Resolution 93-20990 •
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RESOLUTION NO. 93-20990
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA,
AUTHORIZING THE MAYOR AND THE CITY CLERK TO
EXECUTE A LEASE AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND THE CONCERT ASSOCIATION OF
GREATER MIAMI, INC. , FOR THE COLONY THEATER.
WHEREAS, the City of Miami Beach had formerly leased property
known as the Colony Theater, located at 1040 Lincoln Road to the
Concert Association of Greater Miami, Inc. , for a period of three
years with a three year renewal option; and
WHEREAS, said Lease, approved by Resolution No. 88-19309,
will expire on August 31, 1994, including all renewal options; and
WHEREAS, the City of Miami Beach is desirous of continuing to
maintain the use of this City property as a performing arts center.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that a new Lease Agreement,
attached and incorporated as Exhibit "A", be approved, and that the
Mayor and City Clerk be authorized to execute the Lease Agreement
which is to commence on September 1, 1994, and to end on August 31,
1997.
PASSED and ADOPTED this 15, 11 day of December ,
1993.
F 1 MAYOR
ATTEST:
iAA.Fo,A_j,__,c--Peva,,,n,..-----
ITY CLERK
FORM APPROVED
c:\wp51\data\colony.res
LEGAL DEPT.
Date
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CITY OF MIAMI BEACH"
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010
FAX: (305) 673-7782
COMMISSION MEMORANDUM NO."7 a Cj 3
TO: Mayor Seymour Gelber and DATE: December 15, 1993
Members of the City Commission
FROM: Roger M. Car(kkae.„.
City Manager
SUBJECT: PUBLIC HEARING FOR THE MANAGEMENT LEASE AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH AND THE CONCERT ASSOCIATION OF
GREATER MIAMI, INC. FOR THE COLONY THEATER
ADMINISTRATION RECOMMENDATION:
It is recommended that the City Commission approve a lease between •
the Concert Association of Greater Miami Inc. , for the Colony
Theater and waive the requirements of Miami Beach Ordinance No. 92-
2783, which requires public bidding and an independent appraisal
for the lease of public property.
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BACKGROUND:
In 1988, a lease was approved between the City of Miami Beach and
the Concert Association of Greater Miami, Inc. for the operation of
the Colony Theater. This lease agreement -expires August 31, 1994 .
Pursuant to Ordinance No. 92-2783, prior to entering into a renewal
lease agreement, the Mayor and City Commission must hold a public
hearing in order to obtain citizen input as to the proposed lease.
ANALYSIS:
The proposed lease envisions the use of the Colony Theater by the
Concert Association of Greater Miami, Inc. , for three (3) years
with three (3) one-year renewals. The Lessee pays all costs for
utilities, insurance and provides required indemnifications for the
City of Miami Beach. Further, the Lessee maintains the interior of
the building with the exterior maintenance and major . air
conditioning and plumbing expenses, being the responsibility of the
City of Miami Beach.
The lease approves a schedule of rental fees which may not be
amended without written consent of the City of Miami Beach. The
operating subsidy provided by the City of Miami Beach is reduced
from $70,000 in the year ending 8/31/95, to $65,000 in the year
ending 8/31/96, to $60,000 in the year ending 8/31/97. The subsidy
will be reduced from net revenues of a cafe area which will be
built within the building. As a final factor within the lease,
there are assurances that performances presented within the Colony
Theater will address the needs of a diverse community including a
Children's Summer Series, Hispanic oriented performancesand events
targeted to the young adult •market.
tit
AGENDA
ITEM R-� ��
DATE 12-\ s` 13
CONCLUSION:
The Concert of Greater Miami Inc. has managed the Colony Theater in
an excellent manner. The renewal of the lease and waiver of
certain requirements of Ordinance No. 92-2783 are wholeheartedly
recommended.
RMC:ah
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this 4--
day of , 199 , by and between the CITY OF MIAMI
BEACH, a Florida municipal corporation, (Lessor) , and CONCERT
ASSOCIATION OF GREATER MIAMI, INC. , a non-profit corporation
incorporated under the laws of the State of Florida (Lessee) :
WITNESSET H:
WHEREAS, the Lessor is the owner of a certain parcel of land
and certain facilities at 1040 Lincoln Road Mall, Miami Beach,
Florida known as the Colony Theater and the Lessee desires to use
the property for a performing arts center; and
WHEREAS, the Lessor desitesto promote cultural programs and
facilities; and
WHEREAS, the proposed use of the property as a performing arts
center would provide an important cultural component to the City of
Miami Beach; and
WHEREAS, the Lessor desires to actively participate in
providing such facilities in the City of Miami Beach.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter contained, the parties herein covenant and agree as
follows:
1. Description of Premises - The Lessor does hereby lease to
the Lessee, the facilities known as the "Colony Theater" located at
1040 Lincoln Road Mall, Miami Beach, Florida (Leased Premises) .
2. Term - The term of this lease shall be for a period of
three (3) years commencing on the 1st day of September, 1994, and
terminating on the 31st day of August, 1997.
3 . Option to Renew - Provided this Lease is not otherwise in
default, the Lessee is hereby granted the option to extend this
Lease for one three (3) year renewal period upon the same terms and
conditions, except that the latter mentioned operating subsidy will
be renegotiated at said time, by giving the Lessor notice in
writing at least sixty (60) days prior to the expiration of this
Lease or any extension thereof and further having said option
approved by the Mayor and City Commission.
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4. Use and Possession of Lease Premises - The Leased
Premises shall be used by the Lessee as a multiple use performing
arts center. It is understood and agreed that the Leased Premises
shall be used by the Lessee during the term of this Leases only for
the above purpose, and for no other purposes or uses whatsoever.
Lessee will not make or permit any use of the Leased Premises
which, directly or indirectly, is forbidden by public law,
ordinance or government regulation which may be dangerous to life,
limb or property. Lessee may not commit waste on the Leased
Premises, use the premises for any illegal purpose, or commit a
nuisance on the premises. In the event that the Lessee uses the
Leased Premises for any purposes not expressly permitted herein,
then the Lessor may terminate the Lease without notice to Lessee,
and/or restrain such improper use by injunction or other legal
action.
5. Utilities and Telephone - The Lessee, during the term of
said Lease shall pay all costs incurred for all utilities,
including but not limited to water, gas and electricity. The
Lessee, during the term of said lease, shall pay all costs incurred
for telephone usage.
6. Lessor's Right of Entry - The Lessor, or its authorized
agent or agents, shall have the right to enter upon the Leased
Premises at all reasonable times for the purpose of inspecting the
same, preventing waste, making such repairs as the Lessor may
consider necessary and for the purpose of preventing fire, theft or
vandalism. Nothing herein shall imply and duty on the part of the
Lessor to do any work which under any provisions of this Lease the
Lessee may be required to perform, and the performance thereof by
the Lessor shall not constitute a waiver of the Lessee's default.
If the Lessee shall not be personally present to open and
permit entry into the Leased Premises at any time, for any reason,
any entry thereon shall be necessary or permissible, the Lessor, or
its agents, may enter the Leased Premises by master key, or may
forcibly enter the space without rendering the Lessor or such
agents liable therefore (if during such entry the Lessor or its
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agent or agents shall accord reasonable care to the Lessee's
property) , and without in any manner affecting the obligations and
covenants of this Lease.
Lessee shall not change the locks to the Leased Premises
without the prior written consent of Lessor and in the event such
consent is given Lessee shall furnish Lessor duplicate keys to said
locks in advance of their installation.
7. Insurance - As additional consideration by Lessee herein,
Lessee shall, at its own expense, comply with all of the following
insurance requirements of the Lessor. It is agreed by the parties
that the Lessee shall not occupy the premises until proof of the
following insurance coverage has been furnished to the Lessor.
(a) Comprehensive General Liability in the amount of
$1, 000,000. 00 Single Limit Bodily Injury and Property Damage
Coverage for each occurrent. Contractual, Liability, Products and
completed operations coverage included.
(b) Workers' compensation and employers' liability coverage
within the statutory limits of the State of Florida.
(c) The insurance must be furnished by an insurance company
rated A:X or better, or its equivalent according to Best's Guide
Rating Book, or such other rating as may be approved by the City's
Risk Manger. The insurance provided must be signed by a Florida
Resident Agent and/or countersigned by a Florida Resident Agent for
property, casualty and surety insurance required by the Florida
statutes.
(d) City of Miami Beach must be named as an Additional
Insured on this insurance coverage, followed by the statement:
"This coverage is primary to all other coverage the City of Maim
Beach has for this specific lease only. "
(e) Thirty days prior written notice of cancellation of any
coverage must be given by the Lessee to City of Maim Beach c/o City
of Maim Beach, Risk Management Division, 1700 Convention Center
Drive, Miami Beach, Florida, 33319.
f) If Lessee or Lessee's agent sells or distributes beer,
wine or liquor, Lessee shall obtain liquor liability insurance in
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the amount of $1, 000, 000. 00 for death or bodily injury and property
damage per occurrence and name the City as an additional insured on
Lessee's policy.
8: Exculpation and Indemnification Clauses - Lessor shall
not be responsible for any damage, theft or injury that may occur
to Lessee, sublessee, it agents, exhibitors, servants, employees,
invitees, licenses or property from any cause during the period
covered by this Agreement. Lessee hereby expressly releases Lessor
from and agrees to indemnify, defend and hold Lessor harmless
against any and all claims for any such loss, damage, or injury,
whether in contract or in tort, including any claims or liability
for compensation under the Floiida Worker's Compensation Act, and
any and all other public liability which may arise or accrue by
reason of the use by Lessee of the Leased Premises. The Lessor
shall not be responsible for any violations of Federal or State law
resulting form the sale or trafficking of counterfeit goods,
personal property, or trademark, copyright and patent violation by
any natural persons or business entities on the premises.
Lessee further releases Lessor from and agrees to indemnify,
defend, and hold Lessor harmless against any and all claims for any
such loss, damage, or injury, whether in contract or in tort, which
may arise or accrue by reason of the cancellation, for whatever
reason, of any performance or event scheduled and/or held at the
Leased Premises, whether directly or indirectly sponsored by
Lessee.
9. Maintenance and Repair - Lessee shall maintain the Leased
Premises and the fixtures and appurtenances therein, and at its
sole cost and expense shall make all repairs as and when needed to
preserve them in good working order and condition. Said duty to
maintain shall include but not be limited to, the maintenance and
repair of the electrical system, plumbing system, sound system,
lighting system and air conditioning system Lessee shall at its
expense at all times under this Agreement have in force air
conditioning and sound system maintenance agreements acceptable to
Lessor. Lessor shall only be responsible for the maintenance of
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the roof, the exterior of the building, the air conditioning system
to the extent said repairs are not covered by the air conditioning
maintenance agreement, and any plumbing repairs necessitated by
breakage of water pipes within the walls or under the Leased
Premises.
All damage or injury of any kind to the Leased Premises and to
its fixtures, glass, appurtenances and equipment or to the
buildings, fixtures, glass, appurtenances and equipment, except
damage caused by the wrongful acts or negligence of the Lessor,
shall be the obligation of Lessee, and shall be repaired, restored
or replaced promptly by Lessee at its sole cost and expense to the
satisfaction of Lessor.
All of the aforesaid repairs, restorations and replacements
shall be in quality and class equal to the original work or
installations and shall be done in good and workmanlike manner. If
Lessee fails to make such repairs or restorations or replacements,
the same may be made by the Lessor, at the expense of Lessee, and
all sums spent and expenses incurred by Lessor shall be collectable
as additional rent and shall be paid by Lessee within ten (10) days
after rendition of a bill or statement therefor. In all other
respects, the property is being leased in its present "as is"
condition. It shall be Lessee's obligation to insure that the
premises comply with all applicable building codes and life safety
codes of governmental authorities having jurisdiction, except as to
the roof and exterior.
10. Governmental Regulations - The Lessee covenants and
agrees to fulfill and comply with all statutes, ordinances, rules,
orders, regulations, and requirements of any and all governmental
bodies, including but not limited to Federal, State and City
governments, and any and all of their departments and bureaus
applicable to the Leased Premises and shall also comply with and
fulfill all rules, orders, and regulations for the prevention of
fire, all at Lessee's own cost and expense. The Lessee shall pay
all costs, expenses, claims, fines and penalties, and damages that
may be imposed because of the failure of the Lessee to comply with
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this Paragraph, and shall indemnify the Lessor from all liability
arising from each non-compliance.
11. Signs - If exterior signs are requested, they will be
of a design and form approved by the Lessor. Lessee shall assume
the cost of any such signs. All signs shall be removed by Lessee
upon the termination of this Agreement and any damage or unsightly
condition caused to the Leased Premises because of or due to said
signs shall be corrected or repaired by Lessee to the satisfaction
of Lessor.
12 . The Lessee shall not injure, mar, nor in any manner
deface or cause to be destroyed, defaced, altered, modified or
physically changed, the Leased Premises or any portion thereof, or
any equipment, fixture, or other item contained therein and that if
the Leased Premises or any portion- thereof, or any structure
attached thereto, or any equipment, fixture or other item contained
shall be destroyed, damaged, marred, altered, or physically changed
in any manner whatsoever, and such is not done by or with the
express authority of Lessor, but is the act, default or negligence
of Lessee, its agents, employees, patrons, guests, or any person
admitted to the leased premises by Lessee, then and in that event,
Lessee will pay such sum as shall be necessary to repair, replace
or restore the Leased Premises or item(s) contained therein, to its
previous, whole and uninjured or unaltered condition. Lessee
hereby assumes full responsibility for the character, acts and
conduct of all persons admitted to the Leased Premises during the
term of this Agreement by the Lessee or by or with the consent of
any person acting for or on behalf of Lessee.
13 . Lessee is entrusted to properly care for all equipment
owned by the City and used by the Lessee and located on the Leased
Premises during the term of this Agreement and all such equipment
which shall become lost, stolen, or which shall have disappeared
shall be the sole responsibility of Lessee and Lessee shall pay the
full replacement cost thereof to City. An inventory of City owned
equipment is attached hereto as Exhibit "A", and by reference
hereto made a part hereof.
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All personal property of Lessee or of third parties placed or
removed into the Leased Premises shall be at the risk of the Lessee
or the owner thereof. Lessor shall not be liable to the Lessee for
any damage to said personal property unless caused by or due to the
negligence of Lessor, its agents, servants or employees.
14. Liability for Damage or Injury - Lessor shall not be
responsible for any damage or injury that may occur to Lessee, its
agents, servants, employees or property form any cause during the
period covered by this Agreement unless due to the negligence of
Lessor, its agents and/or employees.
15. Peaceful Possession Subject to the terms, conditions
and covenants, Lessor agrees that Lessee shall any may peaceably
have, hold and enjoy the premises above described, without
hindrance or molestation by Lessor.
16. Surrender of Premises - Lessee agrees to surrender to
Lessor at the end of the term of this Lease or any extension
thereof, or upon any cancellation of the Agreement, said Leased
Premises in as good condition as said premises were at the
beginning of the term of the Agreement, ordinary wear and tear, and
damage by fire and windstorm or other acts of God, excepted.
17. Destruction of Leased Premises - In the event the Leased
Premises shall be damaged, destroyed, or otherwise rendered
unusable for the purpose of this Agreement, and thereby the
fulfillment of the lease by Lessor is rendered impossible, this
Agreement shall terminate and Lessee shall make no claim against
Lessor, its agents or servants, for damages or compensation should
this Agreement be so terminated..
18. Addresses for Notices - The addresses for all notices
required under this Lease shall be as follows, or at such other
address as either party shall, in writing, notify the other:
LESSOR: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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with a copy to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
LESSEE: Judy Drucker, President
Concert Association of Greater Miami, Inc.
555 17th Street
Miami Beach, Florida 33139
All notices shall be hand delivered and a receipt requested,
or by certified mail with return receipt requested, and shall be
effective upon receipt.
19. Taxes - During the term of hereof the Lessee shall pay
any and all taxes of whatever nature lawfully levied upon or
assessed against the Leased Premises, the operations within the
premises, or the personal property located on the premises.
20. Records, Audit - The Lessee agrees to establish and
maintain such records as may be prescribed by the Lessor in the
future to provide evidence that all terms of this Agreement have
been and are being observed. Lessee grants to Lessor the right and
authority to audit all records, documents, and books pertaining to
the management of the Colony Theater and nay other expenses shared
between the City and the Concert Association of Greater Miami.
Such audit will be conducted at locations and at a frequency
determined by Lessor and communicated to the Lessee. The Lessee
agrees to provide materials for the audit at the designed place
within three business days after Lessor's notice is received.
Lessee shall inform all entities retained by it to provide
services in connection with Lessee' s lease of Lessor's premises
pursuant to this Agreement, that they must also agree to this
provision relating to an audit upon request of Lessor.
21. Assignment and Subletting - Lessee shall not assign this
Agreement, nor shall Lessee have the right to sublet the Leased
Premises, in whole or in part, or enter into Concession Agreements.
22. Improvements by Lessee - Lessee shall make those
alterations, additions, and improvements in and to the Leased
Premises for a cafe, provided Lessee determines, and so notifies
Lessor in writing by no later than February 15, 1994, whether such
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plans are feasible.
a) In the event that Lessee, commences with its plans to
design and build a cafe within the Leased Premises, and has so
notified Lessor of same, within thirty (30) days from such notice,
Lessee shall submit to Lessor schematic design plans for the
contemplated cafe.
b) Within thirty (30) days after approval by Lessor of the
schematic plans, design development plans shall be submitted.
Final working' drawings, specifications and constructions contract
documents shall be submitted thirty (30) days after Lessor' s
approval of the preliminary plans.
c) Thirty (30) days will be allowed for the receiving of
bids, award of construction contract and commencement of
construction. Upon award of bid, the Lessee shall be permitted
thirty (30) days for the construction of the above-mentioned
improvements, such improvements to be completed by September 1,
1994.
d) All additions, fixtures, or improvements (except
furniture and fixtures which are removable without injury or damage
to the Leased Premises) shall be and remain a part of the Leased
Premises.
e) Lessee shall, prior to commencement of construction on
the Leased Premises by Lessee, furnished Lessor a Performance and
Labor Bond and a Material Payment Bond, both issued by a company
duly authorized to do business in Florida, naming Lessor, covering
100% of the cost of constructing the improvements, including labor
and materials.
23 . Rental Fees - A schedule of rental fees to be charged to
users of the Colony Theater is attached hereto as Exhibit "B" .
Lessee shall not change the scheduled rental fees without the prior
written consent of Lessor.
24. In keeping with Lessor's desire to actively participate
in providing cultural facilities, and recognizing the unique public
service benefits provided by the Lessee, Lessor shall contribute
the facility for the use of the Lessee as a performing arts center
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and the City shall thereby forego receiving a fair rental value on
the facility. As further consideration for Lessee operating and
managing the Leased Premises, Lessor will provide Lessee with an
operating subsidy in the amount of $70, 000 for the Lease year
ending August 31, 1995; $65, 000 for the Lease Year ending August
31, 1996; and $60, 000 for the Lease Year ending August 3 , 1997.
Additionally, once the cafe improvements contemplated by Paragraph
22 herein are completed, any revenues derived from the cafe area
will be reduce the aforestated subsidies accordingly.
Any obligation of Lessor within this lease which extends
beyond the current fiscal year is subject the budget appropriations
in subsequent years. Said operating subsidy will be subject to
renegotiation if and when the option to renew is exercised by
Lessee and agreed to by Lessor.
Lessor reserves the right to use the premises twelve (12) days
per year at no fee for special not-for-profit events which may be
beneficial to the City or may be City-sponsored special events.
Said events shall be scheduled in advance so as to not conflict
with dates or events already scheduled by the Lessee.
25. Default and Termination
a) If Lessee abandons or vacates the Leased Premises prior to
the expiration of the term hereof, or
b) If Lessee fails to discharge or bond off any lien filed
on the Leased Premises within thirty (30) days of written notice
from Lessor to Lessee, or
c) If Lessee fails to perform in accordance with any of the
terms and conditions herein contained, and such default is not
cured within thirty (30) days after written notice is given to
Lessee, then Lessor may terminate the Agreement and pursue any and
all legal remedies available to seek redress for such default, with
the prevailing party paying all reasonable legal fees; provided,
however that if such failure to perform is curable but of such
nature that the cure cannot be completed within such thirty (30)
day period, such failure shall not be deemed a default if Lessee
promptly commences a cure upon receipt of such notice and
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diligently prosecutes such cure to completion; provided, however,
that such cure period shall not exceed one hundred and twenty (120)
days.
26 . In booking performance dates for cultural, special and/or
other events, Lessee shall assure that a diverse mix of
performances are presented at the Colony Theater which address the
needs and interest of a multi-cultural community such as the City
of Miami Beach. Such performances may include, but not be limited
to, a variety of multi-ethnic cultural events and performances, and
events for children and young adults .
27 . ARBITRATION Any controversy or claim for money damages
arising out of or relating to this Agreement, or the breach hereof,
shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and the
arbitration award shall be final and binding upon the parties
hereto and subject to no appeal, and shall deal with the question
of the costs of arbitration and all matter related thereto. In
that regard, the parties shall mutually select an arbitrator, but
to the extent the parties cannot agree upon the arbitrator, then
the American Arbitration Association shall appoint one. Judgement
upon the award rendered may be entered into any court having
jurisdiction, or application maybe made to such court for an order
of enforcement . Any controversy or claim other than a controversy
or claim for money damages arising out of or relating to this
Agreement, or the breach thereof, including any controversy or
claim relating to the right to specific performance shall be
settled by litigation and not arbitration.
28 . LIMITATION OF LIABILITY The Lessor desires to enter into
this Agreement only if in so doing Lessor can place a limit on
Lessor' s liability for any cause of action for money damages due to
an alleged breach by Lessor of this Agreement, so that its
liability for any such breach never exceeds the sum of $10, 000 .
Lessee hereby expresses its willingness to enter into this
Agreement with Lessee recovery from Lessor for any damage action
for breach of contract to be limited to a maximum amount of
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$10,000. 00 less the amount of all funds actually paid by Lessor to
Lessee pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition
of this Agreement, Lessee hereby agrees that Lessor shall not be
liable to Lessee for damages in an amount in excess of $10, 000. 00
which amount shall be reduced by the amount actually paid by Lessor
to Lessee pursuant to this Agreement, for any action or claim for
breach of contract arising out of the performance or non-
performance of any obligations imposed upon Lessor by this
Agreement. Nothing contained in this paragraph or elsewhere in
this Agreement is in any way intended to be a waiver of the
limitation placed upon Lessor's liability as set forth in Florida
Statutes, Section 768.28.
29. Subsequent Changes - Any alterations, variations,
modification or waivers of the provisions of this Agreement shall
be only valid when they have been reduced to writing and duly
signed by both parties.
30. This Agreement contains the entire agreement between the
parties hereto and all previous negotiations leading thereto and it
may be modified only by resolution approved by the governing body
of each party.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be signed by the respect'v- duly aut iorized officers,,
and the respective corporate seals o be affixed t,is 2-P day of
, 1991.
BY:
MAYOR
SJJT:
C TY CLERK . ,
CONCERT ASSOCIATION OF
GRE R MIAM , INC =' .
BY ALICUO
PRESID
ATTEST:
FORM APP TIED
LE PT.
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Mate