Agreementwith Miami Beach Watersports Center, Inc. CITY OF MIAMI BEACH, FLORIDA
a Florida municipal corporation
20 2 ' ® 3 1 5 5 7
Lessor
and
MIAMI BEACH WATERSPORTS CENTER, INC.
a Florida not-for-profit corporation
Lessee
LEASE
LEASE
THIS INDENTURE (the "Lease"), made and entered into at Miami Beach, Miami-Dade
County, Florida, this day of , 2021, by and between:
CITY OF MIAMI BEACH, FLORIDA
a Florida municipal corporation
(hereinafter referred to as "Lessor" or the "City")
and
MIAMI BEACH WATERSPORTS CENTER, INC.
a Florida not-for-profit corporation
(hereinafter referred to as "Lessee")
WITNESETH:
WHEREAS, the Lessor is the owner of a certain parcel of land with parking lot facilities,
currently zoned as "GU", located at 6500 Indian Creek Drive, Miami Beach, Florida (the "Land");
and
WHEREAS, on December 14, 1988, Lessor and Miami Beach Jewish Community Center,
Inc. (JCC), a not-for-profit corporation, entered into a Lease Agreement for the use of a portion of
the Land to construct, operate, and maintain a rowing facility, at the JCC's sole cost and expense,
as amended (the "Amended and Restated Lease Agreement"); and
WHEREAS, on April 17, 1996, the Mayor and City Commission adopted Resolution No.
96-21955, approving an Assignment of Lease, assigning all interest in the Amended and Restated
Lease Agreement to Miami Beach Watersports Center, Inc., as lessee; and
WHEREAS, on July 10, 2002, Lessor and Lessee entered into that certain Second
Amended and Restated/Consolidated Lease, approving Lessee's proposal to construct a second
story to the existing building on the Land, at Lessee's sole cost and expense; as well as adding
an additional parcel of land to the leased premises, for the construction of a dry dock at Lessee's
sole cost and expense; and
WHEREAS, the Second Amended and Restated/Consolidated Lease will expire on May
21, 2021; and
WHEREAS, pursuant to the Second Amended and Restated/Consolidated Lease, Lessee
leases from Lessor the Land, on which Lessee has constructed a two-story building (the
"Building"), a wet dock (the "Wet Dock") and a dry dock facility (the "Dry Dock") (collectively, the
"buildings and other improvements"); and
WHEREAS, at the leased premises, Lessee operates the Ronald W. Shane Center (the
"Facility"), which is a popular winter and spring training location for collegiate rowing programs,
an international destination for Olympic rowers,and home of the Miami Beach Rowing Club,which
annually hosts the Head of the Indian Creek Regatta, as well as other collegiate races; and
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WHEREAS, under the terms of the Second Amended and Restated/Consolidated Lease,
Lessee is responsible for the maintenance of the buildings and other improvements during the
lease term and at the end of the lease term, the buildings and other improvements transfer to
Lessor; and
WHEREAS, the seawall and other portions of the buildings and other improvements are
in need of repair or replacement and Lessee is not financially able to pay for said required capital
improvements; and
WHEREAS, in order to preserve this unique Facility, Lessor and Lessee have agreed to
enter into this Lease for the operation of the Facility, terminating the Second Amended and
Restated Consolidated Lease, and transferring all title and interest in the buildings and other
improvements to Lessor, as of the effective date of the Lease; and
WHEREAS, upon the request of Lessor, Lessee shall execute a Quitclaim deed, in
recordable form, evidencing the transfer of the transfer of interest in the buildings and other
improvements.from Lessee to Lessor, to be recorded by Lessor, at Lessor's expense.
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 LEASE OF PROPERTY.
Upon the terms and conditions herein stated, and in consideration of the payment from
time to time of the rents herein 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 are 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 Lessor, the
following described property situate, lying and being in Miami-Dade County, Florida
("County"), together with all buildings and other improvements located thereon and
attached thereto (collectively, the "Demised Premises"), to-wit:
Legal Description for Parcel A and Parcel B—Composite Exhibit"A"
subject to the following:
(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) All of the terms, covenants and conditions contained in this Lease.
ARTICLE II - DURATION AND TERM
The duration and term of this Lease shall be for a period of nine (9) years, commencing on the
1st day of February, 2021 (the "Commencement Date"), and expiring on the 31st day of January,
2030 (the "Maturity Date").
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ARTICLE III -AMOUNT OF RENT
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 1st day
of February, 2021, and on the 1st day of February each and every year thereafter during the entire
term of the Lease.
ARTICLE IV- USE AND POSSESSION OF DEMISED PREMISES
4.1 PERMITTED USES DEFINED.
4.1.1 The Demised Premises shall be used by the Lessee solely and exclusively for the
continued operation and maintenance of the Facility, and any and all activities related
thereto. Lessee shall at all times be responsible for operation and day to day maintenance
of the Facility, as established in Article XVIII and the Facility shall be open to the general
public, provided that users shall meet the minimum safety requirements of the United
States Rowing Association and the operational requirements of Lessee, as same shall be
submitted to Lessor for Lessor's approval. The Facility shall not be used as a restaurant
or bar; however, there may be catered events (e.g. picnic, barbeque, dinner, luncheon,
etc.), conferences and meetings and other activities typical of a hall for hire. In the event
that Lessee uses the Demised 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.
4.1.2 Lessee may conduct other activities normally conducted by similar public rowing
facilities on the Demised Premises, if approved by the City Manager, or, at the Manager's
option and discretion, by the City Commission.Additional uses not specifically enumerated
above may be approved by the City Commission. In the event uses are introduced to the
Demised Premises that are deemed to be nonconforming because such uses do not fall
within the above list of permitted uses, and were introduced by the Lessee without City
Manager and/or City Commission approval as provided for above, the Lessor may give
Lessee notice of default in accordance with Article XVII, unless the Lessee terminates
such uses until it obtains the required City Manager and/or City Commission approval.
Failure of Lessee to terminate such nonconforming uses and request City Manager and/or
City Commission approval for such use within thirty(30) days after notice as provided for
herein, unless Lessee decides to abandon such nonconforming uses, shall entitle Lessor
to pursue the termination of this Lease as provided for elsewhere in this Lease.
Subject to the terms of this Lease, the Lessee shall have the primary use and sole
occupation of the Demised Premises and shall be responsible for its operation,
management and day to day maintenance.
4.1.3 Public Use of Demised Premises. As a prioritized public use, Lessee shall
provide sufficient space at the Facility for use by Miami-Dade County as a designated
polling station during scheduled elections. Additionally, Lessor shall have the right to use
any portion of the Demised Premises including, but not limited to, the meeting and
conference rooms, City sponsored events, receptions, and other purposes, on a space
available basis, at no charge.
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4.2 GOAL AND PRIORITIES.
The Rowing Facility shall at all times be operated, managed and maintained as a multi-
purpose community resource centered on an outstanding waterway which provides:
(a) enjoyment of the, beautiful Indian Creek Waterway;
(b) education for children and adults;
(c) a unique and enjoyable venue for rowing and other watersport related
activities, special events, receptions, and community meetings;
(d) a catalyst for community promotion of its waterway usage, and enhancement
of rowing-related water recreational education programs;
(e) development of adaptive rowing programs; and
(f) a popular and memorable destination for rowing enthusiasts.
Lessor and the Lessee intend that the activities programmed in and pertaining to the
Facility continuously increase in scope and number so that the Facility favorably impacts
an increasing number of residents and visitors.
4.3 OPERATION AND MANAGEMENT OF THE FACILITY.
All activities undertaken at the Facility shall to advance the purposes set forth in Paragraph
4.2 above. Subject to the terms, limitations and required approvals contained in this Lease,
Lessee shall:
(a) operate, manage, maintain and direct the operations and activities of the Facility;
(b) provide day to day maintenance of the Demised Premises;
(c) develop and implement programs and activities which support and promote the
purposes set forth in Paragraph 4.2 for permitted uses, as described in Paragraph
4.1; and schedule public use of the Demised Premises pursuant to operating
policies and procedures consistent with those to be submitted by Lessee and
approved by Lessor pursuant to Paragraph 4.1, which shall include all fees to be
charged, as same shall be approved by Lessor, reflecting the reasonable expense
of allowing such use, including but not limited to the development and
implementation of educational programs and reduced rates, as mutually agreed
upon by the City and Lessee. With regard to this paragraph (c), the City reserves
the right, at its option and discretion, to evaluate Lessee's programs and activities,
as well as fees to be charged, throughout the term of this Lease but, in any event,
no more than annually during any given lease year herein.
4.4 DAYS/HOURS OF OPERATION.
Lessor and Lessee agree that normal hours of operation for the
Demised Premises shall be as follows:
Ronald W. Shane Center
Staffed and open Monday through Friday: 9:00 AM - 5:00 PM
Major Rowing Events: Fluctuate Seasonally
Closed during recognized holidays
The Second Story Hall for Hire
Sunday through Thursday: until 11:00 PM
Friday through Saturday: until 12:00 AM
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The parties recognize and acknowledge that, under certain limited circumstances (i.e.
fundraiser events, a City use, or an approved special event), Lessee may be permitted to
extend its hours of operation for all or a portion of the Demised Premises during the
duration of the actual event. However, any prolonged extension of any or all of the hours
of operation for the Demised Premises shall be subject to the prior written consent of the
City Manager, which consent shall not be unreasonably withheld or delayed.
In no event shall the Demised Premises' normal hours of operation (as set forth
above) be shortened without the prior written consent of the City Manager.
Lessee shall continuously, actively, and diligently carry on the operation of the
programs, activities and permitted uses specified in this Article IV (USE AND
POSSESSION OF DEMISED PREMISES), as customary for a rowing center, during
such hours and upon such days as set forth herein. The failure of Lessee to
continuously, actively and diligently operate the Demised Premises in accordance
with the days and hours of operation set forth herein shall be deemed an event of
default under the Lease, except that public health and safety concerns or force
maleure events may justify cancellations and closures; provided, Lessee notifies
the City Manager, in writing: (i) of the concerns necessitating a proposed closure;
and (ii) the anticipated period of time Lessee proposes to keep the Facility closed.
Lessee shall obtain the prior written consent of the City Manager for any such
closure pursuant to this Paragraph 4.4, which consent may be unreasonably
withheld.
ARTICLE V-TERMINATION OF PRIOR AGREEMENTS
Upon execution of this Lease, all prior agreements between the parties hereto including, but not
limited to the Second Amended and Restated/Consolidated Lease, dated July 10, 2002 ("Prior
Agreements")are hereby terminated and shall be of no further force or effect, except that liabilities
or obligations arising under the Prior Agreements shall continue to be binding on the Lessee under
this Lease.
ARTICLE VI - NET LEASE
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
Demised 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 Demised Premises that may arise or become due during the term of this Lease.
ARTICLE VII - PROVISIONS REGARDING PAYMENT OF TAXES
7.1 LESSEE PAYS ALL TAXES.
Lessee covenants and agrees with Lessor that as a further consideration for the making
of this 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 occurs, and during
the term hereby demised, by any and all taxing authorities, and including not only ad
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valorem and personal property taxes, but also special assessments and liens for public
improvements, and including in general all taxes, sales taxes, tax liens, or liens in the
nature of taxes which may be assessed, levied or imposed against the Demised Premises,
this Lease or the Prior Agreements, including the Land and all buildings and other
improvements, (and such personal property by way of furnishings or equipment which the
Lessee has or may bring upon or be obligated to bring upon the Demised Premises),
including any taxes levied or assessed against the Demised Premises which relate to the
term of the Prior Agreements. The parties agree that in the event any special assessments
for public improvements are payable in installments, the Lessee shall be responsible for
such installments during the term of this Lease, and may pay such sums in installments,
and the Lessor shall be responsible for any such special assessments extending beyond
the term of this Lease.
7.2 CONTESTING TAX VALIDITY.
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 bond from a corporate
surety qualified to do business in the State of Florida, in one and one-half times 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 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 pay or apply on the payment of such taxes, and if such
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 by Lessee
to Lessor. None of the provisions of this Paragraph 7.2 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 7.3 of this Article VII,
to pay such taxes as then assessed and levied, notwithstanding any pending or proposed
suit to contest those taxes.
7.3 FAILURE OR REFUSAL TO PAY TAX.
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 7.2 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 attorneys' 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 ten per cent (10%) per annum
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from the date of payment, shall be repaid by the Lessee to the Lessor and the payment
thereof may be collected or enforced by Lessor in the same manner as though such
amounts were an installment of rent specifically required by the terms of this Lease to be
paid by Lessee unto Lessor; but the payment of any such taxes by the Lessor shall not
waive the default thus committed by the Lessee.
7.4 TAXES FOR FINAL YEAR.
Notwithstanding the foregoing, taxes (after deducting all available discounts if utilized)for
the last year of the term of this Lease will be prorated as of the expiration date of the term
of this Lease, with Lessee paying such taxes for that portion of the taxes preceding the
expiration date of the Lease, and Lessor paying the balance of such taxes for such year,
if any.
In the event that either party terminates the Lease prior to the expiration date of the Lease,
and the Demised Premises is assessed or levied taxes for the year in which the early
termination occurred, Lessee shall be responsible for reimbursing Lessor the entire
amount of taxes due for the year in which the early termination occurred.
ARTICLE VIII - LESSOR'S INTEREST NOT SUBJECT TO MECHANICS' OR
MATERIALMEN'S LIENS
8.1 NOTICE TO THIRD PARTIES REGARDING LIENS.
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 RELEASING AND DISCHARGING LIENS.
Lessee covenants and agrees with Lessor that Lessee will not permit or suffer to be filed
or claimed against the interest of the Lessor or the Lessee in the Demised Premises during
the term of this Lease any lien or claim of any kind, and if any such lien is claimed or filed
it shall be the obligation of the Lessee, within thirty (30) days after the lien or claim shall
have been filed among the Public Records of Miami-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
(whichever thirty (30) day period expires earlier), to cause the interest of Lessor or the
Lessee in 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 that as a matter of
law will result, within the period of thirty (30) days, in releasing and discharging the legal
effect of every such lien or claim.
ARTICLE IX- INDEMNIFICATION OF LESSOR AGAINST LIABILITY; LESSEE INSURANCE
REQUIREMENTS
9.1 INDEMNIFICATION CLAUSE.
Lessee covenants and agrees with Lessor that during the entire term of the Lease the
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Lessee will indemnify and save harmless the Lessor against any and all claims, debts,
demands or obligations that may be made against or upon the Lessor, arising by reason
of or in connection with this Lease, use of the Demised Premises, or 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 attorneys' fees
incurred by the Lessor in effecting such defense, including appeals, as and when such
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.
9.2 INSURANCE REQUIREMENTS.
9.2.1 LESSEE shall maintain the below required insurance in effect duration of the
Lease. The maintenance of proper insurance coverage is a material element of the
Lease and failure to maintain or renew coverage may be treated as a material
breach of the Lease, which could result in the termination of the Lease.
(a) Worker's Compensation Insurance for all employees of Lessee as required by Florida
Statute 440, and Employer Liability Insurance for bodily injury or disease. Should
Lessee be exempt from this Statute, Lessee and each employee shall hold the City
harmless from any injury incurred during performance of the Lease. Lessee shall also
submit(i) a written statement detailing the number of employees and that they are not
required to carry Workers' Compensation insurance and do not anticipate hiring any
additional employees during the term of this Lease or (ii) a copy of a Certificate of
Exemption.
(b) Commercial General Liability Insurance on an occurrence basis, including products
and completed operations, property damage, bodily injury and personal & advertising
injury with limits no less than $1,000,000 per occurrence, and $3,000,000 general
aggregate.
(c) 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
improvements installed in the Demised Premises by or on behalf of Lessee and
including without limitation all of Lessee's personal property in the Demised Premises
(including, without limitation, inventory, trade fixtures, floor coverings, furniture, and
other property removable by Lessee under the provisions of this Lease.
(d) Automobile Liability Insurance covering any automobile, if Lessee has no owned
automobiles, then coverage for hired and non-owned automobiles, with limit no less
than $1,000,000 combined per accident for bodily injury and property damage.
(e) Liquor Liability Insurance on an occurrence basis, including property damage, bodily
injury and personal & advertising injury with limits no less than $1,000,000 per
occurrence. (Required, if necessary.)
(f) Lessees' and Users' Liability Insurance Program (TULIP) — Lessee is required to
have all third parties that will rent the Demised Premises for special events provide
proof of Liability coverage with the City of Miami Beach endorsed as an additional
insured for the designated event. If Third Party user does not carry their own
Commercial General Liability insurance, coverage will need to be purchased for the
use of the facility through the City provided Lessees' and Users' Liability Insurance
Program.
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The TULIP's general liability insurance protects both the Facility User(the third party)
and the City of Miami Beach against claims by third parties who may be injured or
experience damage as a result of attending or participating in an approved event.
9.2.2 Additional Insured - City of Miami Beach must be included by endorsement
as an additional insured with respect to all liability policies (except Professional
Liability and Workers' Compensation) arising out of work or operations performed
on behalf of the contractor including materials, parts, or equipment furnished in
connection with such work or operations and automobiles owned, leased, hired or
borrowed in the form of an endorsement to the contractor's insurance.
9.2.3 Notice of Cancellation - Each insurance policy required above shall provide that
coverage shall not be cancelled, except with notice to the City of Miami Beach do EXIGIS
Insurance Compliance Services.
9.2.4Waiver of Subrogation — Vendor agrees to obtain any endorsement that may be
necessary to affect the waiver of subrogation on the coverages required. However, this
provision applies regardless of whether the City has received a waiver of subrogation
endorsement from the insurer.
9.2.5Acceptability of Insurers — Insurance must be placed with insurers with a current
A.M. Best rating of A:VII or higher. If not rated, exceptions may be made for members of
the Florida Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may also be considered if
they are licensed and authorized to do insurance business in the State of Florida.
9.2.6Verification of Coverage — Lessee shall furnish the City with original
certificates and amendatory endorsements, or copies of the applicable insurance
language, effecting coverage required by this Lease. All certificates and
endorsements are to be received and approved by the City before Lessee may
conduct operations at the Demised Premises. However, failure to obtain the
required documents prior to conducting operations shall not waive Lessee's
obligation to provide them. The City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements, required
by these specifications, at any time.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
do EXIGIS Insurance Compliance Services
P.O. Box 4668 — ECM #35050
New York, NY 10163-4668
Kindly submit all certificates of insurance, endorsements, exemption letters to our
servicing agent, EXIGIS, at:
Certificates-miamibeach@riskworks.com
9.2.7 Special Risks or Circumstances - The City of Miami Beach reserves the right to
modify these requirements, including limits, based on the nature of the risk, prior
experience, insurer, coverage, or other special circumstances.
Compliance with the foregoing requirements shall not relieve Lessee of its liability and
obligation under this Article or under any other paragraphs of this Lease.
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9.3 INDEMNIFICATION CLAUSE FOR LEASE CHALLENGES.
Lessee shall also protect, defend, indemnify and hold Lessor harmless against any loss
or damage, including attorneys' 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, or any City action relating to this Lease, including the procedures established
for the approval thereof; (ii) challenge 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 approval of this Lease, then the Lessee shall defend the Lessor and save the
Lessor harmless from any and all reasonable attorneys' fees and court costs that may be
incurred, both at the trial and appellate level. Counsel in such actions shall be selected
by Lessee, subject to approval of Lessor, which approval shall not be unreasonably
withheld or delayed.
9.4 COMPLIANCE WITH ALL LAWS, ETC.
Lessee, at Lessee's expense, shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and municipal authorities
pertaining to Lessee's use of the Demised Premises and with the recorded covenants,
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 Demised Premises.
9.5 RULES ON HAZARDOUS MATERIALS.
Lessee shall (i) not cause or permit any Hazardous Material to be brought upon, kept or
used in or about the Demised Premises by Lessee, its agents, employees, contractors or
invitees without the prior written notice to Lessor, demonstrating to Lessor that such
Hazardous Material is necessary or useful to Lessee's use of the Demised 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 Demised Premises.
If Lessee breaches the obligations stated in the preceding sentence, or if the presence of
Hazardous Material on the Demised Premises results in contamination of the Demised
Premises, or if contamination of the Demised Premises by Hazardous Material otherwise
occurs, 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 Demised Premises, damages for the loss or restriction
on use of rentable or usable space or of any amenity of the Demised Premises, damages
arising from any adverse impact on marketing of space, and sums paid in settlement of
claims, attorneys' fees, consultant fees and expert fees) which arise 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 cleanup, 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 Demised Premises. Without limiting the foregoing, if the presence of any
Hazardous Material on the Demised Premises results in any contamination of the Demised
Premises, Lessee shall promptly take all reasonable actions at its sole expense as are
necessary to return the Demised Premises to the condition existing prior to the introduction
of any such Hazardous Material to the Demised Premises; provided that Lessor's approval
of such actions shall first be obtained, which approval shall not be unreasonably withheld.
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The foregoing indemnity shall survive the expiration or earlier termination of this Lease.
9.6 HAZARDOUS MATERIALS DEFINED.
"Hazardous materials" mean (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. 9061, et seq.; the Hazardous Materials Transportation Act, as amended, 49
U.S.C. ❑1801 et seq.; the Resource Conservation and Recovery Act, as amended, 42
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 Demised 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 Demised Premises.
9.7 FURTHER DISCLOSURE OF HAZARDOUS MATERIALS.
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 Demised Premises, or which Lessee intends to store, use or dispose of on the
Demised Premises. Notice of Lessee's use of Hazardous Materials on the Demised
Premises shall not be a waiver of any of Lessor's claims, defenses or rights related to
Lessee's use of such materials.
•
9.8 LESSOR'S RIGHT TO INSPECT.
Lessor and its agents shall have the right, but not the duty, to inspect the Demised
Premises at any reasonable 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 Demised 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.
9.9 DEFAULT.
Any default under this Paragraph shall be a material default enabling Lessor to exercise
any of the remedies set forth in this Lease.
9.10 LESSEE RECEIVES DEMISED PREMISES "AS IS".
Lessee acknowledges that Lessee is receiving the Demised Premises in "as is" condition,
and Lessor is not responsible for the existing condition of the Demised Premises.
ARTICLE X- LANDLORD'S LIEN
To secure the timely construction and installation of all improvements to the Demised Premises
by Lessee, if applicable, and to secure the payment of all rent and other sums of money due and
to become due hereunder and the faithful performance of this Lease by Lessee, Lessee hereby
gives to Lessor an express first and prior contract lien and security interest on all property now or
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hereafter acquired (including fixtures, equipment, chattels, and merchandise) which may be
placed in the Demised Premises and also upon all proceeds of any insurance which may accrue
to Lessee by reason of destruction of or damage to any such property. Such property shall not
be removed therefrom without the written consent of Lessor until all arrearages in rental and other
sums of money then due to Lessor hereunder shall first have been paid; provided, Lessee may
operate its business in the ordinary course and the removal of merchandise from the Demised
Premises by customers of Lessee shall not be a default under this Article. All exemption laws are
hereby waived in favor of said lien and security interest. This lien and security interest is given in
addition to Lessor's statutory lien and shall be cumulative thereto. Lessor shall, in addition to all
of its rights hereunder, also have all of the rights and remedies of a secured party under the
Uniform Commercial Code as adopted in the State in which the Demised Premises is located. To
the extent permitted by law, this Lease shall constitute a security agreement under Article 9 of the
Florida Uniform Commercial Code.
ARTICLE XI - LESSEE'S DUTY TO PAY INSURANCE PREMIUMS
11.1 OBLIGATION AND PROOF OF PAYMENT.
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. The parties acknowledge that Lessor may periodically review the insurance
coverages, set forth in Paragraph 9.2, and require modifications consistent with the use
of the Demised Premises.
11.2 LESSOR'S OPTION TO PAY.
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 ten per cent(10%) per annum from date of payment thereof shall be collectible
as though it were rent then matured hereunder, and shall be due and 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 XII - FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS; DAMAGE
AND DESTRUCTION
12.1 PROPERTY ALL RISK COVERAGE POLICIES.
Lessee covenants and agrees with Lessor that Lessor will insure and keep insured any
and all Improvements now upon and hereafter placed upon the Demised Premises,
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excluding any and all personal property which Lessee brings, or has brought, or which
under the terms of this Lease, the Lessee may be obligated to bring upon the Demised
Premises (for which Lessee is required to secure under paragraph 9.2), all of which
insurance shall be written for Property All Risk Coverage, including protection against all
loss or damage by fire, windstorm and flood.
12.2 DAMAGE AND DESTRUCTION.
12.2.1 DAMAGE TO DEMISED PREMISES.
Lessee acknowledges that if the Demised Premises are partially or totally
destroyed due to fire or other casualty, any repairs to or rebuilding of the damaged
portions of the Demised Premises will be performed by Lessor and in any event
only to the extent that Lessor is required to repair or rebuild the Demised Premises.
If Lessor repairs or rebuilds, rent shall abate proportionately to the portion of the
Demised Premises, if any, rendered untenantable from the date of destruction or
damage until the repairs have been substantially completed. Upon Lessee being
notified by Lessor that the repairs have been substantially completed, Lessee shall
diligently perform all other work with respect to Lessee's personal property which
may be required to fully restore the Demised Premises for use in Lessee's
business, in every case at Lessee's cost and without any contribution to such cost
by Lessor,whether or not Lessor has at any time made any contribution to the cost
of supply, installation, or construction of leasehold improvements in the Demised
Premises. Lessee agrees that during any period of reconstruction or repair of the
Demised Premises, it will continue the operation of its business within the Demised
Premises to the extent practicable. If all or any part of the Demised Premises shall
be damaged by fire or other casualty and the fire or other casualty is caused by
the fault or neglect of Lessee or Lessee's agents, guest, or invitees, rent and all
other charges shall not abate.
12.2.2 TERMINATION FOR DAMAGE. Notwithstanding paragraph 12.2.1, if damage or
destruction which has occurred to the Demised Premises is such that in the
reasonable opinion of Lessor such reconstruction or repair cannot be completed
within one hundred twenty(120) days of the happening of the damage or
destruction, Lessor or Lessee may, at its option, terminate this Lease on notice to
the other given within thirty(30)days after such damage or destruction and Lessee
shall immediately deliver vacant possession of the Demised Premises in
accordance with the terms of this Lease.
12.2.3 In addition, if Lessor undertakes the reconstruction or repair, and does not
complete same within nine (9) months after the date of the fire or other casualty
(subject to the time required to prepare plans for reconstruction, to obtain building
permits, to receive distribution of insurance proceeds, and to complete the likely
contract bidding process and all other relevant factors, but not to exceed an
additional ninety(90) days), then Lessee shall have the right to terminate this
Lease by written notice to Lessor delivered within thirty(30) days after the
expiration of such nine (9) month period (or as extended), whereupon both parties
shall be relieved of all further obligations hereunder, except as to provisions which
are intended to survive the expiration or termination of the Lease.
12.2.4 DEFAULT OF CASUALTY. If at any time any insurance money comes into the
possession of the Lessee after destruction or damage by fire or windstorm or other
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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
pay, then the Lessor shall be paid so much of the insurance money as may be
necessary fully to pay or 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 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
Demised Premises herein described, and without prejudice to their rights to the
benefit of such insurance money as payment of such rental and other charges.
ARTICLE XIII —ASSIGNMENT
13.1 RIGHT AND CONDITIONS OF ASSIGNMENTS.
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 consent shall be within the sole discretion of the Lessor, and such instrument of
assignment(the"Assignment")that has been consented to is in writing,which 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 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 photocopy of the original instrument of
Assignment and the address at which Notice may thenceforth be given to the Assignee.
Approval of any assignment or transfer to an entity other than a not-for-profit corporation
shall be conditioned upon the renegotiation of the rent to be paid under this Lease to reflect
a fair market value of the Demised Premises. Subleases, subconcessions, or license
agreements consistent with the uses set forth in paragraph 4.1 are subject to the approval
of Lessor, which approval shall not be unreasonably withheld. The term of any approved
sublease, subconcession or license agreements shall not exceed a period of time beyond
the stated expiration date of this Lease.
The City Manager, on behalf of Lessor, shall be authorized to approve Assignments of the
Lease. Simultaneously with the approval of this Lease, Lessor hereby approves Barry
University and the University of Miami, as subtenants under the Lease, for the use of the
Facility, subject to the City Manager's review and approval of the sublease.
13.2 NOTICE AND APPROVAL.
The Lessor covenants and agrees that it will, within sixty(60) 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
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defaults. Lessor's failure to give such advice in writing within the time required shall not
constitute either notice of the absence of any default, or consent to the proposed
assignment. Only Lessor's response in writing of the existence or not of a default and
permission or not of an assignment shall be effective with respect to each such item.
ARTICLE XIV- CONDEMNATION CLAUSE
14.1 TOTAL OR PARTIAL TAKING. If the whole of the Demised Premises, or such portion
thereof as will make the Demised Premises unusable for the purposes leased hereunder,
shall be taken by any public authority under the power of eminent domain or sold to public
authority under threat or in lieu of such taking, the term shall cease as of the day
possession or title shall be taken by such public authority, whichever is earlier ("Taking
Date"), whereupon the rent and all other charges shall be paid up to the Taking Date with
a proportionate refund by Landlord of any rent and all other charges paid for a period
subsequent to the Taking Date. If less than the whole of the Demised Premises, or less
than such portion thereof as will make the Demised Premises unusable for the purposes
leased hereunder, the Term shall cease only as to the part so taken as of the Taking Date,
and Lessee shall pay rent and other charges up to the Taking Date,with appropriate credit
by Lessor (toward the next installment of rent due from Lessee) of any rent or charges
paid for a period subsequent to the Taking Date. Rent and other charges payable to
Lessor shall be reduced in proportion to the amount of the Demised Premises taken.
14.2 AWARD. All awards, damages and other compensation awarded or paid upon a total or
partial taking of the Demised Premises, including the value of the leasehold estate created
hereby shall belong to and be the property of Lessor without any participation by Lessee;
Lessee shall have no claim against Lessor or such authority for any portion of such award,
damages or compensation attributable to damage to the Demised Premises, value of the
unexpired portion of the Lease term, loss of profits or goodwill, leasehold improvements
or severance damages. Nothing contained herein, however, shall prevent Lessee from
pursuing a separate claim against the authority for relocation expenses and for the value
of furnishings, equipment and trade fixtures installed in the Demised Premises at Lessee's
expense and which Lessee is entitled pursuant to this Lease to remove at the expiration
or earlier termination of the Lease term, provided that such claim shall in no way diminish
the award, damages or compensation payable to or recoverable by Lessor in connection
with such condemnation.
ARTICLE XV- IMPROVEMENTS AND ALTERATIONS
15.1 APPROVAL OF LESSEE'S ALTERATIONS. Unless otherwise provided herein, no
alterations (including, without limitation, improvements, additions, or modifications to the
Demised Premises) shall be made by Lessee to the Demised Premises without Lessor's
prior written approval, which, as to exterior or structural alterations may be withheld in
Lessor's sole discretion. Any approved alterations by Lessee shall be performed at the
sole cost of Lessee, by contractors and workmen approved by Lessor, which approval
shall not be unreasonably withheld or delayed, in a good and workmanlike manner, and
in accordance with all applicable laws and regulations.
15.2 REMOVAL OF IMPROVEMENTS AND FIXTURES. All leasehold improvements and
fixtures (other than unattached, movable trade fixtures which can be removed without
damage to the Demised Premises) shall at the expiration or earlier termination of this
Lease become Lessor's property. Lessee may, during the term, in the usual course of its
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business, remove its trade fixtures, provided that Lessee is not in default under this Lease;
and Lessee shall, at the expiration or earlier termination of the term, at its sole cost,
remove such of the leasehold improvements (except for improvements installed or owned
by Lessor prior to the Lease Commencement Date) and trade fixtures in the Demised
Premises as Lessor shall require to be removed and restore the Demised Premises to the
condition existing prior to such removal. Lessee shall at its own expense repair any
damage caused to the Demised Premises by such removal. If Lessee does not remove
its trade fixtures at the expiration or earlier termination of the term, the trade fixtures shall,
at the option of Lessor, become the property of Lessor and may be removed from the
Demised Premises and sold or disposed of by Lessor in such manner as it deems
advisable without any accounting to Lessee.
15.3 LESSOR'S WORK.
(a) Seawall Project. Lessor anticipates securing approvals for the removal and the
replacement of the existing seawall, which will also include the removal and
replacement of the adjacent structures, including the existing floating dock and the
modification of the elevations to the existing decking along the west side of the
Demised Premises, along the water(collectively,the"Seawall Project")during the term
of the Agreement. In connection with the Seawall Project, Lessee agrees to provide
Lessor, its personnel and other development related professionals including, without
limitation, contractors, architects, and engineers access to the Demised Premises,
during its hours of operation and during the times the Demised Premises may be
closed for business, as needed. Multiple visits to the Demised Premises may be
needed in connection with pre-construction inspections and tests, construction and
post construction related activities. Lessee will likely experience business interruption
before, during and after completion of this proposed Seawall Project. In the event that
the City Manager determines, in the City Manager's reasonable discretion, that the
Demised Premises cannot be partially or completely used by Lessee, Lessor will
provide Lessee with at least thirty (30) days written notice to partially or completely
cease operations or relocate, as required.
(b) Loss or Damage. Lessee acknowledges that, once approved, Lessor will be
performing construction work related to the development of the Seawall Project, as
well as any maintenance and repairs required of the Lessor hereunder. Lessor shall
not be liable for any death or injury arising from or out of any occurrence in, upon, at,
or relating to the Demised Premises or damage to property of Lessee or of others
located on the Demised Premises, nor shall it be responsible for any loss of or damage
to any property of Lessee or others from any cause, unless such death, injury, loss, or
damage results from the gross negligence or willful misconduct of the Lessor. Without
limiting the generality of the foregoing, the Lessor shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster, falling
ceiling tile, falling fixtures, steam, gas, electricity, water, rain, flood, or leaks from any
part of the Demised Premises or from the pipes, sprinklers, appliances, plumbing
works, roof, windows, or subsurface of any floor or ceiling of the Demised Premises or
from the street or any other place or by dampness, or by any other cause whatsoever,
unless resulting from the gross negligence or willful misconduct of the Lessor. Lessee
agrees to indemnify The Lessor and hold it harmless from and against any and all loss
(including loss of revenue), claims, actions, damages, liability, and expense of any
kind whatsoever(including attorneys'fees and costs at all tribunal levels), arising from
any occurrence in, upon, or at the Demised Premises, or the occupancy, use, or
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improvement by Lessee or its agents or invitees of the Demised Premises or any part
thereof, or occasioned wholly or in part by any act or omission of Lessee its agents,
employees, and invitees or by anyone permitted to be on the Demised Premises by
Lessee, unless caused by the gross negligence or willful misconduct of the Lessor.
ARTICLE XVI - DEED RESTRICTIONS CONCERNING THE USE OF THE DEMISED
PREMISES
16.1 RESTRICTIONS.
The Demised Premises shall hereby contain the following restrictions, covenants and
limitations:
(a) That the Lessee shall at all times operate, maintain and utilize the Demised
Premises as a rowing facility, and all related uses thereto;
(b) That the Lessee shall at all times remain a not-for-profit corporation;
(c) That the Lessee shall not discriminate, whether actual or perceived, on the
basis of race, color, creed, national origin, religion, sex, intersexuality,
gender identity, sexual orientation, marital and familial status, age,
disability, ancestry, height, weight, domestic partner status, labor
organization membership, familial situation, or political affiliation in
connection with its operations on the Demised Premises;
(d) 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
Demised Premises be in any person or entity other than the Lessee,
without the prior written consent of the Lessor, and if such consent is given,
Fair Market Value shall be paid by Lessee or its successor to Lessor for
such space assigned or sublet, unless this provision is waived by action of
the City Commission;
(e) That Lessee, at its sole cost and expense, shall operate, manage and
provide general upkeep and maintenance to keep the interior of the
buildings and improvements, fixtures and equipment on the Demised
Premises in a good state of repair and condition of the Demised Premises,
and repair and replace all personal property and trade fixtures as
necessary in connection therewith, as more particularly set forth in Article
XVIII;
(f) Except in the case of a documented Force Majeure event(as described in
Article XXVI), Lessee agrees to continuously, actively, and diligently carry
on the programs, activities and permitted uses specified in Paragraph 4.1
on the Demised Premises during the term, as customary for a rowing
center, during Lessee's regular hours of operation.
(g) That the Lessee shall be obligated to provide, at its sole cost and expense,
worker's compensation insurance (if required by law), public liability
insurance, all-risk property and casualty insurance, automobile insurance,
and liquor liability insurance (if necessary) during the term of this Lease.
(h) Exterior signs, if any, will be of a design and form approved by the Lessor,
and in accordance with the Miami Beach City Code and other applicable
laws and codes. Lessee shall assume the cost of any such signs. Lessee
shall remove all signs upon the termination of this Lease and any damage
or unsightly condition caused to the Demised Premises because of or due
to such signs shall be corrected or repaired by Lessee to the satisfaction
of Lessor.
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16.2 VIOLATION OF RESTRICTION IS EVENT OF DEFAULT.
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 Paragraphs 17.2 through 17.5 shall constitute events of default under this Lease. An
event of default by Lessee shall entitle the City to exercise any and all remedies described
as Lessor's remedies under this Lease, including but not limited to those set forth in
paragraphs 17.6 and 17.8. An event of default by Lessor shall entitle Lessee to exercise
any and all remedies described as Lessee's remedies under this Lease, including but not
limited to those set forth in paragraph 17.7.
17.2 BANKRUPTCY.
If either Lessor or Lessee shall be adjudged bankrupt or insolvent, or if any receiver or
trustee of all or any part of the business property of either party shall be appointed and
shall not be discharged within sixty (60) days after appointment, or if either party shall
make an assignment of its property for the benefit of creditors, or shall file a voluntary
petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with
its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted,
Federal, State, or otherwise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other party may
immediately, or at any time thereafter, and without further demand or notice, terminate this
Lease without being prejudiced as to any remedies which may be available to it for breach
of contract.
17.3 CONTINUOUS OPERATION COVENANT.
Except in the case of a documented Force Majeure event(as described in Article)XVI of
this Lease), in the event that Lessee fails to continuously, actively, and diligently carry on
the operation of the program, activities and permitted uses specified in Article IV (USE
AND POSSESSION OF DEMISED PREMISES),as customary fora rowing center, during
such hours and upon such days as set forth in Paragraph 4.4, Lessor may terminate this
Lease upon providing Lessee with fifteen (15) days' written notice ("cure period") and
Lessee failing to comply within said cure period.
17.4 LESSOR ACCESS.
the event that Lessee fails to provide Lessor with access to the Demised Premises
including, but not limited to Paragraph 18.2 (ORDERLY OPERATION), Article XXIX
(INSPECTOR GENERAL AUDIT RIGHT), and Paragraph 9.4.4 (LESSOR'S RIGHT TO
INSPECT), Lessor may terminate this Agreement upon providing Lessee with fifteen (15)
days' written notice ("cure period") and Lessee failing to comply within said cure period.
17.5 DEFAULT.
17.5.1 If Lessee fails to perform in accordance with any of the terms and conditions
of this Lease(other than the enumerated defaults in the preceding paragraphs
17.2-17.4), and such default is not cured within seven (7) days after written
notice is given (or if not curable within seven (7)days, the party has begun to
take curative action within seven (7) days and is continuing to pursue such
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cure, but in no event shall any cure period exceed a period of thirty(30) days
from the date of the initial written notice of default), the City shall have the right
to terminate this Lease. In the event that Lessee cures any default pursuant to
this paragraph within the allowable cure period, it shall promptly provide
Lessor with written notice of same.
17.5.2 In the event that Lessor fails to perform or observe any of the covenants, terms
or provisions under this Lease, and such failure continues for seven (7) days
after written notice thereof from Lessee(or if not curable within seven (7)days,
the City has begun to take curative action within seven (7) days and is
continuing to pursue such cure, but in no event shall any cure period exceed a
period of thirty (30) days from the date of the initial written notice of default),
Lessee shall have the right to terminate this Lease. In the event Lessor cures
any default within the allowable cure period pursuant to this paragraph, it shall
promptly provide Lessee with written notice of same.
17.6 REMEDIES FOR LESSEE'S DEFAULT.
If any of the events of default, as set forth in this Article XVII, by Lessee shall occur, Lessor
may, after expiration of any applicable cure period, terminate the Lease without further
notice to Lessee and, at its sole option and discretion, institute such proceedings as in its
opinion are necessary to compensate Lessor for damages resulting from Lessee's default.
In the event of termination of this Lease, Lessee shall then quit and surrender the Demised
Premises to Lessor pursuant to the provisions of Paragraph 15.2 (REMOVAL OF
IMPROVEMENTS AND FIXTURES), Paragraph 20.2 (COVENANT REGARDING
SURRENDER), and Article XXV (SURRENDER OF THE DEMISED PREMISES). Upon
the termination of this Lease, all rights and interest of Lessee in and to the Demised
Premises and to this Lease, and every part thereof, shall cease and terminate.
In addition to the rights set forth above, Lessor shall have the right to pursue any and all
of the following:
(a) the right to injunction or other similar relief available to it under Florida law against
Lessee; and/or
(b) the right to maintain any and all actions at law or suits in equity or other proper
proceedings to obtain damages resulting from Lessee's default.
17.7 REMEDIES FOR CITY'S DEFAULT.
If any of the events of default, as set forth in this Article XVII, by Lessor shall occur, Lessee
may, after expiration of the cure period,terminate this Lease upon written notice to Lessor.
Said termination shall become effective upon receipt of a written notice of termination by
Lessor, but in no event shall Lessee specify a termination date that is more than thirty(30)
days from the date of the written termination notice. On the date specified in the notice,
Lessee shall quit and surrender the Demised Premises to Lessor pursuant to the
provisions of Paragraph 15.2 (REMOVAL OF IMPROVEMENTS AND FIXTURES),
Paragraph 20.2 (COVENANT REGARDING SURRENDER), and 25.1 (SURRENDER OF
THE DEMISED PREMISES).
17.8 RECEIVER.
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
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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 buildings
and other improvements 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 DEMISED PREMISES IN GOOD REPAIR
18.1 LESSEE'S COVENANT REGARDING MAINTENANCE AND REPAIR.
Lessee covenants and agrees with the Lessor that during the Lease term, exclusive of the
Lessor's Maintenance Responsibilities, the Lessee will keep in good state of maintenance
and repair any and all buildings and other improvements, fixtures and equipment upon the
Demised Premises; Lessee will not suffer or permit any strip, waste or neglect of any
buildings and improvements; and the Lessee will perform day-to-day housekeeping and
janitorial services and the repair and replacement of all improvements, fixtures, and
equipment on the Demised Premises, including interior plumbing and interior electrical
repairs; maintain the elevator (maintenance and repair agreement) and HVAC (routine
maintenance agreement solely); and maintain the interior paint, as often as it may be
necessary to keep the interior of the buildings and improvements, fixtures and equipment
on the Demised Premises in a good state of repair and condition (collectively, "Lessee's
Maintenance Responsibilities).
18.2 ORDERLY OPERATION.
Lessee shall be solely responsible for maintaining a neat and orderly operation at all times.
There shall be no living quarters nor shall anyone be permitted to live within the Demised
Premises. Lessee shall make the Demised Premises available for inspection during hours
of operation by the City Manager or his authorized representative.
18.3 LESSEE'S CONVENANT REGARDING UTILITIES.
Lessee covenants and agrees with the Lessor that Lessee shall be obligated for all utilities
utilized on the Demised Premises for the entire term of this Lease.
ARTICLE XIX- LESSOR'S MAINTENANCE RESPONSIBILITIES
Except as expressly provided in.this Lease, it is understood by the parties hereto that Lessor shall
be responsible for the maintenance, and replacement (at Lessor's sole discretion), of the capital
improvements or infrastructure (i.e. including, but not limited to, the roof, structural elements and
infrastructure, HVAC(repair and replacement only), exterior structural plumbing and sewer lines,
and structural electrical, seawall, exterior paint, exterior windows etc.)for the Demised Premises
(collectively, "Lessor Maintenance Responsibilities"). Lessee shall provide Lessor with prompt
notice of needed capital improvements or repairs, so that Lessor, in its sole discretion, may
prioritize and appropriate the funds necessary for any needed capital improvements or
infrastructure repairs. Lessor will perform Lessor's Maintenance Obligations in accordance with
the same standards as Lessor provides for other facilities owned or operated by Lessor.
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ARTICLE XX-ADDITIONAL COVENANTS OF THE LESSEE
20.1 NO SUBORDINATION OF LESSOR'S TITLE.
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
or subordinate the title or interest of the Lessor.
20.2 CONVENANT REGARDING SURRENDER.
Lessee covenants and agrees with Lessor that at the termination of this Lease the Lessee
will peaceably and quietly deliver possession of the Demised Premises and all buildings
and other improvements thereon unto the Lessor.
20.3 FURTHER CONVENANT REGARDING ENCUMBRANCES.
Lessee shall not mortgage, pledge, hypothecate or otherwise encumber its leasehold
interest.
ARTICLE XXI - COVENANT OF QUIET ENJOYMENT
Lessor covenants and agrees with Lessee that as 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 Demised Premises, free from any claims
against the Lessor and all persons claiming under, by or through the Lessor.
ARTICLE XXII - LESSOR'S RIGHT OF ENTRY
The Lessor or its agents shall have the right to enter upon the Demised Premises at all reasonable
times to examine the condition, and to assure and safeguard that the permitted use thereof and
the public purposes contemplated in Article 4 are being carried out; provided, only,that such rights
shall be exercised in such manner so as not to interfere with the Lessee in the conduct of the
Lessee's business on the Demised Premises; and if the Demised Premises are damaged by fire,
windstorm or by other casualty that causes the Demised Premises to be exposed to the elements,
then the Lessor may enter upon the Demised Premises to make emergency repairs related to
Lessee's Maintenance Responsibilities; but if the Lessor exercises its option to make emergency
repairs, such act or acts shall not be deemed to excuse the Lessee from Lessee's Maintenance
Responsibilities. If Lessor makes any emergency repairs pursuant to the terms hereof, Lessee
shall reimburse Lessor for all such repairs upon receipt by Lessee of Lessor's notice of repairs
made and statement and proof of costs incurred.
ARTICLE XXIII - NO REPRESENTATIONS BY LESSOR
Lessee acknowledges that it has examined the Demised Premises and knows the condition
thereof and accepts the Demised Premises in its present condition, "as is," 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
(pursuant to Article XVIII)and management of the Demised 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 (other than as set forth in Paragraph DO() or structural changes,
additions or alterations thereto.
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ARTICLE XXIV- LESSEE TO COMPLY WITH ALL LAWS
24.1 LESSEE'S COMPLIANCE WITH ALL LAWS.
Lessee shall at all times comply with all laws, ordinances, regulations and orders of
Federal, State, County and municipal authorities pertaining to the Demised Premises and
Lessee's improvements and operations thereon.
24.2 LESSEE'S OBLIGATION TO PAY FINES, ETC.
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 Article, and Lessee shall
indemnify Lessor from any and all liability arising from such noncompliance.
24.3 NO DISCRIMINATION CLAUSE.
Lessee shall not exclude from participation in, deny the benefits of, or subject to
discrimination anyone on the grounds of race, color, national origin, sex, age, disability,
religion, income or family status.
Additionally, Lessee shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to
time, prohibiting discrimination in employment, housing, public accommodations, and
public services on account of actual or perceived race, color, national origin, religion,
sex, intersexuality, gender identity, sexual orientation, marital and familial status, age,
disability, ancestry, height, weight, domestic partner status, labor organization
membership, familial situation, or political affiliation.
ARTICLE XXV- SURRENDER OF THE DEMISED PREMISES
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 Demised
Premises, together with any and all equipment, fixtures, furnishings, appliances or other personal
property located at or on the Demised Premises and used by Lessee in the maintenance,
management or operation of the Demised Premises, excluding any trade fixtures or personal
property which can be removed without material injury to the Demised Premises, free of all liens,
claims and encumbrances and rights of others and 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 Article. Any property which pursuant to the
provisions of this Article is removable by Lessee on or at the Demised 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 by Lessor at the sole cost of the Lessee in such manner as the Lessor
may see fit. If the Demised Premises and personal property are 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 Demised Premises as and when herein required.
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
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of the Demised 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(plus such
additional time mutually consented to by the parties) by act of God, weather or unusual
severity, fire, earthquake, flood, hurricane, epidemic, pandemic, 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, (collectively, "Force Majeure" events).
26.2 If Lessor or Lessee's performance of its contractual obligations is prevented or delayed
by an event believed by to be Force Majeure, such party shall immediately upon learning
of the occurrence of the event or of the commencement of any such delay, but in no case
within fifteen (15) business days thereof, provide notice of(i) the occurrence of event of
Force Majeure, (ii) of the nature of the event and the cause thereof, (iii) the anticipated
impact on this Lease, (iv)the anticipated period of the delay, and (v)what course of action
such party plans to take in order to mitigate the detrimental effects of the event. The timely
delivery of the notice of the occurrence of a Force Majeure event is a condition precedent
to allowance of any relief pursuant to this paragraph; however, receipt of such notice shall
not constitute acceptance that the event claimed to be a Force Majeure event is in fact
Force Majeure, and the burden of proof of the occurrence of a Force Majeure event shall
be on the requesting party.
26.3 No party hereto shall be liable for its failure to carry out its obligations under the Lease
during a period when such party is rendered unable, in whole or in part, by Force Majeure
to carry out such obligations. The suspension of any of the obligations under this Lease
due to a Force Majeure event shall be of no greater scope and no longer duration than is
required. The party shall use its reasonable best efforts to continue to perform its
obligations hereunder to the extent such obligations are not affected or are only partially
affected by the Force Majeure event, and to correct or cure the event or condition excusing
performance and otherwise to remedy its inability to perform to the extent its inability to
perform is the direct result of the Force Majeure event with all reasonable dispatch.
26.4 Obligations pursuant to the Lease that arose before the occurrence of a Force Majeure
event causing the suspension of performance shall not be excused as a result of such
occurrence unless such occurrence makes such performance not reasonably possible.
The obligation to pay money in a timely manner for obligations and liabilities which
matured prior to the occurrence of a Force Majeure event shall not be subject to the Force
Majeure provisions.
ARTICLE XXVII - LESSEE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
27.1 Lessee shall comply with Florida Public Records law under Chapter 119, Florida Statutes,
as may be amended from time to time.
27.2 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 software, or other material, regardless of the physical form,
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characteristics, or means of transmission, made or received pursuant to law or ordinance
or in connection with the transaction of official business of the Lessor.
27.3 Pursuant to Section 119.0701 of the Florida Statutes, if Lessee meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), Lessee shall:
(a) Keep and maintain public records required by the Lessor to perform the service;
(b) Upon request from the Lessor's custodian of public records, provide Lessor 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;
(c) 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 Lease if Lessee does
not transfer the records to Lessor;
(d) Upon completion of the Lease, transfer, at no cost to Lessor, all public records in
possession of Lessee or keep and maintain public records required by Lessor to
perform the service. If Lessee transfers all public records to Lessor upon completion
of the Lease, Lessee shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If Lessee
keeps and maintains public records upon completion of the Lease, Lessee shall meet
all applicable requirements for retaining public records. All records stored
electronically must be provided to Lessor, upon request from Lessor's custodian of
public records, in a format that is compatible with the information technology systems
of Lessor.
27.4 REQUEST FOR RECORDS; NONCOMPLIANCE.
(a) A request to inspect or copy public records relating to Lessor's contract for services
must be made directly to Lessor. If Lessor does not possess the requested records,
Lessor shall immediately notify Lessee of the request, and Lessee must provide the
records to Lessor or allow the records to be inspected or copied within a reasonable
time.
(b) Lessee's failure to comply with Lessor's request for records shall constitute a breach
of this Lease, and Lessor, at its sole discretion, may: (1) unilaterally terminate the
Lease; (2) avail itself of the remedies set forth under the Lease; and/or (3) avail itself
of any available remedies at law or in equity.
(c) If Lessee fails to provide the public records to Lessor within a reasonable time may be
subject to penalties under s. 119.10.
27.5 CIVIL ACTION.
(a) If a civil action is filed against a Lessee to compel production of public records relating
to Lessor's contract for services, the court shall assess and award against Lessee the
reasonable costs of enforcement, including reasonable attorneys' fees, if:
(i) The court determines that Lessee unlawfully refused to comply with the public
records request within a reasonable time; and
(ii) At least 8 business days before filing the action, the plaintiff provided written notice
of the public records request, including a statement that Lessee has not complied
with the request, to Lessor and to Lessee.
(b) A notice complies with subparagraph (a)(ii) if it is sent to Lessor's custodian of public
records and to Lessee at Lessee's address listed on its contract with Lessor or to
Lessee'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
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shipping paid by the sender and with evidence of delivery, which may be in an
electronic format.
(c) If Lessee complies with a public records request within 8 business days after the notice
is sent is not liable for the reasonable costs of enforcement.
27.6 IF LESSEE HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO LESSEE'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
ARTICLE )(XVIII - PROHIBITIONS REGARDING SALE OR USE OF EXPANDED
POLYSTYRENE FOOD SERVICE ARTICLES, SINGLE USE PLASTIC BEVERAGE STRAWS,
AND SINGLE- USE PLASTIC STIRRERS.
28.1 Lessee hereby agrees and acknowledges that, pursuant to Section 82-7 of the City Code,
as may be amended from time to time, Lessee 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 City facilities or on City property, in connection with any services performed pursuant
to this Lease. A violation of this paragraph shall be deemed a default under the terms of
this Lease. Notwithstanding the above, this paragraph shall not apply to expanded
polystyrene food service articles used for prepackaged food that have been filled and
sealed prior to receipt by Lessee.
28.2 Additionally, Lessee agrees and acknowledges that, pursuant to Section 82-8 of the City
Code, as may be amended from time to time, Lessee 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 City facilities or on City property, in connection with
any services performed pursuant to this Lease. A violation of this paragraph shall be
deemed a default under the terms of this Lease. Notwithstanding the above, the
requirements of Section 82-8 shall not restrict Lessee 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.
28.3 Additionally, Lessee agrees to comply with Section 46-92(c) of the City Code, which
provides that it is unlawful for any person to carry any expanded polystyrene product,
single-use plastic beverage straw, or single-use plastic stirrer onto any beach or park
within the City, or onto any city marina, pier, dock, or boat ramp. It is also unlawful for any
business to provide single-use plastic beverage straws or single-use plastic stirrers with
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the service or delivery of any beverage to patrons on any beach within the City.
Notwithstanding the above, the provisions in Section 46-92(c) that pertain to single-use
plastic beverage straws and single-use plastic stirrers shall not apply to a person or patron
with a disability or medical condition that impairs the consumption of beverages without a
single-use plastic beverage straw or single-use plastic stirrer.
ARTICLE XXIX- INSPECTOR GENERAL AUDIT RIGHTS.
29.1 Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has established
the Office of the Inspector General which may, on a random basis, perform reviews, audits,
inspections and investigations on all City contracts, throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by
or on behalf of Lessor.
29.2 The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition, the Inspector General has the power to subpoena
witnesses, administer oaths, require the production of witnesses and monitor City projects
and programs. Monitoring of an existing City project or program may include a report
concerning whether the project is on time, within budget and in conformance with the
contract documents and applicable law. The Inspector General shall have the power to
audit, investigate, monitor, oversee, inspect and review operations, activities, performance
and procurement process including but not limited to project design, bid specifications,
(bid/proposal) submittals, . activities of Lessee, its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract documents
and to detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City
is allocating a percentage of its overall annual contract expenditures to fund the activities
and operations of the Office of Inspector General.
29.3 Upon ten (10)days written notice to Lessee, Lessee shall make all requested records and
documents available to the Inspector General for inspection and copying. The Inspector
General is empowered to retain the services of independent private sector auditors to
audit, investigate, monitor, oversee, inspect and review operations activities, performance
and procurement process including but not limited to project design, bid specifications,
(bid/proposal) submittals, activities of Lessee its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract documents
and to detect fraud and corruption.
29.4 The Inspector General shall have the right to inspect and copy all documents and records
in Lessee's possession, custody or control which in the Inspector General's sole judgment,
pertain to performance of the contract, including, but not limited to original estimate files,
change order estimate files, worksheets, proposals and agreements from and with
successful subcontractors and suppliers, all project-related correspondence, memoranda,
instructions, financial documents, construction documents, (bid/proposal) and contract
documents, back-change documents, all documents and records which involve cash,
trade or volume discounts, insurance proceeds, rebates, or dividends received, payroll
and personnel records and supporting documentation for the aforesaid documents and
records.
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29.5 Lessee shall make available at its office at all reasonable times the records, materials,
and other evidence regarding the acquisition (bid preparation) and performance of this
Lease, for examination, audit, or reproduction, until three (3) years after final payment
under this Lease or for any longer period required by statute or by other clauses of this
Lease. In addition:
(a) If this Lease is completely or partially terminated, Lessee shall make available records
relating to the work terminated until three (3)years after any resulting final termination
settlement; and
(b) Lessee shall make available records relating to appeals or to litigation or the settlement
of claims arising under or relating to this Lease until such appeals, litigation, or claims
are finally resolved.
29.6 The provisions in this Article shall apply to Lessee, its officers, agents, employees,
subcontractors and suppliers. Lessee shall incorporate the provisions in this Article in all
subcontracts and all other agreements executed by Lessee in connection with the
performance of this Lease.
29.7 Nothing in this Article shall impair any independent right to Lessor to conduct audits or
investigative activities. The provisions of this Article are neither intended nor shall they be
construed to impose any liability on Lessor by Lessee or third parties.
ARTICLE XXX- SIGNAGE/NAMING RIGHTS
30.1 Lessee shall provide, at its sole cost and responsibility, any required signage on the
Demised Premises in connection with its operations, subject to the prior written consent
of the City Manager (which shall not be unreasonably withheld or delayed), as to size,
location, materials, and aesthetics, and subject further to compliance with all applicable
Municipal, County, State and Federal laws and regulations, and applicable planning and
zoning requirements of the City("Governmental Requirements"). Lessee shall permit the
City to install/provide public information messages at the Facility.
30.2 NAMING RIGHTS.
30.2.1 EXTERIOR SIGNAGE. During the term of the Lease, the Facility's name and
exterior signage for the Facility shall remain in the name of"Ronald W. Shane
Center".
30.2.2 TEMPORARY INTERIOR SIGNAGE. Lessee shall be entitled to install non-
permanent interior signage (i.e. signage having a total duration not to exceed
twelve consecutive (12) months) relating to an event at the Facility, including,
without limitation, temporary banners, and all proceeds derived therefrom shall be
used to fund the operations of the Facility; provided, however, that the names
affixed thereon are subject to the City Manager's or his/her designee's prior written
approval. In no event may any such temporary signage include the names of any
company selling the following types of products ("Prohibited Names"): guns,
tobacco or sexual products. Additionally, all approved temporary signage shall
comply with the City's Citywide Procedure No. TC.19.01 (Sponsorships, Donations
and Advertising Procedure).
Any and all other naming right not expressly provided to Lessee in this subsection
30.2, and any revenues derived therefrom, shall be owned and controlled
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exclusively by the City.
30.3 GENERAL REQUIREMENT. All signage (whether interior, exterior, permanent and/or
temporary) shall comply with all applicable Governmental Requirements and shall be maintained
by Lessee in good condition.
30.4 Lessee shall include the name of the City of Miami Beach in its publications, advertising,
promotions, websites, announcements, and other similar and related materials referring
to the Demised Premises; provided; however, that Lessee shall not use the City's name
and/or logo in any of the aforestated medias and/or materials issued by Lessee, or in any
other manner(whether express or implied),for the purpose of soliciting funding donations,
and/or other monies for the Demised Premises (other than to identify the location of the
Demised Premises as being situated within the City of Miami Beach), without the express
written consent and/or permission of the City Manager or his/er designee.
ARTICLE XXXI - MISCELLANEOUS PROVISIONS
31.1 GRACE PERIODS RUN CONCURRENTLY.
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.
31.2 ARREARAGES.
All arrearages in the payment of rent shall bear interest at the rate of ten percent (10%)
per annum from the date when they became due and payable hereunder until the date
when they are actually paid.
31.3 LANDLORD-TENANT RELATIONSHIP REGARDING COLLECTIONS.
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.
31.4 LESSOR'S REMEDIES NOT OTHERWISE PROVIDED.
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. 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 it in whatever order the Lessor desire and
the law permits, without being compelled to resort to any one remedy in advance of any
other.
31.5 RECEIVERS.
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
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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, and without reference
to the commissions of waste.
31.6 COOPERATION.
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.
31.7 CAPTIONS.
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 Lease.
31.8 INDEX.
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.
31.9 LAWS OF FLORIDA APPLY.
This Lease shall be governed by the 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.
31.10 TIME IS OF THE ESSENCE.
Time is of the essence in every particular and particularly where the obligation to pay
money is involved.
31.11 NOTICE.
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 delivered personally to the
representatives of the Lessor and the Lessee listed below or may be mailed by United
States Certified Mail, return receipt requested, postage prepaid, or by a nationally
recognized overnight delivery service. Notice shall be deemed given on the date of an
acknowledged receipt, or, in all other cases, on the date of receipt or refusal.
Until changed by notice, in writing, all such notices 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
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To the Lessee: Director
Miami Beach Watersports Center, Inc.
6500 Indian Creek Drive
Miami Beach, FL 33141
31.12 ATTORNEYS' FEES.
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 attorneys' 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 attorneys'fees and court
costs incurred and/or expended by the Lessee, including all appellate fees and costs.
Such fees and costs shall be awarded only to the prevailing party.
31.13 VENUE.
This Lease 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-Dade
County, Florida. Lessor and Lessee hereby knowingly and intentionally waive the
right to trial by jury in any action or proceeding that Lessor and Lessee may herein
after institute against each other with respect to any matter arising out of or related
to this Lease or the Demised Premises.
31.14 LESSOR'S LIMITATION ON LIABILITY.
The Lessor desires to enter into this Lease 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 Lease, 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 Lease with the Lessee's recovery from the Lessor for any damage action for
breach of contract, or any other cause of action for money damages, to be limited to a
maximum amount of Ten Thousand ($10,000.00) Dollars. Accordingly, and
notwithstanding any other term or condition of this Lease, Lessee hereby agrees that the
Lessor shall not be liable to Lessee for damages in an amount in excess of Ten Thousand
($10,000.00) Dollars for any action or claim for breach of contract, or any other cause of
action for money damages, arising out of the performance or nonperformance of any
obligations imposed upon the Lessor by this Lease. Nothing contained in this
subparagraph or elsewhere in this Lease 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.
31.15 CITY REPRESENTATION ON THE ROWING CLUB BOARD.
At the City's option, at least two City representatives shall be members of the Rowing Club
board during the term of the Agreement.
30
31.16 E-VERIFY.
(a) Consultant shall comply with Section 448.095, Florida Statutes, "Employment
Eligibility" ("E-Verify Statute"), as may be amended from time to time. Pursuant to the
E-Verify Statute, commencing on January 1, 2021, Consultant shall register with and
use the E-Verify system to verify the work authorization status of all newly hired
employees during the Term of the Agreement. Additionally, Consultant shall expressly
require any subconsultant performing work or providing services pursuant to the
Agreement to likewise utilize the U.S. Department of Homeland Security's E-Verify
system to verify the employment eligibility of all new employees hired by the
subconsultant during the contract Term. If Consultant enters into a contract with an
approved subconsultant, the subconsultant must provide the Consultant with an
affidavit stating that the subconsultant does not employ, contract with, or subcontract
with an unauthorized alien. Consultant shall maintain a copy of such affidavit for the
duration of the Agreement or such other extended period as may be required under
this Agreement.
(b) TERMINATION RIGHTS.
(1) If the City has a good faith belief that Consultant has knowingly violated Section
448.09(1), Florida Statutes,the City shall terminate this Agreement with Consultant
for cause, and the City shall thereafter have or owe no further obligation or liability
to Consultant.
(2) If the City has a good faith belief that a subconsultant has knowingly violated the
foregoing Subsection 31.16(a), but the Consultant otherwise complied with such
subsection, the City will promptly notify the Consultant and order the Consultant to
immediately terminate the Agreement with the subconsultant. Consultant's failure
to terminate a subconsultant shall be an event of default under this Agreement,
entitling City to terminate the Consultant's contract for cause.
(3) A contract terminated under the foregoing Subsection (b)(1) or (b)(2) is not in
breach of contract and may not be considered as such.
(4) The City or Consultant or a subconsultant may file an action with the Circuit or
County Court to challenge a termination under the foregoing Subsection (b)(1) or
(b)(2) no later than 20 calendar days after the date on which the contract was
terminated.
(5) If the City terminates the Agreement with Consultant under the foregoing
Subsection (b)(1), Consultant may not be awarded a public contract for at least 1
year after the date of termination of this Agreement.
(6) Consultant is liable for any additional costs incurred by the City as a result of the
termination of this Agreement under this Section 31.16.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
31
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:
Attest: CITY OF MIAMI BEACH, FLORIDA
°.->S11
Rafael E. Granado, City Clerk Dan Gelber, Mayor
s 1I14CORPIORATEDJ
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was a knowledged before me by means of )(physical
presence, or_online notarization, this/� ,M
day of a9�/eGtf , 2021, by Dan Gelber,
Mayor and Rafael E. Granado, City Clerk, or their designees respectively, on behalf of the CITY
OF MIAMI BEACH, FLORIDA, known to me to be the persons described in and who executed
the foregoing instrument, and acknowledged to and before me that they executed the instrument
for the purposes therein expressed.
WITNESS my hand and official seal, this l 7fday of AAA-2C I1 , 2021.
Not? Pu• , State of Florida at Large
Commission No.:
My Commission Expires:
AOCharles J.DAgostin
rPRO , D AS TO Q ,„ o NOTARY PUBLIC
FOR �:LANGUAGE 1:1- 5 STATE OF FLORIDA
o 'o
R EXECUTION � ,.=Comm#GG168171
�s�NCE 191 Expires 12/14/2021
a(o(ol a t
y • torney. I Daze _,
32
Witnesses: MIAMI BEACH WATERSPORTS CENTER, INC.
a Florida not-for-profit corporation
1 / r,,,,,,,,,, ,r-,---- ,..c.,),,,.. s 4_44-‘-ta—
Signature , Signature
6-1 Sri.q (0✓'v',-S ' ` C ce Ka_I c tki S k0..(A Q..._.
Print Name Print Name/Title
_ g , �
• ,nature
eolivIku eieiptex
Print Name
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
AThe foregoing instru ent was acknowledged before me this ��-" day of
nRelli , 2021, by N)�JJiTi 4)• 5/M406- , on behalf of the MIAMI BEACH
WATERSPORTS CENTER, 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 the instrument for the purposes therein expressed.
WITNESS my hand and official seal, this 57f4day of gge6/ , 202k.
.4, (11A9ge L %-
ifary Public State of Florida at Large
mmission No.: c,G X7351. y Commission Expires: q-K-442//'
;.►.a► GUADALUPE C.RAMOS
*. !I ;i3 MY COMMISSION#GG 985873
1-&-'- - EXPIRES:September 8,2024
• .Pr,F;°" Bonded Thru Notary Public Underwriters
33
EXHIBIT "A"
DEMISED PREMISES
34
Exhibit "A"
THIS IS A SKETCH OF. AN AS-BUILT1. SURVEY OF:
P .A" •
A Westerly part of Los 17 through 21, Block 3, Amended Second Ocean
Front Subdivision, recorded in Plat Book 28 at page 28 of the public
records of Dade County, Florida. Said Part described as follows:
CommEnce (P.O.C. ) at the Southeasterly corner of the above referenced
Lot 17 and run N.89°14'30"W. along the Southerly line of said Lot 17, a
distance of 131.364 feet; Thence run N. 8°03 '52"W.., a distance of 57. 75
feet to a point in Lot 17, said point be3ngsthe Point of Beginning
(F.O.B. ) ; Thence continue N. 8°03'52"W./Lo€s 17 through 21 inclusive of
said Block 3, a distance of 321.74 feet to a point on the Northerly line
of said Lot 21; Thence run N.89°14'30"W. along the Northerly line of
said Lot 2] , a distance of 47.041 feet to the Northwesterly corner of
Lot 21; The following 5 courses are along the Westerly line of referenced
Lots 17 through 21 of said Block 3. Thence run S.8 04'57"E. , a distance
of 75.90 feet; Thence run S.9°41'26"E. , a distance of 76. 264 feet; Th^.nce
run S.9°05'34"E. , a distance of 76.123 feet; Thence run S.8°58'20"E. , a
distance of 76.094 feet; Thence run S.5°07'08"E. , a distance of 18.028
feet to a point on the Westerly line of said Lot 17; Thence run
S.89°14 '30"E. , parallel to the Southerly line of said Lot 17, a distance
of 43.163 feet to the Point of Beginning(P.O.B. ) . Area described contains
14,260 square feet, more or less.
PLUS:
A parcel of land in j.ndiar. Cree?' (Now Filled) adjacent and contiguous
with the Westerly, boundary of Block 3 of the above described subdivision,
conveyed by Deed from the Trustees of the Internal Improvement Fund of
the State of Florida by Deeds 19938 and 19940. Said land described as
follows•
Commence (P.O.C. ) at the Southeasterly corner of referenced Lot 17 and
run N. 89°14'30"W. along the Southerly line of Lot 17 and its Production
/Westerly, a distance of 213.51 feet to the Westerly line of the land
described 5n the above referenced deeds.The following 4 courses are
along the said Westerly line. Thence run N.7°25 '44"W. , a distance of
57.654 feet to the Point of Beginning (P.0.B. ) ; Thence continue
N.7°25 '44"W. , a distance of 93.89 feet; Thence run N.8°39'00"W. , a
distance of 152.045 feet; Thence run N.7°57'12"W. , a_!distance of 75.875
. feet to a point on the production Westerly of the Northerly line of the
. above referenced Lot 21; Thence run 5.89°14 '30"E. along the said
Westerly production of Lot 21, a distance of 34.827 feet to the
Northwesterly corner of said Lot 21. The following 5 courses are along
theoWesterly line of referenced Lots 17 through 21, Block 3 . Thence tun
5.8 '04'57"E. , a distance of 75.90 feet; Thence run S..9°41'26"E. , a
distance of 76 .264 feet; Thence run S.9005 '34"E. , a distance of 76.123
fee;.; Thence run S.8058'20"E. , a 'discance of 76.094 feet; Thence run
5.5°07108"E. , a distance of 18.028 feet to a point in said Lot 17;
Thence run N.89°14'30"W. , parallel to th Southerly line of referenced
Lot 17, a distance of 38.336 feet to the Point of Beginning (P.0.B.) .
Land described contains 11,596 square feet, more or less.
Total Area of the above described Parcel is 25,856 square feet, more or
less, or 0.594 acres, more or less.
PARCEL"B"
An Easterly part of Lot 21 and 22, Block 3, AMENDED SECOND OCEAN FRONT
SUBDIVISION, recorded in Plat Book 28 at Page 28 of the Public Records of Miami-Dade
County,Florida,said land described as follows:
Commence (point of commencement) at the Southeasterly corner of Lot 17, Block 3 and
run N. 89°14'30" W. along the Southerly line of Lot 17 a distance of 30.084 feet to the
Westerly Right-of-Way line as it now exist of Indian Creek Drive;Thence continued along
the southerly line of Lot 17, N. 89°14'30" W. a distance of 183.426 feet to the Westerly ._
boundary of that line described in Deeds 19938 and Deed 19940 from the Internal
Improvement Fund,State of Florida. Thence run N. 7°25'44"W.along said Westerly line a
distance of 57.654 feet ; thence continued along said line N. 75°25'44" W. a distance of
93.89 feet; thence continue along said Westerly line N.8°39'00" W. a distance of 152.045
feet to a point ; Thence continue along the said Westerly boundary N. 7°57'12" W. a
distance of 75.875 feet described in Deed 19940 to the Northerly line of Lot 21, Block 3 of
the above described subdivision extended Westerly ;Thence run S.89°14'30"E.along the
Northerly line of Lot 21 on its extension Westerly a distance of 81.868 feet to the
Northwesterly corner of that parcel shown hereon as parcel "B" and the Paint of
Beginning (P.O.B.) of parcel "B" ; Thence continue along the Northerly tine of Lot 21 a
distance of 127.96 feet to a point 49.002 feet Westerly of the original NE corner of said Lot
21 due to the street widening of Indian Creek Drive;Thence run S.0°04'00"W.a distance
of 79.50 feet to--a point, said point being 4.50 feet South of the Northerly line of Lot 20 ;
Thence run S. 8994'30"E.along a line parallel with and 4.50 feet South of the dividing line
between Lots 20 and 21,a distance of 99.60 feet;Thence run S.31°42'18"W. a distance of
24.65 feet to the Easterly line of referenced Parcel "A" ; Thence run N.8°03'52"W. along
the Easterly line of Parcel"A"a distance of 101.85 feet to the Point of Beginning(P.O.B.).
Parcel "B"contains 9,832 square feet+or 0.226+acres