Agreement
"
"
Prepared By:
Harry B. Smith, Esq.
Ruden, McClosky, et. al.
701 Brtckell Ave. #1900
Miami, FL 33131
MEMORANDUM OF LEASE
This Memorandum of Lease (the "Lease") is made as of the Jr; (t. day of J:4NulIlZ.'l , ;;;;'0
effective March 8, 2000, by and between the City of Miami Beach, a Florida municipal corporation
as "Lessor" and Holocaust Memorial Committee, Inc., a Florida corporation not for profit as
"Lessee" .
A. The Lease sets forth (among other things) the following:
1. Lessor's address is: clo City Hall, Miami Beach, Florida 33139;
2. Lessee's address is: 1933-1945 Meridian Avenue, Miami Beach, Florida 33139.
3. The premises demised by the Lease (the "Demised Premises") is a certain parcel of
real property as set forth on Exhibit "A" attached hereto.
4. The Lease term (the "Term") begins on March 8, 2000 (the "Commencement Date") .
and expires on March 7, 2099 (the "Maturity Date").
5. The Lease contains a restriction on the use of Lessor's property in Article XVI,
together with other Articles contained in the Lease.
B. This Memorandum will bind and benefit the parties hereto and their respective heirs,
personal and legal representatives, successors and permitted assigns, as the case may be.
C. This Memorandum is for informational purposes only and nothing contained herein shall
be deemed to. in any way modify or otherwise affect any of the terms or conditions of the
Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the date
first above written.
MIA:141569:1
1
',' "
,
,
.
.
WITNESSES
AS TO LESSOR:
Sign: e,~6- ~~
Print: l2-ojl,,,,,'/..\ PMU!fl-b'l1.-
CITY OF MIAMI BEACH
BY:' fJ!h
Niesen Kasdin, Mayor
Sign:~ J..()-I'.,:~
Print: HCil.e.a?," vJ ill,,, 0..".)
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECUTION
AS TO LESSEE:
~f~
3tii-0)
By:
an Braman, as President
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE)
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Niesen Kasdin, Mayor of CITY OF MIAMI BEACH, who is
personally known to me or wile llaJ plodcleed - as identification.
~
!7~ITNESS my hand and official seal in the County and State last aforesaid this I / day
of ~.f., ,2001.
OFFICIAL NorAKYSEAL ~~~
ULLIAN BEAUCHAMP
NorARYPUBUC STATE OFFLOIUDA /' ,/. / '7:2. j
COMMISSION NO. CC738372 N 1// C1 tV IJeJI () C/?q t.{~
MY COMMISSION EXP APR 29,'002 . '.
. . Typed, prInted or stamped name of otary Public
My Commission Expires:
MIA:141569:1
2
.:
. .
.
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE)
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Norman Braman, President of the HOLOCAUST MEMORIAL
COMMITTEE, INC., a Florida corporation not-for-profit, who is personally known to me,llf'
...."':Be k~~ pr,:"fjJl~ed as idendfh.,at).Otl.
WITNESS my hand and official seal in the County and State last aforesaid this :2i1.ay
of 1~ ,2001 LatL ~
;Notary Public
54 elLjt 1i...trOd MS~..)
Typed, printed or stamped name of Notary Public
My Commission Expires:
..........
;;'~ij1' ~ Sheila R. Johnson
'*i :~ MY COMM1SSl0N # CC8lla6! EXPIRES
"'''.. .. October 23, 2003
.. ',. 80N0ED THRU TROY FAIN INSURANC~ INC.
MIA:141569:1
3
\' i'
~
LEGAL DESCRIPTION
--
C()M~It:NCL r.l th.. llltersection of the center lines of 19th
SI "'''1 /1,"1 ~1",ldlllll Avenue; thence run South 890 59' 40"
Eo," 1I1nll' the c""t,,r line of 19th Street for a distance of
J~}.{JU lb." 1(1 II poillt; thence run North for .., di~l,')llce of
~-'n.ll\i (ret \0 tl l'Ollll, said point locntcd ill the \~est line
,>\ I..., I, IIlud 7^, AMENDED PLAT OF GOLF COURSF. SUlJlllVISION,
nccnrdlllj! Itl tho plllt thereof recorded in Plat 1J00k G, Page
!I., 1'111111(. It.eord, of Dnde County, Florida; thence run South
H<i" ~,,' ~lJ" 1,Il.t lor n cJistnnce of 3.00 feet to the POINT
Of nllCIIUIING, ".1i<l point of beginning located in the East
H Ilhl..f-WIIY 1111" of ~Ieridian Avenue, according to the Deed
lIoo~ lliUll, I'llges 439, 440, 442, and 443 Dade County,
I'l<,rhl.\ lhell"" rlln South 890 59' 40" East along the North
IIllhl,.",(.\iny I ine of 19th Street, for a distance of 36.05
,... 10 " point; thence run North 000 25' 00" "est for a
, HI (,).26 feet to a point; thence run North 890 35'
I 10" ., distance of 195.95 feet to a point; thence
Ih (10" OS' 22" East for a .distance of 13.21 feet to a
I I hf'nce run North 800 48' IS" East for a distance of
l~..( to a point; thence run North 000 31' 53" West for
, "..C(, of 49.86 feet to a point; thence rUn North 890
Eost for a distance of 38.03 feet to a point; thence
"ollh 030 25' 21" East for a distance of 74.30 feet to a
lnt; thence run North '620 22' 40" Hest for a distance of
.Of> feet to a point; thence run North 240 45' 39" East for
/I "I "once of 0.66 feet to a point; thence run along a cir-
ellllll' curve, concave to the Southwestt, having a central
nllf.lc of 1000 29' 12" and a radius of 30.00 feet for an arc
di,""'cc of 52.62 feet to a point; thence run North 750 43'
.1.1" \Jest for a distance of 17.20 feet to a point; thence run
Illong a circular curve, concave to the Northeast, having a
central angle of 1280 13' 24" and a radius of 29.13 feet for
Iln arc distance of 65.19 feet to a point; thence run North
150 23' IS" \,est for a distance of 40.66 feet to a point;
thence run South 590 42' 47" West for a distance of 64.54
feet to a point; thence run North 290 18' 31" \,est for a
distance of 14.85 feet to a point; thence run South 590 52'
. 09" \,est for a distance of 167,26 feet to a point, said point
located in the East Right-of-I,ay line of ~leridian Avenue,
according to the Deed Book 4349, Pages 439,440,442, and
443 Dade COLlnty, Florida; thence run South along the East
Right-of-Way of Meridian Avenue and parallel to the Hest
line of the above mentioned Block 7A for (l distance of
243.25 feet to the POINT OF BEGiNNING.
....::-0
.. . . ..~..
~~~~.;:.:-;..~~'-.:.- ~
,./
,0
Said LANDS located, lying and being in the CITY OF MIAMI
BEACH, FLORIDA, and containing 61,276.74 Square Feet, more
or less, or 1.4067 Acres, more or less.
..
, EXHIBIT
I.. ./(A \\
,.-.;.: ~ ~ :..',;; ,"
'.
..' . '..h.....,.
>;;~~~:~:;~b:.i~~~:ti.i~:~ ::;; :.- ;:~': -.-'
"!I'
......
~. 1'~.::". '.
.~,. ''':'
.. "c.;
~;'. J~""
.
"" ,~..
,
, ,
, ,
CITY OF MIAMI BEACH
a Florida municipal corporation
Lessee
and
HOLOCAUST MEMORIAL COMMITTEE, INC.,
a Florida corporation not-for-profit
Lessor
NINETY-NINE YEAR LEASE
). 6 J/WvlIMJ ,2000
. ,
, ,
T" ') I' l
TABLE OF CONTENTS
ARTICLE
PAGE
I. DEMISE BY LESSOR ............................................ 2
II. DURATION AND TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
III. AMOUNT OF RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
IV. USE AND POSSESSION OF DEMISED PREMISES .................... 4
V. TERMINATION OF 1987 AGREEMENT.............................. 4
VI. NET LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
VII. PROVISIONS REGARDING PAYMENT OF TAXES. . . . . . . . . . . . . . . . . . . .. 5
VIII. LESSOR'S INTEREST NOT SUBJECT TO MECHANIC'S
OR MATERIALMEN'S LIENS ...................................... 9
IX. LESSOR'S RIGHTS AND REMEDIES .............................. 10
X. INDEMNIFICATION OF LESSOR AGAINST LIABILITY. . . . . . . . . . . . . . . .. 11
XI. FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS. . . . . . . . . . . .. 16
XII. LESSEE'S DUTY TO PAY INSURANCE PREMIUMS. . . . . . . . . . . . . . . . . .. 20
XIII. ASSiGNMENT................................................. 21
XIV. CONDEMNATION CLAUSE...................................... 22
XV. ADDITIONAL IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
XVI. DEED RESTRICTIONS CONCERNING THE
USE OF THE PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
XVII. DEFAULT CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
XVIII. LESSEE'S DUTY TO KEEP PREMISES IN
GOOD REPAIR ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 33
, ,
, ,
I" 1 t I' ,
XIX. DEMOLITION CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 34
XX. ADDITIONAL COVENANTS OF THE LESSEE. . . . . . . . . . . . . . . . . . . . . . .. 36
XXI. COVENANT OF QUIET ENJOYMENT .............................. 37
XXII. LESSOR'S RIGHT OF ENTRY .................................... 38
XXIII. NO REPRESENTATIONS BY LESSOR ............................. 38
XXIV. LESSEE TO COMPLY WITH ALL LAWS ............................ 39
XXV. SURRENDER OF THE PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
XXVI. FORCE MAJEURE ............................................. 40
XXVII. ACCESS EASEMENT.................. ........................ 41
XXVIII. ADJACENT MUNICIPAL PARKING LOT. . . . . . . . . . . . . . . . . . . . . . . . . .. 41
XXIX. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
ii
, ,
, ,
') .'
NINETY-NINE YEAR LEASE
THIS INDENTURE (the "Lease"), made and entered into at Miami Beach, Dade
County, Florida, thiS~ day of iAAUM\\}' 2000, by and between:
CITY OF MIAMI BEACH,
a Florida municipal corporation
(hereinafter referred to as "Lessor")
and
HOLOCAUST MEMORIAL COMMITTEE, INC.,
a Florida not-for-profit corporation
(hereinafter referred to as "Lessee")
WIT N E SSE T H:
WHEREAS, the Lessor is the owner of the fee simple title in and to that certain
property hereinafter demised and described; and
WHEREAS, the Lessor and the Lessee are parties to an Agreement dated July 31,
1987 (the "1987 Agreement") for the construction and operation of a Holocaust Memorial
at Meridian Avenue and Dade Boulevard on Miami Beach, Florida, and a Bill of Sale dated
October 9, 1990 (the "Bill of Sale"); and
WHEREAS, the parties hereto wish to terminate the 1987 Agreement, amend the
Bill of Sale to conform to the terms of this Lease, and enter into this Lease; and
WHEREAS, a boundary survey was prepared for the Holocaust Memorial by
Biscayne Engineering Company, Inc., dated May 3, 1990, hereinafter referred to as the
"Boundary Survey", which Boundary Survey shows the location of the various
improvements on the Premises, including walls, sculptures, planters, walkways, steps,
pool, tunnel, columns, a shed, and a roadway easement from the parking lot to 19th Street
. ,
. .
.... '.,I ,. I
to the Garden Center Site shown as an "asphalt pavement", a copy of which Boundary
Survey is attached hereto as Exhibit "B".
NOW THEREFORE, the Lessor and the Lessee, for and in consideration of the
mutual covenants, agreements and undertakings herein contained, and in further
consideration of the payments herein mentioned, made and to be made, do by these
presents mutually covenant and agree as follows:
ARTICLE I
DEMISE BY LESSOR
1.1 Upon the terms and conditions hereinbefore and hereinafter stated, and in
consideration of the payment from time to time of the rents hereinafter stated, and for and
in consideration of the prompt performance by the Lessee of all of the covenants
hereinafter contained by the Lessee to be kept and performed, the performance of which
is declared to be an integral part of the consideration to be furnished by the Lessee, the
Lessor does hereby lease, let and demise unto the Lessee, and the Lessee does hereby
lease of and from the said Lessor, the following described property situate, lying and being
in Miami-Dade County, Florida, together with all buildings and other improvements located
thereon, to-wit:
See Exhibit "A" attached hereto and by reference made a part
hereof, containing the full and complete legal description of the
demised premises, hereinafter sometimes referred to as either
the "Demised Premises", "Premises", and/or "Property."
subject, nevertheless, to the following:
2
" '"
"," '-I'
(a) Conditions, restrictions and limitations, now appearing of
record;
(b) City and/or County Zoning Ordinances now existing, or which
may hereafter exist during the life of this lease;
(c) All matters shown on the Boundary Survey;
(d) A roadway access easement in favor of the Lessor from the
19th Street parking lot to the Garden Center site, shown as an
"asphalt pavement" on the Boundary Survey;
(e) All of the terms, covenants and conditions contained in this Lease.
ARTICLE II
DURATION AND TERM
2.1 The duration and term of this Lease shall be for a period of ninety-nine (99)
years, commencing on the 8th day of March, 2000 (the "Commencement Date") and
expiring on the ~ day of March, 2099 (the "Maturity Date").
ARTICLE III
AMOUNT OF RENT
3.1 The Lessee covenants and agrees to pay to the Lessor an annual rental of
Ten Dollars ($10.00), payable annually in advance, the first such annual payment being
due and payable on the _ day of ,2000, and on the 1st day of _ each and
every year thereafter during the entire term of the Lease.
3
"
. .
. .
.., '" ,. ,
ARTICLE IV
USE AND POSSESSION OF DEMISED PREMISES
4.1 The Demised Premises shall be used by the Lessee solely and exclusively
as a Holocaust Memorial and any and all activities related thereto. It is understood and
agreed that, the Premises shall be used by the Lessee during the entire term of this Lease
only for the above purposes and for no other purposes or uses whatsoever. In the event
that the Lessee uses the Premises for any purposes not expressly permitted herein, such
use shall be considered an Event of Default and the Lessor shall be entitled to all the
remedies set forth in Article XVII hereof, or without notice to Lessee, restrain such improper
use by injunction or other legal action.
ARTICLE V
TERMINATION OF 1987 AGREEMENT
5.1 The Agreement between the parties dated July 31,1987 is hereby terminated
and shall be of no further force or effect, and the Board of Trustees, is hereby deemed
abolished. The Lessee is authorized to terminate the Irrevocable Trust Agreement
between the Lessee and Bank America (as successor in interest to Barnett Bank Trust
Company, NA), dated July 31, 1987.
5.2 The second indented paragraph set forth in the Bill of Sale is hereby
amended to read as follows:
"Dedicated to the use and benefit of the public as a Holocaust Memorial
Committee, Inc., a not-for-profit corporation, in accordance with the terms
and conditions ofthat certain Ninety-Nine Year Lease between the Holocaust
4
"
.' J,
',I ,.
Memorial Committee, Inc.,and the City of Miami Beach, a municipal
corporation organized under the laws of the State of Florida, dated
January 26 , 2000."
ARTICLE VI
NET LEASE
6.1 This Lease shall be deemed and construed to be a "net Lease" and the
Lessee shall pay to the Lessor absolutely net throughout the term of this Lease, the rent
and other payments hereunder, free of any charge, assessments, impositions, expenses
or deductions of any kind and without abatement, deduction or setoff, and under no
circumstances or conditions, whether now existing or hereafter arising, or whether within
or beyond the present contemplation of the parties, shall the Lessor be expected or
required to make any payment of any kind whatsoever (unless reimbursed by Lessee) or
be under any other obligation or liability as to the Premises, except as otherwise
specifically stated in this Lease; and the Lessee agrees to pay all costs and expenses of
every kind and nature whatsoever arising out of or in connection with the Premises which
may arise or become due during the term of this Lease, and which except for the execution
and delivery hereof, would or could have been payable by the Lessor.
ARTICLE VII
PROVISIONS REGARDING PAYMENT OF TAXES
7.1 Lessee covenants and agrees with Lessor that as a further consideration for
the making of the within Lease, the Lessee is obligated to and will pay all taxes levied or
assessed at any or all times for and after the year in which the Commencement Date
5
.,
. ' \
,.
occurs, and during the term hereby demised, by any and all taxing authorities, and
including not only ad valorem and personal property taxes, but also special assessments
and liens for public improvements, and including in general all taxes, tax liens, or liens in
the nature of taxes which may be assessed, levied or imposed against the Demised
Premises, including the land and all buildings, (and such personal property by way of
furnishings or equipment which the Lessee may bring upon or be obligated to bring upon
the property), during the term of this Lease; but in the event any of said taxes and
assessments are payable according to their terms in installments, then the Lessee shall
have the right to pay the same as such installments fall due, provided that the Lessee must
effect payment of the said taxes not later than thirty (30) days before the time when the
nonpayment thereof would render them delinquent. The parties agree that in the event any
special assessments are payable in installments, the Lessee shall be responsible for such
installments during the term of this Lease, and may pay said sums in installments, and the
Lessor shall be responsible for any such assessments extending beyond the term of this
Lease.
7.2 Nothing contained in this Article shall obligate the Lessee to pay any income,
inheritance, estate or succession tax, or any tax in the nature of any such described taxes,
or any other tax which may be levied or assessed against the Lessor, with respect to or
because of the income derived from this Lease, nor shall the Lessee be deemed obligated
hereby to pay any corporation, franchise, or excise taxes which may be assessed or levied
against any corporate successor or successors in interest of any of the Lessor. In the
event legislation requires any Sales Tax or tax on this Lease to be paid by the Lessor, then
6
.,., ',J ,.
the Lessee shall be responsible for any and all such taxes to be paid, and shall reimburse
the Lessor for such taxes if legislation requires direct payment by Lessor to the Taxing
Authority. The reimbursement of such sums shall be considered as the payment of
additional rental, and shall afford Lessor all rights and remedies for nonpayment as if there
were a nonpayment of rental due hereunder.
7.3 If Lessee desires to contest the validity of any tax or tax claim, Lessee may
do so without being in default hereunder as to its obligation to pay taxes, provided Lessee
gives Lessor written notice of its intention to do so and furnishes Lessor with a corporate
surety qualified to do business in the State of Florida, in one and one-halftimes the amount
of the tax item or items intended to be contested, conditioned to pay the tax or tax items
when the validity thereof shall finally have been determined, which said written notice and
bond shall be given by Lessee to Lessor not later than a day which is thirty (30) days
before the tax item or items proposed to be contested would otherwise become delinquent.
If prior to the giving of such bond, Lessee shall have paid into the Registry of a court of
competent jurisdiction a sum of money to payor apply on the payment of said taxes, and
if said money is so paid into the Registry of the Court that it may never be withdrawn
excepting for its application upon the payment of the contested taxes without the consent
in writing of the Lessor hereunder first had and obtained, then the amount of the bond
required by the terms of this paragraph may be diminished by the amount so paid into the
Registry of the Court. If there shall have been paid into the Registry of the Court in the
manner prescribed hereinabove a sum equal to one and one-half times the amount of the
tax being contested, then no bond, as otherwise provided for in this Article, need be given
7
"..
by Lessee to Lessor. None of the provisions of this Paragraph 7.3 shall be available to
Lessee unless and until the enforcement of the contested tax, whether by way of issuance
of Tax Certificates, Tax Deed, reversion to the taxing authority, or otherwise, is fully
enjoined by a court of competent jurisdiction or is otherwise effectively stayed not later than
a day which is thirty (30) days before the particular tax item or items proposed to be
contested shall become delinquent; if such injunction or other stay is not secured by
Lessee within that time, then the Lessor is authorized as provided for in Paragraph 7.4 of
this Article VII, to pay such taxes as then assessed and levied, notwithstanding any
pending or proposed suit to contest those taxes.
7.4 In the event the Lessee shall for any reason fail, refuse or neglect to pay any
taxes referred to in Paragraph 7.1 of this Article VII within the time specified therein, or if
the Lessee desires to contest, or by suit contests any such tax, but for any reason fails,
refuses or neglects to comply with the provisions of Paragraph 7.3 of this Article VII within
the time therein specified, then and in any such event, the Lessor may at its option pay
such taxes as then assessed and levied and the amount or amounts of money so paid,
including reasonable attorney's fees and expenses which may have been reasonably
incurred in connection with such payments or by reason of the nonpayment thereof by the
Lessee, together with interest on all such amounts at the rate of eight per cent (8%) per
annum from the date of payment, shall be repaid by the Lessee to the Lessor upon
demand of Lessor and the payment thereof may be collected or enforced by Lessor in the
same manner as though said amount were an installment of rent specifically required-by
the terms of this Lease to be paid by Lessee unto Lessor upon the day when the Lessor
8
I' '..'.
demands repayment thereof or reimbursement therefor of and from Lessee; but the
payment of any such taxes by the Lessor shall not waive the default thus committed by the
Lessee.
7.5 Notwithstanding the foregoing, taxes (after deducting all available discounts)
for the year in which the Commencement Date of this Lease occurs, if any, and taxes (after
deducting all available discounts) for the last year of the term of this Lease, if any, will be
prorated as of the Commencement Date and Termination Date of the term of this Lease,
Lessor paying such taxes for that portion of the commencement year preceding the
Commencement Date, and for that portion of the termination year following the date of
termination of this Lease, and Lessee paying the balance of such taxes for said years.
ARTICLE VIII
LESSOR'S INTEREST NOT SUBJECT TO
MECHANICS' OR MATERIALMEN'S LIENS
8.1 All persons and parties, corporate and otherwise, are hereby notified of the
fact that the Lessee does not and shall never under any circumstances have the power,
right or authority to subject any interest of the Lessor in the Demised Premises to any
mechanics' or materialmen's liens or liens of any other kind or nature; and all persons
dealing with the Lessee are hereby notified of the fact that they must look only to the
interest of the Lessee in the Demised Premises and not to any interest of the Lessor.
8.2 Lessee covenants and agrees with Lessor that Lessee will not permit or
suffer to be filed or claimed against the interest of the Lessor in the Demised Premises
during the continuance of this Lease any lien or claim of any kind, and if any such lien be
9
'" ,
claimed or filed it shall be the obligation of the Lessee, within thirty (30) days after the said
lien or claim shall have been filed among the Public Records of Dade County, Florida, or
within thirty (30) days after the Lessor shall have been given notice of any such lien or
claim and shall have transmitted written notice of the receipt of notice of such lien or claim
unto the Lessee (which ever thirty (30) day period expires earlier), to cause the Demised
Premises to be released and discharged from such lien or claim, either by payment into
court of the amount necessary to relieve, release and discharge the Demised Premises
from such lien or claim, or in any other manner which as a matter of law will result, within
the said period of thirty (30) days, in releasing and discharging the Lessor and the title of
the Lessor from such lien or claim; and Lessee covenants and agrees, within said period
of thirty (30) days, so to cause the Demised Premises and the Lessor's interests therein
to be released from the legal effect of every such lien or claim.
ARTICLE IX
LESSOR'S RIGHTS AND REMEDIES
9.1 Although this is a long term Lease, all of the rights and remedies of the
respective parties shall be governed by the provisions of this instrument and by the laws
of the State of Florida as they exist from time to time, as such law relates to the respective
rights and duties of landlord and tenant.
9.2 During the continuance of this Lease, the Lessor shall have all rights and
remedies which this Lease and the law of the State of Florida assures to them.
9.3 All rights and remedies accruing to the Lessor shall be cumulative; that is to
say, the Lessor may pursue such rights as the law and this Lease afford to them in
10
. "
; ~ I .
whatever order the Lessor desire and the law permits, without being compelled to resort
to anyone remedy in advance of any other.
ARTICLE X
INDEMNIFICATION OF LESSOR AGAINST LIABILITY
10.1 Lessee covenants and agrees with Lessor that during the entire term of the
Lease the Lessee will indemnify and save harmless the Lessor against any and all claims,
debts, demands or obligations which may be made against or upon the Lessor, arising by
reason of or in connection with any alleged act or omission of the Lessee or any person
claiming by, through or under the Lessee; and if it becomes necessary for the Lessor, to
defend any action seeking to impose any such liability, the Lessee will pay the Lessor all
costs of court and reasonable attorney's fees incurred by the Lessor in effecting such
defense, as and when said fees and expenses become due and payable, in addition to any
other sums which the Lessor may be called upon to pay by reason of the entry of a
judgment against the Lessor or any of them in the litigation in which such claim is asserted.
10.2 From the time of the commencement of this Lease and so long as buildings
or improvements are located on the Demised Premises or any portion thereof, the Lessee
will cause to be written and pay all premiums on a policy or policies of insurance in the
form generally known as Commercial General Liability policies, insuring the Lessee, and
naming the Lessor as an additional insured, against any and all claims and demands made
by any person or persons whomsoever for injuries received in connection with the
operation and maintenance of the improvements and buildings located upon the Demised
Premises, or for any other risk insured against by such policies, each class of which
11
, " "
'.J'
policies shall have been written with limits of not less than One Million ($1,000,000.00)
Dollars for damages incurred or claimed by anyone (1) person, and for not less than Three
Million ($3,000,000.00) Dollars for damages incurred or claimed by more than one person.
All such policies shall name the Lessee and the Lessor as their respective interests may
appear, as the persons assured by said policies; and the original or a true copy of each of
such policies shall be delivered by the Lessee to the Lessor promptly upon the writing of
such policies, together with adequate evidence of the fact that the premiums are paid, and
such insurance shall be kept continuously in full force and effect by the Lessee at Lessee's
sole cost and expense. The insurance shall be placed with an insurance company having
a Best Company rating of "A" or better, if such insurance is available from said
company(ies) at reasonably commercial rates.
10.3 The Lessee shall also protect, defend, indemnify and hold the Lessor
harmless against any loss or damage, including attorney's fees and costs, arising out of
or resulting from any claim, action or law suit brought by a third party to (i) challenge the
validity or enforceability of this Lease; (ii) the Lessor's title to the Demised Premises; or
(iii) enjoin this Lease. If any litigation is instituted against the Lessor and/or the Lessee as
a result of the execution of this Lease, then the Lessee shall defend the Lessor and save
the Lessor harmless from any and all attorney's fees and court costs that may be incurred,
both at the trial and appellate level.
10.4 Lessee, at Lessee's expense, shall comply with all laws, rules, orders,
ordinances, directions, regulations and requirements offederal, state county and municipal
authorities pertaining to Lessee's use of the Premises and with the recorded covenants,
12
"
'" .
conditions and restrictions, regardless of when they become effective, including, without
limitation, all applicable federal, state and local laws, regulations or ordinances pertaining
to air and water quality, Hazardous Materials (as hereinafter defined), waste disposal, air
emissions and other environmental matters, all zoning and other land use matters, and
utility availability, and with any direction of any public officer or officers, pursuant to law,
which shall impose any duty upon Lessor or Lessee with respect to the use or occupation
of the Premises.
10.4.1 Lessee shall (i) not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises by Lessee, its agents, employees,
contractors or invitees without the prior written consent of Lessor, which Lessor shall not
unreasonably withhold as long as Lessee demonstrates to Lessor's reasonable satisfaction
that such Hazardous Material is necessary or useful to Lessee's use of the Premises and
will be used, kept and stored in a manner that complies with all laws regulating any, such
Hazardous Material so brought upon or used or kept in or about the Premises. If Lessee
breaches the obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises caused or permitted by Lessee results in contamination of the
Premises, or if contamination of the Premises by Hazardous Material otherwise occurs for
which Lessee is legally liable to Lessor for damages resulting therefrom, then Lessee shall
indemnify, defend and hold Lessor harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value
of the Premises, damages for the loss or restriction on use of rentable or usable space or
of any amenity of the Premises, damages arising from any adverse impact on marketing
13
"
,,"
of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) which arise during or after the lease term as a result of such contamination. This
indemnification of Lessor by Lessee includes, without limitation, costs incurred in
connection with any investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental agency or political
subdivision because of Hazardous Material present in the soil or ground water on or under
the Premises. Without limiting the foregoing, if the presence of any Hazardous Material
on the Premises caused or permitted by Lessee results in any contamination of the
Premises, Lessee shall promptly take all actions at its sole expense as are necessary to
return the Premises to the condition existing prior to the introduction of any such
Hazardous Material to the Premises; provided that Lessor's approval of such actions shall
first be obtained, which approval shall not be unreasonably withheld so long as such
actions would not potentially have any material adverse long-term or short-term effect on
the Premises. The foregoing indemnity shall survive the expiration or earlier termination
of this Lease.
10.4.2 "Hazardous materials" means (a) pesticides and insecticides; (b)
petroleum and its constituents; (c) any substance which is or may hereafter be defined as
or included in the definition of "hazardous substances", "hazardous materials", "hazardous
wastes", "pollutants or contaminants", "solid wastes" or words of similar import under the
Comprehensive Environmental Response, Compensation and Liability Act, as amended,
42 U.S.C. 99061, et seq.; the Hazardous Materials Transportation Act, as amended, 49
U.S.C. 91801 et seq.; the Resource Conservation and Recovery Act, as amended, 42
14
-
,. , ., .
U.S.C. ~6901 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
~1251 et seq., Chapters 376 and 403, Florida Statutes; Chapter 24 of the Code of
Metropolitan Dade County; (d) any other substance, the exposure to or release of which
is regulated by any governmental entity having jurisdiction over the Premises or the
operations thereon; and (e) any substance that does or may pose a hazard to the health
or safety of the persons employed at or invitees on the Premises.
10.4.3 At the commencement of this Lease, and on January 1 of each year
thereafter (each such date being hereafter called "Disclosure Date") , including January 1
of the year after the termination of this Lease, Lessee shall disclose to Lessor the names
and amounts of all Hazardous Materials, or any combination thereof, which were stored,
used or disposed of on the Premises, or which Lessee intends to store, use or dispose of
on the Premises.
1 0.4.4 Lessor and its Agents shall have the right, but not the duty, to inspect
the Premises at any time to determine whether Lessee is complying with the terms of this
Lease. If Lessee is not in compliance with this Lease, Lessor shall have the right to
immediately enter upon the Premises to remedy any contamination caused by Lessee's
failure to comply notwithstanding any other provision of this Lease. Lessor shall use its
best efforts to minimize interference with Lessee's business but shall not be liable for any
interference caused thereby.
10.4.5 Any default under this Paragraph shall be a material default enabling
Lessor to exercise any of the remedies set forth in this Lease.
15
"
,,' '" ,.
ARTICLE XI
FIRE AND WINDSTORM. ETC. INSURANCE PROVISIONS
11.1 Lessee covenants and agrees with Lessor that Lessee will insure and keep
insured any and all buildings and improvements now upon and hereafter placed upon the
Demised Premises and any and all personal property which Lessee brings, or which under
the terms of this Lease, the Lessee may be obligated to bring upon the Demised Premises,
all of which insurance shall be written through insurance companies authorized to do
business in the State of Florida, for protection against all loss or damage by fire and
windstorm, and what is generally termed in the insurance field as "extended coverage",
which said insurance will be maintained in an amount which will be sufficient to prevent any
party in interest from being or becoming a co-insurer of any part of the risk, and all of said
policies of insurance shall bear a "Loss payable clause" in which there shall be included
the names of the Lessor as parties assured thereby, as their interests may appear.
11.2 From the inception of any construction which Lessee may effect on the
Demised Premises, the Lessee will cause Builders' Risk insurance policies to be written
and maintained throughout such construction in compliance with the provisions of the
foregoing paragraph.
11.3 In the event of the destruction of or damage to the said buildings, or of any
of the improvements, by fire, windstorm or other casualty for which insurance shall be
payable, and as often as such insurance money shall have been paid to the Lessor and
the Lessee, said sums so paid shall be deposited in a joint account of the Lessor and
Lessee in a bank in Dade County, Florida designated by the Lessor, and shall be available
16
...' '" ,.
to the Lessee for the reconstruction or repair, as the case may be, of any building or
buildings, damaged or destroyed by fire, windstorm or other casualty for which insurance
money shall be payable, and shall be paid out by the Lessor and the Lessee from said joint
account from time to time on the estimate of any architect licensed in the State of Florida
having supervision of such reconstruction and/or repair, certifying that the amount of such
estimate is being applied to the payment of the reconstruction and/or repair and at a
reasonable cost therefor; provided, however, that it first be made to appear to the
satisfaction of the Lessor that the amount of money necessary to provide for the complete
reconstruction and/or repair of any, building or buildings destroyed or damaged as
aforesaid, according to the plans adopted therefor and approved by the Lessor, has been
provided by the Lessee for such purpose and its application for such purpose assured.
The proceeds of the Personal Property Insurance covering personal property belonging
to the Lessee shall likewise be deposited in a joint bank account to the credit of the Lessor
and the Lessee, and shall be paid out for the replacement or repair, as the case may
require, of destroyed or damaged personal property. The Lessee covenants and agrees
that in the event of the destruction of or damage to the buildings and/or improvements or
any part thereof, and as often as any buildings or improvements on said Premises shall be
destroyed or damaged by fire, windstorm, or other casualty, the said Lessee shall rebuild
or repair (as the case may require), the same in such manner that the building or
improvement so rebuilt and/or repaired shall be of the same or greater value as the
building and the improvements upon the Demised Premises were immediately prior to such
damage or destruction, and shall have the same rebuilt and/or repaired and ready for
17
.
"
.' ','.
occupancy within eighteen (18) months from the time when the damage or destruction
occurred, and shall within that period replace and repair as the case may require, personal
property destroyed or damaged; this obligation of the Lessee to rebuild and repair the
buildings and improvements, and to replace and repair the personal property, shall exist
and be enforceable irrespective of the availability of any insurance funds for any of these
purposes. With Lessor's prior written consent, the said eighteen (18) month period for
reconstruction or repair shall be enlarged and extended by delays caused without fault or
neglect on the part of the Lessee, by act of God, strikes, lockouts or other conditions
beyond the-Lessee's control.
11.4 Nothing herein contained shall be construed as prohibiting the Lessee from
financing the premiums on such policies, or from such payments having a deductible
amount not exceeding five percent (5%) of the insurable value of the improvements, if such
insurance is available at reasonably commercial rates.
11.5 If at any time any such insurance money comes into the possession of the
Lessor and the Lessee after destruction or damage by fire or windstorm or other casualty
and the Lessee is in default in the payment of rent, taxes, assessments, liens or other
charges which by the terms of this Lease the Lessee is obligated to payor pay for, or if
such default should occur during the time said insurance money or any part thereof is in
the joint bank account, as aforesaid, then the Lessor shall be paid so much of the
insurance money as may be necessary fully to payor discharge any such sum of money
in the payment of which the Lessee is in default, as aforesaid, and this shall be done
whenever and as often as any such default shall occur on the part of the Lessee. Nothing
contained herein, however, shall be construed as permitting the Lessee to default in the
18
"
, ,,'.
payment of rent or other charges herein stipulated to be paid or in the performance of the
other covenants in this Lease. The Lessor may, at its option, in case of default in the
payment of such rent or other charges or default in the performance of any other covenant
in this Lease, proceed against the Lessee for the collection of such rental and charges, and
recover and take possession of the Premises herein described, and without prejudice to
their rights to the benefit of such insurance money as payment of such rental and other
charges.
11.6 It is agreed by and between the Lessor and Lessee that any excess of money
received from insurance or other sources remaining in the said joint bank account after the
completion of the reconstruction, replacement or repair of such building or buildings and
personal property, and if there is no default on the part of the Lessee in the performance
of any of the covenants of this Lease, shall be paid to said Lessee; but in the event the
Lessee fails for any reason to commence the reconstruction or repair of said building or
buildings within six (6) months after the date of the damage or destruction occasioned by
fire, windstorm or other cause for which insurance money shall be payable, or the Lessee
for any reason fails within that six (6) month period to provide in the manner required by
Paragraph 11.3 of this Article XI, a sufficient sum of money to prosecute the reconstruction
and repair work with such dispatch as may be necessary to complete the same within
eighteen (18) months after the occurrence of such damage or destruction occasioned as
aforesaid, then and in every such event, the Lessee shall be deemed to have refused to
carry out its obligation to reconstruct, replace and repair, and the amount so collected or
the balance thereof remaining in the joint account, as the case may be, shall be paid to the
19
.
" '"
Lessor as liquidated and agreed upon damages resulting from the failure of the Lessee to
reconstruct, replace and repair, and the Lessor shall have the option, notwithstanding its
retention of such sum, to terminate this Lease.
ARTICLE XII
LESSEE'S DUTY TO PAY INSURANCE PREMIUMS
12.1 Lessee covenants and agrees with Lessor that Lessee will pay the premiums
for all of the insurance policies which Lessee is obligated to carry under the terms of this
Lease, and will deliver to the Lessor evidence that all such premiums have been paid on
or before the effective date of each such policy or proper evidence of extended credit
and/or evidence of financing the payment of such premiums, and Lessee will cause
renewals of all expiring policies to be written, and the policies or copies thereof, as the
Lease may require, to be delivered to the Lessor at least ten (10) days before the
expiration date of such expiring policies.
12.2 Nothing herein contained shall ever be construed as rendering the Lessor
personally liable for the payment of any .such insurance premiums, but if at any time during
the continuance of this Lease the Lessee shall fail, refuse or neglect to procure any of the
policies; of insurance required in and by this instrument to be procured by the Lessee, or
to keep and maintain the same in full force and effect, or to pay the premium therefore
promptly when due, the Lessor may, at its option, procure or renew such insurance, and
thereupon the amount or amounts of money paid as the premium or premiums thereon
plus interest at the rate of eight per cent (8%) per annum from date of payment thereof
shall be collectible as though it were rent then matured hereunder, and shall be due and
20
"
payable forthwith, or in lieu thereof and notwithstanding the procurement and renewal of
such policies by the Lessor, this Indenture and the terms created hereby may, at the option
of the Lessor, be terminated and declared at an end and all of the right, estate and interest
of the Lessee in such event hereunder shall immediately cease and become null and void.
ARTICLE XIII
ASSIGNMENT
13.1 This Lease is not freely assignable, and no assignment, transfer, sublease,
subconcession or license agreement shall be valid unless there is a prior written consent
by the Lessor, which such consent shall be within the sole discretion of the Lessor, and
such instrument of assignment (the "Assignment") which has been consented to is in
writing and is recorded among the Public Records of Miami-Dade County, Florida, which
said Assignment must contain an assumption agreement, duly executed by the Assignee
of this Lease and in recordable form, wherein and whereby the Assignee accepts the said
assignment and assumes and agrees to timely and fully perform and comply with all of the
Lessee's covenants and agreements contained in this Lease, and unless and until written
notice (the "Notice") shall have been given to the Lessor by the Assignor and Assignee,
(the Notice to be given in the manner hereinafter prescribed as the manner and method
for giving Notice), enclosing a duplicate-original or photostat of the original instrument of
Assignment and the address at which Notice may thenceforth be given to the Assignee.
Upon any Assignment being made in accordance with the provisions of this Article, the
Lessee shall thereupon and forthwith be released, relieved and discharged of and from any
further duties, obligations or liabilities under the terms of this Lease.
21
'.
,J ..,
13.2 The Lessor covenants and agrees that it will within thirty (30) days after
service of Notice upon it of a proposed assignment of this Lease, giving the name and post
office address of the proposed Assignee, advise the Lessee in writing as to whether the
Lessor will consent to the assignment of the Lease and further advise the Lessee in writing
of the existence or nonexistence of any default on the part of the Lessee under the terms
of this Lease, and if there is any default or defaults, a statement setting forth such default
or defaults. If the Lessor fails to give such advice in writing within the time required, then
such failure shall have the effect of a representation by the Lessor to the proposed
Assignee that there then exists no default on the part of the Lessee in the performance and
covenants of this Lease. Notice of the proposed Assignment and the consequent reply
shall be deemed given and served, and the time shall begin to run when the said Notice
and consequent reply shall be addressed to the Lessor and the Lessee at the respective
places and in the manner hereinafter prescribed. The Notice shall set forth in detail all of
the information sought to be received from the Lessor.
ARTICLE XIV
CONDEMNATION CLAUSE
14.1 It is further understood and agreed that if at any time during the continuance
of this Lease the Demised Premises or the improvements and buildings located thereon
or any portion thereof be taken, appropriated or condemned by reason of eminent domain,
there shall be such division of the proceeds and awards in such condemnation
proceedings, and such abatement of rent and other adjustments made, as shall be just and
equitable under the circumstances. If the Lessor and the Lessee are unable to agree upon
22
'.
.' ,
',,'. ,
what division, annual abatement of rent or other adjustments are just and equitable within
thirty (30) days after such award shall have been made, then the matters in dispute shall
by appropriate proceedings, be submitted to a court having jurisdiction of the subject
matter of such controversy in Miami-Dade County, Florida, for its decision and the
determination of the matters in dispute. If the legal title to the entire Demised Premises is
wholly taken by condemnation, the Lease shall automatically and without notice be
canceled. If a partial taking by an entity renders the remainder of the Premises unsuited
for the permitted use as a Holocaust Memorial, then Lessee shall have the right to
terminate this Lease as of the date Lessee is required to surrender possession to the
condemning authority; however, nothing contained herein shall authorize the Lessor to be
the condemning authority.
14.2 Although the title to the buildings and improvements placed by the Lessee
upon the Demised Premises will pass to the Lessor upon the termination of this Lease,
nevertheless, for purposes of condemnation only, the fact that the Lessee placed such
buildings and improvements on the Demised Premises, at Lessee's cost and expense,
shall be taken into account and the deprivation of the Lessee of the use of such buildings
and improvements shall, pro tanto, be an item of damage in determining the portion of the
condemnation award to which the Lessee is entitled. In general, it is the intent of this
Article that upon condemnation, the parties shall share in their awards to the extent that
their interests respectively are depreciated, damaged or destroyed by the exercise of the
right of eminent domain.
14.3 If a partial taking or a total taking renders the Premises unsuited for the
23
.' .
, . ,.
permitted use as a Holocaust Memorial, Lessee, may at its sole option and expense,
remove all of its personal property, including but not limited to, all of the sculptures.
ARTICLE XV
ADDITIONAL IMPROVEMENTS
15.1 This Lease is made with the understanding and agreement that Lessee may
not construct any additional improvements to the buildings, improvements" and works of
art presently located on the Demised Premises as shown on the Boundary Survey without
the prior written consent of the Lessor and that any such additional improvements shall be
compatible with and compliment the existing Holocaust Memorial facility. Any and all
improvements, if approved by Lessor, shall be at the sole cost and expense of the Lessee.
15.2 With reference to the installation of buildings, improvements, or works of art
which the Lessor may authorize the Lessee to make as provided for in Section 15.1, the
Lessee covenants and agrees as follows:
(1) Plans and specifications must be prepared by an architect licensed to
practice in Dade County, Florida as such, and the said plans must be such that they will
comply with all applicable and relevant ordinances and building code provisions and shall
be compatible with and complimentary to the existing Holocaust Memorial facility.
(2) Before commencing the improvements, the Lessee must:
(a) Deliver to the Lessor a complete set of the plans and
specifications pursuant to which it proposes to construct the
improvements; and
24
" .,'
- '
(b) Obtain the written approval of the plans and specifications by
the Lessor who shall in writing approve or disapprove such
plans and specifications within sixty (60) days after their
delivery to the Lessor. Approval shall not be unreasonably
withheld; and
(c) Deliver to the Lessor a firm contract covering such construction
executed by a General Contractor licensed to do business in
Miami-Dade County, Florida or some other bona fide evidence
of the actual cost of such proposed construction; and
(d) Create an escrow building fund into which there must be paid
an amount not less than the actual full cost of the proposed
construction, plus a ten (10%) percent contingency, as a
means of assuring the Lessor that the said construction will
and can be completed and fully paid for without interruption or
the filing of liens arising by reason of the lack of money. The
building fund shall be created with any bank, trust company,
title insurance company or federal savings and loan
association doing business as such in the State of Florida, as
Escrow Agent. In the event the Escrow Agent does not
assume the responsibility for the administration of the building
fund, then and in that event, the fund shall be disbursed by the
Escrow Agent by periodic payments, each not exceeding
25
.
ninety percent (90%) of the amount certified by the architect as
being the value of the work, labor and materials furnished to
the building and not theretofore so certified by the architect.
The ten percent (10%) held back in each such instance shall
be paid out of the building fund only after the architect has
certified in writing that the building is complete in every detail
and in accordance with the plans and specifications, and in
addition thereto, sufficient evidence is submitted to the Escrow
Agent to satisfy the Escrow Agent that there exist no unpaid
bills for work, labor or materials or any other matter or thing
furnished to the property for which a lien could exist. The
Lessee agrees to pay all fees and charges of the Escrow
Agent administering the said building. fund, and his failure so
to do shall constitute a breach of this Lease.
(e) In lieu of creating the escrow building fund referred to in
Paragraph (d) of this Article XV, the Lessee may deliver to the
Lessor a Completion Bond with corporate surety authorized to
do business as such in Miami-Dade County, Florida, and
satisfactory to the Lessor as to the form and surety,
guaranteeing the completion of the building in accordance with
the approved plans and specifications, and indemnifying and
saving harmless the Lessor and the title of the Lessor against
26
',.,! '.,'
the claims of all parties who furnish work, labor, services
and/or materials to the premises.
(f) Any building operation, once commenced, must be carried
through continuously to completion, but any interruption or
delay in the doing and completion of the work which shall have
been caused by act of God, or the public enemy, or strike, or
natural casualty, or other circumstances not occasioned by or
attributable to the fault, default or neglect of the Lessee shall
not be deemed to cause the Lessee to be in default under this
paragraph, so long as the Lessee exercises due diligence to
cause the said work of construction to be carried through to
completion as promptly and expeditiously after the
commencement thereof as possible.
ARTICLE XVI
DEED RESTRICTIONS CONCERNING THE USE OF THE PROPERTY
16.1 Lessor and Lessee agree that the Demised Premises shall contain the
following restrictions, covenants and limitations upon the utilization of the Demised
Premises:
(a) That the Lessee shall at all times remain a not-for-profit corporation;
(b) That religious services shall not be conducted at any time or in any
manner whatsoever upon the Demised Premises; provided, however, that memorial
services for the victims of the Holocaust, and observances of historical events may be held
27
... ""
and shall be deemed not to be religious services.
(c) That the Demised Premises shall at no time during the term of the
Lease be assigned, sublet, or in any way shall the dominion and control over the Property
be in any person or entity other than the Lessee, without the prior written consent of the
Lessor;
(d) That all fire and extended coverage and flood insurance, maintenance,
and other costs for the improvements and the general upkeep of the Property, and all
replacements necessary in connection therewith, shall be the sole cost and expense of the
Lessee;
(e) That the Lessee shall provide personnel on the Premises during
operating hours and either a security service or electronic security service during non-
operating hours during the entire term of the Lease;
(f) That the Lessee shall not: charge any admission or entry fee to the
Property of any kind or nature whatsoever without the prior written consent of Lessor;
provided, however, the Lessee may have a Gift Pavilion for the sale of commemoratives,
pictures, and other like items of personal property, and receive gifts and compensation for
the engravement of names in the facility, the proceeds of which shall be the sole property
of the Lessee so long as this Lease shall continue in full force and effect; and
(g) That the Lessee shall be obligated to provide public liability insurance
and property damage insurance at its cost and expense to the Demised Premises during
the terms of this Lease, except that, for a period of five (5) years from the Commencement
Date, the Lessor shall reimburse the Lessee the premium amount, as to public liability
28
insurance only, said reimbursement amount to be made as an annual credit to Lessee.
Thereafter, said costs and expenses for public liability insurance and property damage
insurance shall become the sole responsibility of Lessee.
(h) That the Lessor shall be obligated to provide all utilities to the Demised
Premises but only for a period of five (5) years from the Commencement Date, at its sole
cost and expense, and thereafter said utility(ies) costs and expenses shall become the sole
responsibility of Lessee;
(i) That the Property shall at all times be open and available to the
general public and used as a Holocaust Memorial in accordance with the provisions of
Article IV.
16.2 The violation by the Lessee of any of the covenants, restrictions and
undertakings as set forth in Paragraph 16.1 above, shall be considered an Event of Default
and the Lessor shall be entitled to all of the remedies as set forth in Article XVII hereof.
ARTICLE XVII
DEFAULT CLAUSE
17.1 It is further covenanted and agreed by and between the parties hereto that
in case at any time default shall be made by the Lessee in the payment of any of the rent
herein provided for upon the day said rent becomes due and payable; or in case of default
in relation to liens, as hereinabove provided for; or if the Lessee shall fail to pay any of the
taxes or assessments herein provided for; or in case of the sale or forfeiture of said
Demised Premises or any part thereof during said demised term for nonpayment of any tax
or assessment; or in case the Lessee shall fail to keep insured any building, buildings or
29
improvements which may at any time hereafter be upon said Premises, as herein provided
for; or shall fail to spend insurance money as herein provided for; or shall fail to rebuild as
herein provided for; or if the Lessee shall fail to create and to keep sufficient the escrow
building fund or the joint bank account for insurance proceeds as elsewhere hereinabove
in this Lease respectively referred to; or if the Lessee shall fail to perform any of the other
covenants of this Lease by Lessee to be kept and performed, each of which shall be an
"Event of Default", then, in any of such events, it shall and may be lawful for the Lessor to
declare said demised term ended and to re-enter upon said Premises and the building or
buildings and improvements situate thereon or any part thereof, either with or without
process of law, the said Lessee hereby waiving any demand for possession of said
Premises and any and all buildings and improvements then situate thereon; and the
Lessee covenants and agrees that upon the termination of said demised term, the Lessee
will surrender and deliver up the said Premises peaceably to the Lessor, their agents and
attorneys, immediately upon the termination of the said demised term; and if the Lessee,
his agents, attorneys and tenants shall hold the said Premises or any part thereof one (1)
day after the same should be surrendered according to the terms of this Lease, they shall
be deemed guilty of forcible detainer of the said Premises under the Statute and shall be
subject to eviction or removal, forcibly or otherwise, with or without process of law.
17.2 Although this is a ninety-nine (99) year lease, the parties understand and
agree that the relationship between them is that of landlord and tenant, and the Lessee
specifically acknowledges that the statutory proceedings in the State of Florida relating to
the recovery of possession of the Premises accrues to the landlord hereunder.
30
.'
17.3 Nothing herein contained shall be construed as authorizing the Lessor to
declare this Lease in default until the violation complained of shall have continued for thirty
(30) days after the Lessor shall have given the Lessee written notice of such violation. If
the default complained of is of such a nature that it cannot be cured within thirty (30) days,
and if the Lessee has commenced taking all reasonable steps to cure such default and is
in the process of eliminating the facts which are the basis for the declaration of a default,
then the Lessee shall not be deemed to be in default and the Lessor shall not be entitled
to cancel or otherwise enforce the termination of this Lease. Nothing herein contained
shall be construed as precluding the Lessor from having such remedy as may be and
become necessary in order to preserve the rights and the interests of the Lessor in the
Premises and in this Lease even before the expiration of the grace or notice periods
provided for in this paragraph if, under particular circumstances then existing, the
allowance of such grace or the giving of such notice would prejudice or endanger the rights
and estate of the Lessor in this Lease and in the Demised Premises.
17.4 Anything in this Lease contained to the contrary notwithstanding, the parties
understand and agree that if there is a default by the Lessee, or the owner of the Lessee's
interest in this Lease, in any of the terms, provisions, conditions and covenants in this
Lease on the part of the Lessee to be kept and performed, the Lessor shall be limited to
the remedy of canceling the Lease and looking wholly to any improvements constructed
on the Demised Premises for the payment of and satisfaction to the Lessor for any damage
suffered by them as a result of the Lessee's default under this Lease, the parties agreeing
specifically that there shall at no time be any personal liability imposed upon the Lessee,
31
, ',"
or the owner of the Lessee's interest in this Lease, for any default under this Lease.
17.5 It is further covenanted and agreed by and between the parties hereto, in the
event of the termination of this Lease at any time before the expiration of the term hereby
created, for the breach by the Lessee of any of the covenants herein contained, that in
such case all of the right, estate and interest of the Lessee in and under this indenture and
in the Demised Premises hereinabove described, and all improvements and buildings then
situate on the said Demised Premises, together with all rents, issues and profits of said
Premises and the improvements thereon, whether then accrued or to accrue, and all
insurance policies and all insurance monies paid or payable thereunder, and the then
entire undisbursed balance of any building escrow fund and the entire undisbursed balance
of any then existing joint bank account which may have been created in connection with
the collection of insurance, and all of them, shall without any compensation made therefore
unto the Lessee, at once pass to and become the property of the Lessor, not as a penalty
or forfeiture, but as liquidated damages to the Lessor because of such default by the
Lessee and the consequent cancellation of the Lease, each of the parties acknowledging
it to be the fact that for breach and consequent cancellation of a long-term lease of this
character, the Lessor will sustain substantial damage, being damage of such character as
to make it most burdensome and tedious, if not actually impossible, to ascertain with
mathematical precision, and each of the parties therefore having agreed upon this
provision for liquidated damages in the interests of obviating what would otherwise be
burdensome and difficult litigation to maintain or to defend, as the case may be; and this
provision for liquidated damages has been taken into account by both parties in fixing the
32
. I ",'.
term of and the consideration for the making of this Lease.
17.6 The Lessee pledges with and assigns unto the Lessor all of the rents, issues
and profits which might otherwise accrue to the Lessee for the use, enjoyment and
operation of the Demised Premises, and in connection with such pledging of the rents, the
Lessee covenants and agrees with the Lessor that if the Lessor, upon the default of the
Lessee, elects to file a suit to enforce the Lease and protect the Lessor's rights thereunder,
then the Lessor may, as ancillary to such suit, apply to any court having jurisdiction thereof
for the appointment of a Receiver of all and singular the Demised Premises, and the
improvements and buildings located thereon; and thereupon, it is expressly covenanted
and agreed that the court shall forthwith appoint a Receiver with the usual powers and
duties of Receivers in like cases, and such appointment shall be made by such court as
a matter of strict right to the Lessor, and without reference to the adequacy or inadequacy
of the value of the property which is subject to the landlord's lien or to the solvency or
insolvency of the Lessee, and without reference to the commissions of waste.
ARTICLE XVIII
LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR
18.1 Lessee covenants and agrees with the Lessor that during the continuance
of this Lease the Lessee will keep in good state of maintenance and repair and in first class
condition (which shall mean substantially the same maintenance as the memorial is
presently maintained), any and all buildings and other improvements constructed upon the
Demised Premises; nor will the Lessee suffer or permit any strip, waste or neglect of any
building to be committed; and the Lessee will repair, replace and renovate the said real
33
.'
"t
property, and improvements located thereon, as often as it may be necessary to keep the
building and improvements which are subject to the Lessor's lien in a good state of repair
and condition.
18.2 Lessee covenants and agrees with the Lessor that Lessee shall be obligated
for all utilities utilized on the Demised Premises subsequent to five (5) years from the
Commencement Date.
ARTICLE XIX
DEMOLITION CLAUSE
19.1 Although it is the Lessee's duty under the terms hereof to keep and maintain
any buildings and improvements on the Demised Premises in good repair, this shall not be
construed as empowering the Lessee to at any time tear down and destroy any buildings,
improvements, on the Demised Premises, or any substantial part thereof, or to cause any
item of "major repair" (as defined under Section 19.3) and reconstruction to be made,
unless and until the Lessee:
(a) Causes plans and specifications for the new building or the new
construction to be prepared in full accordance with all applicable laws, building codes,
zoning ordinances, statutes and regulations, and delivers the plans to the Lessor at least
ninety (90) days before the work proposed to be done pursuant thereto is actually
commenced, and such plans shall contain new memorial improvements which are
compatible with the existing Holocaust Memorial facility as shown on the Boundary Survey;
and
34
'.1 ','.
(b) Obtains the written approval of the plans and specifications by the
Lessor who shall in writing approve or disapprove such plans and specifications within sixty
(60) days after their delivery to the Lessor, which approval shall not be unreasonably
withheld; and
(c) Furnishes the Lessor with what is generally known as a Completion
Bond with corporation surety, guaranteeing the doing and completion of the said work, or
in lieu of furnishing such bond; and
(d) Creates an escrow fund with any bank or trust company then doing
business in Dade County, Florida, selected by the Lessee, into which there shall be paid
by the Lessee the full cost of the work or repair and replacement, which cost shall be
evidenced by the bona fide bid of a General Contractor or the aggregate of the bona fide
bids and estimates of subcontractors and materialmen, all of which evidence must be
submitted by the Lessee to the Lessor not later than thirty (30) days before the work itself
starts, which escrow fund will be utilized to pay for the work as it progresses upon the
requisition of the contractor and the certificate of an architect supervising the work, but
disbursements from which will be made upon the written order of the Lessor and the
Lessee, the Lessor binding themselves, if he elects to exercise such joint control over the
escrow fund, to approve progress payments promptly so long as the balance remaining in
the escrow fund is sufficient to cause the work to be carried through to completion and paid
for, and final waivers and releases procured from all persons who furnish work, labor,
services and/or materials to the job.
19.2 In any event, the work of reconstruction, repair and replacement must have
35
"
a value of not less than the value of the 6f buildings or improvements or the portion thereof
then being demolished and replaced and repaired.
19.3 For the purpose of this section of the Lease, no work will be deemed a
"demolition" or a "major repair" so as to bring it within the terms of this section of the Lease,
unless it constitutes either the actual destruction of a building or a substantial part thereof,
or unless it constitutes a remodeling which, in substance, requires the tearing down of a
substantial part of a building or improvement; and an addition to existing buildings or
structures shall not be deemed a demolition within the meaning of this Article, even though
the physical fact of effecting such addition may cause a certain amount of construction
work to be done to the existing structure to make it connect with or conform to the
additional structure.
19.4 The expense of demolition shall be no part of the cost of any subsequent
replacement or rebuilding or addition; but by the same token, any salvage resulting from
the demolition shall belong to the Lessee.
ARTICLE XX
ADDITIONAL COVENANTS OF THE LESSEE
20.1 Lessee covenants and agrees with Lessor that no destruction to any building
or improvement by fire, windstorm or any other casualty shall be deemed to entitle the
Lessee to surrender possession of the Premises or to terminate this Lease or to violate any
of its provisions or to cause any abatement or rebate in the rent then due or thereafter
becoming due under the terms hereof; and if the Lease be canceled for the Lessee's
default at any time while there remains outstanding any obligation from any insurance
36
.' '
.'
" ~
company to pay for the damage or any part thereof, then the claim against the insurance
company shall, upon the cancellation of the within Lease, be deemed immediately to
become the absolute and unconditional property of the Lessor.
20.2 Lessee covenants and agrees with Lessor that nothing in this Lease
contained shall ever be construed as empowering the Lessee to encumber or cause the
Lessor to encumber the title or interest of the Lessor.
20.3 Lessee covenants and agrees with Lessor that at the termination of this
Lease the Lessee will peaceably and quietly deliver possession of the Premises and all
improvements thereon unto the Lessor.
20.4 Lessee covenants and agrees, with Lessor that the Lessor may encumber
the fee simple title to the premises with a mortgage or mortgages, irrespective of the
existence of this Lease, but such mortgage shall be subject to the terms of this Lease in
all respects, and its lien may never be so enforced as to render this Lease inferior to and
therefore subject to extinguishment by enforcement thereof.
20.5 Lessee shall not mortgage, pledge, hypothecate or otherwise encumber its
leasehold interest without the prior written consent of Lessor.
ARTICLE XXI
COVENANT OF QUIET ENJOYMENT
21.1 Lessor covenant and agree with Lessee that so long as the Lessee keeps
and performs all of the covenants and conditions by the Lessee to be kept and performed,
the Lessee shall have quiet and undisturbed and continuous possession of the premises,
free from any claims against the Lessor and all persons claiming under, by or through the
37
, .~
Lessor.
ARTICLE XXII
LESSOR'S RIGHT OF ENTRY
22.1 The Lessor or its agents shall have the right to enter upon the Premises at
all reasonable times to examine the condition and use thereof, provided, only, that such
right shall be exercised in such manner so as not to interfere with the Lessee in the
conduct of the Lessee's business on said Premises; and if the said Premises are damaged
by fire, windstorm or by other casualty which causes the Premises to be exposed to the
elements, then the Lessor may enter upon the Premises to make emergency repairs; but
if the Lessor exercise its option to make emergency repairs, such act or acts shall not be
deemed to excuse the Lessee from his obligation to keep the Premises in repair.
ARTICLE XXIII
NO REPRESENTATIONS BY LESSOR
23.1 Lessee acknowledges that it has examined the Premises and knows the
condition thereof and accepts the Premises in its present condition and without any
representations or warranties of any kind or nature whatsoever by Lessor as to its condition
or as to the use or occupancy which may be made thereof. The Lessee assumes, in
accordance with provisions of this Lease, the sole responsibility for the condition,
operation, maintenance and management of the Premises and all improvements now or
hereafter situated thereon, and the Lessor shall not be required to furnish any facilities or
services or make any repairs or structural changes, additions or alterations thereto.
38
"
" .
ARTICLE XXIV
LESSEE TO COMPLY WITH ALL LAWS
24.1 Lessee shall comply with all laws, ordinances, regulations and orders of
Federal, State, County and municipal authorities pertaining to the Premises and Lessee's
improvements and operations thereon.
24.2 Lessee shall pay all costs, expenses, fines, penalties and/or damages which
may be imposed because of the failure of Lessee to comply with this Paragraph, and
Lessee shall indemnify Lessor from any and all liability arising from such non-compliance.
24.3 Lessee covenants and agrees that there will be no discrimination as to race,
color, creed or national origin in its use of the Premises.
ARTICLE XXV
SURRENDER OF THE PREMISES
25.1 The Lessee 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
Lessor the Premises, together with any and all equipment, fixtures, furnishings, appliances
or other personal property located at or on the Premises and used by Lessee in the
maintenance, management or operation of the Holocaust Memorial, excluding any trade
fixtures or personal property which can be removed without material injury to the Premises,
free of all liens, claims and encumbrances and rights of others or broom-clean, together
with all structural changes, alterations, additions, and improvements which may have been
made upon the Premises, in good order, condition and repair, reasonable wear and tear
excepted, subject, however, to the subsequent provisions of this Article. Any property
39
" '
.) ",'
which pursuant to the provisions of this Article is removable by Lessee on or at the
Premises upon the termination of this Lease and is not so removed may, at the option of
the Lessor, be deemed abandoned by the Lessee, and either may be retained by the
Lessor as its property or may be removed and disposed of at the sole cost of the Lessee
in such manner as the Lessor may see fit. If the Premises and personal property is not
surrendered at the end of the term as provided in this Article XXV, the Lessee shall make
good to the Lessor all damages which the Lessor shall suffer by reason thereof, and shall
indemnify, the Lessor against all claims made by any succeeding tenant, or purchaser, so
far as such delay is occasioned by the failure of the Lessee to surrender the Premises as
and when herein required.
25.2 The Lessee covenants and agrees that it will not enter into any subleases,
subtenancies, licenses or concession agreements relating to the Holocaust Memorial
Premises for a period of time beyond the stated expiration date of this Lease, unless said
subleases, subtenancies, licenses or concession agreements are terminable at Lessor's
option at the expiration of the term of this Lease (whether by acceleration or otherwise).
ARTICLE XXVI
FORCE MAJEURE
26.1 Either party hereto shall be excused from performing any of its respective
obligations or undertakings provided in this Lease, except as provided in Article XXV
hereof, "Surrender of the Premises", and excepting any of its respective obligations or
undertakings to pay any sums of money under the applicable provisions hereof, for so long
as the performance of such obligations are prevented or delayed, retarded or hindered
40
. .'
',. ",'.
(plus such additional time is mutually consented to by the parties) by act of God, weather
or unusual severity, fire, earthquake, flood, hurricane, explosion, action of the elements,
war (declared or, undeclared), invasion, insurrection, riot, mob violence, sabotage,
malicious mischief, inability to produce or general shortage of labor, equipment, facilities,
materials or supplies in the open market, failure of transportation, strikes, lockouts, action
of labor unions, condemnation, public requisition, laws, order of government or any other
cause, whether similar or dissimilar to the foregoing, not within the reasonable control of
the respective party if such party hereto gives notice of such delay to the other party within
twenty (20) days of the occurrence of such event.
ARTICLE XXVII
ACCESS EASEMENT
27.1 This Lease is subject to and conditioned upon an Access Easement, for the
use and benefit of the City and its officers, agents and employees and members of the
public using the Garden Center Site, more fully described in Exhibit "B", attached hereto
and by reference made a part hereof, over and across that certain property shown on the
Boundary Survey as an "asphalt pavement", extending from the City Parking Lot located
at 19th Street and Meridian Avenue to the rear entry to the Garden Center Site. The
Easement shall be for vehicular, pedestrian and all related uses to provide access to the
Garden Center Site from the Parking Lot.
ARTICLE XXVIII
ADJACENT MUNICIPAL PARKING LOT
28.1 The Lessor agrees that it will, during the entire term of this Lease, either
41
, .
',' ",'.
maintain as a metered parking lot, the parking lot shown on the Boundary Survey as an
"Existing Municipal Parking Lot" (the 5-H Lot), or in the event the Lessor ceases to
maintain the "Existing Municipal Parking Lot" as a parking lot, then the Lessor will provide
the same amount of metered parking within a reasonable distance of the "Existing
Municipal Parking Lot".
ARTICLE XXIX
MISCELLANEOUS PROVISIONS
29.1 All periods of notice and/or grace, including any periods of notice which the
law may require as conditions precedent to the exercise of any rights by the Lessor against
the Lessee shall, at the option of the Lessor, run concurrently and not successively.
29.2 All arrearages in the payment of rent shall bear interest at the rate of eight
percent (8%) per annum from the date when same became due and payable hereunder
until the date when same are actually paid.
29.3 Although this is a long-t~rm Lease, the relationship between the parties is
that of landlord and tenant, and all statutory provisions in the State of Florida regulating the
relationship of landlord and tenant, respecting the collection of rent and other charges, or
the repossession of the Demised Premises, shall accrue to the Lessor hereunder.
29.4 In the event of a breach or threatened breach by the Lessee of any of the
agreements, conditions, covenants or' terms hereof, the Lessor shall have the right of
injunction to restrain the same, and the right to invoke any remedy allowed by law or in
equity as if specific remedies, indemnity or reimbursement were not herein provided for.
29.5 If, in connection with the enforcement of this Lease, and by reason of the
42
, .
Lessor's failure to keep and perform all of the conditions and covenants herein contained
by the Lessor to be kept and performed, it shall be necessary for the Lessee to employ an
attorney, then the Lessor shall pay Lessee's attorney's fees and court costs incurred or
expended, including all appellate fees and costs.
29.6 In the event of any default on the part of the Lessee in the performance of
or compliance with any of the terms, covenants, provisions or conditions of this Lease, and
the Lessor is required to bring any action or proceedings as a result thereof, then it is
agreed that the Lessor shall have the right to apply to any court having jurisdiction for the
appointment of a Receiver of all and singular the Demised Premises, buildings, fixtures,
furnishings and improvements located thereon, together with the rents, issues and profits
therefrom, and the Lessee does hereby expressly consent to the appointment of such
Receiver by the court with the usual powers and duties of Receivers in such cases, and
that such appointment be made by the court as a matter of strict right to the Lessor and
without reference to the adequacy or inadequacy of the value of the property which is
subject to the Lessor's liens, or to the solvency or insolvency of the Lessee.
29.7 The Lessor and Lessee hereby agree to cooperate fully with each other at
all times, and in addition to those matters hereinabove specifically referred to, to perform
such other and further acts, and sign and deliver such papers and documents, as may be
necessary in the circumstances from time to time during the term of this Lease to give full
effect to all of the terms, covenants, conditions and provisions of this Lease.
29.8 The captions of this Lease are for convenience and reference only and in no
way define, limit, or describe the scope or intent of this Lease nor in any way affect this
43
. .'
'. .
Lease.
29.9 The index preceding this Lease, but under the same cover, is for the purpose
of convenience and reference only and is not to be deemed or construed in any way as
part of this Lease, nor as supplemental thereto or amendatory thereof.
29.10 This Agreement shall be governed by that laws of the State of Florida
regardless of the diversity of citizenship of the parties in interest or the place of execution
of this Lease.
29.11 That all covenants, promises, conditions and obligations herein contained or
implied by law are covenants running with the land and shall attach to and be binding upon
the heirs, executors, administrators, successors, legal representatives and assigns of each
of the parties to this Lease.
29.12 Time is of the essence in every particular and particularly where the
obligation to pay money is involved.
29.13 When the parties desire to give notice unto the other or others in connection
with and according to the terms of this Lease, such notice shall be given by Registered or
Certified Mail, Return Receipt Requested, and shall be deemed given when it shall have
been deposited in the United States Mails with sufficient postage prepaid thereon to carry
it to its addressed destination, and the said notice shall be addressed as follows:
To the Lessor:
City Manager, City of Miami Beach, 1700 Convention
Center Drive, Miami Beach, Florida 33139
and with a copy to: City Attorney, City of Miami Beach, 1700 Convention
Center Drive, Miami Beach, Florida 33139
44
, .'
To the Lessee: Holocaust Memorial Committee, Inc., c/o Mr. Norman
Braman, 2800 Biscayne Boulevard, Suite 500, Miami,
Florida 33137
and with a copy to: Harry B. Smith, Esq., Ruden, Barnett, McClosky, Smith,
Schuster & Russell, PA, 701 Brickell Avenue, Suite
1900, Miami, Florida 33131; or such other party as may
be appointed in the event of the resignation or death of
Harry B. Smith, Esq.
Where the parties on either side, Lessor or Lessee, consist of more than one person,
notice unto or default by one of the persons on that side shall constitute notice unto or
default by all of the persons on that side.
29.14 If, in connection with the enforcement of this Lease and by reason of the
Lessee's failure to keep and observe all of the covenants and conditions herein contained
by the Lessee to be kept and performed, it shall be necessary for the Lessor to employ an
attorney, then the Lessee shall pay the Lessor all reasonable attorney's fees and court
costs incurred and/or expended by the Lessor, including all appellate fees and costs. And
conversely, if, in connection with the enforcement of this Lease and by reason of the
Lessor's failure to keep and observe all of the terms, covenants and conditions herein
contained by the Lessor to be kept and performed, it becomes necessary for the Lessee
to employ an attorney, then the Lessor shall pay the Lessee for all reasonable attorney's
fees and court costs incurred and/or expended by the Lessee, including all appellate fees
and costs.
29.15 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 or all of the
terms or conditions herein exclusive venue for the enforcement of same shall lie in Miami-
45
, "
Dade County, Florida.
29.16 The Lessor desires to enter into this Agreement only if in so doing the Lessor
can place a limit on Lessor's liability for any cause of action for money damages due to an
alleged breach by the Lessor of this Agreement, so that its liability for any such breach
never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Lessee hereby expresses
its willingness to enter into this Agreement with the Lessee's recovery from the Lessor for
any damage action for breach of contract to be limited to a maximum amount of Ten
Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any other term or
condition of this Agreement, Lessee hereby agrees that the Lessor shall not be liable to
Lessee for damages in an amount in excess ofTen Thousand ($10,000.00) Dollars for any
action or claim for breach or contract arising out of the performance or non-performance
of any obligations imposed upon the Lessor by this Agreement. Nothing contained in this
subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the
limitation placed upon Lessor's liability as set forth in Florida Statutes, Section 768.28.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
46
. "
IN WITNESS WHEREOF, the Lessor and Lessee have hereunto affixed their
respective hands and seals at the place, and on the day and date first hereinabove written.
Signed, sealed and delivered in the presence of:
0vL-~
CITY OF MIAMI BEACH
Ne;"," K''!!:!J.y",
Attest:
City Clerk
Witnesses:
HOLOCAUST MEMORIAL COMMITTEE,
INC" a Florida corporation not-for-
profit
4~~~
.:);;elL-!l- ;( - -fbf./A151),J
Print Name
Signat re
;<J 0 r2- '17 t7?J ~4-M ~
Print Name/Title ;?/L.eS/~
Si
ug)/L 60nJ2f0-
Print Name
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
11(~ V~cP
47
. '
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)
)
SS:
+
The foregoing instrument was acknowledged before me this yit, day of
H t4-t ~ ' 2000, by Mayor Neisen Kasdin and Robert Parcher, City Clerk, or their
designees respectively, on behalf of the CITY OF MIAMI BEACH, known to me to be the
persons described in and who executed the foregoing instrument, and acknowledged to
and before me that they executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this.2!!2 day of HM c.-A ,2000.
~ If?o/JuAda~
Notary Public, Statfof'Fk;rid;;rt' ~;~r
Commission No.:
My Commission Expires:
OFFICIAL NafARYSEAL
ULLIAN BEAUCHAMP
NOTARY PUBUC Sf ATE OF FLORIDA
COMMISSION NO. CC738372
MY COMMISSION EXI'. APR. 29 2002
,;
.
STATE OF FLORIDA
)
)
)
SS:
COUNTY OF MIAMI-DADE
~ The foregoing instrument wljls acknowledged befQ[e me this g'#l day of
~~/U1~ ,2000, by IJOI2.M/h!J ?t;/Lt4M~ , on behalf of the
HOLOCAU T MEMORIAL COMMITTEE, INC., a Florida corporation not-for-profit, known
to me to be the persons described in and who executed the foregoing instrument, and
acknowledged to and before me that they executed said instrument for the purposes
therein expressed.
WITNESS my hand and official seal, this fI-" day of Ye6/l...U~
,2000.
Notary Public, Stat
Commission No.:
My Commission Expires:
'~~....~ Sheila R. Johnson
[., ;~ MY COMMISSION' CC871863 EXPIRES
~ . ?oW October 23, 2003
"~iif..~~~- BONOfD THiU TROY FAIN INSUAANCE, INC.
F:\ATTOIAGURIAGREEMNT\LEASE\HOLOCST.FNL
48
. " i
. ,
CITY OF MIAMI BEACH
PLANNING DEPARTMENT
~
To:
From:
Christina M. Cuervo
Assistant City Manager
Jorge G. Gomez ~
Planning and ZonIng Director
August 2, 1999
Analysis of the City Owned Property at Meridian Avenue and Dade
Boulevard for the operation of the Holocaust Memorial
(Ordinance 92-2783)
Date:
Subject:
Pursuant to your request, this memorandum serves to provide an analysis of the lease of
City Owned Property at the subject property.
Ordinance 92-2783 of the City of Miami Beach requires that any proposed sale or lease
of city-owned land be analyzed from a planning perspective in order that the City
Commission and the public are fully apprised of all conditions relating to the proposed sale
or lease. What follows, herein, are each of the eight criteria prescribed in said ordinance
and a response to each:
1. Whether or not the proposed use is in keeping with City goals and objectives
and conforms to the City Comprehensive Plan.
The property in question, has been the site of the Holocaust Memorial since 1987.
The Future Land Use Map of the City's Comprehensive Plan designates the site as
PF, Public Facility.
The continued operation of the memorial would conform to the land use designation
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 ofthe 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,
. .' . "
. '
The site has been used for this purpose since 1987, the continued used of the site
as the Holocaust Memorial will not have any negative impact on the surrounding
area.
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, reducing City costs, creating jobs, creating a significant revenue stream
and improving the community's overall quality of life,
The Holocaust Memorial has become an important monument for the residents of
the City and of South Florida in general. It is also an important tourist destination.
The monument's presence has improved the community's overall quality of life.
4. Determination as to whether or not the development is in keeping with the
surrounding neighborhood, will block views, or create other environmental
intrusions, and evaluation of the design and aesthetic considerations of the
project.
The facility is already in operation and has not created any negative effects on the
surrounding neighborhood. The memorial's open, minimalist design does not block
any views. The monument's main sculpture, juxtaposed with the restrained
architecture of the buildings is a successful interpretation of form and function.
5. The impact on adjacent properties, whether or not there is adequate parking,
street, and infrastructure needs.
The existing project provides parking for visitors as well as tour buses, since the
facility is in operation no further infrastructure needs are required.
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.
This criterion is not applicable as the facility is already in operation.
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,
The existing development slightly increases the job base of the City (e.g., guides,
curators, etc.). No housing opportunities have been created under the current
development.
2
" '.. ~ .
.
.
8. Such other items as the Planning Department may deem appropriate in
analysis of the proposed disposition.
Planning Staff has not identified any further items,
JGG/jg
F:\PlAN\SALL\GEN_CORR\INTEROFF\HOLOCAUS.WPD
3
.. J
I
J
.
I
I
t
'1
g"
II
I
MERIDIAN
I
~~~.;,_"~~:5'Q'_:~.. j
~ b: ,~~
f ";~ \
ocr ;
8.0"118'00'"1. ...as' "'-,_~ :1:1
20.'>0' __ 'O_OO!'I~ ,.
, "cm~"""'''''';'''''''''l'
.-......,,"'....CC
.1...
i
..... I ~
(0 i~
...
:r
'I
I.
!
(J)
-t
~
m
m
-t
=
~~ :
I'
~~I_N"_
'"p
+
i i'
I:
.L13
I;!
I
-
!~
HQIIYN
'"
C
:u
:u
o
C
z
o
'2
~
-,
AVE.
I 24:1.28'
---..,
/ "-
( \ \
\ ~ )
i-,/
~
.."
"
o(
..0...........
1~
.
,
.
~ .~
~b I~J
~{\
-~\\C\
"0
\('
I -"~_:~
.--- ---------~.\~
/ ~o';, '~~t.. ".\ \$I
~ ~ -~\
".... f!'_~
\SI(,.~"$loc.. \"" 00 .~" '\"
'" \ 1, .~ \-\'-'
'~ ~ G. ,:\V
'to \ ^.. \ ,.\,\,1,-
. '. "0,...,
',,,
~ ) \ ,(
o ~
r .\
\ ~f"~\
/ ..~~ ;},\\
..". \.... . \
".. ' -.\' ....~\
~~ '- ~,- "'\
/ b~! :~. --: ; ~\
/' ,.!~.~.,~\: \ .'\\
e .~. ~\
/ ~"l.
~' - Nt .-o!.-'.
q~ ..~-~
\
/
/
!
/
l
\
\
~
l!~
j!
01 .. .'
_ .".......0'''''"
-T
\
, .,
I:
.!
"
,.
,
\,
't"
:;al.
..,
iI~
~
I!
i
!~I
..-
I!
If
~~=
~..~
m
.
I
I
,
~i
.I~
I
MERIDIAN
,
,
~_~~';;'-k:t~O'~-~.. j
~ ::~~
f 00.. '- .:.~!', =: ..0'......... ......,~ '"" ;;
, "c".'~"....'m'.;'un'~'1'
.-......n"'....1.L
...
CO,
...
::r
CIl
..,
;0'
iii
m
..,
-+
II;
]
.- J
I
q
,I)
r ....=:l. "
;,,~ a
i::~ ~
, SB :
?J
. ~
~ n~'; !;;
~ ~~;;! ~:;,
:::iiO' E:;:
I~ mm
Ir f:: UN
~~;
? g;:
ii~
c_>
!Ii
,,;;,
@€;
~~i
H~
o
(')
~
(II
00
~
o
1'1
-::.
'00.
~
'00 KENNETH TREIS'tER
IO<A"",_ .."0.....
"""11-17_" ._.............
J
_1000"
'1
Ii .
15
I ~
T ~
.
.
.
;1 CI!
;, 1-
"
,
1
II
1"
NORTH
AVE.
. .'
~ ,
"_".,......OUlT..
2.'.28'
~
'j
~:\:\\"
-'0
-,<
-~:<
..'fII1".
~. -~,'f,
\e, -'.1\
~\ \~. '\\1'
\'\ ~'\
. ~ ~::\
" ... ~)\ ^
" ~ \\\.'
\" .. ')\V
? \ ,<i :>:~\;,z,
.\..,
" "
-.:;..<'
i c\
-\
\ t,,',,_\
J ..$:' .~:,\
....>.... ; t~.."
, ...."" \
~~ '\. ,./\.\,
. ./,~
/ l~~. " 0"
i;b~ <\. 1- ,\1
I /~"', \\
/ -.'!:.,~' .' 1,. ~\
::I~ ~\
....
..
~
-"- ----
~
~
/
/
/
I
(
\
\
\
\
~
~
C
~
~
o
c
z
o
z
C>
/'" - '-.
/ '-.
( \ \
\ % )
\,/
"----
<>
"
o(
l;~
'I!
.
"t
1<1<
0"
1-"
"l-G'
'\l
o
o
r
.."
'I
; ,
-"fr
; 1\
! . l!
.~ ~
t{ .
---',-"~. I
---'-". ..
J\
II
!'f'!
::~
!-$
jg ~ .;~i
:~:
~.i~
-.
~~
~~
..........1....
-""T....'''_I.....U''.............."......~''''"...,..Y<,....U..
.~lD."..~"._
.,
,.
l~
,~I
..,
,
\,
rtf
~ii!~
os'll
,
, ............... L
p
lU III >ti
. ~~
\ t li~
.,
. !II q
'" ,
-; ~~t;r:ga
. .fi:iiti~
~~iHil
~i;i L~f~ ~
ill: if Ii ;
-. ~-,' ~ -
- !~ ~ i; " ',::'
03
%0
oc:
r-z
go
>:bo
C::o
~-<
s::
men
S::c:
~::o
><
r:m
"-<
\
JL
) \.
~ MERIDIAN
~ AVE.
..
o
o
nJo
~g
;z
~!:
Jo
1l
l"~, '
, i, ~
j i~1 ~
:.1
J,
! L___
CONVENTION CENTER DR.
'"',-,\
\tt.\ ,.~
'1' '0
'~<'.\ .
. '\,
. \
0\
\\. \
<'} \
\ \
\
\
00"
::;i!
m..
~
..
.. ~_ ?.,.".." ''''''.t ....."..."...... ........'::::."....."......_......:'.:.'~...
~'"...., BISCAYNE ENGINEERING COMPANY, INe,
. ~~~""""'" Consulting Engineerilll] . Planners " Surveyors
<"'<"." "1.1,", \Q.......8..18. ,~" w..~~~., I./I:TOEU F~ ,\;~~~E II'~~~ r''::'~~8J~CIl
p~,;t,,~. ~_ '-....._ ,~~~~~~:~, s~~',r1~':~'" :';::''''',;,:,~~ _
c
4 " . .
"If" ,"
.'
.--'"
LEGAL DESCRIPTION
~
COM~IENCE at the intersection of the center lines of 19th
Street and Neridian Avenue; thence run South 890 59' 40"
East along the center line of 19th Street for a distance of
35,00 (eet to a point; thence run North (or a distance of
20,00 feet to a point, said point located in the I,est line
of Lot 1, Block 7A, AMENDED PLAT OF GOLF COURSE SUBDIVISION,
according to the plat thereof recorded in Plat Book 6, Page
260 Public Records of Dade County, Florida; thence run South
89 59' 40" East for a distance of 3,00 feet to the POINT
OF BEGINNING, said point of beginning located in the East
Right-of-I,ay line of ~Ieridian Avenue, according to the Deed
Book 4349, Pages 439, 440, 442, and 443 Dade County,
Florida; thence run South 890 59' 40" East along the North
Right-of-I,ay line of 19th Street, for a distance of 36,05
feet to a point; thence run North 000 25' 00" I,est for a
distance of 63,26 feet to a point; thence run North 890 35'
00" East for a di.stance of 195,95 feet to a point; thence
run North 000 05' 22" East for a .distance of 13.21 feet to a
point; thence run North 800 48' IS" East for a distance of
5.09 feet to a point; thence run North 000 31' 53" West for
a dist:lIlce of 49.86 feet to a point; thence run North 890
52' 30" East for a distance of 38.03 feet to a point; thence
run North 030 25' 21" East for a distance of 74.30 feet to a
point; thence run North '620 22' 40" I'est for a distance of
15,06 feet to a point; thence run North 240 45' 39" East for
a distance of 0,66 feet to a point; thence run along a cir-
cular curve, concave to the Southwestt, having a central
angle of 1000 29' 12" and a radius of 30.00 feet for an arc
distance of 52.62 feet to a point; thence run North 750 43'
33" I,est for a distance of 17.20 feet to a point; thence run
along a circular curve, concave to the Northeast, having a
central angle of 1280 13' 24" and a radius of 29.13 feet for
an arc distance of 65,19 feet to a point; thence run North
150 23' IS" I,est for a distance of 40,66 feet to a point;
thence run South 590 42' 47" West for a distance of 64.54
feet to a point; thence run North 290 18' 31" I,est for a
distance of 14,85 feet to a point; thence run South 590 52'
. 09" \.Jest for a distance of 167,26 feet to a point, said point
located in the East Right-of-\.Jay line of Meridian Avenue,
according to the Deed Book 4349, Pages 439, 440, 442, and
443 Dade County, Florida; thence run South along the East
Right-of-Way of Neridian Avenue and parallel to the West
line of the above mentioned Block 7A for a distance of
243,25 feet to the POINT OF BEGINNING.
c.
..:.-:.~:-:::: ~ . .~. ...-.,
-;:~f~~>:"~'::-~;'- ~
<~_:':S.J.,i~~~.~
o~':t;i~~;~~,"?j
, .
/"
10
Said LANDS located, lying and being in the CITY OF MIAMI
BEACH, FLORIDA, and containing 61,276,74 Square Feet, more
or less, or 1,4067 Acres, more or less,
:.. EXHIBIT
I ~:!!. fI. '\
._ ~-":-;:/~~,"( _n~-":,
"
.
'.- . .-". .~
. ','. . .".. , , . _. _ . ::" -:.;.... -.. ..... -- . , .. ~.".-. ',..'.' "~-i" ,.,
::o,~.--~."~'~-t~;'~,~,,:,..;.-:.':.,;,~<"""-":.....::...". "... .. - - - ..
.'~ ::{:{~""i;-' .'>;T(~".),~;.:::'~;r'~.:;~\:;;;~'-~ ';,'~:E!.;2'~:;.'~ . ;:1~' f.~~ -'" ~ .,~< :~.:::"
..
...
... .-_..';".:~-'.._7~ ".
"-:.r/Iti""
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
c'
co
-.r
---<. -" ::0
Christina M. Cuervo, Assistant City Manager Co: "I iT!
r-q XJ
vRobert Parcher, City Clerk f-'" ':-)
'" ~ J j
Kevin Smith, Parks and Recreation Director -',.,
(T; =i.'! -
0 ,.\....
Raul J. Aguila 1<;1fi!<-- -rj ,......., rn
.." ::J
(11
First Assistant City Attorney <:tJ a
P1
FROM:
SUBJECT:
99 Year Lease between the City and Holocaust Memorial Committee, Inc.
DATE:
February 13,2001
Attached please find revised pages to the above-referenced Lease. Please replace the same
in your executed copies dated January 26, 2001.
Should you have any questions or comments regarding the above, please do not hesitate to
contact me.
RJA\kw
F:\A TTQ\AGUR\MEMOS\HOLQCLSE,PGS
Attachments
cc: Harry Smith, Esq.
CITY OF MIAMI BEACH
a Florida municipal corporation
Lessor
and
HOLOCAUST MEMORIAL COMMITTEE, INC.,
a Florida corporation not-for-profit
Lessee
NINETY-NINE YEAR LEASE
January 26, 2000
NINETY-NINE YEAR LEASE
THIS INDENTURE (the "Lease"), made and entered into at Miami Beach, Dade
County, Florida, this 26th day of January, 2000, by and between:
CITY OF MIAMI BEACH,
a Florida municipal corporation
(hereinafter referred to as "Lessor")
and
HOLOCAUST MEMORIAL COMMITTEE, INC.,
a Florida not-for-profit corporation
(hereinafter referred to as "Lessee")
WIT N E SSE T H:
WHEREAS, the Lessor is the owner of the fee simple title in and to that certain
property hereinafter demised and described; and
WHEREAS, the Lessor and the Lessee are parties to an Agreement dated July 31,
1987 (the "1987 Agreement") for the construction and operation of a Holocaust Memorial
at Meridian Avenue and Dade Boulevard on Miami Beach, Florida, and a Bill of Sale dated
October 9, 1990 (the "Bill of Sale"); and
WHEREAS, the parties hereto wish to terminate the 1987 Agreement, amend the
Bill of Sale to conform to the terms of this Lease, and enter into this Lease; and
WHEREAS, a boundary survey was prepared for the Holocaust Memorial by
Biscayne Engineering Company, Inc., dated May 3, 1990, hereinafter referred to as the
"Boundary Survey", which Boundary Survey shows the location of the various
improvements on the Premises, including walls, sculptures, planters, walkways, steps,
pool, tunnel, columns, a shed, and a roadway easement from the parking lot to 19th Street
'.
(a) Conditions, restrictions and limitations, now appearing of
record;
(b) City and/or County Zoning Ordinances now existing, or which
may hereafter exist during the life of this lease;
(c) All matters shown on the Boundary Survey;
(d) A roadway access easement in favor of the Lessor from the
19th Street parking lot to the Garden Center site, shown as an
"asphalt pavement" on the Boundary Survey;
(e) All of the terms, covenants and conditions contained in this Lease.
ARTICLE II
DURATION AND TERM
2.1 The duration and term of this Lease shall be for a period of ninety-nine (99)
years, commencing on the 8th day of March, 2000 (the "Commencement Date") and
expiring on the 8th day of March, 2099 (the "Maturity Date").
ARTICLE III
AMOUNT OF RENT
3.1 The Lessee covenants and agrees to pay to the Lessor an annual rental of
Ten Dollars ($10.00), payable annually in advance, the first such annual payment being
due and payable on the 8th day of March, 2000, and on the 1st day of March each and
every year thereafter during the entire term of the Lease.
3