Lease Agreement with Gemcor, Inc.aoo9- ~~'.~ s>
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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 GEMCOR, INC., a Florida 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 hereby leases and hires
from the City, those certain premises hereinafter referred to as the "Demised
Premises" and more fully described as follows:
Approximately 1,518 square feet of City-owned property (the
"Building" a.k.a. "Historic City Hall"), located at 1130 Washington
Avenue, 6th Floor, Miami Beach, Florida, 33139, and as more
specifically 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 2.2 herein, a "contract year" shall be defined as that
certain period commencing on the 1 St 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 the City Manager no earlier than one hundred twenty (120)
days, but in any case no later than sixty (60) days prior to the expiration of
the initial term, this Lease may be extended for two (2) additional three (3)
year renewal terms. 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.
3. Rent.
Tenant's payment of Rent, as defined in this Section 3, shall commence on
February 1, 2010 (the "Rent Commencement Date") and, thereafter, on each first
day of subsequent months. Notwithstanding the preceding sentence, provided that
Tenant is in good standing and free from default(s) under the terms and conditions
of this Agreement, Tenant shall be entitled to an abatement of Rent for the month of
January during the initial term of this Agreement.
3.1 Base Rent:
3.1.1 Throughout the Term herein, the Base Rent for the Demised
Premises shall be Sixteen Thousand Seventy Five Dollars and 62/100
($16,075.62) per year, payable in monthly installments of One
Thousand Three Hundred Thirty Nine Dollars and 63/100 ($1,339.63).
3.1.2 The Base Rent amount pursuant to this Section 3.1 shall be
increased by ten (10%) percent on the Commencement Date of any
renewal term(s) of this Lease.
3.2 Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also
pay the following Additional Rent as provided below:
3.2.1 Operating Expenses:
Throughout the Term herein, the Operating Expenses for the
Demised Premises shall be Sixteen Thousand Eight Hundred
Nineteen Dollars and 44/100 ($16,819.44) per year, payable in
monthly installments of One Thousand Four Hundred pne Dollars and
62/100 ($1,401.62) per month, for its proportionate share of
"Operating Expenses" which are defined as follows:
"Operating Expenses" shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the Common
Facilities (as hereinafter defined) and shall include, without limitation,
electric service, water service to the Building, sewer service to the
Building, trash removal from the Building, costs incurred for gardening
and landscaping, repairing and maintaining elevator(s), painting,
janitorial services (except for areas within the Demised Premises),
lighting, cleaning, striping, policing, removing garbage and other
refuse and trash, removing ice and snow, repairing and maintaining
sprinkler systems, water pipes, air-conditioning systems, temperature
control systems, and security systems, fire alarm repair and
maintenance and other equipment in the common areas and the
exterior and structural portions of the Building, paving and repairing,
patching and maintaining the parking areas and walkways, and
cleaning adjacent areas, management fees and the City's
employment expenses to employees furnishing and rendering any
services to the common areas, together with an additional
administration charge equal to fifteen percent (15%) of all other
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expenses included in the annual common area expenses, provided by
the City for the common or joint use and/or benefit of the occupants of
the Building, their employees, agents, servants, customers and other
invitees.
"Common Facilities" shall mean all Building areas, spaces,
equipment, as well as certain services, available for use by or for the
benefit of Tenant and/or its employees, agents, servants, volunteers,
customers, guests and/or invitees.
While Tenant acknowledges and agrees that the cost of Operating
Expenses may increase during the Term of this Agreement and, as
such, Tenant's pro-rata share of Operating Expenses shall be
adjusted accordingly, City and Tenant agree that, in the event of such
increase, the corresponding amount of the increase in Tenant's
Operating Expenses shall not be more than One Thousand Dollars
($1,000.00) per contract year.
3.2.2 Property Taxes:
The Property Tax Payment shall be payable by Tenant, in accordance
with Section 11 herein. The Properly Tax Payment for Property Tax
Year 2009 is estimated at Zero Dollars ($0.00). Notwithstanding the
preceding sentence, the City makes no warranty or representation,
whether express or implied, that the Historic City Hall building, the
Land, and/or the Demised Premises will not be subject to ad valorem
(or other) taxes in subsequent years.
3.2.3 Insurance: }
The Additional Rent shall also include Teriant'spro-rata share toward
estimated insurance costs incurred to insure the whole of the Building,
payable in monthly installments of Two Hundred Six Dollars and
20/100 ($206.20). This insurance coverage is in addition to the
insurance required pursuant to Section 10, which shall be obtained at
Tenant's sole expense and responsibility.
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, levied or assessed against the Demised Premises, or any other
charge or 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
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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
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.
Tenant may request, from the City's Parking Department, the use of no more than
four (4) parking spaces, if available, at Municipal Parking Garage G-2 located at the
intersection of 12th Street and Drexel Avenue. Rates for said spaces are subject to
change, and are currently Seventy Dollars ($70.00) per month, plus applicable sales
and use tax per space.
6. Security Deposit.
Upon execution of this Agreement Tenant shall furnish the City with a Security
Deposit, in the amount of Five Thousand Eight Hundred Ninety Four Dollars and
90/100 ($5,894.90). Said Security Deposit shall serve to secure Tenant's
performance in accordance with the provisions of this Agreement. In the event
Tenant fails 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, or as may be provided by applicable law.
The parties agree and acknowledge that the foregoing condition is intended to be a
condition subsequent to the City's approval of this Agreement. Accordingly, in the
event that Tenant does not satisfy the aforestated, then the City Manager or his
designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to
him for breach of contract.
7. Use and Possession of Demised Premises.
7.1 The Demised Premises shall be used by the Tenant as office space for
conducting wholesale jewelry sales and related cost valuation, replacement
and salvage services. 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
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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
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 bylaw, 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.
8. Improvements.
8.1 Tenant accepts the Demised Premises in their present "AS IS" condition
and may construct or cause to be constructed, such interior and exterior
improvements and maintenance to the Demised Premises, as reasonably
necessary for it to 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, any and 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 ail 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.
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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. City's Right of Entry.
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 if not immediately addressed
could cause property damage, loss of life or limb, or other injury to persons.
Nothing herein shall imply any duty on the part of the City to do any work that
under any provisions of this Agreement 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 any time, for any reason, and any entry thereon
shall be necessary or 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.
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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 to the addresses
set forth in Section 27 hereof). 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.
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 by the 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 1 Sc of each year.
11.3 Tenant shall 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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11.4 Tax Stop.
Notwithstanding the preceding Section 11.3, the City shall be responsible for
payment of the Property Tax Payment up to an amount not to exceed Three
Dollars ($3.00) per square foot (Tax Stop Amount) with Tenant to be
responsible for anything in excess of that amount. Tenant shall promptly
reimburse the City for its portion of the Property Tax Payment (if any) upon
receipt of the City's invoice for same.
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 interior and 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 Building, all heating/ventilation/air conditioning (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 common areas and
the chilled water supply system. 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 or injury of any kind to the Demised Premises, and including
without limitation its fixtures, glass, 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 the 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 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
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statement therefore.
13.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs andJor 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 Responsibilities for Utilities (not included within Operating ExpensesZ
Tenant is solely responsible for, and shall promptly pay when due, all
charges and impact fees for any and all utilities for the Demised Premises
NOT included as an Operating Expense (pursuant to Subsection 3.2.1).
!n addition to other rights and remedies hereinafter reserved 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 be liable, whether to Tenant or to third
parties, for an interruption or failure in the supply of any utilities or services to
the Demised Premises.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION.
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,
in connection with work of any character pertormed or claimed to have pertormed
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
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and one half (1'h) 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's 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 completely null 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 date of 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
proceeding, 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
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
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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 period of time as may be acceptable and
approved in writing by the City Manager, at his sole 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 the 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.
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
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
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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 being liable to prosecution or any claim for
damages therefore; remove Tenant's property there from; and re-let
the Demised Premises, or portions thereof, for such terms and upon
such conditions which the City deems, in its sole discretion, desirable,
and to receive the rents therefore, and Tenant shall pay the City any
deficiency that may arise by reason of such re-letting, on demand at
any time and from time to time at the office of the City; and for the
purpose of re-letting, 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 deficiency 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
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
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not restrictive to those given by law and failure on the part of the City
to exercise promptly any rights given hereunder shall not operate to
waive or to forfeit any of the said rights.
19.2 Default by City:
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 for a period of thirty (30) days after notice thereof
in writing from Tenant to the City (which notice shall specify the respects in
which Tenant contends that the City failed to perform any such covenant,
conditions and agreements) shall constitute a default by the City, unless
such default is one which cannot be cured within thirty (30) days because of
circumstances beyond the City's control, and the City within such thirty (30)
day period shall have commenced and thereafter shall continue diligently to
prosecute all actions necessary to cure such defaults.
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 such failure to perform (regardless of circumstances beyond
its 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, shall 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
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.
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21. Indemnification Against Claims.
21.1 Tenant shall indemnify and save the City harmless from and against any and
all claims or causes of action (whether groundless or otherwise) by or on
behalf of any person, firm, or corporation, for personal injury or property
damage occurring upon the Demised Premises or upon any other land or
other facility or appurtenance used in connection with the Demised
Premises, occasioned in whole or in part by any of the following:
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 in connection therewith, caused by Tenant or any employee,
agent, contractor, guest, or invitee of Tenant.
22. Signs and Advertising.
Without the prior 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
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
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untenantable, as determined by the City Manager, 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 shall 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 of 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 be 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 (60) 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 Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Tenant
complies with the terms of this 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 pertormance 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
15
effect.
26.2 A waiver of any term expressed herein shall 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, term or provision herein contained shall not be deemed
a waiver of such breach, but shall be taken, considered and construed as
payment for use and occupation, and not as Rent, unless such breach be
expressly waived in writing by the City.
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: Director
City of Miami Beach
Office of Real Estate, Housing & Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Richard Heiss, President
GEMCOR, Inc.
P.O. Box 191439
Miami Beach, Florida 33119
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
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 to persons or circumstances
16
other than those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
30. Captions.
The captions contained herein are for the convenience and reference 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 Agreement 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 City's liability for 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 for any damage action for breach of contract to be limited to a maximum
amount of $10,000.00. Accordingly, and notwithstanding any other term or condition
of this Agreement, Tenant hereby agrees that the City shall not be liable to Tenant
for damage in an amount in 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 the Demised Premises.
Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the
City the Demised Premises, together with any and all equipment, fixtures,
furnishings, appliances or other personal property, if any, located at or on the
Demised Premises and used by Tenant in the maintenance, management or
operation of the Demised Premises, excluding any trade fixtures or personal
property, if any, which can be removed without material injury to the Demised
Premises, free of all liens, claims and encumbrances and rights of others orbroom-
clean, together with all structural changes, alterations, additions, and improvements
which may have been made upon the Demised Premises, in good order, condition
and repair, reasonable wear and tear excepted, subject, however, to the
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 suffer by reason thereof,
and shall indemnify and hold harmless the City against all claims made by any
17
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 HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
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,
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.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest:
~ ~X~
Robert Parcher, CITY CLERK
Attest:
Carolyn iss, VICE PRESIDENT
CORPORATE SEAL
(affix seal here)
CITY OF MIAMI BEACH, FLORIDA
atti Herre Bow r, MAYOR
GEMCOR, INC.
~ K
Richard Heiss, PRESIDENT
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