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Lease Agreement with O Cinema 2019 -3019s LEASE AGREEMENT THIS LEASE AGREEMENT ("Agreement") made this V2i day of July, 2019 ("Effective Date"), by and between the CITY OF MIAMI BEACH, a Florida municipal corporation (hereinafter referred to as "City" or "Landlord"), and LIVING ARTS TRUST, INC., a Florida not-for-profit corporation d/b/a 0 CINEMA (hereinafter referred to as "Tenant"). 1. Demised Premises. The City, in consideration of the rentals hereinafter reserved to be paid and of the covenants, conditions and agreements to be kept and performed by the Tenant, hereby leases, lets and demises to the Tenant, and Tenant hereby leases and hires from the City, those certain premises hereinafter referred to as the "Demised Premises" and more fully described as follows: - Approximately 2,523 square feet of City-owned property (the "Building" a/k/a "Historic City Hall"), located at 1130 Washington Avenue, 1st Floor South, Miami Beach, Florida, 33139, and as more specifically delineated in "Exhibit 1," attached hereto and incorporated herein. 2. Term. 2.1 Tenant shall be entitled to have and to hold the Demised Premises for an initial term of five (5)years, commencing on the 1st day of August, 2019 (the "Commencement Date"), and ending on the 31st day of July, 2024. For purposes of this Agreement, and including, without limitation, Subsection 2.2 herein, a "Contract Year" shall be defined as that certain period commencing on the 1st day of August and ending on the 31st day of July. 2.2 Provided Tenant is in good standing and free from default(s) under Section 18 hereof, and upon written notice from Tenant, which notice shall be submitted to the City Manager no earlier than one hundred twenty (120) days, but in any case no later than sixty (60) days prior to the expiration of the initial term, this Agreement may be extended, at the City's option, for two (2) additional two (2) year renewal terms. Any extension, if approved, shall be memorialized in writing and signed by the parties hereto (with the City hereby designating the City Manager as the individual authorized to execute such extensions on its behalf). In the event that the City Manager determines, in his sole discretion, not to extend or renew this Agreement (upon expiration of the initial term or any renewal term, collectively the "Term"), the City Manager shall notify Tenant of same in writing, which notice shall be provided to Tenant within fifteen (15) business days of the City Manager's receipt of Tenant's written notice. 1 2.3 Termination for Convenience. Notwithstanding anything in this subsection, or any other term or condition in this Lease, Landlord reserves the right, through the City Manager, to terminate this Lease, without cause and without liability to Landlord, upon providing Tenant with one hundred and eighty '(180) days prior written notice. 3. Rent. Tenant's responsibility for payment of Rent, as defined in this Section 3, shall commence on the Commencement Date and, thereafter, on each first day of subsequent months. 3.1 Base Rent: 3.1.1 Throughout the first two (2) Contract Years, the Base Rent for the Demised Premises shall be One Thousand Dollars and 00/100 ($1,000.00) per month. 3.1.2 Commencing with the third Contract Year, the Base Rent amount' shall be increased to Two Thousand Five Hundred Dollars and 00/100 ($2,500.00) per month. 3.2 Additional Rent: In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also pay the following Additional Rent as provided below: 3.2.1 Intentionally deleted. 3.2.2 Property Taxes: The Property Tax Payment shall be payable by Tenant, in accordance with Section 11 herein. The Property Tax Payment for Property Tax Year 2019 is estimated at Zero Dollars ($0.00). Notwithstanding the preceding sentence, the City makes no warranty or representation, whether express or implied, that the Historic City Hall building, the Land, and/or the Demised Premises will not be subject to ad valorem (or other) taxes in subsequent years. 3.2.3 Intentionally deleted. 3.3 Sales Taxes: Concurrent with the payment of the Base Rent and Additional Rent as provide herein, Tenant shall also pay any and all sums for all applicable tax(es), including without limitation, sales and use taxes and Property Taxes, imposed, levied or assessed against the Demised Premises, or any other charge or payment required by any governmental authority having jurisdiction there over, even though the taxing statute or ordinance may purport to impose such tax against the City. 2 3.4 Enforcement. Tenant agrees to pay the Base Rent and Additional Rent (collectively, "Rent"), and any other amounts as may be due and payable by Tenant under this.Agreement, at the time and in the manner provided herein, and should said Rent and/or other additional amounts due herein provided, at any time remain due and unpaid for a period of fifteen (15) days after the same shall become due, the City may exercise any or all options available to it hereunder, which options may be exercised concurrently or separately, or the City may pursue any other remedies enforced by law. 4. Location for Payments. All Rent or other payments due hereunder shall be paid to the City at the following address: City of Miami Beach Revenue Manager 1700 Convention Center Drive, 3rd Floor Miami Beach, Florida 33139 or at such other address as the City may, from time to time, designate in writing. 5. Parking. Tenant may request, from the City's Parking Department, the use of no more than six (6) parking spaces, if available, at Municipal Parking Garage G-2 located at 1130 Washington Avenue, at the prevailing rates, plus applicable sales and use tax per space. Rates for said spaces are subject to change. 6. Security Deposit. Tenant shall furnish the City with a Security Deposit, in the amount of Three Thousand Five Hundred Dollars and 00/100 ($3,500.00). The Security Deposit shall serve to secure Tenant's performance in accordance with the provisions of this Agreement. In the event Tenant fails to perform in accordance with said provisions, the City may retain said Security Deposit, as well as pursue any and all other legal remedies provided herein, or as may be provided by applicable law. 7. Use and Possession of Demised Premises. 7.1 The Demised Premises shall be used by the Tenant solely and exclusively for the following purposes: a) Primary Use as a Motion Picture Theater. The Demised Premises shall be used primarily as a venue for 0 Cinema's not for profit motion picture presentation company and showcase independent, foreign, art, family films, or such other films as keeping with those typically shown at 0 Cinema's other locations (collectively, the "cinema" use). Accessory uses within the Demised Premises include retail and gallery/exhibition space, library/bookstore, gift shop, and cafe/concession stand. 3 b) Secondary (Ancillary) Uses. In addition to the Primary Use as a Motion Picture Theater, 0 Cinema may also use the Demised Premises, from time to time, as/for: i. live theatrical entertainment venue; provided that the Demised Premises, or any part thereof, will not be used as an adult entertainment establishment (as defined in Section 142-1271 of the City's Land Development Regulations, as same may be amended); as a dance hall; or as an entertainment establishment (as defined in Section 114-5 of the City's Land Development Regulations, as same may be amended); ii. private rentals for individual and group events and receptions; and iii. corporate events and receptions. Notwithstanding the preceding, no ancillary use shall be permitted and/or allowed unless Tenant continues to use the Demised Premises for the operation of the cinema, which shall be the primary use throughout the Term. Said Premises shall be open for operation seven (7) days a week, with minimum hours of operation similar to other 0 Cinema locations and is customary in independent art cinemas in comparable facilities. Tenant shall not otherwise reduce or substantially modify the days or hours of operation without the prior written approval of the City Manager. Nothing herein contained shall be construed to authorize hours contrary to the laws governing such operations. 7.2 Prohibited Uses. It is understood and agreed that the Demised Premises shall be used by Tenant during the Term of the Agreement only for the permitted uses set forth in subsection 7.1, and for no other purposes or uses whatsoever. Notwithstanding anything contained in subsection 7.1, or any other term or condition of this Agreement: (1)Tenant will not make or permit any use of the Demised Premises that, directly or indirectly, is forbidden by any Governmental Requirement, or that may be dangerous to life, limb or property; (2) Tenant shall not present for observation by patrons motion pictures, films, or video media, distinguished or characterized by an emphasis on matter depicting, describing or relating to sexual conduct or specified anatomical areas ("Adult Motion Picture Theater"), provided however, that 0 Cinema shall be permitted to show films of an adult nature with strong sexual content, provided that such films are reasonably considered of the type of film that are shown in independent art cinemas in comparable facilities; (3) Tenant shall not sell books, magazines, periodicals or other printed matter; photographs, films, motion pictures, videocassettes, slides or other visual representations; recordings, other audio matter; and novelties or devices; which have as their primary or dominant theme subject matter depicting, exhibiting, illustrating, describing 4 or relating to sexual conduct or specified anatomical areas ("Adult Materials"); and (4) Tenant may not commit waste on the Demised Premises, use the Demised Premises for any illegal purpose, commit a nuisance on the Demised Premises, or allow any toxic, hazardous or dangerous substance to be brought into the Demised Premises or stored therein (other than small quantities of materials customarily used in the operation of a live theatrical performance venue, which shall be used and stored in compliance with applicable law). In the event that Tenant uses the Demised Premises for any purposes not expressly permitted herein, then the City, through its City Manager, may declare this Agreement in default and, in addition to all other remedies available to City, restrain such improper use by injunction or other legal action, with or without notice to Tenant. 7.3 Tenant shall also maintain its not-for-profit status in full force and effect, and in good standing, throughout the Term. 7.4 Beer and Wine Privileges. Pursuant to Resolution No. 2014-28790, permission to sell beer and wine for consumption within the Demised Premises ("Beer and Wine Privileges") is limited and hereby granted only for Living Arts Trust, Inc., for so long as Living Arts Trust, Inc. (under its current ownership) shall continue to have a leasehold interest in the Demised Premises during the Term of this Agreement, and shall not extend to any other entity (including any successors and/or assigns of Living Arts Trust, Inc.). Any change in ownership including, without limitation, a successor or assign of Living Arts Trust, Inc., shall be required to secure the prior written consent from the City of Miami Beach Commission in order to continue to maintain these Beer and Wine.Privileges. Living Arts Trust, Inc.'s Beer and Wine Privileges are further subject to Living Arts Trust, Inc. securing the requisite authorization to sell alcohol for consumption pursuant to Section 6-4(a)(4) of the City Code, as may be amended, which includes, without limitation, compliance with the following criteria: i. the sale of alcohol for consumption outside of the Demised Premises (and concession area as long as pursuant to a valid concession agreement) is prohibited; ii. a Minor Control Plan, setting forth hours of operation and alcohol sales, alcohol service and monitoring procedures, food service, and staff training must be approved by the City Manager or designee prior to issuance of a license for alcohol sales or consumption; iii. the Demised Premises must have designated alcohol beverage consumption areas; iv. no "Happy Hour" type of reduced-price alcohol beverage promotion shall be allowed; v. Living Arts Trust, Inc. shall obtain the requisite state licenses; vi. Living Arts Trust, Inc. shall collect and remit resort taxes to the City, as required pursuant to Section 102-306 of the City Code; 5 and vii. Living Arts Trust, Inc. shall not be permitted to operate between the hours of 3:00 a.m. and 8:00 a.m. Failure to comply with the provisions of this subsection 7.4 shall be deemed to be a default under this Agreement. 7.5 Public Benefits. Every Contract Year, within 60 days from the end of the Contract Year, Tenant shall be required to provide an annual report documenting how Tenant has achieved the following Public Benefits: i. Twenty percent (20%) discount offered once per month to Miami Beach residents; ii. One (1) free screening event per year open to the whole community ("Celebrate Miami Beach"); iii. One Hundred (100)free or discounted tickets per year for seniors, in conjunction with the Miami-Dade County Golden Ticket program; iv. One Hundred (100) free or discounted tickets per year for youth, in conjunction with the Miami-Dade County Culture Shock program; v. Monthly Miami Beach Culture Crawl—provide free indoor films, free outdoor projection in the courtyard, and curate short films to play on the Culture Crawl trolley; vi. One (1) summertime film screening organized with the City's Tourism & Culture Department on the beachfront; vii. Implementation of an educational program bringing independent films and guest lecturers to every Miami Beach public school; and viii. Quarterly matinee screenings for Miami Beach senior citizens, including free film, refreshments, and post-film discussion. 8. Improvements. 8.1 Tenant accepts the Demised Premises in their present "AS IS" condition and may construct or cause to be constructed, such interior and exterior improvements and maintenance to the Demised Premises, as reasonably necessary for it to carry on its permitted use(s), as set forth in Section 7; provided, however, that any plans for such improvements shall be first submitted to the City Manager for his prior written consent, which consent, if granted at all, shall be at the City Manager's sole and absolute discretion. Additionally, any and all approved improvements shall be made at Tenant's sole expense and responsibility. All permanent (fixed) improvements to the Demised Premises shall remain the property of the City upon termination and/or expiration of this Agreement. Upon termination and/or expiration of this Agreement, all personal property and non-permanent trade fixtures may be removed by the Tenant from the Demised Premises, provided that they can be (and are) removed without damage to the Demised Premises. Tenant will permit no liens to attach to-the Demised Premises arising from, 6 connected with, or related to the design and construction of any improvements. Moreover, such construction shall be accomplished through the use of licensed, reputable contractors who are acceptable to the City. Any and all permits and or licenses required for the installation of improvements shall be the sole cost and responsibility of Tenant. 8.2 Notwithstanding Subsection 8.1, upon termination and/or expiration of this Agreement, and at City's sole option and discretion, any or all alterations or additions made by Tenant to or in the Demised Premises shall, upon written demand by the City Manager, be promptly removed by Tenant, at its expense and responsibility, and Tenant further hereby agrees, in such event, to restore the Demised Premises to their original condition prior to the Commencement Date of this Agreement. 8.3 The above requirements for submission of plans and the use of specific contractors shall not apply to improvements (which term, for purposes of this Subsection 8.3 only, shall also include improvements as necessary for Tenant's maintenance and repair of the Demised Premises) which do not exceed Five Hundred ($500.00) Dollars, provided that the work is not structural, and provided that it is permitted by applicable law. Notwithstanding the preceding sentence, the above requirements for submission of plans and the use of specific contractors shall not apply to the placement, maintenance and/or upgrading of audio visual and/or stereo equipment, provided that any work related thereto is not structural, and provided that it is permitted by applicable law. 9. City's Right of Entry. 9.1 The City Manager, and/or his authorized representatives, shall have the right to enter upon the Demised Premises at all reasonable times for the purpose of inspecting same; preventing waste; making such repairs as the City may consider necessary; and for the purpose of preventing fire, theft or vandalism. The City agrees that, whenever reasonably possible, it shall use reasonable efforts to provide notice (whether written or verbal), unless the need to enter the Demised Premises is an emergency, as deemed by the City Manager, in his sole discretion, which if not immediately addressed could cause property damage, loss of life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the City to do any work that under any provisions of this Agreement the Tenant may be required to perform, and the performance thereof by the City shall not constitute a waiver of the Tenant's default. 9.2 If the Tenant shall not be personally present to open and permit entry into the Demised Premises at any time, for any reason, and any entry thereon shall be necessary or permissible, the City Manager, and/or his authorized representatives, may enter the Demised Premises by master key, or may forcibly enter the Demised Premises without rendering the City or such agents liable therefore. 7 9.3 Tenant shall furnish the City with duplicate keys'to all locks including exterior and interior doors prior to (but no later than by)the Commencement Date of this Agreement. Tenant shall not change the locks to the Demised Premises without the prior written consent of the City Manager, and in the event such consent is given, Tenant shall furnish the City with duplicate keys to said locks in advance of their installation. 10. Tenant's Insurance. 10.1 Tenant shall, at its sole expense and responsibility, comply with all insurance requirements of the City. It is agreed by the parties that Tenant shall not occupy the Demised Premises until proof of the following insurance coverages have been reviewed and approved by the City's Risk Manager: 10.1.1 Comprehensive General Liability, in the minimum amount of One Million ($1,000,000) Dollars (subject to adjustment for inflation) per occurrence for bodily injury and property damage. The City of Miami Beach must be named as an additional insured on this policy. 10.1.2 Workers Compensation and Employers Liability coverage in accordance with Florida statutory requirements. 10.1.3 All-Risk property and casualty insurance, written at a minimum of eighty (80%) percent of replacement cost value and with replacement cost endorsement, covering all leasehold improvements installed in the Demised Premises by or on behalf of Tenant and including without limitation all of Tenant's personal property in the Demised Premises (including, without limitation, inventory, trade fixtures, floor coverings, furniture, and other property removable by Tenant under the provisions of this Agreement). 10.2 Proof of these coverages must be provided by submitting original certificates of insurance to the City's Risk Manager and Asset Manager respectively. All policies must provide thirty (30) days written notice of cancellation to both the City's Risk Manager and Asset Manager (to be submitted to the addresses set forth in Section 27 hereof). All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of B+:VI or better per A.M. Best's Key Rating Guide, latest edition, and certificates are subject to the approval of the City's Risk Manager. 11. Property Taxes and Assessments. For the purposes of this Section and other provisions of this Agreement: 11.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments, and special assessments of any kind which may be imposed upon the Demised Premises, and (ii) any expenses incurred by the City in obtaining a reduction of any such taxes or assessments. 8 11.2 The term "Property Tax Year" shall mean the period of twelve (12) calendar months, beginning on January 1st of each year. 11.3 Tenant shall pay, as Additional Rent pursuant to Section 3.2.2, for such Property Tax Year an amount ("Property Tax Payment") equal to Tenant's pro-rata share of Property Taxes (if any) for such Property Tax Year; said pro-rata share to be determined by the City based upon the ratio of the Demised Premises to the tax lot or based upon an assessment in connection with the Tenant's use of the Demised Premises. If a Property Tax Year ends after the expiration or termination of the Term of this Agreement, the Property Tax Payment therefore shall be prorated to correspond to that portion of such Property Tax Year occurring within the Term of this Agreement. The Property Tax Payment shall be payable by Tenant immediately upon receipt of notice from the City. A copy of the tax bill(s) or other evidence of such taxes issued by the taxing authorities, together with the City's computation of the Property Tax Payment, will be made available to Tenant once received from the taxing authorities, if requested by Tenant. Tenant shall pay any difference in the amount between the estimated property taxes and the actual property taxes to the City within fifteen (15) days of receipt of request for said payment from the City. 12. Assignment and Subletting. Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in part, without the prior written consent of the City Manager, which consent, if granted at all shall be at the City Manager's sole and absolute discretion. Such written consent is not a matter of right and the City is not obligated to give such consent. If granted as provided herein, the making of any assignment or sublease will not release Tenant from any of its obligations under this Agreement. 13. Operation, Maintenance and Repair. 13.1 Tenant shall be solely responsible for the operation, maintenance and repair of the Demised Premises. Tenant shall, at its sole expense and responsibility, maintain the Demised Premises, and all fixtures and appurtenances therein, and shall make all repairs thereto, as and when needed, to preserve them in good working order and condition. Tenant shall be responsible for all interior walls and the interior and exterior of all windows and doors, as well as immediate replacement of any and all plate glass or other glass in the Demised Premises which may become broken, using glass of the same or better quality. The City shall be responsible for the maintenance of the roof, the exterior of the Building, all heating/ventilation/air conditioning (HVAC) equipment servicing the Demised Premises, the structural electrical and plumbing (other than plumbing surrounding any sink(s) and/ortoilet(s), including such sink(s) and toilet(s) fixture(s), within the Demised Premises), building pest control, the common areas and the chilled water supply system. The City shall maintain and/or repair those items that it is responsible for, so as to 9 • keep same in proper working condition. 13.2 All damage or injury of any kind to the Demised Premises, and including without limitation its fixtures, glass, appurtenances, and equipment (if any), or to the building fixtures, glass, appurtenances, and equipment, if any, except damage caused by the gross negligence and/or willful misconduct of the City, shall be the sole obligation of Tenant, and shall be repaired, restored or replaced promptly by Tenant, at its sole expense and to the satisfaction of the City. 13.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work or installations and shall be done in good and workmanlike manner. 13.4 If Tenant fails to make such repairs or restorations or replacements, the same may be made by the City, at the expense of Tenant, and all sums spent and expenses incurred by the City shall be collectable by the City and shall be paid by Tenant within three (3) days after submittal of a bill or statement therefore. 13.5 It shall be Tenant's sole obligation and responsibility to ensure that any renovations, repairs and/or improvements made by Tenant to the Demised Premises comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. 13.6 Utilities. Tenant is solely responsible for, and shall promptly pay when due, all charges and impact fees for any and all utilities (i.e. electric, internet and telephone services) for the Demised Premises. In addition to other rights and remedies hereinafter reserved to the City, upon the failure of Tenant to pay for such utility services (as contemplated in this Subsection 13.6) when due, the City may elect, at its sole discretion, to pay same, whereby Tenant agrees to promptly reimburse the City upon demand. In no event, however, shall the City be liable, whether to Tenant or to third parties, for an interruption or failure in the supply of any utilities or services to the Demised Premises. 13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT"AS IS" CONDITION, WHICH IS UNDERSTOOD TO BE CODE COMPLIANT AT THE PRESENT TIME. 14. Governmental Reciulations. Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules, orders, regulations, and requirements of any and all governmental bodies, including but not limited to Federal, State, Miami-Dade County, and City 10 governments, and any and all of their departmentsandbureaus applicable to the Demised Premises, and shall also comply with and fulfill all rules, orders, and regulations for the prevention of fire, all at Tenant's own expense and responsibility. Tenant shall pay all cost, expenses, claims, fines, penalties, and damages that may be imposed because of the failure of Tenant to comply with this Section, and shall indemnify and hold harmless the City from all liability arising from each non-compliance. 15. Liens. Tenant will not permit any mechanics, laborers, or materialman's liens to stand against the Demised Premises or improvements for any labor or materials to Tenant or claimed to have been furnished to Tenant's agents, contractors, or sub- tenants, in connection with work of any character performed or claimed to have performed on said Premises, or improvements by or at the direction or sufferance of the Tenant; provided however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give the City reasonable security as may be demanded by the City to insure payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or improvements by reasons of such non-payment. Tenant will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at Tenant's own expense. 16. Intentionally Omitted. 17. Condemnation. 17.1 If at any time during the Term of this Agreement(including any renewal term hereunder) all or any part or portion of the Demised Premises is taken, appropriated, or condemned by reason of Eminent Domain proceedings, then this Agreement shall be terminated as of the date of such taking, and shall thereafter be completely null and void, and neither of the parties hereto shall thereafter have any rights against the other by reason of this Agreement or anything contained therein, except that any rent prepaid beyond the date of such taking shall be prorated to such date, and Tenant shall pay any and all rents, additional Rent, utility charges, and/or other costs for which it is liable under the terms of this Agreement, up to the date of such taking. - 17.2 Except as hereunder provided, Tenant shall not be entitled to participate in the proceeds of any award made to the City in any such Eminent Domain proceeding, excepting, however, Tenant shall have the right to claim and recover from the condemning authority, but not from the City, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on account of any and all damage to Tenant's business by reasons of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's furniture and fixtures. 11 18. Default. 18.1 Default by Tenant: At the City's option, any of the following shall constitute an Event of Default under this Agreement: 18.1.1 The Base Rent, Additional Rent, or any other amounts as may be due and payable by Tenant under this Agreement, or any installment thereof, is not paid promptly when and where due within fifteen (15) days of due date, and Tenant shall not have cured such failure within five (5) days after receipt of written notice from the City specifying such default; 18.1.2 The Demised Premises shall be deserted, abandoned, or vacated; 18.1.3 Tenant shall fail to comply with any material term, provision, condition or covenant contained herein other than the payment of Rent and shall not cure such failure within thirty (30) days after the receipt of written notice from the City specifying any such default; or such longer period of time acceptable to the City, at its sole discretion; 18.1.4 Receipt of notice of violation from any governmental authority having jurisdiction dealing with a law, code, regulation, ordinance or the like, which remains uncured for a period of thirty (30) days from its issuance, or such longer period of time as may be acceptable and approved in writing by the City Manager, at his sole discretion; 18.1.5 Any petition is filed by or against Tenant under any section or chapter. of the Bankruptcy Act, as amended,which remains pending for more than sixty (60) days, or any other proceedings now or hereafter authorized by the laws of the United States or of any state for the purpose of discharging or extending the time for payment of debts; 18.1.6 Tenant shall become insolvent; 18.1.7 Tenant shall make an assignment for benefit of creditors; 18.1.8 A receiver is appointed for Tenant by any court and shall not be dissolved within thirty (30) days thereafter; 18.1.9 The leasehold interest is levied on under execution; or 18.1.10 Tenant fails to maintain its not-for-profit status in current and good standing, as required pursuant to Subsection 7.3 herein. 12 19. Rights on Default. 19.1 Rights on Default: In the event of any default by Tenant as provided herein, City shall have the option to do any of the following, in addition to and not in limitation of, any other remedy permitted by law or by this Agreement; 19.1.1 Terminate this Agreement, in which event Tenant shall immediately surrender the Demised Premises to the City, but if Tenant shall fail to do so the City may,without further notice, and without prejudice to any other remedy the City may have for possession or arrearages in Rent or damages for breach of contract, enter upon the Demised Premises and expel or remove Tenant and its effects in accordance with law, without being liable for prosecution or any claim for damages therefore, and Tenant agrees to indemnify and hold harmless the City for all loss and damage which the City may suffer by reasons of such Agreement termination, whether through inability to re-let the Demised Premises, or otherwise. 19.1.2 Declare the entire amount of the Base Rent and Additional Rent which would become due and payable during the remainder of the Term of this Agreement to be due and payable immediately, in which event Tenant agrees to pay the same at once, together with all Rent therefore due, at the address of the City, as provided in the Notices section of this Agreement; provided, however, that such payment shallnot constitute a penalty, forfeiture, or liquidated damage, but shall merely constitute payment in advance of the Rent for the remainder of said Term and such payment shall be considered, construed and taken to be a debt provable in bankruptcy or receivership. 19.1.3 Enter the Demised Premises as the agent of Tenant, by force if necessary, without being liable to prosecution or any claim for damages therefore; remove Tenant's property there from; and re-let the Demised Premises, or portions thereof, for such terms and upon such conditions which the City deems, in its sole discretion, desirable, and to receive the Rent therefore, and Tenant shall pay the City any deficiency that may arise by reason of such re-letting, on demand at any time and from time to time at the office of the City; and for the purpose of re-letting, the City may (i) make any repairs, changes, alterations or additions in or to said Demised Premises that may be necessary or convenient; (ii) pay all costs and expenses therefore from Rent resulting from re-letting; and (iii)Tenant shall pay the City any deficiency as aforesaid. 19.1.4 . Take possession of any personal property owned by Tenant on said Demised Premises and sell the same at public or private sale, and apply same to the payment of Rent due, holding Tenant liable for the deficiency, if any. 13 19.1.5 It is expressly agreed and understood by and between the parties hereto that any installments of Rent accruing under the provisions of this Agreement which shall not be paid when due shall bear interest at the maximum legal rate of interest per annum then prevailing in Florida from the date when the same was payable by the terms hereof, until the same,shall be paid by Tenant. Any failure on the City's behalf to enforce this Section shall not constitute a waiver of this provision with respect to future accruals of past due Rent. No interest will be charged for payments made within the grace period, such grace period to be defined as within five (5) days from the due date. In addition, there will be a late charge of Fifty ($50.00) Dollars for any payments submitted after the grace period. 19.1.6 If Tenant shall default in making any payment of monies to any person or for any purpose as may be required hereunder, the City may pay such expense but the City shall not be obligated to do so. Tenant, upon the City's paying such expense, shall be obligated to forthwith reimburse the City for the amount thereof. All sums of money payable by Tenant to the City hereunder shall be deemed as Rent for use of the Demised Premises and collectable by the City from Tenant as Rent, and shall be due from Tenant to the City on the first day of the month following the payment of the expense by the City. 19.1.7 The rights of the City under this Agreement shall be cumulative but not restrictive to those given by law and failure on the part of the City to exercise promptly any rights given hereunder shall not operate to waive or to forfeit any of the said rights. 19.2 Default by City: The failure of the City to perform any of the covenants, conditions and agreements of this Agreement which are to be performed by the City and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Tenant to the City (which notice shall specify the respects in which Tenant contends that the City failed to perform any such covenant, conditions and agreements) shall constitute a default by the City, unless such default is one which cannot be cured within thirty (30) days because of circumstances beyond the City's control, and the City within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults. However, in the event the City fails to perform within the initial thirty (30) day period provided above, and such failure to perform prevents Tenant from operating its business in a customary manner and causes an undue hardship for Tenant, then such failure to perform (regardless of circumstances beyond its control) as indicated above, shall constitute a default by the City. 14 19.3 Tenant's Rights on Default: If an event of the City's default shall occur, Tenant, to the fullest extent permitted by law, shall have the right to pursue any and all remedies available at law or in equity, including the right to sue for and collect damages, including reasonable attorney fees and costs, to terminate this Agreement; provided however, that Tenant expressly acknowledges and agrees that any recovery by Tenant shall be limited to the amount set forth in Section 32 of this Agreement. 20. Indemnity Against Costs and Charges. 20.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable attorney's fees, and damages which may be incurred or sustained by the City, by reason of Tenant's breach of any of the provisions of this Agreement. Any sums due the City under the provisions of this item shall constitute a lien against the interest of the Tenant and the Demised Premises and all of Tenant's property situated thereon to the same extent and on the same conditions as delinquent Rent would constitute a lien on said premises and property. 20.2 If Tenant shall at any time be in default hereunder, and if the City shall deem it necessary to engage an attorney to enforce the City's rights and Tenant's obligations hereunder, Tenant will reimburse the City for the reasonable expenses incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, whether suit be brought or not and if suit be brought, then Tenant shall be liable for expenses incurred at both the trial and appellate levels. 21. Indemnification Against Claims. 21.1 Tenant shall indemnify and save the City harmless from and against any and all claims or causes of action (whether groundless or otherwise) by or on behalf of any person, firm, or corporation, for personal injury or property damage occurring upon the Demised Premises or upon any other land or other facility or appurtenance used in connection with the Demised Premises, occasioned in whole or in part by any of the following: 21.1.1 An act or omission on the part of Tenant, or any employee, agent, contractor, invitee, guest, assignee, sub-tenant or subcontractor of Tenant; 21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by Tenant, or any employee, agent, contractor, invitee, guest, assignee, sub-tenant or subcontractor of Tenant; 21.1.3 Any breach, violation, or non-performance of any undertaking of Tenant under this Agreement; 15 21.1.4 Anything growing out of the use or occupancy of the Demised Premises by Tenant or anyone holding or claiming to hold through or under this Agreement. 21.2 Tenant agrees to pay all damages to the Demised Premises and/or other facilities used in connection therewith, caused by Tenant or any employee, agent, contractor, guest, or invitee of Tenant. 22. `Signs and Advertising. Without the prior written consent of the City Manager, which consent, if given at all, shall be at the City Manager's sole and absolute discretion, Tenant shall not permit the painting and display of any signs, plaques, lettering or advertising material of any kind on or near the Demised Premises. All additional signage shall comply with signagestandards established by the City and comply with all applicable building codes, and any other municipal, County, State and Federal laws. 23. Effect of Conveyance. The term "City" and/or"Landlord" as used in the Agreement means only the owner for the time being of the land and building containing the Demised Premises, so that in the event of any sale of said land and building, or in the event of a lease of said building, the City shall be and hereby is entirely freed and relieved of all covenants and obligations of the City hereunder, and it shall be deemed and construed without further agreement between the parties, or between the parties and the purchaser at such sale, or the lease of this building, that the purchaser or Tenant has assumed and agreed to carry out all covenants and obligations of the City hereunder. 24. Damage to the Demised Premises. 24.1 If the Demised Premises shall be damaged by the elements or other casualty not due to Tenant's negligence, or by fire, but are not thereby rendered untenantable, as determined by the City Manager, in his sole discretion, in whole or in part, and such damage is covered by the City's insurance, if any, (hereinafter referred to as "such occurrence"), the City, shall, as soon as possible after such occurrence, utilize the insurance proceeds to cause such damage to be repaired and the Rent (Base Rent and Additional Rent) shall not be abated. If by reason of such occurrence, the Demised Premises shall be rendered untenantable, as determined by the City-Manager, in his sole discretion, only in part, the City shall as soon as possible utilize the insurance proceeds to cause the damage to be repaired, and the Rent meanwhile shall be abated proportionately as to the portion of the Demised ,Premises rendered untenantable; provided however, that the City shall romptly obtain a good faith estimate of the time required to render the Demised Premises tenantable and if such time exceeds sixty (60) days, either party shall have the option of canceling this Agreement. 16 24.2 If the Demised Premises shall be rendered wholly untenantable by reason of such occurrence, the City shall have the option, but not the obligation, in its sole discretion, to utilize the insurance proceeds to cause such damage to be repaired and the Rent meanwhile shall be abated. However, the City shall have the right, to be exercised by notice in writing delivered to Tenant within sixty (60) days from and after said occurrence, to elect not to reconstruct the destroyed Demised Premises, and in such event, this Agreement and the tenancy hereby created shall cease as of the date of said occurrence, the Rent to be adjusted as of such date. If the Demised Premises shall be rendered wholly untenantable, Tenant shall have the right, to be exercised by notice in writing, delivered to the City within thirty (30) days from and after said occurrence, to elect to terminate this Agreement, the Rent to be adjusted accordingly. 24.3 Notwithstanding any clause contained in this Section 24, if the damage is not covered by the City's insurance, then the City shall have no obligation to repair the damage, but the City shall advise Tenant in writing within thirty (30)days of the occurrence giving rise to the damage and of its decision not to repair, and the Tenant may, at any time thereafter, elect to terminate this Agreement, and the Rent shall be adjusted accordingly. 25. Quiet Enioyment. Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or disturbed in possession of the Demised Premises so long as Tenant complies with the terms of this Agreement. 26. Waiver. 26.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred,will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. 26.2 A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. 26.3 The receipt of any sum paid by Tenant to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation, and not as Rent, unless such breach be expressly waived in writing by the City. 17 27. Notices. The addresses for all notices required under this Agreement shall be as follows, or at such other address as either party shall be in writing, notify the other: LANDLORD: City of Miami Beach Attn: City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 With copy to: City of Miami Beach Attn: Division Director Real Estate Division 1700 Convention Center Drive Miami Beach, Florida 33139 TENANT: Vivian Marthell Living Arts Trust, Inc. 6815 Biscayne Boulevard Suite 103-461 Miami, FL 33138 All notices shall be delivered by certified mail with Return receipt requested, and shall be effective upon receipt. 28. Entire and Binding Agreement. This Agreement contains all of the agreements between the parties hereto, and it may not be modified in any manner other than by agreement in writing signed by all the parties hereto or their successors in interest. The terms, covenants and conditions contained herein shall inure to the benefit of and be binding upon the City and Tenant and their respective successors and assigns, except as may be otherwise expressly provided in this Agreement. 29. Provisions Severable. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement; or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 30. Captions. The captions contained herein are for the convenience and reference only and shall not be deemed a part of this Agreement or construed as in any manner limiting or amplifying the terms and provisions of this Agreement to which they relate. 31. Number and Gender. Whenever used herein, the singular number shall include the plural and the plural shall include the singular, and the use of one gender shall include all genders. 18 32. Limitation of Liability. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Tenant hereby expresses its willingness to enter into this Agreement with Tenant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $10,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, Tenant hereby agrees that the City shall not be liable to Tenant for damage in an amount in excess of$10,000.00 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. 33. Surrender of the Demised Premises. Tenant shall, on or before the last day of the Term herein demised, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised Premises, together with any and all equipment, fixtures, furnishings, appliances or other personal property, if any, located at or on the Demised Premises and used by Tenant in the maintenance, management or operation of the Demised Premises, excluding any trade fixtures or personal property, if any, which can be removed without material injury to the Demised Premises,free of all liens, claims and encumbrances and rights of others or broom- clean, together with all structural changes, alterations, additions, and improvements which may have been made upon the Demised Premises, in good order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent provisions of this Section. Any property which pursuant to the provisions of this Section is removable by Tenant on or at the Demised Premises upon the termination of this Agreement and is not so removed may, at the option of the City, be deemed abandoned by Tenant, and either may be retained by the City as its property or may be removed and disposed of at the sole cost of the Tenant in such manner as the City may see fit. If the Demised Premises and personal property, if any, be not surrendered at the end of the Term as provided in this Section, Tenant shall make good the City all damages which the City shall suffer by reason thereof, and shall indemnify and hold harmless the City against all claims made by any succeeding tenant or purchaser, so far as such delay is occasioned by the failure of Tenant to surrender the Demised Premises as and when herein required. 34. Time is of the Essence. Time is of the essence in every particular and particularly where the obligation to pay money is involved. 19 35. Venue: This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT. 36. Radon is a naturally occurring radioactive gas that, when it is accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from your County Public Health Unit. 37. No Dangerous Materials. Tenant agrees not to use or permit in the Demised Premises the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. Any such substances or materials found within the Demised Premises shall be immediately removed. Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Tenant of any "hazardous substance" or "petroleum products" on, in or upon the Demised Premises as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder. The provisions of this Section 37 shall survive the termination or earlier expiration of this Agreement. 38.Prohibitions Regarding Sale or Use of Expanded Polystyrene Food Service Articles, Single-Use Plastic Beverage Straws, and Single-Use Plastic Stirrers. 38.1 Tenant hereby agrees and acknowledges that, pursuant to Section 82-7 of the City Code, as may be amended from time to time, Tenant shall not sell, use, provide food in, or offer the use of expanded polystyrene food service articles(as defined in City Code Section 82- 7) in the Demised Premises. A violation of this section shall be deemed a default under the terms of this Agreement. 20 Notwithstanding the above, this section shall not apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by Tenant. 38.2 Additionally, Tenant agrees and acknowledges that, pursuant to Section 82-8 of the City Code, as may be amended from time to time, Tenant shall not sell, use, provide food in, or offer the use of single- use plastic beverage straws or single-use plastic stirrers (as defined in City Code Section 82-8) in the Demised Premises. A violation of this section shall be deemed a default under the terms of this Agreement. Notwithstanding the above, the requirements of Section 82-8 shall not restrict Tenant from providing a beverage with, or offering the use of, a single-use plastic beverage straw or single-use plastic stirrer to an individual with a disability or medical condition. that impairs the consumption of beverages without a single-use plastic beverage straw or single-use plastic stirrer. 38.3 As additional consideration for this Agreement and as an additional public benefit, regardless of the legal force and effect of the foregoing Sections 82-7 and 82-8 of the City Code, Tenant agrees: 38.3.1 not sell, use, provide food in, or offer the use of expanded polystyrene food service articles in the Demised Premises. A violation of this section shall be deemed a default under the terms of this Agreement. Notwithstanding the above, this section shall not apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by Tenant; and 38.3.2 not sell, use, provide food in, or offer the use of single-use plastic beverage straws or single-use plastic stirrers in the Demised Premises.A violation of this section shall be deemed a default under the terms of this Agreement. Notwithstanding the above, Tenant shall be permitted to providing a beverage with, or offering the use of, a single-use plastic beverage straw or single-use plastic stirrer to an individual with a disability or medical condition that impairs the consumption of beverages without a single-use plastic beverage straw or single-use plastic stirrer. 39. Tenant's Compliance with Florida's Public Records Law. 39.1 Tenant shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. 39.2 • The term "public records" shall have the meaning set forth in Section 119.011(12), which means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing 21 software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business of the City. 39.3 Pursuant to Section 119.0701 of the Florida Statutes, if the Tenant meets the definition of "Contractor" as defined in Section 119.0701(1)(a), the Tenant shall: 39.3.1 Keep and maintain public records required by the City to perform the service; 39.3.2 Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law; 39.3.3 Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the contract term and following completion of the Agreement if the Tenant does not transfer the records to the City; 39.3.4 Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the Tenant or keep and maintain public records required by the City to perform the service. If the Tenant transfers all public records to the City Upon completion of the Agreement, the Tenant shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Tenant keeps and maintains public records upon completion of the Agreement, the Tenant shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. 39.4 Request for Records; Noncompliance. 39.4.1 A request to inspect or copy public records relating to the City's contract for services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify the Tenant of the request, and the Tenant must provide the records to the City or allow the records to be inspected or copied within a reasonable time. 22 39.4.2 Tenant's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: 3 unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or(3) avail itself of any available remedies at law or in equity. 39.4.3 A Tenant who fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. 39.5 Civil Action. 39.5.1 If a civil action is filed against a Tenant to compel production of public records relating to the City's contract for services,the court shall assess and award against the Tenant the reasonable costs of enforcement, including reasonable attorneys' fees, if: 39.5.1.1 The court determines that the Tenant unlawfully refused to comply with the public records request within a reasonable time; and 39.5.1.2 At least 8 business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the Tenant has not complied with the request, to the City and to the Tenant. 39.5.2 A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to the Tenant at the Tenant's address listed on its contract with the City or to the Tenant's registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. 39.5.3 A Tenant who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. 23 39.6 IF THE TENANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE TENANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV PHONE: 305-673-7411 REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 24 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. 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