2009-27238 ResoRESOLUTION NO. 2009-27238
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING ON FIRST READING, A
LEASE AGREEMENT BETWEEN THE CITY AND ECOMB, INC., FOR USE
OF THE 1,251 SQUARE FOOT CITY-OWNED BUILDING, LOCATED AT
210 SECOND STREET, MIAMI BEACH, FLORIDA; SAID LEASE HAVING
AN INITIAL TERM OF THREE YEARS, WITH ONE ADDITIONAL THREE
YEAR RENEWAL TERM, AT THE CITY'S SOLE DISCRETION; WAIVING
BY 5/7THS VOTE, THE COMPETITIVE BIDDING AND APPRAISAL
REQUIREMENTS, AS REQUIRED BY SECTION 82-39 OF THE MIAMI
BEACH CITY CODE; FURTHER SETTING A PUBLIC HEARING ON
DECEMBER 9, 2009, FOR THE SECOND READING (AND FINAL
APPROVAL) OF THE LEASE AGREEMENT
WHEREAS, in April 2004, the City-owned building ("the Building) located within a
portion of Washington Park, and physically located at 210 Second Street, was used a
Miami Beach Police Substation, until same was vacated in May 2009; and
WHEREAS, ECOMB, Inc. has expressed interest in leasing the Building for office
space; and
WHEREAS, on September 3, 2009, the F&CPC approved the proposed lease, said
lease having an initial term of three (3) years, commencing January 1, 2010 and ending
December 31, 2012, with one (1) additional three (3) year renewal term, at the City's sole
discretion; and
WHEREAS, Section 82-39 of the Miami Beach City Code, governing the sale/lease
of public property, requires a competitive bidding process, a Planning Department analysis,
and an independent appraisal to determine the value of the leasehold interest, as well as
two (2) readings of the proposed lease, with the second (and final) reading followed by an
advertised public hearing to obtain citizen input; and
WHEREAS, the Administration would hereby recommend that the Mayor and City
Commission approve the attached Lease Agreement on first reading, and hereby set the
public hearing on December 9, 2009, for second reading and final approval of the
Agreement; and
WHEREAS, Section 82-39 of the City Code further provides for the waiver of the
competitive bidding and appraisal requirements, by 5/7t"S vote of the Mayor and City
Commission, for leases of City land, upon a finding by the Mayor and City Commission that
the public interest would be served by waiving such conditions; the Administration would
also hereby recommend that the Mayor and City Commission approve said waiver.
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 on first reading, a Lease Agreement between the City and
ECOMB, Inc., for use of the 1,251 square foot City-owned building, located at 210 Second
Street, Miami Beach, Florida for an initial term of three years, with one additional three year
renewal term, at the City's sole discretion, and waiving by 5/7tns vote, the competitive
bidding and appraisal requirements, as required by Section 82-39 of the Miami Beach City
Code; further setting a public hearing on December 9, 2009, for the second reading (and
final approval) of the Lease Agreement.
PASSED and ADOPTED this 14th day of October, 2009.
ATTEST:
~~, ~ Qom. ~~~~-'L.
Robert Parcher, CITY CLERK
atti Herr ra ower, MAYOR
JMG\HMF\AP\rlr
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APPR88OyyV~~AAED AS TO
FORMR'IE~CENGUAGE
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Date
Condensed Title:
Request for approval for a Lease Agreement between the City and ECOMB, Inc. for use of the 1,251 SF
City-owned building located at 210 Second Street, for a term of three years, with one additional three year
renewal term, waiving by 5/7ths vote the competitive bidding and appraisal requirements as required by
Section 82-30 and setting a public hearing on December 9,2009, for second reading and public hearing.
Ke Intended Outcome Su orted:
Increase resident satisfaction with the level of services and facilities.
Supporting Data (Surveys, Environmental Scan, etc.):
Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the best places to do
business and 61 % of the same group would recommend Miami Beach as a place to do business.
Issue:
Should the Ci Commission a rove the lease a reement?
Item Summa /Recommendation:
FIRST READING
On March 10, 2009, the Finance & Citywide Projects Committee (F&CPC) as part of the City's "space
planning" discussion was informed that this City-owned building was not needed for City offices and did not
have a future programmed use. On September 3, 2009, the F&CPC recommended approval of the proposed
lease with the following terms:
• Square Footage: 1,251 SF
• Term: Three years, with one additional three year renewal term, at City's sole discretion;
• Rent: $1.20 annually in consideration for the volunteer clean-up efforts Tenant provides along the
City's beaches;
• Additional Rent: Not applicable;
• Security Deposit: Prior to execution of the Lease, the Tenant will furnish the City a Security Deposit
in the sum of $500.00;
• Utilities: Tenant shall be responsible for all utilities. Additionally, Tenant shall reimburse the City a
monthly flat fee of $200.00 for water, sewer and stormwater costs;
• Landscaping Tenant shall be responsible for all landscaping immediately adjacent to the building.
Section 82-39 provides for the waiver of the competitive bidding and appraisal requirements, by 5/7ths vote
of the Mayor and City Commission, upon a finding by the Mayor and City Commission that the public interest
would be served by waiving such conditions.
A Planning Department analysis finds that the use of this space is consistent with the land use designation
contained in the Com rehensive Plan.
Adviso Board Recommendation:
Finance ~ Cit de Projects Committee, March 10, 2009 and September 3. 2009.
Financial Information:
Source of Funds: Amount Account
n/a ~ 1 ~ n/a
Financial Impact Summary:
Cit Clerk's Office Le islative Trackin
Anna Parekh, extension 7193
Sign-Offs:
Depa m t Director Assistant r Manager City Manager
AP HF JMG
T:WGENDA\2009\October 14\Regular\ECOMB_Lease_Agreement.lst_Reading.SUM.doc U
~~ ~ ~ AGENDA ITEM R~ ~3
'~ DATE ~ ( ~
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: October 14, 2009
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING ON FIRST READING, A LEASE
AGREEMENT BETWEEN THE CITY AND ECOMB, INC., FOR USE OF THE
1,251 SQUARE FOOT CITY-OWNED BUILDING, LOCATED AT 210 SECOND
STREET, MIAMI BEACH, FLORIDA; SAID LEASE HAVING AN INITIAL TERM
OF THREE YEARS, WITH ONE ADDITIONAL THREE YEAR RENEWAL TERM,
AT THE CITY'S SOLE DISCRETION; WAIVING BY 5/7THS VOTE, THE
COMPETITIVE BIDDING AND APPRAISAL REQUIREMENTS, AS REQUIRED
BY SECTION 82-39 OF THE MIAMI BEACH CITY CODE; FURTHER SETTING A
PUBLIC HEARING ON DECEMBER 9, 2009, FOR THE SECOND READING
(AND FINAL APPROVAL) OF THE LEASE AGREEMENT
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOMES SUPPORTED
Increase resident satisfaction with the level of services and facilities.
ANALYSIS
The space being considered for lease is a City-owned building (the "Building") located within a
portion of Washington Park (as specifically delineated in Exhibit A) and located on the southeast
corner of Collins Court and 2nd Street adjacent to the existing small dog bark park. Built in 1949 as
a recreational center, the Building is designated as a "contributing structure" within the Ocean Beach
Historic District. It was originally designed by noted architect Harry O. Nelson, who also designed the
art deco hotel on Ocean Terrace and 75th Street (now the Days Inn) and the Humana building
located at 74th Street and Collins Avenue.
Since September 9, 1998 until April 30, 2004, the Building was occupied by the not-for profit Alliance
for Media Arts, Inc. In April of 2004, the City began to utilize the Building as a RDA Police
substation. A screen enclosure was added to the exterior patio to secure the area. The RDA Police
has since been relocated. For the past four months the Building has been secured and vacant.
The Environmental Coalition of Miami Beach, Inc. (ECOMB) recently approached the City requesting
the opportunity to lease the Building. ECOMB works closely with the City and other local
organizations to promote activities in support of the environment, including clean-up events, and
promotion of recycling and other green initiatives. The Building's interior office space consists of
approximately 209 square feet of the total 1,251 square feet which makes up the entire footprint of
the Building. The large screened exterior patio and two restrooms account for the remaining square
footage. No portion of the adjacent small dog bark park space is included in this lease agreement.
Commission Memorandum
ECOMB, Inc.
October 14, 2009
Page 2 of 6
ECOMB has presented an initial concept plan to develop this facility into the "Miami Beach Center
for the Environment". This concept plan would entail, at a minimum, the enclosure of the screened
patio area. Until such time as ECOMB is able to produce a final concept plan and demonstrate
financial resources to implement their concept plan, the Building will be used by ECOMB for office
space. Any improvements to the Building would first necessitate approval of the City Manager.
Additionally, due to its "contributing structure" designation any improvements, beyond cleaning and
superficial repairs, would require Historic Preservation Board approval. Upon conferring with the
Planning Department, staff does not foresee any obstacles in obtaining Historic Preservation
approval based on the proposal delineated in the initial concept plan.
On September 3, 2009, the Finance & Citywide Projects Committee reviewed and recommended
approval of the lease agreement containing the following terms:
TERM: Initial term of three years, with one additional three year renewal period, at the City's
sole discretion.
RENT: ECOMB would pay a base rent of $1.20 per year. This rent structure is similar to that
used for other not-for-profit community service organizations leasing City-owned
property.
SECURITY
DEPOSIT: The City is requiring a security deposit of $500.00, which is a nominal amount to
offset the cost of unexpected repairs to the Building.
UTILITIES: ECOMB shall be responsible for and directly pay all utility costs including, without
limitation, electricity, gas, cable, telephone, Internet, janitorial garbage service, all
hook-up fees and impact fees, and any other utility service provided to the Building.
In addition to these costs, ECOMB agrees to reimburse the City a flat fee for water,
sewer and stormwater costs that are tied into the water meter for the adjacent park,
in the amount of Two Hundred Dollars and 00/100 ($200.00) per month.
LANDSCAPING:
ECOMB shall be responsible for all landscaping immediately adjacent to the
Building, which landscaping shall be to the standards of the City's Parks Department.
If ECOMB fails to maintain the landscaping and/or the landscaping is deemed
unsatisfactory, City may provide appropriate landscaping, at ECOMB's expense.
CONCLUSION
Section 82-39 of the Miami Beach City Code, governing the sale/lease of public property, provides
that the lease of any City-owned property, including option periods, requires the following:
1) a public bidding process;
2) Planning Department analysis (see attached Exhibit B);
3) an independent appraisal to determine the value of the leasehold interest
4) two (2) readings of the proposed lease; and
5) a public hearing to obtain citizen input.
2
Commission Memorandum
ECOMB, Inc.
October 14, 2009
Page 3 of 6
Section 82-39 further provides for the waiver of the competitive bidding and appraisal requirements,
by 5/7ms vote of the Mayor and City Commission, upon a finding by the Mayor and City Commission
that the public interest would be served by waiving such conditions.
Given that the building is not utilized by the City; that the Building has not been identified for any
other revenue generating purpose; that ECOMB is willing to undertake the operating costs of the
Building thus insuring that this "contributing structure" is maintained and preserved; and that
ECOMB will continue to provide volunteer clean-up efforts along the City's beaches; staff
recommends that the City enter into a lease agreement for this Building with the above noted
proposed terms.
Based on the aforementioned, the Administration recommends that the Mayor and City Commission
approve on first reading, the Lease Agreement by and between the City and ECOMB, Inc. for use of
the approximately 1,251 square foot of City-owned building, located at 210 Second Street, Miami
Beach, Florida, for an initial term of three years, with one additional three year renewal term, at the
City's sole discretion, waiving by 5/7cns vote, the competitive bidding and appraisal requirements, as
required by Section 82-39 of the Miami Beach City Code; and further setting a public hearing on
December 9, 2009 for the second reading (and final approval) of the Lease Agreement.
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3
Commission Memorandum
ECOMB, Inc.
October 74, 2009
Page 4 of 6
EXHIBIT A
(the "Building")
4
Commission Memorandum
ECOMB, Inc.
October 14, 2009
Page 5 of 6
EXHIBIT B
m ~~ I;~J~9BEACH
PLANNING DEPARTMENT
INTERQFFICE MEMORANDUM
To: Anna Parekh, Real Estate, Housing & Comm. Development Director
FROM: Jorge G. Gomez, Planning Director ~~~ ,, ~~~~ ~~~-,
DATE: September 24, 2009
sueJECT: Analysis of Proposed Lease Agreement for ECOMB, Inc.
Washington Park, 210 Second Street
Pursuant to your request, this memorandum will serve as a planning analysis of the
proposed lease agreement between the City and ECOMB, Inc. (Tenant), for the use of
the entire 1,251 square foot City-owned building within Washington Park, located at
210 Second Street, said lease agreement for an initial term of three (3) years, with an
additional three (3) year renewal term, at the City's sole discretion.
Section 82-38 of the Code of the City of Miami Beach requires that any proposed sale or
lease of City-owned land be analyzed from a planning perspective so that the City
Commission and the public are fully apprised of all conditions relating to the proposed
sale or lease. The following is an analysis of the criteria delineated in the Code:
1. Whether or not the proposed use is in keeping with city goals and
objectives and conforms to the city comprehensive plan.
Consistent -The property is located within the ROS Recreation and Open
Space future land use category, and surrounded by the CPS-1 Limited Mixed-Use
Commercial and RPS-3 Residential Medium-High Density future land use categories.
The proposed use is for Center for the Environment; ECOMB, Inc. is snot-for-profit
volunteer-based corporation involved in environmental education. The lease agreement
between the City and ECOMB, Inc. is consistent with the future land use category
description contained in the Comprehensive Plan.
2. The impact on adjacent property, including the potential positive or
negative impacts such as diminution of open space, increased traffic, noise level
or enhanced property values, improved development patterns and provision of
necessary services. Based on the proposed use of the property, the city shall
determine the potential impact of the project on city utilities and other
infrastructure needs and the magnitude of costs associated with needed
infrastructure improvements. Should it become apparent that further evaluation
of traffic impact is needed, the proponent shall be responsible for obtaining a
traffic impact analysis from a reputable traffic engineer.
Consistent -The property subject to the lease is an existing building in
Washington Park, and previously was used as a Police Department substation. There
would be no diminution of open space as no new construction is being proposed. No
additional utility or infrastructure is expected to be necessary.
Commission Memorandum
ECOMB, Inc.
October 14, 2009
Page 6 of 6
Proposed Lease - ECOMB, Inc.
Washington Park, 210 Second Street
September 24, 2009
Page 2
3. A determination as to whether or not the proposed use is in keeping with a
public purpose and community needs, such as expanding the city's revenue base,
creating jobs, creating a significant revenue stream, and improving the
community's overall quality of life.
Partially Consistent -The proposal will not accrue any significant revenue to the
City. The potential to create additional jobs is limited as ECOMB is primarily a volunteer
organization. However, usage of the building within the park as an environmental center
may contribute to an overall increase in quality of life.
4. Determination as to whether or not the development is in keeping with the
surrounding neighborhood, will block views or create environmental intrusions,
and evaluation of the design and aesthetic considerations of the project.
Consistent -The surrounding area consists of the South Pointe neighborhood.
This proposed use in the existing park will not be out of character with the surrounding
uses. Views are not Mocked as the building already exists. An environmental center
would be expected to increase the public's awareness of environmental concerns.
5. The impact on adjacent properties, whether or not there is adequate
parking, street and infrastructure needs.
Partially Consistent -The introduction of an environmental center at this
location should not create a negative impact on adjacent properties. However, as the
site does not contain any parking, there visitors will need to find parking in the
surrounding neighborhood or arrive on foot or by transit. No further infrastructure needs
are anticipated.
6. A determination as to whether or not alternatives are available for the
proposed disposition, including assembly of adjacent properties, and whether the
project could be accomplished under a private ownership assembly.
Not applicable -This is a City-owned property, of which this proposed use is a
small portion of the available space. No assembly of land is necessary, nor would such
be under private ownership.
7. Within the constraints of public objectives, the department should examine
financial issues such as job generation, providing housing opportunities, and the
return to the city for its disposition of property.
Partially Consistent -Although the proposal serves public objectives, the
proposed use does not create additional jobs, no housing opportunities will be created,
nor is there any return to the City.
8. Such other issues as the Planning Department may deem appropriate in
analysis of the proposed disposition.
Not applicable -The Planning Qepartment has no other issues it deems
appropriate to analyze for this proposal.
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 9th day of December, 2009, by and
between the CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred
to as "City" or "Landlord"), and ECOMB, INC., a Florida not-for-profit corporation,
(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~hefiaby leases and hires
from the City, those certain premises hereinafter referred'`tQ gas the "Demised
Premises" and more fully described as follows:
The approximately 1,251 square:. foot City-owned building. (the
"Building") within a portion of Washington Part(, specifically located at
210 Second Street, Miami Beach, Florida, 33139, and as further
delineated in "Exhibit 1 "; attached hereto and incorporated herein.
2. Term.
2.1 Tenant shall be entitled to have and to hold- the Demised Premises for an
initial term of three'(3) years, commencing on the 1St day of January, 2010
(the "Commencement Date"), and ending on the 31St day of December,
2012. For purposes of this Lease Agreement, and including, without
limitation, Subsection 22 herein, a "contract year" shall be defined as that
certain period commencing on the 1St day of January, and ending on the 31St
day of December.
2.2 Provided Tenant is`in good standing and free from default(s) under Section
18 hereof, and upon written notice from Tenant, which notice shall be
submitted to he City Manager no earlier than one hundred twenty (120)
da s, but in any case no later than sixty (60) days prior to the expiration of
the itial term, this Lease may be extended for one (1) additional three (3)
year rerleWal term. Any extension, if approved, shall be memorialized in
writing and signed by the parties hereto (with the City hereby designating the
City Manager as the individual authorized to execute such extensions on its
behalf).
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Lease Agreement (upon expiration of the initial term or
any renewal term), the City Manager shall notify Tenant of same in writing,
which notice shall be provided to Tenant within fifteen (15) business days of
the City Manager's receipt of Tenant's written notice.
2.3 NOTWITHSTANDING SUBSECTIONS 2.1 AND 2.2 HEREIN, THIS
AGREEMENT MAY BE TERMINATED BY EITHER PARTY, WITHOUT
CAUSE AND FOR CONVENIENCE AT ANY TIME DURING THE TERM
(INCLUDING ANY RENEWAL TERM, AS THE CASE MAY BE), UPON
FURNISHING THIRTY (30) DAYS WRITTEN NOTICE TO THE OTHER
PARTY.
3. Rent.
3.1 Base Rent:
Base Rent for the Demised Premises shall begin to accrue on the
Commencement Date.
3.1.1 Throughout the Term herein, ttie Base Rent for the Demised
Premises shall be One Dollar ahd 20/100 ($1.2Q) per year, payable in
monthly installments of 1011 Q0 ($0.10), commencing on the
Commencement Date and, hereafter, on each first'y of subsequent
months. ,
3.2 Additional Rent:
In addition to the Base.Rent, as set forth in Section 3.1, Tenant shall also
pay the following Add~fional Rent as provided below:
3.2.1 OperatincLExpenses:
Intentionally Omitted.
3.2.2 Property Tars:
The Property-"fax Payment shall be payable by Tenant, in accordance
with Section 11 .herein.
3.2.3 Insurance:
Intentionally Omitted.
3.3 Sales Taxes:
Concurrent with the payment of the Base Rent and Additional Rent as
provide herein, Tenant shall also pay any and all sums for all applicable
tax(es), including without limitation, sales and use taxes and Property Taxes,
imposed, I~uied or assessed against the Demised Premises, or any other
charge a~ payment required by any governmental authority having jurisdiction
there over, even though the taxing statute or ordinance may purport to
impose such tax against the City.
3.4 Enforcement.
Tenant agrees to pay the Base Rent, Additional Rent, and any other
amounts as may be due and payable by Tenant under this Agreement, at the
time and in the manner provided herein, and should said rents and/or other
additional amounts due herein provided, at any time remain due and unpaid
for a period of fifteen (15) days after the same shall become due, the City
may exercise any or all options available to it hereunder, which options may
2
be exercised concurrently or separately, or the City may pursue any other
remedies enforced by law.
4. Location for Payments.
All rents or other payments due hereunder shall be paid to the City at the following
address:
City of Miami Beach
Revenue Manager
1700 Convention Center Drive, 3`d Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in writing.
5. Parking.
Intentionally Omitted.
6. Security Deposit.
Upon execution of this Agreement Tenant shall furnish the City with a Security
Deposit, in the amount of Five. Hundred Dollars: and 00/100 ($500.00). Said Security
Deposit shall serve to secure Tenant's performance in accordance with the
provisions of this Agreement. In the event Tenant-sails to perform in accordance
with said provisions, the City may retain said .Security Deposit, as well as pursue
any and all other legal remedies provided-herein, ar as may be provided by
,,
applicable law.
The parties agree and acknowledge that the foregoing condition is intended to be a
condition subsequent to th'e,Gity's approval of this Agreement. Accordingly, in the
event that Tenant does not satisfy the aforestated, then the City Manager or his
designee may imrti~~liately, without' further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to
him for breach ofi contr=act;
7. Use and Possession of Demised Premises.
7.1 The Demised Premises shall be used by the Tenant solely as office space
for the purpose(s) of educating Miami-Dade County's residents and visitors
to adopt responsible environmental behaviors and to raising their awareness
to the surrounding ecosystems. Said Premises shall be open for operation a
minimum of five (5) days a week, with minimum hours of operation being as
follows:
Monday -Friday: 9:00 AM to 5:00 PM
Tenant shall not otherwise modify the days or hours of operation without the
prior written approval of the City Manager. Nothing herein contained shall be
construed to authorize hours contrary to the laws governing such operations.
7.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the above
3
purpose(s)/use(s), and for no other purpose(s) and/or use(s) whatsoever.
Tenant will not make or permit any use of the Demised Premises that,
directly or indirectly, is forbidden by law, ordinance or government regulation,
or that may be dangerous to life, limb or property. Tenant may not commit
(nor permit) waste on the Demised Premises; nor permit the use of the
Demised Premises for any illegal purposes; nor commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised Premises
(or otherwise allows the Demised Premises to be used) for any purpose(s)
not expressly permitted herein, or permits and/or allows any prohibited use(s)
as provided herein, then the City may declare this Agreement in default
pursuant to Section 18 or, without notice to Tenant, restrain such improper
use by injunction or other legal action.
7.3 Tenant shall also maintain its not-for-profit status in full force and effect, and
in good standing, throughout the Term herein.
8. Improvements.
The Building is designated as a "contributing structure" within the C?cean Beach
Historic District, which may necessitate that improvements be approved by the
Historic Preservation Board.
8.1 Tenant accepts the Demised Premises in their present "AS IS" condition
and may construct or cause to he constructed, such interior and exterior
improvements .and maintenance to the Demised Premises, as reasonably
necessary for it tp' carry on .its permitted use(s), as set forth in Section 7;
provided, however,' that any plans for such improvements shall be first
submitted to the City Manager for his prior written consent, which consent, if
granted at all, shall, be at the City Manager's sole and absolute discretion.
Additionally,,anycnd all approved' improvements shall be made at Tenant's
sole: expense and responsibility. All permanent (fixed) improvements to the
Demised Premises shall remain the property of the City upon termination
and/or expiration of this Agreement. Upon termination and/or expiration of
this Agreement, 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.
Any and all permits and or licenses required for the installation of
improvements shall be the sole cost and responsibility of Tenant.
8.2 Notwithstanding Subsection 8.1, upon termination and/or expiration of this
Agreement, and at City's sole option and discretion, any or all alterations or
additions made by Tenant to or in the Demised Premises shall, upon written
demand by the City Manager, be promptly removed by Tenant, at its
expense and responsibility, and Tenant further hereby agrees, in such event,
to restore the Demised Premises to their original condition prior to the
Commencement Date of this Agreement.
4
8.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 8.3 only, shall also include improvements as necessary for
Tenant's maintenance and repair of the Demised Premises) which do not
exceed Five Hundred ($500.00) Dollars, provided that the work is not
structural, and provided that it is permitted by applicable law.
9. Citv's Right of Ent
9.1 The City Manager, and/or his authorized representatives, shall have the right
to enter upon the Demised Premises at all reasonable times for the purpose
of inspecting same; preventing waste; making such repairs as the City may
consider necessary; and for the purpose of preventing fire, theft or
vandalism. The City agrees that, whenever reasonably possible, it shall use
reasonable efforts to provide notice (whether written or; verbal), unless the
need to enter the Demised Premises is an emergency, as deemed by the
City Manager, in his sole discretion, which ~ not immediately addressed
could cause property damage, IoSs.of life or timb, or other injury to persons.
Nothing herein shall imply any duty onthe-part of the City to do any work that
under any provisions of this Agreem~t the Tenant may be required to
perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
9.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at anytime, for any reason, and any entry thereon
shall be necessary. ~r permissible, the City Manager, and/or his authorized
representatives, may enter the Demised Premises by master key, or may
forcibly` enter the-Demised Premises without rendering the City or such
agents liable therefore.
9.3 Tenant shall furnish the City with duplicate keys to all locks including exterior
and interior doors prior to (but no later than by) the Commencement Date of
this Agreement. Tenant shall not change the locks to the Demised Premises
without the prior written consent of the City Manager, and in the event such
consent is given, Tenant shall furnish the City with duplicate keys to said
locks in advance of their installation.
10. Tenant's Insurance.
10.1 Tenant shall, at its sole expense and responsibility, comply with all insurance
requirements of the City. It is agreed by the parties that Tenant shall not
occupy the Demised Premises until proof of the following insurance
coverages have been reviewed and approved by the City's Risk Manager:
10.1.1 Comprehensive General Liability, in the minimum amount of One
Million ($1,000,000) Dollars (subject to adjustment for inflation) per
occurrence for bodily injury and property damage. The City of Miami
Beach must be named as an additional insured on this policy.
5
10.1.2 Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
10.1.3 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 Agreement).
10.2 Proof of these coverages must be provided by submitting original certificates
of insurance to the City's Risk Manager and Asset Manager respectively. All
policies must provide thirty (30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager (to be submitted toahe addresses
set forth in Section 27 hereof).: All insurance policies shall~'be issued by
companies authorized to do business under Vie' laws of the Stafe of Florida
and must have a rating of B+:VI or better per A.M. Best's Key Rating Guide,
latest edition, and certificates are subject to the approval of the City's Risk
Manager.
11. Property Taxes and Assessments.
For the purposes of this Section and other provisions of this Agreement:
11.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the
Demised Premises, and (ii) any expenses incurred bythe City in obtaining a
reduction' of any such taxes or assessments.
11.2 The term "Property Tax Year" shall mean the period of twelve (12) calendar
months, beginning. on January 1St of each year.
11.3 Tenant shad pay, as~ Additional Rent pursuant to Section 3.2, for such
Property Tax Year an amount ("Property Tax Payment") equal to Tenant's
pro-rata share of Property Taxes (if any) for such Property Tax Year; said
pro-rata share to be determined by the City based upon the ratio of the
Demised Premises to the tax lot. If a Property Tax Year ends after the
expiration or termination of the term of this Agreement, the Property Tax
Payment therefore shall be prorated to correspond to that portion of such
Property Tax Year occurring within the term of this Agreement. The Property
Tax Payment shall be payable by Tenant immediately upon receipt of notice
from the City. A copy of the tax bill(s) or other evidence of such taxes issued
by the taxing authorities, together with the City's computation of the Property
Tax Payment, will be made available to Tenant once received from the taxing
authorities, if requested by Tenant. Tenant shall pay any difference in the
amount between the estimated property taxes and the actual property taxes
to the City immediately, upon receipt of request for said payment from the
City.
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12. Assignment and Subletting.
Tenant shall not have the right to assign or sublet the Demised Premises, in whole
or in part.
13. Operation, Maintenance and Repair.
13.1 Tenant shall be solely responsible for the operation, maintenance and repair
of the Demised Premises. Tenant shall, at its sole expense and
responsibility, maintain the Demised Premises, and all fixtures and
appurtenances therein, and shall make all repairs thereto, as and when
needed, to preserve them in good working order and condition. Tenant shall
be responsible for all interior walls and the in~~riar' end exterior of all windows
and doors, as well as immediate replacement of any and all plate glass or
other glass in the Demised Premises Which may become broken, using glass
of the same or better quality.
The City shall be responsible for the maintenance of the roof; the exterior of
the Demised Premises, all heating/ventilation/air conditionin=g (HVAC)
equipment servicing the Demised Premises, the structural electrical and
plumbing (other than. plumbing surrounding any sink(s) and/or toilet(s),
including such sink(s) and toilet(s) fixture(s), within the Demised Premises).
The City shall maintain and/or repair those items that it is responsible for, so
as to keep same in proper working condition.'
13.2 All damage of injury of any. kind to the Demised Premises, and including
without limitation its fixtures, +gl~ss, appurtenances, and equipment (if any),
or to the building fixtures, glass, appurtenances, and equipment, if any,
except damage caused by the gross negligence and/or willful misconduct of
the City, shall. be fhe sole obligation of Tenant, and shall be repaired,
restored or replaced promptly by Tenant, at its sole expense and to the
satisfaction of the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality
and class equal to or better than the original work or installations and shall
be done in good and workmanlike manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the City, at the expense of Tenant, and all sums
spent grid expenses incurred by the City shall be collectable by the City and
shall be paid by Tenant within three (3) days after submittal of a bill or
statement therefore.
13.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs and/or improvements made by Tenant to the Demised
Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
13.6 Tenant's Responsibilities for Utilities.
Tenant is solely responsible for and shall promptly pay when due all charges
7
for electricity, gas, cable, telephone, Internet, janitorial garbage service and
any other utility service provided to the Demised Premises, including, without
limitation, all hook-up fees and impact fees.
Notwithstanding the preceding paragraph, Tenant agrees to reimburse the
City a flat fee for water, sewer and stormwater costs, in the amount of Two
Hundred Dollars and 00/100 ($200.00) per month. The City reserves the
right, at its sole discretion, to adjust the monthly flat fee paid by Tenant at
any time during the Term, upon thirty (30) days prior written notice to Tenant.
In addition to other rights and remedies hereirt~afterreserved to the City, upon
the failure of Tenant to pay for such utility services (as contemplated in this
Subsection 13.6) when due, the City may elect, at its sole discretion, to pay
same, whereby Tenant agrees to promptly reimburse the City upon demand.
In no event, however, shall the City 6e liable, whether to Tenant or to third
parties, for an interruption or failure in the suppay of any utilities or services to
the Demised Premises.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISESARE BEING LEASEI? IN THEIR PRESENT "AS IS"
CONDITION.
13.8 Tenant's Responsibility for Landscaping,
Additionally; Tenant shall be responsible for all landscaping immediately
adjacent to the Bui)d[ng, which landscaping shall be to the standards of the
City's Parks Department. If Tenant fails to maintain the landscaping and/or
the landscaping is deemed unsatisfactory, City may provide appropriate
landscaping, at the expense, of Tenant, and all sums spent and expenses
.incurred by the City shall be collectable by the City and shall be paid by
Tenant within three (3) days after submittal of a bill or statement therefore.
14. Governmental Regulations.
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 expense and responsibility.
Tenant shall pay all cost, expenses, claims, fines, penalties, and damages that may
be imposed because of the failure of Tenant to comply with this Section, and shall
indemnify and hold harmless the City from all liability arising from each non-
compliance.
15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements for any labor or materials to Tenant
or claimed to have been furnished to Tenant's agents, contractors, orsub-tenants,
8
in connection with work of any character performed or claimed to have performed
on said Premises, or improvements by or at the direction or sufferance of the
Tenant; provided however, Tenant shall have the right to contest the validity or
amount of any such lien or claimed lien. In the event of such contest, Tenant shall
give the City reasonable security as may be demanded by the City to insure
payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or
improvements by reasons of such non-payment. Such security need not exceed one
and one half (1'/z) times the amount of such lien or such claim of lien. Such security
shall be posted by Tenant within ten (10) days of written notice from the City, or
Tenant may "bond off' the lien according to statutory 'procedures. Tenant will
immediately pay any judgment rendered with all proper. costs and charges and shall
have such lien released or judgment satisfied at Tenant' own expense.
16. Intentionally Omitted.
17. Condemnation.
17.1 If at any time during the Term of this Agreement (including any renewal term
hereunder) all or any part or portion of the Demised Premises is taken,
appropriated, or condemned by reason ;of Eminent Domain proceedings,
then this Agreement shall be terminated `as of the date of such taking, and
shall thereafter be comp etely nu11 and void, and neither of the parties hereto
shall thereafter have any rights against the. other by reason of this
Agreement or anything contained therein, except that any rent prepaid
beyond the da#e pf;such taking shall be prorated to such date, and Tenant
shall pay-any and all.rents, additional rents, utility charges, and/or other costs
for which it is liable under the terms of this Agreement, up to the date of such
taking.:
17.2 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
proceed~-g, excepting, however, 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 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.
18. Default.
18.1 Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default
under this Agreement:
18.1.1 The Base Rent, Additional Rent, or any other amounts as may be due
and payable by Tenant under this Agreement, or any installment
thereof, is not paid promptly when and where due within fifteen (15)
days of due date, and Tenant shall not have cured such failure within
five (5) days after receipt of written notice from the City specifying
9
such default;
18.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.3 Tenant shall fail to comply with any material term, provision, condition
or covenant contained herein other than the payment of rent and shall
not cure such failure within thirty (30) days after the receipt of written
notice from the City specifying any such default; or such longer period
of time acceptable to the City, at its sole discretion;
18.1.4 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a law, code,, regulation, ordinance or the like,
which remains uncured for a period of Thirty (30) days from its
issuance, or such longer periad oftime as may be acceptable and
approved in writing by the City Manager, at his soli discretion;
18.1.5 Any petition is filed by or against Tenant under any 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 thee. United States or of any state for the
purpose of discharging or extending the time for payment of debts;
18.1.6 Tenant shall become insolvent;
18.1.7 Tenant shall make an assignment for benefit of creditors;
18.1.8 A receiver is appointed:. for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
18.1.9 The leasehold interest is levied on under execution.
18.1.10 Tenant'fails to maintain its not-for-profit status in current and good
standing, a5 required pursuant to Subsection 7.3 herein.
19. Rights on Default.
19.1 Rights on Default:
In the event of any default by Tenant as provided herein, City shall have the
option to do any of the following, in addition to and not in limitation of, any
other remedy permitted by law or by this Agreement;
19.1.1 Terminate this Agreement, 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 the Demised
Premises and expel or remove Tenant and its effects in accordance
with law, without being liable for prosecution or any claim for damages
therefore, and Tenant agrees to indemnify and hold harmless the City
for all loss and damage which the City may suffer by reasons of such
10
Agreement termination, whether through inability to re-let the Demised
Premises, or otherwise.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
term of this Agreement to be due and payable immediately, in which
event Tenant agrees to pay the same at once, together with all rents
therefore due, at the address of the City, as provided in the Notices
section of this Agreement; provided, however, that such payment
shall not constitute a penalty, forfeiture,.,or liquidated damage, but
shall merely constitute payment in 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.
19.1.3 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without bung 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 frorxi time to t(me at the` office of the City; and for the
purpose of re-letting, the ...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 deficiey as aforesaid.
19.1:4: 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 Tenant liable for the
deficiency, if any.
19.1.5 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the provisions of
this Agreement which shall not be paid when due shall bear interest at
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. No
interest will be charged for payments made within the grace period,
such grace period to be defined as within five (5) days from the due
date. In addition, there will be a late charge of Fifty ($50.00) Dollars
for any payments submitted after the grace period.
19.1.6 If Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
11
may pay such expense but the City shall not be obligated to do so.
Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof. All sums of money
payable by Tenant to the City hereunder shall be deemed as rent for
use of the Demised Premises and collectable by the City from Tenant
as rent, and shall be due from Tenant to the City on the first day of
the month following the payment of the expense by the City.
19.1.7 The rights of the City under this Agreement shall be cumulative but
not restrictive to those given by law and failure on the part of the City
to exercise promptly any rights given heretnder shall not operate to
waive or to forfeit any of the said rights:
19.2 Default by Cit rL:
The failure of the City to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed' by the City and the
continuance of such failure fora-period of thirty (30) days aftei' notice thereof
in writing from Tenant to the City{which notice-shall specify thr~ 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 cu reci.wthin thirty (30) days because of
circumstances beyond the City's. control, anti 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.
However, in the event the City fails to perform within the initial thirty (30) day
period provided above, and such failure to perform prevents Tenant from
operating its business in a customary manner and causes an undue hardship
for Tenant; then;sucf~ failure to perform (regardless of circumstances beyond
ifs control] as indicated above, shall constitute a default by the City.
19.3 Tenant`s Rights on Default:
If an event of the City's default shall occur, Tenant, to the fullest extent
permitted by law, shrall have the right to pursue any and all remedies
available at law or in equity, including the right to sue for and collect
damages, including reasonable attorney fees and costs, to terminate this
Agreement; provided however, that Tenant expressly acknowledges and
agrees. that any recovery by Tenant shall be limited to the amount set forth in
Section 32 of this Agreement.
20. Indemnity Against Costs and Charges.
20.1 Tenant shall be liable to the City for all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of Tenant's breach of any of the provisions
of this Agreement. Any sums due the City under the provisions of this item
shall constitute a lien against the interest of the Tenant and the Demised
Premises and all of Tenant's property situated thereon to the same extent
and on the same conditions as delinquent rent would constitute a lien on said
12
premises and property.
20.2 If Tenant shall at any time be in default hereunder, and if the City shall deem
it necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, Tenant will reimburse the City for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
reasonable attorney's fees, whether suit be brought or not and if suit be
brought, then Tenant shall be liable for expenses incurred at both the trial
and appellate levels.
21. Indemnification Aaainst Claims.
21.1 Tenant shall indemnify and save the City harmless from and against any and
all claims or causes of action (whether groundless 'pr otherwise) by or on
behalf of any person, firm, or corpora#ion, for perso injury or property
damage occurring upon the Demised Premises or upon any other land or
other facility or appurtenance used in connection with 'the Demised
Premises, occasioned in whole or in part by'~ny of the followirig~
21.1.1 An act or omission on the part of Tenant, or any employee, agent,
contractor, invitee; guest, assignee; sub-tenant or subcontractor of
Tenant;
21.1.2 Any, misuse, neglect, or unlawful use of the Demised Premises by
Tenant, or any employee, agent, contractor, invitee, guest, assignee,
sub-tenant or subcontractor of Tenant;
21.1.3 Any breach, violation, or non-performance of any undertaking of
Tenant under this. Agreement;
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by Tenant or anyone holding or claiming to hold through or
under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises and/or other
facilities used ih connection therewith, caused by Tenant or any employee,
argent, contractor, guest, or invitee of Tenant.
22. Signs and Advertising.
Without the prig written consent of the City Manager, which consent, if given at all,
shall be at the City Manager's sole and absolute discretion, Tenant shall not permit
the painting and display of any signs, plaques, lettering or advertising material of
any kind on or near the Demised Premises. All additional signage shall comply with
signage standards established by the City and comply with all applicable building
codes, and any other municipal, County, State and Federal laws.
23. Effect of Conveyance.
The term "City" and/or "Landlord" as used in the Agreement means only the owner
for the time being of the land and building containing the Demised Premises, so that
in the event of any sale of said land and building, or in the event of a lease of said
13
building, the City shall be and hereby is entirely freed and relieved of all covenants
and obligations of the City hereunder, and it shall be deemed and construed without
further agreement between the parties, or between the parties and the purchaser at
such sale, or the lease of this building, that the purchaser or Tenant has assumed
and agreed to carry out all covenants and obligations of the City hereunder.
24. Damage to the Demised Premises.
24.1 If the Demised Premises shall be damaged by the elements or other casualty
not due to Tenant's negligence, or by fire, but are not thereby rendered
untenantable, as determined by the City Manger, in his sole discretion, in
whole or in part, and such damage is covered: by the City's insurance, if any,
(hereinafter referred to as "such occurrence"), the City, shall, as soon as
possible after such occurrence, utilize the insurance proceeds to cause such
damage to be repaired and the Rent (Base Rent and Additional Rent) shall
not be abated. If by reason of such .occurrence, the Demised Premises shall
be rendered untenantable, as determined by the City Manager, in his sole
discretion, only in part, the City sfiall as soon'as possible utilize the insurance
proceeds to cause the damage to be repaired, and the Rent meanwhile shall
be abated proportionately as to the 'portion of the Demised Premises
rendered untenantable;-provided however, that the City shall promptly obtain
a good faith estimate t the-time required to render the Demised Premises
tenantable and if such time exceeds,sixty (60) days, either party shall have
the option of canceling this Agreement.
24.2 If the Demised Premises shall b.e rendered wholly untenantable by reason of
such. occurrence, the City shall have the option, but not the obligation, in its
sole discretion, to utilize. the insurance proceeds to cause such damage to be
repaired and the Rent meanwhile shall be abated. However, the City shall
have the right, to be exercised by notice in writing delivered to Tenant within
sixty X60) days from and after said occurrence, to elect not to reconstruct the
destroyed Demised Premises, and in such event, this Agreement and the
tenancy hereby created shall cease as of the date of said occurrence, the
Rent to be adjusted as of such date. If the Demised Premises shall be
rendered wholly untenantable, Tenant shall have the right, to be exercised by
notice in writing, delivered to the City within thirty (30) days from and after
said occurrence, to elect to terminate this Agreement, the Rent to be
adjusted accordingly.
24.3 Notwithstanding any clause contained in this Section 24, if the damage is not
covered by the City's insurance, then the City shall have no obligation to
repair the damage, but the City shall advise Tenant in writing within thirty (30)
days of the occurrence giving rise to the damage and of its decision not to
repair, and the Tenant may, at any time thereafter, elect to terminate this
Agreement, and the Rent shall be adjusted accordingly.
25. Quiet Enioyment.
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
14
complies with the terms of this Agreement.
26. Waiver.
26.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise
any option herein conferred, will not be 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.
26.2 A waiver of any term expressed herein steal( not be implied by any neglect of
the City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated: subsequently and any express waiver
shall not affect any term other than the one specified in such waiver and that
one only for the time and in the manner specifically stated.
26.3 The receipt of any sum paid by Tenant to the City after breach of any
condition, covenant, team or provision Herein contained shall not be deemed
a waiver of such breach; bust shall be taken, considered and construed as
payment for use and occupation, a,nd not as: Rent, unless such breach be
expressly waived in writing by the City,.
27. Notices.
The addresses for all notices required under this Agreement shall be as follows, or
at such other address as either party shall be in writing, notify the other:
LANDLORD: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copy to: R Director
City of Miami Beach
Office of Real Estate, Housing & Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: President
ECOMB, Inc.
P.O. Box 398891
Miami Beach, Florida 33139
All notices shall be hand delivered and a receipt requested, or by certified mail with
Return receipt requested, and shall be effective upon receipt.
28. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it
15
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 Agreement.
29. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision,tq;pefsons or circumstances
other than those as to which it is held invalid or unenfpr~~able, shall not be affected
thereby and each term and provision of this Ag~eerr~nt shall be valid and be
enforced to the fullest extent permitted by law.
30. Captions.
The captions contained herein are for the convenience and refere~nc~ only and shall
not be deemed a part of this Agreement or construed as in any manner limiting or
amplifying the terms and provisions of this Agreerrient to which they relate.
31. 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.
32. Limitation of Liability.
The City desires to enter into this Agreement only if in so doing the City can place a
limit on the Guy's liability far any cause of action for money damages due to an
alleged breach by the City of this Agreement, so that its liability for any such breach
never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Tenant hereby
expresses its willingness to~enter~into this Agreement with Tenant's recovery from
the City fqr any damage action for breach of contract to be limited to a maximum
amount of $10,000. ~0. Accordingly, and notwithstanding any other term or condition
of this Agreem`erit, Tenant. hereby agrees that the City shall not be liable to Tenant
for damage in an amount ire excess of $10,000.00 for any action or claim for breach
of contract arising out of the performance or non-performance of any obligations
imposed upon the City by this Agreement. Nothing contained in this Section or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation
placed upon the .City's liability as set forth in Florida Statutes, Section 768.28.
33. Surrender of tlae 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 or broom-
clean, togetherwith all structural changes, alterations, additions, and improvements
which may have been made upon the Demised Premises, in good order, condition
16
and repair, reasonable wear and tear excepted, subject, however, to the
subsequent provisions of this Section. 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 Agreement and is not so removed may, at the option of the City,
be deemed abandoned by 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, Tenant
shall make good the City all damages which the City shall;~uffer by reason thereof,
and shall indemnify and hold harmless the City against alt claims made by any
succeeding tenant or purchaser, so far as such delay is occasioned by the failure of
Tenant to surrender the Demised Premises as and when herein required.
34. Time is of the Essence.
Time is of the essence in every particular, and particularly where the obligation to
pay money is involved.
35. Venue: '
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with. the laws of the State of Florida. This Agreement shall
be enforceable in Miami-Dade. County, Florida,-`and if legal action is necessary by
either party with respect to the enforcement of any-and all the terms or conditions
herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida.
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 HBREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO, ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGR!*Et1~ENT. '
36. Radon is a naturally occurring radioactive gas that, when it is accumulated in a
building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of Radon that exceed Federal and State guidelines
have been found in buildings in Florida. Additional information regarding Radon and
Radon testing may be obtained from your County Public Health Unit.
37. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and/or use
of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any kind,
or any substance or thing prohibited in the standard policies of fire insurance
companies in the State of Florida. Any such substances or materials found within
the Demised Premises shall be immediately removed.
Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees,
17
incurred as a result of, arising from, or connected with the placement by Tenant of
any "hazardous substance" or "petroleum products" on, in or upon the Demised
Premises as those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations promulgated thereunder.
The provisions of this Section 37 shall survive the termination or earlier expiration of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused tf~ieir names to be signed
and their seals to be affixed, all as of the day and year first abdve written, indicating their
agreement. '
Attest:
Robert Parcher, CITY CLERK
Attest:
CITY OF MIAMI EACH, FLORIDA
Matti Herrera Bower, MAYOR
Signature/Secretary'
Print Name
CORPORATE SEAL
(affix seal here)
ECOMB, INC.
Michael Gongora, President
F:\RHCD\$ALL\ECON\$ALLWSSET\210-2nd Street\ECOMB Lease Agreement.DRAFT.doc
18
EXHIBIT 1
Demised Premises
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