amended to incorporate and allow
Lessee to sub-lease space within the Premises to third party restaurants and gourmet
food kiosks provided the Lessee obtains the Lessor's approval prior to leasing out
any space within the Premises. If Lessee does sub-lease space within the Premises,
Lessee shall remain solely and wholly liable to Lessor for any and all of Lessee's
obligations for the subleased space. All sub-lessees shall have sufficient and
appropriate insurance which shall be presented to the Lessor prior to Lessor's
approval of any sub-lease in the Premises. Lessor understands that the sub-leasing
of space within the Premises by the Lessee is integral to the development of the
Premises and Lessee's proposal to sub-lease space shall not trigger Lessor's rights
to recapture any portion of the Leased Premises unless Lessee completes a Transfer
or sub-lease without the Lessor's prior consent. Notwithstanding the foregoing, the
Lessor has the absolute discretion to reject any sublease if the sublease is not in the
best interest of the Lessor.
9. Exhibit B entitled Leased Premises, attached to original Lease Agreement, is
amended to clarify that no restaurant seating shall be permitted outside of the
Leased Premises. All outdoor dining within the Leased Premises shall comply with
Section 116-2 of the Code of Ordinances of the City of Sunny Isles Beach, with the
exception that self-service of food items shall be permitted for the marketplace.
10. All other terms and conditions shall remain the same.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Lease
Agreement as of the date first above written. Signed, Sealed and Delivered in the presence of:
Attest: CITY:
` �'' ' _ CITY SUNNY ISLES BEACH
a Flo :da Municipal Corporation
Jane Hmes \4 MC City Clerk
; \ A. By: Geor_e "Bud" Scholl, Mayor
App 1 � , , P 1 m and legal sufficiency
ins O knot, Cry Attorney
LESSEE:
FLY ME TO THE MOON, LLC,
a Florida limited liab'l ity company
Al•
By: Carlos Ga an, Manager
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Table 1.1
Gateway Park Restaurant & MarkEat Place
Rent Schedule
Percentage Rent Percentage Rent
Year Base Rent on Restaurant on MarkEat Place
Gross Sales Gross Sales
. Rent Year 1 to commence on date of issuance of Temporary Certificate of Occupancy
1 6 months rent abatement -- --
$175,000
2 $450,000 -- --
3 $500,000 -- --
4 $500,000 8% 5.5%
5 $500,000 8% 5.5%
6 $500,000 8% 5.5%
7 $500,000 8% 6%
8 $500,000 8% 6%
9 $500,000 8% 6%
10 $500,000 8% 6%
11 $500,000 8% 6%
12 $500,000 8% 6%
13 $500,000 8% 6%
14 $500,000 8% 6%
15 $500,000 8% 6%
16 $500,000 8% 6%
17 $500,000 8% 6%
18 $500,000 8% 6%
19 $500,000 8% 6%
20 $500,000 8% 6%
7
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SvHTIY rsi$ City of Sunny Isles Beach
F r. s
At '.---'` 9 18070 Collins Avenue
1 ,,- f z. , Sunny Isles Beach, Florida 33160
SP A9).`Q¢�P 4,7 (305)947-0606 City Hall
"s`/•v c)r 50,41,`k° (305)949-3113 Fax
MEMORANDUM
TO: The Honorable Mayor and City Commission
FROM: Christopher J. Russo, City Manager
DATE: 3/17/2016
RE: Approving Second Amendment to Lease Agreement for
Gateway Park Restaurant Lease
RECOMMENDATION:
This Resolution is presented for your consideration.
REASONS:
The following are essentially the terms of the Second Amendment to
the Lease Agreement between the City and the restaurant operator, Fly
ME To The Moon:
(a) Requiring 270 days' notice to the City to exercise a renewal clause
prior to expiration of the Agreement;
(b) Expand the "Permitted Uses" to include a gourmet marketplace
containing multi-unit quick serve restaurants and gourmet food kiosk;
(c) Clarifying Base Rent amounts during Rent Abatement Period;
(d) Clarifying Percentage Rent amounts during the term of the
Agreement; and
(e) To allow Lessee to make alterations, additions, or improvements
costing up to $10,000.00 without the consent of the City providing the
Lessee obtains all necessary governmental permits. •
ATTACHMENTS:
Description
Resolution
2nd Amendment to Lease Agreement
152