HomeMy WebLinkAbout3 -Lease Agmt - Miami City BalletLEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into this 9th day of February,
2006 (the "Effective Date"), by and between the CITY OF MIAMI BEACH, a Florida municipal
corporation ("City" or "Landlord"), and MIAMI CITY BALLET, INC, a Florida not-for-profit
corporation ("Tenant").
1. Leased Premises. Landlord, in order to create a significant educational and cultural
facility for the use and enjoyment of the general public and for and in consideration of the covenants,
conditions and agreements to be kept and performed by Tenant, hereby leases, lets and demises to
Tenant, and Tenant hereby leases and hires from Landlord, those certain premises, located in the City
of Miami Beach, Florida, and more fully described as follows:
the building located at 2200 Liberty Avenue, Miami Beach, Florida,
encompassing approximately Sixty Three Thousand (63,000) square
feet, together with all improvements and fixtures located therein (the
"Building") (the Building and all improvements and fixtures are
hereinafter collectively referred to as the "Leased Premises"). The
Building is located on that certain parcel of real property legally
described on Exhibit A attached hereto and made a part hereof (the
"Land"); provided, however, the Land does not constitute a part of
the Leased Premises and no lease rights or other rights in and to the
Land are granted to Tenant pursuant to this Lease.
2. Term.
2.1. Initial Term. The initial term of this Lease shall be forty (40) years and sixty-
three (63) days (the "Initial Term") commencing on February 9, 2006 (the "Commencement Date")
and ending on April 12, 2046 (the "Expiration Date").
2.2. Renewal Option. Landlord shall provide Tenant four separate options (each, a
"Renewal Option") to extend the term of this Lease for additional term(s) (each, a "Renewal Term")
of fifteen (15) years each (as to each of the first three Renewal Terms) and one (1) additional term of
fourteen (14) years (as to the fourth Renewal Term), under the same terms and conditions of this
Lease as are applicable during the Initial Term; provided, however, each Renewal Option shall be
available only if Tenant has satisfied the Renewal Conditions as specified in Section 2.3 below.
Tenant shall exercise a Renewal Option by delivering written notice of such exercise to Landlord not
more than twenty-four (24) months nor less than twelve (12) months prior to the end of the then
current Lease Term. If a Renewal Option is properly exercised by Tenant, the Renewal Term shall
commence at the expiration of then current Term of the Lease and shall expire at the end of fifteen
(15) years thereafter (fourteen (14) years in the case of the last Renewal Term). If Tenant is not
entitled to, or fails to, timely exercise a Renewal Option, Tenant shall have no further rights to renew
the Term of this Lease. (The Initial Term, together with any Renewal Term, is sometimes hereinafter
referred to collectively as the "Term").
2.3. Renewal Conditions. Tenant shall not be entitled to exercise a Renewal
Option at any time when (a) Tenant is in default under any provisions of this Lease, or (b) Tenant has
ceased to operate as a not-for-profit regional ballet company with a full schedule of performances.
Any attempt by Tenant to exercise a Renewal Option during the occurrence of any event described in
(a) or (b) shall be void and of no force or effect. If Tenant properly exercises a Renewal Option but
any event described in (a) or (b) exists at the time the Renewal Term would otherwise commence,
Landlord may at its option declare the exercise of the Renewal Option void, in which case the Lease
shall terminate as if the Renewal Option had not been exercised.
3. Rent.
3.1. Base Rent. For the Term of the Lease, Tenant shall pay Landlord a nominal
annual rent for the Leased Premises of One Dollar ($1.00) (the "Base Rent"), which shall be payable
in advance without demand, commencing on the Commencement Date and thereafter on the first day
o f each Lease Year. "Lease Year" shall mean each consecutive twelve (12) calendar month period of
the Initial Term, and of each Renewal Term, if applicable, commencing on the Commencement
Date; provided, however, that the first Lease Year shall include the partial month of February 2006
plus the following twelve (12) calendar months. The Base Rent and all other amounts due hereunder
shall be paid to Landlord in legal tender of the United States of America at the office of Landlord
designated in Section 4 or at such other place as Landlord shall from time to time designate by notice
in writing.
3.2. Additional Rent. In addition to the Base Rent as set forth in Section 3.1,
Tenant shall also pay to Landlord as Additional Rent the following:
3.2.1. Taxes; Impositions. Tenant shall be responsible for all Property Tax
Payments, Taxes and Impositions (as such terms are hereafter defined). The parties
anticipate that the Building is tax exempt; however, in the event that any Property Tax
Payment or any Imposition is required in connection with the Leased Premises, Tenant shall
be solely responsible for such payment.
3.2.2. Operating Expenses. Tenant shall pay all costs and expenses related to
the ownership, maintenance and operation of the Leased Premises except as otherwise
specifically provided herein (thereby leaving all rents owed by Tenant hereunder as an
absolutely net return to Landlord).
3.2.3. Contributions to Fund. Tenant shall pay as and when due all
contributions required by Section 6.1.
3.2.4. Other Amounts. Tenant shall also pay when due all other amounts
required by this Lease.
Tenant shall pay all Base Rent and Additional Rent, and other charges and expenses
in connection with the Leased Premises throughout the Term, without abatement, deduction
or setoff.
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3.3. Sales Tax. Tenant shall also pay all applicable sales and use tax now or
hereafter prescribed by state, federal or local law, concurrent with any payment due hereunder by
Tenant.
4. Location for Payments. All rents and other payments due hereunder shall be paid to
Landlord at the following address:
Se
City of Miami Beach
Finance Department
c/o Revenue Supervisor
1700 Convention Center Drive
Miami Beach, Florida 33139
Use and Possession of Leased Premises.
5.1. Permitted Uses. Tenant shall use the Leased Premises solely and exclusively
as the headquarters for its not-for-profit regional ballet company. Such uses shall include only the
following (the "Permitted Uses"):
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
dance studio;
dance school;
dance museum;
practice rooms;
performance halls;
Tenant's administrative offices;
as uses ancillary to those specified in (i)-(vi) above, a cafeteria for
Tenant's employees and a small caf6;
as ancillary uses, from time to time, as a site for receptions and other
similar events;
as an ancillary use, from time to time as a site for filming
commercials, photo shoots, orchestra and other rehearsals for a fee,
as a means of producing income to support Tenant's regional ballet
company;
as ancillary uses, for Miami City Ballet's wardrobe shop, wardrobe
storage area and production offices; and
as ancillary uses from time to time, for alternative type of classes
including yoga, martial arts and other related exercise classes.
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No other uses shall be permitted without the prior written approval of Landlord (acting by and
through the City Manager), which approval may be granted or withheld in Landlord's sole and
absolute discretion. Any such other use which Landlord approves must, however, be in accordance
with (i) the Articles of Incorporation and other charter documents of Tenant, (ii) all laws and
regulations applicable to not-for-profit entities, and (iii) all ad valorem tax exempt uses of property
under Chapter 196, Florida Statutes.
5.2. Other Uses Prohibited. The Leased Premises shall be used by Tenant during
the Term of this Lease only for the Permitted Uses specified in Section 5.1 and for the purposes
specified in Section 33 below, and for no other purposes or uses whatsoever. The Leased Premises
shall never be used for a for-profit business or enterprise (except, however, that (i) those uses
contemplated under Section 5.1(viii) may involve for-profit entities, and (ii) the caf6 which is a
Permitted Use under Section 5.1 may be a for-profit entity so long as Landlord, acting by and
through the City Manager, has approved the caf6 operator, in writing, prior to commencement of
such use). Tenant will not make or permit any use of the Leased Premises that directly or indirectly
is prohibited by law, ordinance or government regulation or that may be dangerous to life, limb or
property. Tenant may not commit waste on the Leased Premises, use the Leased Premises for any
illegal purpose, commit a nuisance on the Leased Premises, or allow any toxic, hazardous or
dangerous substance to be brought into the Leased Premises or stored therein (other than small
quantities of materials customarily used in the operation of regional ballet facilities, which shall be
used and stored in compliance with applicable law). In the event that Tenant uses the Leased
Premises for any purposes not expressly permitted herein, then Landlord may declare this Lease in
default and in addition to all other remedies available to Landlord restrain such improper use by
injunction or other legal action with or without notice to Tenant.
6. Financial Covenants.
6.1. Establishment and Use ofFund; Contributions. To helppaythe cost ofcertain
capital repairs and replacements and to pay for certain specified maintenance contracts, Tenant shall
pay, as Additional Rent, annual contributions to a fund (the "Fund") to be held and disbursed by
Landlord pursuant to the provisions of this Section 6.1.
The annual contribution shall be Ninety Thousand and 00/100 Dollars ($90,000) for each
of the first three (3) Lease Years but shall be increased each Lease Year thereafter as provided in
Sections 6.1.1 and 6.1.2 below. All disbursements from the Fund shall be subject to the approval of
the City Manager. The Fund shall be divided into two Sub-Accounts (a Capital Sub-Account
pursuant to section 6.1.1 below and a Maintenance Sub-Account pursuant to Section 6.1.2 below).
Each Sub-Account shall be established, held, and disbursed as hereafter provided. Each Sub-
Account shall be held in an interest-beating bank account established by Landlord with all interest
being added to, and constituting a part of, the applicable Sub-Account.
6.1.1. Capital Sub-Account. For each of the first three Lease Years, Tenant
shall pay an annual amount of $47,500 to Landlord to be placed in the Capital Sub-Account;
provided, however, as an accommodation to Tenant, Landlord agrees that all such payments
(in the aggregate amount of$142,500) shall be deferred and paid (without interest) in equal
annual installments of $3,852.00 each, which shall be due and payable in full on the first day
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of each and every April during the remaining thirty-seven years of the forty year Initial Term.
All such installments of the deferred amount shall be in addition to the annual contributions
to be paid by Tenant to the Capital Sub-Account for the fourth Lease Year and each
succeeding Lease Year.
Commencing with the fourth Lease Year, the required annual contribution to
the Capital Sub-Account of $47,500 (subject to increases as herein provided) shall be due
and payable in four equal quarterly installments of $11,875 each, which shall be due and
payable on the first day of each April, July, October, and January of each Lease Year.
Amounts in the Capital Sub-Account shall be disbursed from time to time by Landlord to pay
for such capital repairs and replacements as Landlord shall approve. From time to time, in
Landlord's sole discretion, the annual contribution to be paid by Tenant to the Capital Sub-
Account shall be adjusted to equal (i) the replacement cost for the capital repair/replacement
item(s) being reserved for, escalated to reflect the anticipated replacement cost at the end of
the useful life of such items divided by (ii) the useful life of such items. Landlord shall
notify Tenant of the amount and effective date of each increase with such increase to be
effective no sooner than three (3) months after notice and Tenant shall thereafter pay the
increased annual contributions in quarterly installments. In no event shall the annual
contribution to the Capital Sub-Account be less than $47,500.
6.1.2. Maintenance Sub-Account. For each of the first three Lease Years
during the Term, Tenant shall also pay an annual amount of $42,500 to Landlord to be placed
in a Maintenance Sub-Account; provided, however, as an accommodation to Tenant
Landlord agrees that all such payments in the aggregate amount of$127,500 shall be deferred
and paid (without interest) owed for the first three (3) Lease Years in equal annual
installments of $3,445.95 each, which shall be due and payable in full on the first day of each
and every April during the remaining thirty-seven (37) years of the forty (40) year Initial
Term. All such deferred payments shall be in addition to the annual contribution to be paid
by Tenant to the Maintenance Sub-Account.
Commencing with the fourth Lease Year, the required annual contribution to the
Maintenance Sub-Account of $42,500 (subject to increases as herein provided) shall be due
and payable in twelve (12) equal installments on the first day of each and every month during
each Lease Year. The Maintenance Sub-Account shall be applied towards monthly payments
of amounts due under maintenance contracts for the following items only (the "Required
Items"): HVAC, elevator, fire alarm, roof, security alarm and fire protection systems.
Tenant shall at all times during the Term enter into and maintain in effect a maintenance
contract (each, a "Maintenance Contract") for each of the Required Items with a qualified,
reputable and licensed company approved by City Manager and which shall be in form and
substance approved by City Manager, which approval shall not unreasonably be withheld.
Landlord shall make monthly disbursements from the Maintenance Sub-Account to pay
monthly installments due under the Maintenance Contracts upon Tenant's request,
accompanied by such invoices and other documents as Landlord shall reasonably request. To
the extent that the aggregate amount due under the Maintenance Contracts increases in any
Lease Year, the annual amounts to be paid by Tenant toward the Maintenance Sub-Account
shall similarly increase (and the monthly installments to be paid by Tenant shall be increased
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accordingly). In no event, however, shall the annual contributions to the Maintenance Sub-
Account be less than $42,500. In the event Landlord determines that there are excess funds
in the Maintenance Sub-Account, Landlord may transfer the excess to the Capital Sub-
Account.
Nothing in this Section 6.1 shall limit Tenant's obligation to maintain the Leased Premises as
required by this Lease. The Fund and the Maintenance Contracts are intended only to address
specific items of maintenance and such items are not all-inclusive. Additional work and additional
funds will be required.
6.2. Fiscal Responsibility. Tenant recognizes that it is a material consideration for
Landlord's entering into this Lease and granting the accommodations provided herein that Tenant
shall operate in a fiscally responsible manner throughout the Term in order to assure its continued
existence as a regional ballet company. Accordingly, Tenant agrees to (a) adopt an annual budget
each year pursuant to which projected revenues equal or exceed projected expenses and containing
reasonable contingencies to address unexpected decreases in revenues or increases in expenses; and
(b) monitor the budget not less than quarterly and if necessary modify operations to achieve a
balanced budget for the applicable fiscal year. Landlord recognizes that a significant portion of
Tenant's revenues consist of charitable contributions, the amount of which varies from year to year,
making it difficult for Tenant to accurately determine in advance its revenues for the coming year.
Tenant agrees, however, to make reasonable revenue projections in each annual budget based upon
historical contributions and binding pledges. The quarterly monitoring of the budget and the
adjustment to operations is intended in part to provide a mechanism to alter Tenant's operations and
achieve a balanced budget as revenue projections become more dependable during each year.
6.3. Operating Capital Account. Throughout the entire Term of this Lease Tenant
shall maintain an operating capital account with a financial institution having offices in Miami-Dade
County, Florida (the "Operating Capital Account"). Upon execution of this Lease, the Operating
Capital Account shall be funded in an amount not less than $1,354,906.00. Not later than the end of
the first Lease Year, the Operating Capital Account shall be increased to an amount not less than
$2,000,000 ("Annual Required Balance"). From time to time during each Lease Year, Tenant may
withdraw funds from the Operating Capital Account for the sole purpose of paying the costs of
operating the ballet company and the Leased Premises. The parties recognize that from time to time
the Operating Capital Account will be reduced below the Annual Required Balance but Tenant
agrees, however, that at some point during each Lease Year, Tenant shall increase the balance in the
account to an amount equal to or in excess of the Annual Required Balance. At Landlord's request
Tenant shall provide Landlord with such financial statements and information as Landlord may
reasonably request, including evidence of the balance of the Operating Capital Account. Tenant
further covenants that it shall not borrow funds for the purpose of achieving the Annual Required
Balance in the Operating Capital Account.
7. Improvements.
7.1. Required Approvals; Procedures. Subject to Landlord's prior written consent
which may be granted or withheld at Landlord's reasonable discretion, Tenant may, at its own cost
and expense, construct or cause to be constructed, any improvements to the Leased Premises which
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in Tenant's opinion are reasonably necessary for it to carry on the Permitted Use(s) as set forth in
Section 5 above (the "Improvements"). The plans for the Improvements shall be submitted to
Landlord for Landlord's prior written consent and approval. All permanent (fixed) improvements to
the Leased Premises shall remain the property of Landlord upon termination of the Lease. Upon the
expiration or termination of the Lease for reasons other than Tenant's default, all personal property
and removable trade fixtures may be removed by Tenant from the Leased Premises without damage
to the Leased Premises (but flooring shall not be removed without Landlord's prior written
approval). If such removal of personal property or trade fixtures damages the Leased Premises,
Tenant shall repair such damage promptly. If Tenant is not entitled, or fails, to remove its personal
property or trade fixtures within ten (10) days after the expiration or termination of this Lease, then
all such personal property and trade fixtures shall become the property of Landlord. Tenant will not
permit any liens to attach to the Leased Premises arising from, connected with or related to any work
performed or materials supplied to the Leased Premises (and if any are filed Tenant shall promptly
cause them to be transferred to bond and released as a lien upon the Leased Premises). Any
construction shall be accomplished through the use of licensed, reputable contractors who are
approved by Landlord and who shall provide the following, all of which shall be approved by
Landlord prior to commencement of any work (a) unconditional payment and performance bond
issued by a surety acceptable to Landlord and reflecting Landlord and Tenant as co-obligees; and (b)
insurance in amounts, form and substance acceptable to Landlord. Any and all permits, and
approvals (including, but not limited to, any permits and approvals required to be issued by any
govemmental or regulatory authorities, including, without limitation, City building permits, and City
land use and zoning board approvals) and/or licenses required for the installation of Improvements
shall be the sole responsibility of Tenant. Prior to commencement of construction, Tenant shall also
provide such additional insurance as Landlord may reasonably require, including, without limitation,
builders' risk.
7.2. Exceptions. The above requirements for submission of plans and the use of
specific contractors shall not apply to maintenance, repairs, or other Improvements which do not
exceed $1,000 so long as such maintenance, repairs or other Improvements are not structural and not
visible from the exterior of the Leased Premises and are permitted by all applicable laws.
8. Landlord's Right of Entry_.
8.1. Entry_. Landlord and its authorized agents shall have the right to enter the
Leased Premises at all times for the purpose of inspecting the Leased Premises, preventing waste,
making such repairs as Landlord may deem necessary and for the purpose of preventing fire, theft, or
vandalism. Landlord agrees that, if possible, it shall provide advance written notice of such entry to
Tenant, unless the need to enter the Leased Premises is an emergency, in Landlord's opinion, which
if not immediately addressed could cause property damage, loss of life or limb, or other injury to
persons. Nothing contained herein shall imply any duty on the part of Landlord to do any work
required to be performed by Tenant under this Lease, and the performance thereof by Landlord shall
not constitute a waiver of any default by Tenant.
8.2. Master Key; Forcible Entry. If Tenant is not present to open and provide entry
into the Leased Premises at any time and for any reason, and such entry is necessary or permissible
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as contemplated by Section 8.1, Landlord, or its agents, may enter the Leased Premises with a master
key or by force, without rendering Landlord or such agents liable in connection therewith.
8.3. Duplicate Keys. Tenant agrees to furnish Landlord on the Effective Date
duplicate keys to all locks in the Leased Premises, including exterior and interior doors. Tenant shall
not change the locks to the Leased Premises without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed, and in the event such consent is given, Tenant shall
furnish Landlord with duplicate keys to said locks in advance of their installation.
9. Tenant's Insurance.
9.1. Coverage. Tenant shall, at its sole cost and expense, comply with all
insurance requirements from time to time established by Landlord (including, without limitation,
requirements as to coverage, amounts and insurer). Prior to the Commencement Date, Tenant shall
provide proof of the following insurance coverage for approval by the City's Risk Manager:
9.1.1. Comprehensive General Liability in an amount not less than
$1,000,000 per occurrence for bodily injury and property damage;
9.1.2. Comprehensive Public Liability Insurance in an amount not less than
$1,000,000 per occurrence for bodily injury, death and property damage;
9.1.3. Excess Liability Coverage with limits not less than $2,000,000; and
9.1.4. Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
9.2. Form. All insurance policies hereunder shall name the City of Miami Beach
and the Miami Beach Redevelopment Agency (so long as it remains in existence) as additional
insured parties. Proof of coverage must be provided by submitting original certificates of insurance
to Landlord. All policies shall provide thirty (30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager at 1700 Convention Center Drive, Miami Beach, Florida,
33139. All insurance policies shall be issued by companies authorized to do business under the laws
of the State of Florida and shall have a rating of B+:VI or better per A.M. Best's Key Rating Guide,
latest edition. All such certificates are subject to the approval of the City's Risk Manager as to form
and content.
10. Taxes and Impositions.
10.1. Taxes. The term "Taxes" shall mean (i) all real or personal property taxes,
assessments, and special assessments of any kind which may be imposed upon the Land or the
Leased Premises, and (ii) any expenses incurred by Landlord in obtaining a reduction of any such
taxes or assessments. Landlord and Tenant shall cooperate in submitting and pursuing any
application, petition, or request required or permissible in order to preserve the tax exempt status for
the Leased Premises. Tenant shall pay any and all costs and expenses in connection with any efforts
to obtain or maintain tax exempt status for the Leased Premises. Notwithstanding the foregoing,
however, in the event that at any time during the Term of this Lease, the Land, the Building, or the
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Leased Premises become subject to the payment of Taxes, Tenant shall be exclusively responsible
for all such payments.
10.2. Impositions. For the Term of this Lease, Tenant agrees to pay all of the
following items ("Impositions") as apply to the Leased Premises:
(i)
all sales and use taxes and excise taxes relating to the occupancy of
the Leased Premises or the Base Rent or the Additional Rent;
(ii) water and sewer rents, rates and charges;
(iii) excises;
(iv) levies;
(v) license and permit fees;
(vi)
service charges or assessments, including, but not limited to, those
charges incurred in connection with police protection, fire protection,
street and road construction, maintenance, lighting and landscaping,
sanitation and water supply;
(vii) certified special assessment liens;
(viii)
fines, penalties, late charges and other similar governmental charges
applicable to the foregoing and any interest or costs with respect
thereto; and
(ix)
all other governmental levies, fees, rents and charges, and any interest
that would be an encumbrance or lien on (i) the Land, the Leased
Premises and the sidewalks, streets or roadways in front of or
adjoining the Land, (ii) any personal property, equipment or other
facility used in the operation of the Leased Premises, or (iii) the rent
and other amounts due hereunder.
10.3. Due Dates. During the Term, Tenant shall pay all Impositions, or installments
thereof, prior to the date on which any fine, penalty, interest or cost may be added thereto or imposed
by law for the non-payment thereof; provided, however, that if, by law, any Imposition may, at the
option of the taxpayer, be paid in installments (whether or not interest will accrue on the unpaid
balance of such Imposition), Tenant may, with Landlord's prior written consent, exercise the option
to pay the same in such installments, provided that all such installment payments relating to periods
prior to the end of the Term are required to be made prior to the end of the Term.
10.4. Receipts. Upon the request of Landlord, Tenant shall furnish to Landlord,
within thirty (30) days after the date an Imposition is due and payable under this Lease, official
receipts of the appropriate authority or other evidence reasonably satisfactory to Landlord,
evidencing the payment thereof.
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11. Assignment and Subletting.
11.1. Required Consent. Tenant shall not have the right to assign this Lease or
sublet the Leased Premises or grant any other occupancy rights to third parties, in whole or in part,
without the prior written consent of Landlord in each case; provided, however, Tenant shall not be
required to obtain Landlord's prior written consent for periodic short term uses pursuant to Section
5.1 (viii) above. Landlord may grant or withhold its consent in its sole and absolute discretion. Any
assignment or sublease will not release Tenant from any of its obligations under this Lease.
11.2. Continuing Requirements. Any consent by Landlord to any act of assignment
or subletting shall apply only to the specific transaction thereby authorized. Such consent shall not
be construed as a waiver of the duty of Tenant, its legal representatives or assigns, to obtain from
Landlord consent to any other or subsequent assignment or sublet, or as modifying or limiting the
rights of Landlord under the foregoing covenants of Tenant not to assign without such consent. If
Landlord elects to grant its consent to any such assignment, sublease or occupancy rights, the
Permitted Uses as specified in Section 5.1 shall remain the same and no other use shall be permitted
without Landlord's prior written consent.
11.3. Effect of Violations. Any violation of the provisions ofthis Lease, whetherby
act or omission, by assignee, sub-tenant or occupant, shall be deemed a violation of such provision
by Tenant, it being the intention and meaning of the parties hereto, that Tenant shall assume and be
liable to Landlord for any and all acts and omissions of any and all assignees, sub-tenants or
occupants. If the Lease is assigned, Landlord may and is hereby empowered to collect rent from the
assignee. If the Leased Premises or any part thereof are underlet or occupied by any person other
than Tenant, then Landlord, in the event of Tenant's default, may, and is hereby empowered to,
collect rent from the sub-tenant or occupants. In either of such events, Landlord may apply the net
amount received by it for rent or other amounts herein reserved, and no such collection shall be
deemed a waiver of the covenant herein against assignment or the acceptance of the assignee,
subtenant, occupant, or a release of Tenant from the further performance of the covenants herein
contained on the part of Tenant.
12. Maintenance and Repair.
12.1. Tenant's Capital Maintenance Obligations. Subject to the terms of this
Section 12, Tenant shall be responsible for major capital repairs and replacements in connection with
the Leased Premises, including, but not limited to, capital repairs and replacements to the roof,
foundation, exterior walls, elevators, HVAC, plumbing, electrical and fire protection systems. In the
event of any repair or replacement under this Section 12.1, Landlord shall either (a) elect to perform
the work or arrange for such work to be performed on behalf of Landlord, or (b) allow Tenant to
perform such work with Landlord's prior approval. All costs of such capital repairs and
replacements shall be paid from the Capital Sub-Account. All costs of such capital repairs and
replacements which exceed the amount of monies in the Capital Sub-Account shall be paid by
Tenant (or if Landlord has advanced the funds, shall be promptly reimbursed by Tenant to Landlord).
12.2. Tenant's Non-Capital Maintenance Obligations. Tenant shall maintain the
Leased Premises in good order, repair and appearance. Tenant shall be responsible for the day-to-
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day maintenance and repairs of the Leased Premises, including, without limitation, all interior
maintenance, housekeeping, non-capital repairs and garbage and waste disposal. Without limiting
the generality of the foregoing, Tenant shall at all times keep in full force and effect the Maintenance
Contracts for such purposes as are specified in Section 6.1.2 of this Lease. Tenant shall be entitled
to disbursements from the Maintenance Sub-Account of the Fund towards the costs thereof as and
when specified in Section 6.1.2. In the event Tenant, its contractors, agents, employees or invitees
cause any damage to the Leased Premises, Tenant shall at its sole cost be responsible for, and shall
promptly cause the repair of, all such damage (regardless of whether such repairs are capital or
structural) caused by the act or omission of Tenant, its agents, contractors, employees or invitees. If
Tenant or its contractors, agents, employees, or invitees cause any rubbish to be placed upon the land
surrounding the Leased Premises Tenant shall cause such rubbish to be promptly removed. Tenant
shall prevent graffiti from being placed on the interior and exterior of the Leased Premises and if any
graffiti is placed thereon, Tenant shall have it promptly removed. Tenant shall permit Landlord to
inspect the Leased Premises at all reasonable times, and shall implement all reasonable suggestions
of Landlord as to the maintenance and repair of the Leased Premises.
12.3. Tenant shall be solely responsible for (a) the cost of all maintenance, repairs,
and replacements under Section 12.2 to the extent such costs exceed the monies contained in the
Maintenance Sub-Account of the Fund and (b) the cost of all capital repairs and replacements under
Section 12.1 to the extent such costs exceed the monies contained in the Capital Sub-Account of the
Fund.
12.4. AS-IS. LANDLORD AND TENANT AGREE AND ACKNOWLEDGE
THAT THE LEASED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS,"
"WHERE-IS" CONDITION AND WITHOUT WARRANTY OR REPRESENTATION,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN..
12.5. Renovations and Repairs. It shall be Tenant's obligation to insure that any
renovations, repairs and/or Improvements made by Tenant to the Leased Premises comply with all
applicable building codes and life safety codes of all govemmental authorities having jurisdiction.
12.6. Capital Improvements. Landlord agrees to expend up to $740,000 to fund
certain major capital replacements and repairs in connection with the Leased Premises, which may
consist of: roof replacement in an amount not to exceed $500,000; five rooftop air conditioning units
in an amount not to exceed $175,000, and pressure-cleaning, waterproofing, and painting of the
Building exterior in an amount not to exceed $65,000.
13. Encumbrances. Tenant shall not directly or indirectly create or allow to remain, and
will promptly discharge at its expense, any lien, encumbrance, attachment, title retention agreement
or claim upon the Leased Premises or any attachment, levy, claim or encumbrance with respect to
any rent or other obligations required to be paid under this Lease, not including, however: (a) this
Lease; (b) utility easements and road rights-of-way in the customary form (i) provided the same do
not adversely affect the intended use of the Leased Premises (including the Improvements) and do
not create an adverse effect on the value of the Leased Premises or (ii) which result solely from the
action or inaction of Landlord; (c) zoning and building laws or ordinances, provided they do not
prohibit the use of the Leased Premises for the Permitted Uses and so long as the Leased Premises
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are in compliance with same; and (d) such encumbrances as are subsequently consented to in writing
by Landlord.
14. Tenant Responsibilities for Utilities. Tenant is solely responsible for and shall
promptly pay when due all charges for water, gas, electricity, sewer, cable, telephone and any other
utility service provided to the Leased Premises, including, without limitation, all hook-up fees and
impact fees. In addition to other rights and remedies hereinafter reserved to Landlord, upon the
failure of Tenant to pay for such utility services when due, Landlord may elect to pay the same
whereby Tenant agrees to promptly reimburse Landlord upon demand. In no event, however, shall
Landlord be liable for an interruption or failure in the supply of any utility services to the Leased
Premises.
15. Governmental Regulations. Tenant covenants and agrees to fulfill and comply with
all statutes, ordinances, rules, orders, regulations, and requirements of all governmental bodies,
including, but not limited to, federal, state, county, and city governments, and all of their departments
and bureaus as applicable to the Leased Premises. Tenant shall also complywith and fulfill all rules,
orders, and regulations and all insurance company requirements in connection with the prevention of
fire or other casualty or protection from hurricanes and storms, at Tenant's sole cost and expense;
provided, however, that Landlord will be responsible for the costs (but may use the Capital Sub-
Account of the Fund) to pay for capital improvements required to be made to the Building in order to
comply with such rules, orders or regulations unless the capital improvements are required as a result
of Tenant's specific use of the Leased Premises (in which case Tenant shall pay for all such
improvements). Tenant shall pay all cost, expenses, claims, fines, penalties, and damages that may
be imposed because of the failure of Tenant to comply with this Section 15, and shall indemnify and
hold Landlord harmless from all liability arising from any non-compliance.
16. Mechanic' s Liens. Tenant shall not permit any mechanics, laborers, or materialmen' s
liens to be filed against the Leased Premises for any labor or materials furnished, or claimed to have
been furnished, to the Leased Premises for or on behalf of Tenant. Any lien for work performed or
materials or services provided for or on behalf of Tenant shall attach solely to Tenant's leasehold
estate under this Lease and shall not attach to Landlord's interest in the Leased Premises or the Land.
In the event any mechanic's or materialmen' s lien is filed against the Leased Premises, Tenant shall
within ten (10) days after notice from Landlord cause such lien to be paid and satisfied of record or
shall cause it to be transferred to bond pursuant to Florida Statutes Chapter 713 and removed as a
lien from the Leased Premises. Tenant will immediately pay any judgment rendered with all proper
cost and charges and shall have such lien released or judgment satisfied at Tenant's sole expense.
17. Condemnation.
17.1. Total Taking. If all or substantially all of the Leased Premises, or such portion
of the Leased Premises or the Building shall be permanently taken or condemned for any public or
quasi-public purpose as would render, in Landlord's reasonable judgment, the continuance of
Tenant's business from the Leased Premises impracticable, then this Lease shall forthwith cease and
terminate.
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17.2. Partial Taking. If less than all or substantially all of the Leased Premises or
any portion of the Building shall be permanently taken or condemned for any public or quasi-public
purpose, then Landlord shall have the option of terminating this Lease by providing written notice to
Tenant within ten (10) days from the date of such condemnation or taking. Tenant shall also be
entitled to terminate this Lease, by written notice to Landlord within ten (10) days after such notice
of taking, if the remaining portion of the Leased Premises is not suitable for Tenant' s continued use
and operation in accordance with the terms of this Lease.
17.3. Effect on Lease. If this Lease is terminated as provided in Sections 17.1 or
17.2 above, this Lease shall cease and expire as if the date of transfer of possession of the Leased
Premises, the Building, or any portion thereof, were the expiration date. In the event that this Lease
is not terminated by Landlord or Tenant as aforesaid, Tenant shall pay the Base Rent up to the date of
transfer of possession of such portion of the Leased Premises so taken or condemned and this Lease
shall thereupon cease and terminate with respect to such portion of the Leased Premises so taken or
condemned as if the date of transfer of possession of the Leased Premises were the expiration date
relating to such portion of the Leased Premises.
17.4. Temporary_ Taking. In the event of any temporary taking or condemnation for
any public or quasi-public purpose of the Leased Premises or any portion thereOf, this Lease shall
continue in full force and effect except that Base Rental and Additional Rental shall be adjusted on a
pro rata basis for the period of time that the Leased Premises are so taken as of the date of transfer of
possession of the Leased Premises and Landlord shall be under no obligation to make any repairs or
alterations.
17.5. Condemnation Award. In the event of any condemnation or taking of the
Leased Premises, Tenant hereby assigns to Landlord the value of all or any portion of the unexpired
term of the Lease and all leasehold improvements and Tenant may not assert a claim for a
condemnation award therefore; provided, however, Tenant may pursue a separate attempt to recover
an award or compensation against or from the condemning authority for the value of any fixtures,.
furniture, furnishings and other personal property which were paid for by Tenant subsequent to the
Effective Date and not by Landlord and which were condemned but which under the terms of this
Lease, Tenant is permitted to remove at the end of the term of this Lease.
18. Default by Tenant. The following events shall each constitute an "Event of Default"
under this Lease:
18.1. Any failure of Tenant to pay any Base Rent, Additional Rent, or any
installment thereof as and when due and Tenant does not cure such failure within thirty (30) days
after receipt of written notice from Landlord of Tenant's failure to make any such payment on its due
date;
18.2. Tenant fails to make any other payment provided for under this Lease as and
when due and Tenant does not cure such failure within thirty (30) days after receipt of written notice
from Landlord;
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18.3. Tenant deserts, abandons, or vacates the Leased Premises, or suffers this Lease
to be taken under any writ of execution;
18.4. Tenant fails to comply with any term, provision, condition or covenant
contained herein, and such failure is not cured within sixty (60) days after receipt of written notice
from Landlord; provided, however, if such failure is curable but is not reasonably capable of being
cured within sixty (60) days, Tenant shall not be deemed in default if Tenant commences curative
action within thirty (30) days after receipt of notice of default, thereafter diligently pursues curative
action, and effects the cure within one hundred eighty (180) days after receipt of notice of the
default;
18.5. Anynotice ofviolation is issued by any governmental authority ofcompetent
jurisdiction with respect to Tenant or the Leased Premises and such violation remains uncured for a
period of thirty (30) days from its issuance;
18.6. If(i) any petition is filed by or against Tenant under any section or chapter of
the Bankruptcy Act, as amended, which remains pending for more than sixty (60) days, or any other
proceedings now or hereafter authorized by the laws of the United States or of any state for the
purpose of discharging or extending the time for payment of debts, or (ii) Tenant becomes insolvent
or files any debtor proceedings, or (iii) Tenant makes an assignment for the benefit of creditors, or
(iv) a receiver is appointed for Tenant by any court and is not dissolved within thirty (30) days
thereafter, or (v) the leasehold interest under this Lease is levied under execution; or (vi) Tenant fails
to cause the Operating Capital Account to equal or exceed the Annual Required Balance in any two
consecutive Lease Years;
18.7. If on or before May 15, 2006, Tenant does not appoint the City Manager and
the Chief Financial Officer of the City of Miami Beach as voting members of Tenant's Board of
Trustees (and cause Tenant's By-laws to be appropriately amended), or if at any time thereafter
Tenant does not allow the City Manager and the Chief Financial Officer of the City of Miami Beach
to be full voting members of Tenant's Board of Trustees;
18.8. If Tenant shall at any time cease to be a not-for-profit corporation;
18.9. If Tenant shall cease for more than 120 days to operate as a regional ballet
company; or
18.10. If Tenant shall fail to maintain the insurance requirements pursuant to Section
9 herein and Tenant does not cure such failure within fifteen (15) days after receipt of written notice
from Landlord.
19. Rights on Default. If any of the Events of Default shall occur, Landlord may, at its
option exercise any and all rights and remedies provided under this Lease or otherwise available to
Landlord at law or in equity. Landlord may also institute such proceedings as in its opinion are
necessary to cure such defaults and to compensate Landlord for damages resulting from such defaults
and/or to regain possession of the Leased Premises and Landlord may terminate this Lease by written
notice to Tenant. The terms of this Lease shall terminate upon the date specified in such notice from
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Landlord to Tenant as fully and completely as if that date were the expiration date. On the date so
specified, Tenant shall then quit and surrender the Property to Landlord in accordance with the
provisions of Section 41, but if Tenant shall fail to do so Landlord may, without further notice, and
without prejudice to any other remedy Landlord may have for possession or arrearages in rent or
damages for breach of contract, enter upon Leased Premises and expel or remove Tenant and its
effects in accordance with law, without being liable for prosecution or any claim for damages
therefore. Upon the termination of this Lease, all rights and interest of Tenant in and to the Leased
Premises shall cease and terminate and Landlord may, in addition to any other rights and remedies it
may have, retain all sums paid to it by Tenant under this Lease. In addition to the rights set forth
above, and any other remedies available to it under law or equity, Landlord shall have the right to
pursue any of the following:
19.1. Acceleration. Declare the entire amount of the Base Rent, any Additional
Rent, and any other payment due hereunder (other than the annual contribution to the Fund for future
Lease Years), which would become due and payable during the remainder of the term of this Lease
to be due and payable immediately, in which event Tenant agrees to pay the same at once, at the
address of Landlord, as provided in Section 4; provided, however, that such payment shall not
constitute a penalty, forfeiture, or liquidated damage, but shall merely constitute payment in advance
of the rents for the remainder of said term and such payment shall be considered, construed and taken
to be a debt provable in bankruptcy or receivership. Tenant shall have no obligation, however, to pay
installments of the Fund for periods subsequent to the termination date of this Lease.
19.2. Reletting. Enter the Leased Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for damages therefore, remove Tenant's
property therefrom, and re-let the Leased Premises, or portions thereof, for such terms and upon such
conditions which Landlord deems, in its sole discretion, desirable, and to receive the rents therefor,
and Tenant shall pay Landlord any deficiency that may arise by reason of such re-letting, on demand
at any time and from time to time at the office of Landlord; and for the purpose of re-letting,
Landlord may (i) make any repairs, changes, alterations or additions in or to said Leased Premises
that may be necessary or convenient; (ii) pay all costs and expenses therefore from rents resulting
from re-letting; and (iii) Tenant shall pay Landlord any deficiency as aforesaid.
19.3. Personal Property. Take possession of any personal property owned by Tenant
on the Leased Premises and sell the same at public or private sale, and apply same to the payment of
rent due, holding Tenant liable for the deficiency, if any.
19.4. Late Payments. Any installments of Base Rent and Additional Rent accruing
under the provisions of this Lease which shall not be paid when due shall bear interest at the
maximum legal rate of interest per annum then prevailing in Florida from the date when the same
was payable by the terms hereof, until the same shall be paid by Tenant. Any failure on Landlord's
behalf to enforce this Section 19.4 shall not constitute a waiver of this provision with respect to
future accruals of past due rent. No interest will be charged for payments made within five days of
the due date (the "Grace Period"). There will be a late charge of $50.00 for any payments submitted
after the Grace Period.
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19.5. Option of Landlord to Pay. If Tenant defaults in making any payment of
monies to any person or for any purpose as may be required hereunder, Landlord may at its option
pay such expense but Landlord shall not be obligated to do so. If Landlord elects to pay such
expense, Tenant agrees to promptly reimburse Landlord for the entire amount thereof. All monies
payable by Tenant to Landlord hereunder shall constitute Additional Rent hereunder and shall be
collectable by Landlord from Tenant, and shall be due from Tenant to Landlord on the first day of the
month following the payment of the expense by Landlord.
19.6. Additional Rights and Remedies. In addition to Landlord's rights and
remedies specified herein, Landlord shall also be entitled to exercise any and all other remedies at
law or in equity. Landlord's failure to promptly exercise any rights granted hereunder shall not
operate to waive or to forfeit such rights.
20. Default by Landlord. The failure of Landlord to perform any of the covenants,
conditions and agreements of the Lease which are to be performed by Landlord and the continuance
of such failure for a period of sixty (60) days after notice thereof in writing from Tenant to Landlord
(which notice shall specify the respects in which Tenant contends that Landlord failed to perform any
such covenant, conditions and agreements) shall constitute an "Event of Landlord Default", unless
such default is one which cannot be cured within sixty (60) days and Landlord within such sixty (60)
day period shall have commenced and thereafter shall continue diligently to prosecute all actions
necessary to cure such defaults.
If an Event of Landlord Default shall occur, Tenant shall have the right to pursue any of the
following remedies: (i) the right to terminate this Lease by giving notice of such election to
Landlord within thirty (30) days of the Event of Landlord Default, whereupon this Lease shall
terminate as of the date of such notice, or (ii) the right to a writ of mandamus, injunction or other
similar relief, available to it under Florida law against Landlord. Tenant agrees and acknowledges
that, to the extent permitted by applicable law, in no event shall Tenant be entitled to damages
hereunder and any remedies pursued in connection with this Lease shall be subject to Section 40.
21. Indemnity Against Costs and Charges.
21.1. Costs and Charges. Tenant shall be liable to Landlord for all costs, charges,
expenses, reasonable attorney's fees at all levels, and damages which may be incurred or sustained
by Landlord as a result of Tenant's breach of any of the provisions of this Lease. Any sums due to
Landlord under the provisions of this Lease shall constitute a lien against the interest of Tenant and
the Leased Premises and all of Tenant's property situated thereon to the same extent and on the same
conditions as delinquent rent would constitute a lien on the Leased Premises.
21.2. Attorney's Fees. If Tenant shall at any time be in default hereunder, and if
Landlord shall deem it necessary to engage an attorney to enforce Landlord's rights and Tenant's
obligations hereunder, Tenant agrees to promptly reimburse Landlord for the reasonable expenses
incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, whether
suit be brought or not and if suit be brought, then Tenant shall be liable for expenses incurred at both
the trial and all appellate levels.
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22. Indemnification Against Claims.
22.1. Certain Claims. Landlord shall not be liable to Tenant, its agents, servants,
employees, contractors, customers, or invitees for any damage to person or property caused by any
act, omission, or neglect of Tenant. Without limiting or being limited by any other indemnity in this
Lease, but rather in confirmation and furtherance thereof, Tenant shall indemnify and save Landlord,
its affiliates, employees and agents harmless from and against any and all losses, damages, liabilities,
claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys' fees
and litigation expenses at all levels) in connection with injury to or death of any person or damage to
or theft, loss or loss of the use of any property occurring in or about the Leased Premises or the
Building or arising from Tenant's use and occupancy of the Leased Premises, or from the conduct of
its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the
Leased Premises or the Building, or occasioned in whole or in part by any of the following:
22.1.1. An act or omission on the part of Tenant, or any employee, agent,
contractor, invitee, guest, assignee or sub-tenant of Tenant;
22.1.2. Any misuse, neglect, or unlawful use of the Leased Premises or any
of its facilities by Tenant, or any employee, agent, contractor, invitee, or guest, assignee or
sub-tenant of Tenant, excluding trespassers upon the Leased Premises;
22.1.3. Any breach, violation, or non-performance of any undertaking of
Tenant under this Lease; or
22.1.4. Any other damage, injury or loss in connection with the use or
occupancy of the Leased Premises by Tenant or anyone holding or claiming to hold through
or under the Lease.
22.2. Repair. Tenant agrees to promptly repair at Tenant's cost all damages to the
Leased Premises or other facilities used in connection therewith, caused by Tenant, its contractors,
agents, employees or invitees.
22.3. Defense of Claims. If any claim, action, or proceeding is made or brought
against Landlord by reason of any act or omission of Tenant, its contractors, agents, employees or
invitees, then, upon demand by Landlord, Tenant at its sole cost and expense, shall resist or defend
such claim, action or proceeding on behalf of Landlord, by the attorneys for Tenant's insurance
carder (if such claim, action, or proceeding is covered by insurance), and otherwise by such attomeys
as Landlord shall approve, which approval shall not be unreasonably withheld.
23. Signs and Advertising. Except for temporary promotional signage and banners for
Miami City Ballet events which comply with all applicable codes and governmental requirements,
Tenant shall not permit the painting and display of any additional signs, plaques, lettering or
advertising material of any kind on the Leased Premises which did not exist on the Effective Date,
without the prior written consent of Landlord. All additional signage shall comply with any signage
standards established by Landlord (including, without limitation, the City's Naming Ordinance, as
codified in Chapter 82, Article VI, Sections 82-501 through 82-505 of the City Code, if applicable,
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and provided that Tenant has not been expressly exempted from the provisions therein), all
applicable building codes, and any other municipal, county, state and federal laws.
Unless Landlord (acting by and through its City Manager) shall otherwise agree in writing,
the Leased Premises shall bear the name "Ophelia & Juan Js. Roca Center" throughout the Term of
this Lease and all existing signage on the exterior or interior of the Leased Premises shall be
maintained throughout the Term. At all times during the Lease Term, Tenant shall comply with the
City's Naming Ordinance, provided that Tenant has not been expressly exempted from the
provisions therein.
24. Effect of Conveyance. The term "Landlord" as used in this Lease means only the
owner of the Land and the Leased Premises on the Effective Date, so that in the event of any sale of
the Land or Leased Premises, or in the event of a lease of such Land or Leased Premises, Landlord
shall beand hereby is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement between the parties, or
between the parties and the purchaser at such sale, or the lease of the Building, that the purchaser or
Tenant has assumed and agreed to carry out all covenants and obligations of Landlord hereunder.
25. Damage to the Leased Premises.
25.1. Casualty Damage.
25.1.1. Leased Premises Usable. In the event the Leased Premises shall be
damaged by fire, explosion or any other casualty or occurrence not due to Tenant's
negligence (hereinafter collectively referred to as the "damaged property"), and such damage
does not render the Leased Premises untenantable in whole or in part, as determined by
Landlord, in whole or in part, and such damage is covered by Landlord's insurance, if any,
Landlord, shall, as soon as practicable, utilize the insurance proceeds to repair the damaged
property; provided, however, that the Base Rent and Additional Rent due hereunder shall not
be abated.
25.1.2. Leased Premises Unusable. In the event the damaged property
renders the Leased Premises untenantable in whole or in part, as determined by Landlord,
Landlord shall as soon as practicable utilize the insurance proceeds to repair' the damaged
property, and the rent shall be abated proportionately as to the portion of the Leased Premises
rendered untenantable until such time as Tenant may reopen for business after restoration or
repair of the damaged property; provided, however, that Landlord shall have the right to elect
not to repair or restore the damaged property, and in such event, this Lease and the tenancy
hereby created shall cease as of the date of said occurrence of damage or casualty, with any
rent to be adjusted as of such date. Notwithstanding the foregoing, in the event (a) Landlord
elects not to restore or repair the damage; (b) Tenant gives written notice to Landlord within
sixty (60) days of the casualty that Tenant is willing to repair the damage with its own funds;
(c) within six (6) months following such notice, Tenant proves, to Landlord's sole
satisfaction and discretion, that it has adequate funds immediately available to effect the
repair; and (d) Landlord and Tenant, each acting in its reasonable discretion, agree within
sixty (60) days after Landlord deems that Tenant has demonstrated that it has adequate funds
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to effect the repair, to the conditions, timing, plans, procedures, contractors, subcontractors,
disbursement mechanisms and other matters with respect to the repair, then and in that event,
Tenant shall be entitled to effect the repair with its own funds; provided that Tenant must
complete any and all repairs and/or restoration no later than eighteen (18) months from the
date of Landlord's approval of Tenant's funding capability (as provided in subsection (c)
above).
25.2. Other Damage. Landlord shall not be liable or responsible to Tenant for any
loss or damage to any property or person occasioned by theft, fire, act of God, public enemy, riot,
strike, insurrection, war, act or omission of any tenant or occupant of the Leased Premises, any
nuisance or interference caused or created by any tenant or occupant of the Leased Premises,
requisition or order of governmental body or authority, court order or injunction, or any cause
beyond Landlord's reasonable control or, except in the case of the gross negligence or intentional
misconduct of Landlord, for any damage or inconvenience which may arise through repair or
alteration of any part of the Leased Premises. Tenant shall notify Landlord of any damage to the
Leased Premises, regardless of the cause of such damage.
26. Waiver of Subrogation Rights. Notwithstanding anything to the contrary contained in
this Lease, Tenant hereby waives any and all rights of recovery, claim, action or cause of action,
against Landlord, its agents, servants, officers or employees, for personal injury, loss or damage to
business, and loss or damage that may occur to the Leased Premises, the Building or any
improvements thereto or thereon or any personal property of such party therein or thereon by reason
of fire, the elements, or any other cause insured under any insurance policy maintained by Landlord
or Tenant, as applicable, regardless of cause or origin, including negligence of the other party hereto,
its agents, officers, partners, shareholders, servants or employees, and covenants that no insurer shall
hold any right of subrogation against such other party. The foregoing waiver shall apply regardless
of the cause or origin of such claim, including, but not limited to, the negligence of a party, or such
party's agents, officers, employees or contractors, but shall not apply if it would have the effect, but
only to the extent of such effect, of invalidating any insurance coverage of Landlord or Tenant.
Tenant shall obtain any special endorsements, if any, required to evidence compliance with the
aforementioned waiver.
27. Quiet EnjoYment. Tenant shall have quiet enjoyment of the Leased Premises and shall
not be evicted or disturbed in possession of the Leased Premises by persons claiming by, through or
under Landlord so long as Tenant complies with the terms and conditions of this Lease.
28. Waiver.
28.1. Continuing Rights. It is mutually covenanted and agreed to by the parties
hereto that the failure of Landlord to insist upon the strict performance of any of the conditions,
covenants, terms or provisions of this Lease, or to exercise any option herein conferred, shall not be
considered or construed as a waiver or relinquishment of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in full force and effect.
28.2. Receipt of Funds. The receipt of any sum paid by Tenant to Landlord after
breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver
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of such breach, but shall be taken, considered and construed as payment for use and occupancy, and
not as rent, unless such breach is expressly waived by Landlord in writing.
29. Public Benefits. As prime consideration for the granting of this Lease, Tenant agrees
to comply with, and provide to Landlord the public benefits set forth in Exhibit B (the "Public
Benefits") hereto throughout the Lease Term.
29.1. Continuation of Public Benefits. Tenant acknowledges that the continued
provision of the Public Benefits is a prime consideration for Landlord's granting of this Lease. To
that end, no Public Benefit may be materially altered, suspended, or terminated without Landlord's
prior written consent, which consent will not be unreasonably withheld.
29.2. Request to Change Public Benefits. If Tenant determines, in its reasonable
judgment, that one or more of the Public Benefits cannot be provided because they are either not
financially self-sustaining or generating sufficient public interest, Tenant shall provide Landlord with
a minimum of sixty (60) days prior written notice (a "Benefit Termination Notice"), which notice
shall:
29.2.1. set forth the reason that the Benefit can no longer be provided;
29.2.2. include financial documentation in support of the argument that the
Benefit is not financially feasible or self-sustaining or generating sufficient public interest;
Benefit; and
29.2.3. provide the date upon which Tenant intends to cease providing the
29.2.4. provide at least two (2) alternative Benefits of equal or greater value
than the Benefit being terminated, and a proposed commencement date for the new Benefit.
29.3. Landlord's Review of Request to Change Benefit. Upon Landlord's receipt
and review of a Benefit Termination Notice, Landlord (acting through its City Manager), in its
reasonable discretion, may:
29.3.1. approve Tenant's request to terminate the Public Benefit, and advise
Tenant of Landlord's selection of the new Benefit from the options presented by Tenant, and
thereafter Landlord and Tenant shall amend the Public Benefits exhibit to this Lease; or
29.3.2. approve Tenant's request to terminate the Public Benefit, but require
Tenant to provide additional options for the new Benefit (other than the options provided in the
Benefit Termination Notice), which additional options shall be submitted to Landlord within thirty
(30) days after Landlord requests the additional options.
29.4. Failure to Agree on Public Benefit Change. If, after making a diligent, good
faith effort, Landlord and Tenant are unable to agree upon the provision of a new Benefit within one
year after receipt of Tenant's Benefit Termination Notice, then Landlord, at its sole option and
discretion, may declare the Lease in default, pursuant to Section 18 of the Lease.
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30. MPAC Performances. During the Term Tenant agrees to perform as a resident
company at the Miami Performing Arts Center ("MPAC") located in the City of Miami beginning in
October 2006. Tenant's obligation to perform at the MPAC is subject, however, to the following
conditions:
30.1. MPAC in Operation. Tenant's obligations shall only arise after the MPAC is
open for business and shall continue only during periods in which the MPAC remains in operation.
30.2. Financial Viability. Landlord will perform an annual evaluation during May
of each calendar year to determine Tenant's financial success at MPAC, with the first evaluation to
take place two years after Tenant commences performing at MPAC.
30.3. Return to Jackie Gleason Theater of the Performing Arts (TOPA). If either
Landlord or Tenant reasonably determines that performing at MPAC is not financially practical for
Tenant, and TOPA remains available for performances, Tenant shall return to TOPA for its Miami-
Dade subscription season performances as soon as reasonably practical and will continue to perform
its season performances there so long as TOPA is available. If TOPA is no longer available for
performances, Tenant may stage its major productions at MPAC, and stage its smaller productions at
other locations within the City of Miami Beach, including Tenant's own studio theater.
30.4. Acknowledgment of Landlord. Tenant agrees to include an acknowledgment
of Landlord prominently displayed in all printed Playbills, with the language for such
acknowledgment to be approved by the City Manager.
31. Estoppel Certificate. Within ten (10) days after request by Landlord or Tenant, or in
the event that upon any sale, assignment, or hypothecation of the property by Landlord, an estoppel
certificate shall be required from the other, Tenant and Landlord agree to deliver in recordable form a
certificate to any proposed mortgagee or purchaser, or to Landlord or Tenant or their respective
designee, certifying, if applicable, that this Lease is in full force and effect and that there are no
defenses or off-sets thereto, or stating those claims by Tenant or Landlord.
32. Landlord and Tenant not in Business Together. It is understood and agreed that
neither Landlord nor Tenant shall in any event be construed or held to be partner or co-venturer of
the other party, nor shall either party be liable for any debts incurred by the other party in the conduct
of their respective businesses, but it is understood and agreed that the relationship is and at all times
shall remain that of landlord and tenant.
33. Availability of Leased Premises. Tenant shall continue to make the Leased Premises
available to the City of Miami Beach as a polling place for all elections as well as an emergency
management command center during hurricanes or other emergency situations.
34. Notices. For purpose of giving any notice to, or making any demand or request of,
any party of matters relating to this Lease, such notice, demand or request shall be given in writing
and shall be sent by facsimile (with electronic transmission confirmed) or delivered by hand,
certified mail (return receipt requested), or overnight courier, postage and fees pre-paid, to the
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City of Miami Beach - Lease Agreement - 2 8 06 - RMG
following addresses (or at such other addresses as may be designated in writing by the parties) and
shall be deemed effective upon receipt: ,
Landlord:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to (which shall not constitute notice):
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
and:
Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Tenant:
Miami City Ballet, Inc.
Attn: Executive Director
2200 Liberty Avenue
Miami Beach, Florida 33139
With copy to (which shall not constitute notice):
Weiss Serota Helfman Pastoriza Cole & Boniske, PA
2665 South Bayshore Drive, Suite 420
Miami, Florida 33156
Attn: Gail D. Serota, Esq.
35. Entire and Binding Agreement. This Lease contains all of the agreements between
the parties hereto, and it may not be modified in any manner other than by agreement in writing
signed by all the parties hereto or their successors in interest. The terms, covenants and conditions
contained herein shall inure to the benefit of and be binding upon Landlord and Tenant and their
respective successors and assigns, except as may be otherwise expressly provided for in this Lease.
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City of Miami Beach - Lease Agreement - 2_8_06 - RMG
36. Provisions Severable. If any term or provision of this Lease or the application thereof
to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and each term and provision
of this Lease shall be valid and enforced to the fullest extent permitted by law.
37. Captions. The captions contained herein are for convenience and reference only and
shall not be deemed a part of this Lease or construed as in any manner limiting or amplifying the
terms and provisions of this Lease to which they relate.
38. Number and Gender. Whenever used herein, the singular shall include the plural and
the plural shall include the singular, and the use of one gender shall include all genders.
39. Governing Law. This Lease shall be governed by, construed and enforced in
accordance with the laws of the State of Florida.
40. Limitation of Liability. The Landlord desires to enter into this Lease only if it can
limit Landlord's liability for any cause of action for money damages due to an alleged breach by
Landlord of this Lease, so that its liability for any such breach never exceeds the sum of Ten
Thousand Dollars and no/100 ($10,000.00). Tenant hereby expresses its willingness to enter into
this Lease with Tenant's recovery from Landlord for any damage action for breach of contract to be
limited to a maximum amount of Ten Thousand (10,000.00) Dollars. Accordingly, and
notwithstanding any other term or condition of this Lease, Tenant hereby agrees that Landlord shall
not be liable to Tenant for damage in an amount in excess ofTen Thousand ($10,000.00) Dollars
for any action or claim for breach of contract arising out of the performance or non-performance of
any obligations of Landlord under this Landlord. Nothing contained in this Section 40 or elsewhere
in this Lease is in any way intended to be a waiver of the limitation placed upon Landlord's liability
as set forth in Florida Statutes, Section 768.28.
41. Surrender of the Leased Premises. The Tenant shall, on or before the last day of the
Term, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to
Landlord the Leased Premises, together with any and all equipment, fixtures, furnishings, appliances
or other personal property, if any, located at or on the Leased Premises and used by Tenant in the
maintenance, management or operation of the Leased Premises, excluding any trade fixtures or
personal property, if any, which can be removed without damage or injury to the Leased Premises,
free of all liens, claims and encumbrances and rights of others or broom-clean, together with all
structural changes, alterations, additions, and Improvements which may have been made upon the
Leased Premises, in good order, condition and repair, reasonable wear and tear excepted, subject,
however, to the subsequent provisions of this Section 41. Any property which pursuant to the
provisions of this Section is removable by Tenant on or at the Leased Premises upon the termination
of this Lease and is not so removed may, at the option of Landlord, be deemed abandoned by Tenant,
and either may be retained by Landlord as its property or may be removed and disposed of at the sole
cost of Tenant in such manner as Landlord may see fit. If the Leased Premises and personal
property, if any, are not surrendered at the end of the Term as provided in this Section, Tenant shall
compensate Landlord for all damages which Landlord may suffer by reason thereof, and shall
indemnify and hold Landlord harmless against all claims made by any succeeding tenant or
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City of Miami Beach - Lease Agreement - 2 8 06 - RMG
purchaser, so far as such delay is occasioned by the failure of Tenant to surrender the Leased
Premises as and when herein required.
42. Time is of the Essence. Time is of the essence in every particular and particularly
where the obligation to pay money is involved.
43. 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 and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County,
Florida.
44. Waiver of Jury_ Trial. LANDLORD AND TENANT HEREBY KNOWINGLY
AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT LANDLORD AND TENANT MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS LEASE.
[SIGNATURES ON THE FOLLOWING PAGE]
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City of Miami Beach - Lease Agreement - 2 8 06 - RMG
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
date and year first above mentioned.
ATTEST:
CITY CLERK
LANDLORD:
yBEACH, FLORIDA
WITNESSES:
P~r~t Name: ~?e~' '/ ~i. ~ .,~'/z..
Print
TENANT:
MIAMI CITY BALLET, INC.,
a Florida n~t-for-profit corporation
By: ~']}Q /~'~~
Prim Name
CORPORATE SEAL
(affix here)
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City of Miami B~a~h - Lease ~ent- 2~t~_06 - RMG
EXHIBIT "A"
LEGAL DESCRIPTION
City of Miami Beach - Lease Agreement - 2_8_06 - RMG
Exhibit "A"
Legal Description
A part of Section 34, Township 53 South, Range 42 East, being more particularly described as
follows:
Commence at the intersection of the center lines of Meridian Avenue and 17th Street, as shown
in the Amended Plat of Golf Course Subdivision of the Alton Beach Realty Company, recorded
in Plat Book 6, Page 26, Public Records of Dade County, Florida; thence run South 89 degrees
59' 05" East, along the center line of 17th Street for a distance of 768.52 feet to a point; thence
run North 0 degrees 00' 58" West for a distance of 173.38 feet to the POINT OF BEGINNING;
thence continue along the last described bearing for a distance of 33.12 feet to a point; thence run
North 89 degrees 59' 52" East for a distance of 99.24 feet to a point; thence run North 0 degrees
06' 53" West, for a distance of 144.02 feet to a point; thence run North 89 degrees 56' 37" West,
for a distance of 195.00 feet to a point of tangency; thence run along the arc of a circular curve
concave to the Southeast having a central angle of 50 degrees 06' 23" and a radius of 40.00 feet
for a distance of 34.98 feet to a point on intersection with a circular curve which radius bears
North 70 degrees 28' 44" East from said point of intersection; thence run along the arc of said
curve, which is concave to the Northeast, having a central angle of 30 degrees 40' 19" and a
radius of 155.00 feet for a distance of 82.98 feet to a point; thence run South 44 degrees 26' 55"
East for a distance of 51.26 feet to a point located on a circular curve which radius bears South
45 degrees 33' 05" West from said point; thence run along the arc of a circular curve, concave to
the Southwest having a central angle of 16 degrees 12' 58" and a radius of 260.29 feet for a
distance of 73.67 feet to the POINT OF BEGINNING.
EXHIBIT "B"
PUBLIC BENEFITS
Commencing with the 2006-2007 season, and for each successive season thereafter throughout the
term of the Lease, Miami City Ballet ("MCB") will organize and administer the following programs
exclusively for the residents of Miami Beach:
1. Provided that the new Contemporary Dance Series is financially self-sustaining during the
2005-2006 season, MCB will continue to produce this series each season. The series will
include a minimum of 2 programs each season, with 3 performances of each program.
2. MCB or its school will produce at least one Young People's Program, per season, for
children and families.
.
MB (My Beach/My Ballet) Days at MCB: For each month that the dancers are on contract,
MCB will designate a special day, for Miami Beach residents only, to attend a rehearsal in its
studios. Miami Beach ID and advance reservation will be required.
4. Free attendance at a rehearsal for the Miami City Ballet School's annual Student Showcase
program. Miami Beach ID and advance reservation will be required.
5. The Miami City Ballet School will award at least ten (10) financial scholarships each season
to talented children with financial need who are residents of Miami Beach.
6. Arts students (music, dance, visual arts, etc.) enrolled at Miami Beach High School may sign
up to attend a free studio rehearsal.
.
MCB will give a minimum of 100 free tickets to each of its performance series (Programs 1
through 4 and The Nutcracker) at Miami Performing Arts Center (MPAC), or in the event
MCB is no longer performing at MPAC, at the nearest successor South Florida venue, to
Miami Beach-based charitable organizations that serve children and seniors.
8. Miami Beach residents who are registered voters will receive a 10% discount in the MCB
girl shop.
.
MCB will provide the following number of complimentary tickets to the City of Miami
Beach each annual performance season: 26 tickets per program at Jackie Gleason Theater of
the Performing Arts (TOPA) or MPAC; 18 tickets per program at the Byron-Carlyle Theater,
Colony Theater, or at MCB's in-house performance facility.
Exhibit B
445940 8.DOC
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