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_ MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive; Miami Beach, Flarida 33139, www.miamibeachfl.gav
REAL ESTATE, HOUSING & COMMUNITY DEVELOPMENT
Tel: 305.673.7193, Fax: 305.673.7033
May 13, 2009
Dr. Carson Kievman, PhD
Executive Artistic Director,
Mystery Park Arts Company, Inc.
751 Euclid Avenue, #2
Miami Beach, Florida 33139
Re: Temporary Revocable Agreement between the City of Miami Beach,
Florida (City) and Mystery Park Arts Company, Inc. for Use of the
Little Stage Theater (Letter Agreement)
Dear Dr. Kievman:
The foregoing Letter Agreement shall confirm the understanding between the City and
Mystery Park Arts Company, Inc., anot-for-profit Florida corporatiorf, d/b/a SoBe Music
Institute (hereinafter SMI).
The City grants SMI a temporary revocable license to use a portion of the City-owned
building, located at 2100 Washington Avenue and referred to as the Little Stage Theater;
said area encompassing approximately two thousand two hundred ninety five (2,295)
square feet (as more specifically delineated in "Exhibit A"and hereinafter referred to as the
Premises).
The term of this Agreement shall be for a period of three (3) months and seventeen (17)
days, commencing on May 14, 2009, and ending on August 31, 2009.
SMI agrees to use the Premises solely for the purpose of conducting educational
programs, film workshops, theater/dance programs, and arts/acting/music classes &
lessons; such as professional performances, music concerts, arts lectures/demonstrations
and multidisciplinary & theatrical productions; arts-related general events such as
community collaborations, fundraising events, and student performances; and for such
other arts-related use(s) as necessary to operate and maintain SMI's programs (as
previously set forth).
The City acknowledges that, as one of the permitted uses, SMI shall have the right to allow
third parties to use the Premises, which shall be pursuant to the terms and rates
specifically delineated in "Exhibit B" (and hereinafter referred to as the Rental Agreement).
In the event that SMI allows third parties use of the Premises, and as part of or in addition
to the Rental Agreement, it shall require any and all such users to provide proof of
Comprehensive General Liability insurance in the minimum amount of $1,000,000, per
occurrence, for bodily injury and property damage, which insurance shall name SMI and the
City of Miami Beach, Florida, as additional insureds. Copies of certificates of insurance
shall be furnished to the City's Asset Manager prior to any third party use and shall be kept
in force at all times during the period of use. SMI shall also require that all third party users
of the Premises agree (whether through the terms of the Rental Agreement or by execution
of a separate agreement) to indemnify, defend, and hold the City of Miami Beach
harmless.
The Premises shall open daily, from 9:00 AM to Midnight, Monday through Sunday. The
City requires that SMI have a goal that thirty (30%) percent of all participants must be
income eligible and a majority must be City residents. Fees shall either be waived or
reduced for students who are income eligible.
SMI hereby understands, agrees and acknowledges that the Premises are a public facility
which primary use is for cultural programming purposes, specifically art-related education
programs and performances. Accordingly, SMI understands, agrees and acknowledges
that, notwithstanding the hours and use(s) delineated herein, the City's Parks and
Recreation Department shall have priority use of the Premises over third party users. SMI
shall meet with the City's Parks Department prior to the beginning of each calendar quarter
to review scheduling availability for City use(s).
During the term of this Agreement, SMI shall pay the City a monthly use fee of three
hundred seventy two ($372.00) dollars, in order to offset the City's estimated operating
expenses (i.e. electric, water, sewer, and garbage removal costs). The first payment shall
be due concurrent with SMI's execution of this Letter Agreement, but in no event laterthan
May 6, 2009. Additionally, SMI agrees to submit to the City fifteen (15%) percent of any
monthly gross revenues derived from the use of the Premises under the Rental Agreement.
Said payment, along with a monthly report of gross receipts, shall be submitted to the
Finance Department's Revenue Manager, and received within thirty (30) calendar days
from the end of each month during the term herein.
As separate and additional consideration for the City's agreement to allow SMI to utilize the
Premises for the above stated purpose(s), and in addition to any insurance and/or
indemnification requirements set forth herein for third party users of the Premises, SMI
agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees
and agents, from and against any and all actions, claims, liabilities, losses, and expenses,
including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful
death, loss of or damage to property, whether at law or in equity, which may arise or be
alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of
SMI, its officials, directors, employees, agents, contractors, third party users, guests, invitees,
or person(s) or entity(ies) acting under SMI's direction, control and/or consent, in connection
with this Letter Agreement and with SMI's use of the Premises; and, to that extent, the SMI
shall pay all such claims and losses and shall pay all such costs and judgments which may
issue from any lawsuit arising from such claims and losses, and shall pay all costs and
attorneys' fees expended by the City in the defense of such claims and losses, including
appeals.
In addition to SMI's obligation to indemnify and hold harmless the City, as set forth in the
preceding paragraph (and in addition to any insurance and/or indemnification requirements
set forth herein for third party users of the Premises), SMI agrees to be solely responsible for
providing any and all measures to secure and safeguard any and all personal property and
equipment to be stored on the Premises, as well as provide any and all measures to secure
and safeguard any and all City personal items and/or property on the Premises. SMI agrees
that under no circumstances shall the City be in any way responsible or liable, whether to
SMI or to any third party(ies), for any stolen, damaged, or destroyed equipment, furniture,
records, or other personal property stored within the Premises.
SMI shall, at its sole cost and expense, comply with all insurance requirements of the City. It
is agreed by the parties that the SMI shall not occupy the Premises until proof of the following
insurance coverages) have been furnished to and approved by the City's Risk Manager:
Comprehensive General Liability, in the minimum amount of One Million
($1,000,000) Dollars per occurrence for bodily injury and property damage.
The City of Miami Beach must be named as additional insured parties on this
policy (This coverage shall be in addition to any insurance coverage required
herein of third party users of the Premises).
Workers Compensation and Employers Liability coverage in accordance with
State of Florida statutory requirements.
All-Risks property and casualty insurance, written at a minimum of eighty
(80%) percent of replacement cost value and with replacement cost
endorsement, covering all of SMI's personal property in the Premises
(including, without limitation, inventory, trade fixtures, floor coverings, furniture
and other property removable by SMI under the provisions of this Agreement)
and all improvements installed in the Premises by or on behalf of SMI.
Proof of insurance coverages) must be provided by submitting original certificate(s) of
insurance. All policies must provide thirty (30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager at 1700 Convention Center Drive, Miami Beach,
Florida, 33139. All insurance policies shall be issued by companies authorized to do business
under the laws of the State 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.
SMI is responsible for and shall promptly pay when due all charges (including, without
limitation, all hook-up fees) and impact fees for cable, gas, telephone and other utility
services (excluding electric, water, sewer, and garbage removal costs) provided to the
Premises. In the event of failure of SMI to pay for such utility services when due, the City
may elect (but not be obligated) to pay same, whereby SMI agrees to promptly reimburse the
City upon demand. In no event, however, shall the City be liable for an interruption or failure
in the supply of any utilities or services to the Premises.
This Letter Agreement may be terminated by either the City or SMI, without cause, upon
seven (7) days written notice; provided further, however, that in the event of a termination by
the City, the City shall have no further liability to SMI including, without limitation, any liability
to SMI for any direct and/or indirect costs that may have been incurred by SMI as a result of
this Letter Agreement and/or SMI's use of the Premises (and including, without limitation,
direct and/or indirect costs, start-up costs, costs for capital improvements, furnishings,
fixtures, equipment, labor costs, lost profits, and/or loss in future and/or potential revenues).
Nothing contained in this paragraph 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 Section 768.28,
Florida Statutes.
This Letter Agreement embodies the entire agreement and understanding between the
parties hereto, and there are no other agreements and understandings, oral or written with
reference to the subject matter hereof that are not merged herein and superseded hereby.
No alteration, change, or modification of the terms of this Agreement shall be valid unless
amended in writing, signed by both parties hereto, and approved by the City of Miami Beach.
This Letter Agreement shall be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by any party with respect to the enforcement of any or all of the terms
or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, both substantive and remedial, without regard to principals
of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall
be Miami-Dade County, Florida, if in State court, and the U.S. District Court, Southern
District of Florida, if in Federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND
SMI EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY
JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT.
If the aforestated terms and conditions meet your approval, please acknowledge by
executing same in the space provided below. Upon execution by the City, we will forward a
fully executed copy to your office for your records.
Sincerely,
~~ ~~~
Anna Parekh
Director
AP:rlr
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4
I have read this LetterAgreement and, fully understanding same, agree to be bound by the
terms and conditions contained herein. I further warrant and represent to the City that I am
authorized to execute this Letter Agreement on behalf of SMI which shall bind SMI to the
terms and conditions set forth herein. Facsimile copies of this Letter Agreement shall
be deemed originals.
MYSTERY PARK ARTS COMPANY, INC
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Carson Kievman, President
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Leslie Cooper, Secreta
CITY OF MIAMI BEACH, FLORIDA
org onzalez, Man er
APPROVED AS TO
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EXHIBIT A
(the Premises)
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EXHIBIT B
(Rental Agreement)
TO BE SUBMITTED BY SMI