98-22739 RESO
RESOLUTION NO: 98-22739
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
A SECOND AMENDMENT TO THE LEASE AGREEMENT
WITH THE CONCERT ASSOCIATION OF FLORIDA, INC.,
FOR THE COLONY THEATRE, LOCATED AT 1040
LINCOLN ROAD, MIAMI BEACH, FLORIDA, AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK
TO EXECUTE SAID SECOND AMENDMENT.
WHEREAS, on July 27, 1988, the Mayor and City Commission adopted Resolution No. 88-
19309, approving a Lease Agreement with the Concert Association of Greater Miami, Inc. for the
lease of the Colony Theatre located at 1040 Lincoln Road; and
WHEREAS, on December 15, 1993, the Mayor and City Commission adopted Resolution
No. 93-20990, approving the execution of a new Lease Agreement, which was to expire on the 31 st
day of August, 1997; and
WHEREAS, on July 16, 1997, the Mayor and City Commission adopted Resolution No.
97-22464, approving the execution of the Amendment to the Lease Agreement, extending the term
of the Lease for a period of three years, commencing September 1, 1997 and ending August 31,
2000; and
WHEREAS, pursuant to said amendment the City and the Concert Association agreed on
an operating subsidy of $55,000 for the Lease Year ending August 31, 1998, $50,000 for the Lease
Year ending August 1999, and $45,000 for the Lease Year ending August 31, 2000; and
WHEREAS, pursuant to the Lease Agreement said operating subsidy is to be reduced by
the amount of the revenue derived from the cafe that is located adjacent to the Colony Theatre; and
WHEREAS, the Concert Association has requested that the City share the revenue derived
from the cafe, in light of the increased revenue which is to be generated from the cafe, as a result of
a renegotiated agreement with the cafe operator; and
WHEREAS, the City and the Concert Association have agreed that any revenues derived
from the cafe will be divided between the City (70%) and the Concert Association (30%), and
WHEREAS, the City and the Concert Association have further agreed that the City will use
its share to offset the cost of any maintenance and capital improvement required at the Colony
Theatre that is the responsibility of the City, and the Concert Association will use its share to fund
capital improvements, and maintenance not performed by the City to the Colony Theatre, and
WHEREAS, the Concert Association has amended the schedule of fees that is charged to
the users of the Colony Theatre and said schedule of fees has been attached and incorporated into
the Second Amendment to the Lease Agreement, and
WHEREAS, the Sub-lease and Amended Sub-lease Agreements between the Concert
Association and HKS, Inc., the operator of the cafe, have been incorporated into the Second
Amendment to the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH that the Second Amendment to the
Lease Agreement between the City of Miami Beach and the Concert Association of Florida,
Inc. for the Colony Theatre, located at 1040 Lincoln Road, Miami Beach, Florida, be
approved subject to the amendments contained therein and as attached hereto; and the Mayor
and City Clerk are herein authorized to execute the attached Second Amendment to the Lease
Agreement.
PASSED AND ADOPTED THIS 20th day of
May
,1998.
Attest:
~~
MAYOR
~RKP~
JD:rd
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECUTION
T:\AGENDA \MA Y0698\CONSENT\CLNY2RES.MDB 4/29/98
1Ii./dA~' Y C!IM
~ITY OF MIAMI BEACH
;rTY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
Ittp:\\ci. miami-beach. fl.us
COMMISSION MEMORANDUM NO. ~g
TO:
Mayor Neisen Kasdin and
Members of the City Commi
DATE: May 20~ 1998
FROM:
Sergio Rodriguez
City Manager
SUBJECT:
A RESOLU OF THE MAYOR AND CITY COMMISSION OF THE
CITY 0 MIAMI BEACH, FLORIDA, APPROVING A SECOND
AMENDMENT TO THE LEASE AGREEMENT WITH THE CONCERT
ASSOCIATION OF FLORIDA, INC., FOR THE COLONY THEATRE,
LOCATED AT 1040 LINCOLN ROAD, MIAMI BEACH, FLORIDA, AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE SAID SECOND AMENDMENT.
ADMINISTRATION RECOMMENDATION:
Approve the Resolution.
BACKGROUND:
On July 27, 1988, the Mayor and City Commission adopted Resolution No. 88-19309 approving a
Lease Agreement between the Concert Association of Greater Miami, Inc. (Concert Association) and
the City of Miami Beach (City), for the use of the Colony Theatre. Said Lease Agreement was to
expire on August 31, 1994.
On December 15, 1993, the Mayor and City Commission waived the provisions of Ordinance No.
92-2783, which require public bidding and an independent appraisal, and adopted Resolution No.
93-20990 approving the execution of a n~ Lease Agreement, with the Concert Association. Said
Lease Agreement was to expire on August 31, 1997.
On July 16, 1997, the Mayor and City Commission adopted Resolution No. 97-22464 approving an
Amendment to the Lease Agreement extending its term for one three (3) year period which
commenced on September 1, 1997 and ends August 31, 2000.
Pursuant to the terms of the amended Lease Agreement the City is providing an operating subsidy
to the Concert Association of $55,000 in 1998, $50,000 in 1999, and $45,000 in 2000. Additionally,
the City is responsible for the maintenance of the facility. In turn, the Concert Association remits
to the City all revenue derived from the adjoining cafe. The Concert Association recently
renegotiated their agreement with the cafe operator, which culminated with an amended sub-lease
continued...
1 Agenda Item Cl A
Date S-LD-Cj ~
SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to the Lease Agreement dated September 27, 1994, for the Colony
Theatre, located at 1040 Lincoln Road, Miami Beach, Florida, between the City of Miami Beach,
a Florida Municipal Corporation (City), having its principal office at 1700 Convention Center Drive,
Miami Beach, Florida, hereinafter referred to as the "Lessor," and the Concert Association of
Florida, Inc. (Concert Association), having its principal office at 555 - 17th Stre~~ Beach,
Florida, hereinafter referred to as the "Lessee," is entered into this ")..01fJ. day of , 1998.
WITNESSETH
WHEREAS, on July 27, 1988, the Mayor and City Commission adopted Resolution No. 88-
19309, approving a Lease Agreement with the Concert Association of Greater Miami, Inc. for the
lease of the Colony Theatre located at 1040 Lincoln Road; and
WHEREAS, on December 15, 1993, the Mayor and City Commission adopted Resolution
No. 93-20990, approving the execution of a new Lease Agreement, which was to expire on the 31 st
day of August, 1997; and
WHEREAS, on July 16, 1997, the Mayor and City Commission adopted Resolution No.
97-22464, approving the execution of an Amendment to the Lease Agreement, extending the term
of the Lease for a period of three years, commencing September I, 1997 and ending August 31,
2000; and
WHEREAS, the City and the Concert Association have agreed to enter into a Second
Amendment to the Lease Agreement.
NOW, THEREFORE, the Lease Agreement, as amended, is further amended as follows:
1. Paragraph 24, on Page 9 of the Lease Agreement is deleted in its entirety and replaced with
the following language:
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 and
the Lessor 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 $55,000 for the Lease
Year ending August 31, 1998, $50,000 for the Lease Year ending August 1999, and
$45,000 for the Lease Year ending August 31, 2000. Additionally, any revenues
Page 1 of ~
derived from the cafe described in Paragraph 22, its successors or assigns, will be
disbursed as follows:
a) Seventy percent (70%) of said revenues will be paid to the Lessor by
the Lessee, and the Lessor will use said monies to offset the cost of
any maintenance and capital improvements, required at the Colony
Theatre, that is the responsibility of the Lessor.
b) Thirty percent (30%) of said revenues will be retained by the Lessee,
and be used solely for the funding of capital improvements, and
maintenance not performed by the Lessor to the Colony Theatre.
Any obligation of Lessor within this lease which extends beyond the current fiscal
year is subject to the budget appropriations in subsequent years.
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.
2. Paragraph 23, on Page 9 of the Lease Agreement, entitled "Rental Fees," is deleted in its
entirety and replaced with the following language:
Rental Fees: An amended schedule of rental fees to be charged to users of the Colony
Theatre is attached hereto as Amended Exhibit "B". Lessee shall not change the
scheduled rental fees without the prior written consent of Lessor.
3. Paragraph 21, on Page 8 of the Lease Agreement, entitled "Assignment and Subletting," is
deleted in its entirety and replaced with the following language:
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, without
the written consent of the Lessor.
4. The Sub-lease Agreement, dated March 1994, and the Amended Sub-Lease Agreement dated
August 29, 1997, by and between the Concert Association of Florida , Inc. and HKS, Inc. for
the cafe area and food and beverage areas within the Leased Premises is herein retroactively
approved by the City, and shall be incorporated herein and attached hereto as Exhibit "C"
and Exhibit "D", respectively.
5. All other terms and conditions ofthe Lease Agreement between the Lessor and the Lessee
shall remain in full force an effect.
Page 2 of ,
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to the
Lease Agreement to be executed by their duly authorized officials on the day first above indicated.
ATTEST:
CITY OF MITIACH' FLORIDA
~~
MAYOR
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CITY CL RK
WITNESSES:
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CONCERT ASSOCIATION OF FLORIDA, INC.
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/ / Authorized ~~~natory
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Name and Title of S~natory
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T:\AGENDA \MA Y0698\CONSENliCLNY2AGR.MDB 4/24/98.1
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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Page;) of j
RIDER TO COLONY THEATER CONTRACT
Licensee:
Performance:
Contact Name:
Address:
Phone:
Fax:
1. PAYMENT SCHEDULE
Theater Rental & House Fees
THEATER RENTAL $
HOUSE FEES $
TOTAL $
50% non-refundable security deposit
Balance
Ticketing Charges
2% of Gross Sales at Colony Box Office Window
3% of Gross Sales at TicketMaster Outlets & Phones
Ticket Printing Cost of $.15 GA or $.20 Reserved Seating
Insurance Requirement
Payment of $275 Daily or Receipt of Certificate of Insurance
Labor & Equipment Rental
Labor Invoice with Payment to Individual Technicians
Equipment Rental Invoice
DUE
Deducted from TicketMaster settlement
Deducted from TicketMaster settlement
Deducted from TicketMaster settlement
Due upon load-out
Due upon load-out
2. LICENSEE DESIGNATION
() Non-Profit organization designated by Section 501 (c) 3 of the Internal Revenue Code
A copy of the IRS determination letter must be provided by applicant
() Sales tax-exempt organization as designated by the Florida Department of State
A copy of the State of Florida sales tax exemption certificate must be provided by applicant
() Commercial Organization
Licensee FederallD #:
3. THEATER RENTAL RATES & SCHEDULE
TOTAL
Commercial Organization
Performance Period
2nd Performance on Same Day
Load-in or Rehearsal Period
Overtime:
After 6 hour day
Late Storage Fee
$800 for 6 hour period, or 10% of box office
gross receipts, whichever is greater
$400 for additional performance
$450 for 6 hour period
$100 per hour
$100 daily
Page 1
Amended Exhibit liB"
3. THEATER RENTAL RATES & SCHEDULE
Non-Profit Organization
Audited copy of Non-Profit Group's Annual Operating Budget for FY 96-97 must be provided by Applicant.
Annual Operating Budget
$1,000,000 or more
$ 500,000 - 999,999
$ 250,000 - 499,999
$ 100,000 - 249,000
$ less than $100,000
2nd Performance on Same Day
Load-in or Rehearsal Period
Overtime:
After 6 hour day
Late Storage Fee
$700 for 6 hour performance period
$600 for 6 hour performance period
$500 for 6 hour performance period
$400 for 6 hour performance period
$350 for 6 hour performance period
$200 for additional performance
$250 for 6 hour period
$50 per hour
$100 daily
Performance Dates:
Time:
Rate:
Load-in Dates:
Time in:
Time Out:
Rate:
Rehearsal Dates:
Time in:
Time Out:
Rate:
Theater Rental Sub-total
Sales Tax @ 6.5%
Theater Rental Total
$
$
4. HOUSE FEES
TOTAL
Front of House Fee, Includes:
Box Office Personnel, Ticketing Set-up & Servicing
House Manager, Ushers & Ticket Takers
Maintenance Crew
Front of House Fee, Additional Performance on Same Day
Front of House/House Manager Fee for Receptions
Merchandising Commission
Videotaping for Commercial Use or Broadcast
$250 per performance
$100 per performance
$18.00 per hour with a 2-hour minimum
10% gross sales
$600 flat fee
Performance Dates:
Time:
Rate:
House Fees Sub-total
Sales Tax @ 6.5%
House Fees Total
$
$
5. CONCESSIONS & RECEPTION INFORMATION
Page 2
CAF's authorized concessionaire, HKS of Dade, shall have exclusive right to operate the
concession facilities at all times and to cater all events held on the premises. Please contact the
Special Events Manager for catering information at (305) 535-8020.
6. BOX OFFICE INFORMATION
The Colony Theater has an exclusive agreement with TicketMaster for all ticketing for every performance.
The TicketMaster system produces an audited final settlement of all ticket sales generated at the Colony
Box Office, Outlet & Phone Sales, and tickets promoter takes off the system to sell. Licensor and
Licensee acknowledge and agree that the TicketMaster settlement provides the most reliable information
available regarding ticket revenues and shall be binding and conclusive as to the obligations between
Licensee and Licensor.
1. The Colony will program your event on-line, without a TicketMaster set-up fee.
2. The Colony will service your performance fully with our box office personnel responsible for
advance sales through the Colony Box Office Window and TicketMaster Will Call, Day of
Performance Sales and Preparation of Final Settlement. The Colony Theater Box Office
Window does not take phone orders and accepts cash only for all sales, no checks or credit
cards.
3. The Colony will permit Licensee to request up to 250 tickets for each performance to sell
through their own office at a ticket printing cost of $.15 per ticket for General Admission
events, and $.20 per ticket for Reserved Seating Events, in addition to $.10 per ticket
charged by TicketMaster. Licensee may return any unsold portion of this allotment to the
Colony Theater Box Office up to 48 hours prior to performance for sale, but no later than
that time. The Colony is not responsible for any monies generated from Licensee's off-site
sales. Licensee is responsible for providing any off-site sales figures for inclusion in the
final settlement for purposes of determining commercial gross receipts against minimum
rental payment. The Colony Theater will not duplicate the printing of tickets for any of
Licensee's off-site ticket allotment.
4. The Colony will permit Licensee to submit an alphabetized, approved list of complimentary
tickets no less than two hours prior to curtain at a ticket printing cost of $.15 per ticket by
the Colony Box Office as well as $.10 per ticket by TicketMaster..
5. The Colony will permit Licensee only one representative present in the box office at one
hour prior to curtain and requests that one representative of Licensee remain in the box
office to sign off on the performance audit with the Box Office Manager.
6. No ticket monies may be removed from the Colony Box Office prior to final TicketMaster
settlement without the express permission of the Colony Theater General Manager.
7. In all advertising or other promotional materials which Licensee creates, Licensee must include the
full TicketMaster logo as included in the rental packet.
Ticketing Charges
2% of Gross Sales at Colony Box Office Window Deducted from final TicketMaster settlement
3% of Gross Sales at TicketMaster Outlets & Phones Deducted from final TicketMaster settlement
Ticket Printing Cost of $.15 GA, $.20 Res Seating Deducted from final TicketMaster settlement
TicketMaster Printing surcharge $.10 per ticket Deducted from final TicketMaster settlement
Printing Cost applies to free events & complimentary tickets
Ticketing Set-up Information:
The Colony Theater will place all performances on the TicketMaster system for sale no later
than two weeks after the receipt of two signed copies of the Rental Agreement and
payment of the theater rental's non-refundable 50% security deposit. Prior to the sale of
Page 3
any admission tickets, Licensee must provide the Colony Theater with the information to
be printed on all tickets. Should Licensee change ticketing information after performances
have been approved and built on the TicketMaster system, any adjustments may take at
least an additional 48 hours to take effect.
Bookkeeping & Final Settlement Information
1. The Colony Box Office will be responsible for keeping a daily log of ticket sales and will hold
all ticket revenues until final settlement.
2. The Licensee shall permit any agent or representative of the Colony Theater to inspect any
and all books and records of the Licensee under this Agreement in order to determine the
amount payable by the Licensee to the Colony Theater under this Agreement.
3. The Colony Theater shall be entitled to up to six (6) complimentary tickets for each
performance to be used at the discretion of the Colony Theater Management.
4. The Colony Box Office does not refund any ticket purchases except with the written
authorization of Licensee.
5. On the first Thursday following the final performance of the program, the Colony Box Office
will issue a check payable to Licensee for all ticket revenues minus TicketMaster
commissions. Final settlement check may be held until all Colony Labor and Equipment
Invoices have been paid in full.
7. INSURANCE REQUIREMENT
TOTAL:
1. Licensee is required to furnish $1,000,000.00 bodily injury/property damage with coverage
obtained either through (1) coverage under the Concert Association of Florida at a cost of
$275 per day; or (2) furnishing a Certificate of Insurance covering general liability in the
amount of $/,000,000.00 naming the Concert Association of Florida and the City of Miami
Beach as additional insured.
2. Licensee is required to furnish written proof that adequate Workmen's Compensation
insurance has been obtained covering all Licensee employees including, but not limited to,
stagehands.
8. TECHNICAL POLICIES AND RATES
Licensee must complete the attached Technical Questionnaire and return to the Colony
Technical Director no less than 2 weeks prior to performance in order to process their
event.
1. All labor invoices are payable in full before the final performance. If performance period is
longer than one week, restitution must be made at the end of each week, before that
week's final performance. Final settlement check may be held until all Colony Labor and
Equipment Invoices have been paid in full.
2. All labor checks must be payable to the individual technician. Any payments for labor
payable to "The Colony Theater" are subject to a 20% surcharge for payroll taxes and
administrative fees.
3. Licensee is required to use Colony Crew Heads for all events, consisting of a minimum of
1 Sound Technician, 1 Lighting Technician and 1 Stage Technician. Additional labor will
be provided by the Colony Theater as needed and coordinated through the Colony
Technical Director at the rates listed below.
4. Crew will get a lunch or dinner break after 5 hours of consecutive work. Crew will be
considered off the clock if given 1 hour break. Crew will be considered on the clock if given
Page 4
half an hour break.
S. Double time rates will apply on the following holidays: Christmas Eve and Day, New Year's
Eve, New Year's Day, Fourth of July, Martin Luther King Day, Thanksgiving, Memorial Day
and Labor Day.
6. Anytime a technician is requested to work past midnight or before 8:00 AM, technician shall be paid
time-and-a-half regardless of how many hours they have previously worked.
7. After 10 minutes past the hour it will be considered as a full half an hour time billed.
8. Technicians must be on the clock one hour prior to performance.
9. All equipment and company property must be removed from the facility immediately after
the final performance. Any equipment and company property not removed at that time may
be discarded or stored at the rate of $100 per day.
Labor Rates - Non-Profit Organization
Technician - Performance Period $45.00 flat fee per man
3 hour call from advertised time of curtain
Technician - Load-in or Rehearsal Period $12.00 per hour per man
3 technician & 4 hour minimum on all calls
Overtime $18.00 per hour per man
After 8 hours on a day or after 3 hours of a performance call
Labor Rates - Commercial Organization
Technician - Performance Period $50.00 flat fee per man
3 hour call from advertised time of curtain
Technician - Load-in or Rehearsal Period $15.00 per hour per man
3 technician & 4 hour minimum on all calls
Overtime $22.50 per hour per man
After 8 hours on a day or after 3 hours of a performance call
Labor Surcharge
For Labor checks payable to "Colony Theater"
Equioment Rental Rates
Marie Dance Floor
Followspot
Piano Rental
Piano Tuning
Wireless Microphone (each)
Storage Fee
Items left in theater or lobby after final load-out
Equipment Sales Tax
20% administrative fee
$65.00 for 1 st day
$45.00 per day
$70.00 per day
Market Rate
$50.00 per day
$150.00 per day
$50.00 additional days
$135.00 weekly
$210.00 weekly
$150.00 weekly
6.5% sales tax
9. ADVERTISING & PLAYBILL INFORMATION
1. Licensee is solely responsible for supplying their own theater programs for all
performances. Any theater program distributed at the Colony Theater must include the
following billing information:
The Colony Theater is managed by the Concert Association of Florida
Judy Drucker, President
Funding for the Colony Theater is provided in part by the Metro-Dade Cultural Affairs Council,
the Miami Beach Visitor & Convention Authority, and the City of Miami Beach.
2. At their discretion, the Colony may advertise in The Miami Herald, New Times or other
Page 5
publications with a strip advertisement of coming attractions. Licensee is encouraged to
submit program and ticket pricing information to the Colony for inclusion in these
advertisements, but the Colony accepts no responsibility for the accuracy of Licensee's
information or frequency of advertisements placed in any publications.
Licensee agrees to the terms and conditions of this RIDER TO COLONY THEATER CONTRACT as part of
the RENTAL AGREEMENT.
LICENSOR: CONCERT ASSOCIATION OF FLORIDA LICENSEE:
BY: BY:
Page 6
CONCERT ASSOCIATION OF FLORIDA. INC.
as agent for
COLONY THEATER
1040 Lincoln Road
Miami Beach, Florida 33139
(305) 674-1040
RENTAL AGREEMENT
WHEREAS ORGANIZATION NAME ("Licensee") wishes to rent the Colony Theater
for its performance of "PERFORMANCE. "
WHEREAS Concert Association of Florida ("CAF") ("Licensor") wishes to rent the
Colony Theater to ORGANIZATION NAME the parties agree to the following terms and
conditions:
1. TERM OF USE. Licensor hereby grants to Licensee and hereby accepts from
Licensor the use of the Colony Theater located at 1040 Lincoln Road, Miami Beach,
Florida 33139, solely for the purposes hereinafter set forth for use by Licensee for
the period of time stipulated in the "RIDER TO COLONY THEATER CONTRACT".
The Licensee agrees to follow the schedule as stated until the term of rental is
terminated in accordance with this agreement.
Licensor reserves for itself the exclusive use of the Theater at any and all times not
herein licensed to Licensee, subject to the terms and provisions of this agreement.
Licensee shall only have use of the premises pursuant to this agreement at the
date(s) and times stated.
2. BOOKING & PAYMENT POLICY. Licensee is subject to the terms and conditions
of this RENTAL AGREEMENT and RIDER TO COLONY THEATER CONTRACT
(the "Rental Documents"). These Rental Documents comprise Licensee's obligation
to rent the Colony Theater and are in full force and effect during the rental period.
The Rental Agreement must be returned to the Colony Theater, 1040 Lincoln Road,
Miami Beach, Florida 33139 along with payment of a non-refundable 50% security
deposit payable to "The Colony Theater". The signed documents and security
deposit must be received no later than 5:00 PM on the due date designated by the
RIDER TO COLONY THEATER CONTRACT or date will be automatically
cancelled. The balance shall be due no later than 5:00 PM on the due date
designated by the RIDER TO COLONY THEATER CONTRACT or date will be
automatically cancelled. Should the contract be prepared less than forty-five (45)
days prior to the commencement of the rental period, then the Rental Documents
and prepayment in full must be remitted no later than 5:00 PM, on the due date
designated by the RIDER TO COLONY THEATER CONTRACT or date will be
automatically cancelled. Licensee accepts sole responsibility for compliance with
the terms set forth in this paragraph.
3. INSURANCE. Licensee agrees to furnish Concert Association of Florida ten (10)
days prior to the beginning of the rental period, a Certificate of Insurance covering
general liability in the amount of $1,000,000.00 and written proof that adequate
Workmen's Compensation Insurance has been obtained covering all Licensee
employees including, but not limited to, stagehands. The Certificate of Insurance
shall show the Concert Association of Florida as named insured and the City of
Miami Beach as additional named insured, and should include but not be limited to
fire legal liability with an amount equal to that of the general liability insurance. Any
liability policy furnished by the Licensee under this section shall precede any claim
or action on any other insurance policy currently in effect for the Colony Theater.
The insurance policy shall reflect that Licensor is entitled to a written notice prior to
cancellation.
4. LICENSEE'S OBLIGATION. Licensee warrants that it shall be solely responsible
for all sums payable for Social Security, Unemployment Insurance, Disability
Benefits and other like enactments by any governmental authorities in connection
with License's employees and for all Federal, State and Local box office taxes and
any other taxes and fees payable. Licensee shall indemnify and hold Licensor
harmless from any loss or expenses resulting from Licensee's breach of the
warranties and representations contained herein.
Licensee agrees to pay all performance royalties, industry license fees including,
but not limited to, ASCAP and BMI, and acknowledge it has obtained the rights of
performance, that may be levied and holds Licensor free and harmless from any
liability caused by failure to pay such royalties, or obtain such rights.
5. AREAS OF USAGE. Licensor shall furnish and make available to Licensee the
following areas of usage:
a. Theater with seating capacity of 465 seats, (432 theater seats; 23 padded
bench style seats; 8 wheelchair areas.)
b. Theater license, which it shall properly maintain.
c. Adequate air conditioning for load-in, rehearsal and performances, and hot
water for the premises when required.
d. Lobby and front of house areas which may be used by Licensee for
performances only, and shall not be used by Licensee, its employees and
agents during rehearsals and set-ups. Colony Theater concession and cafe
areas are under the control of HKS Catering and subject to the terms and
conditions therein.
e. Box office services subject to the terms and conditions of the RIDER TO
COLONY THEATER CONTRACT.
f. Backstage area consisting of two dressing rooms, two restrooms and two
shower facilities.
g. A pay telephone located backstage for use by Licensee, its employees,
2
performers, representatives and authorized guests. The Colony Theater
business telephones, located in the General Manager's office, Technical
Director's office and Box Office, will not be used for personal or business
calls by Licensee, its employees, or representatives and is subject to a $25
daily usage fee.
6. PERSONNEL. licensor shall furnish and make available to Licensee the following
personnel:
a. General Manager on an appointment basis during the hours of 9:00 AM to
5:00 PM daily.
b. Technical Director and/or Assistant Technical Director on an appointment
basis during the hours of 9:00 AM and 5:00 PM daily, and during the load-in,
rehearsal, performance and load-out periods.
c. Food Services Manager on an appointment basis during the hours of 9:00
AM to 5:00 PM daily and during all receptions and performances.
d. House Manager, Ushers and Ticket Takers as included in the House Fee of
$250 per performance. House Manager shall report at least one hour prior
to performance time and one hour following performance end.
e. General Maintenance Worker as included in the House Fee of $250 per
performance. General Maintenance Workers is responsible for all lobby, box
office, theater and backstage areas. General maintenance and cleaning of
the facility is provided gratis during load-in and rehearsal periods. Additional
maintenance charges may be incurred during receptions.
f. Box Office Personnel as included in the House Fee of $250 per performance.
Box Office Personnel are responsible for programming all performances on-
line with the TicketMaster system, advance reservations through the Colony
Box Office Window and TicketMaster Will Call, Day of Performance Sales
and Preparation of Final Settlement. The Colony Theater Box Office Window
does not take phone orders and accepts cash only for all sales, no checks
or credit cards.
7. THEATER USAGE. Licensee shall not be permitted to build its settings or do any
construction, other than the installation and modification of its settings, in the
auditorium. Licensee shall not mark, paint, drill into or in any way mark or deface
any part of the licensed premises, or the building of which they form a part. No part
of Licensee's settings or properties shall be affixed to any surface on the premises
without Licensor's prior written consent. Licensee shall not in any way alter the
physical appearance and the plans of the premises, and will be subject to damages
accrued to premises.
Licensee is solely responsible for keeping floors or other areas to be cleaned
backstage clear of costumes, towels, props, scenery, etc~ Licensor will not be
responsible for any loss, damage or replacement of any items left on the premises,
nor any other damage or loss resulting from Licensee's failure to abide by the
conditions herein. All chairs and other equipment supplied by Licensor in the
3
dressing rooms, toilets and showers will remain in those locations and not be
transferred to other areas of the backstage. The cost for replacement of any
equipment that is lost or damaged by Licensee, its employees or representatives
will be due in full prior to load-out.
8. LOBBY USAGE. Licensee shall not be permitted to nail, tape or tack any materials
to the Lobby walls. No framed artwork on the Colony lobby walls may be removed.
No banners may be hung in the lobby or outside of the facility without Licensor's
prior written consent. Licensee will have the use of two easels to display any
posters or signs, but may not use any of the existing easels or displays in the
Colony lobby. The display table in the rear of the lobby is available for use, but any
flyers or materials displayed in the rear of the lobby must be submitted to Licensor
for approval prior to display.
9. REMOVAL OF EQUIPMENT & COMPANY PROPERTY. Licensee understands
that all equipment and company property must be removed from the auditorium,
lobby and box office within the designated performance period. Licensee therefore
agrees that immediately after the final performance in the Theater all equipment
and property brought into the premises by Licensee will be removed therefrom by
Licensee and the Colony Theater shall be restored by Licensee to its condition as
at the commencement of the term, ordinary wear and tear excepted. In the event
Licensee does not remove said equipment and company property within said
performance period, Licensor may dispose of same as it sees fit, inclusive of the
right to remove and/or store same at the sole expense of Licensee at the rate of
$150 per day.
10. DAMAGES TO FACILITY. All areas in the theater used by Licensee shall be kept
clean by Licensee during load-in, rehearsals, performances and load-out. The cost
of excessive wear and tear or damages to the facility shall be the sole responsibility
of Licensee and paid in full prior to Licensee's final performance.
11. MAINTENANCE. Licensor agrees maintain all facilities broom clean at no charge
to Licensee for load-in, rehearsal and load-out periods. Licensee agrees to
payment of a maintenance fee as part of the House Fee of $250 per performance
for janitorial and other services to the box office, lobby, restrooms, auditorium and
backstage areas. If additional maintenance personnel are required in excess of
regular scheduling, due to Licensee's use of the Theater, Licensee will be solely
responsible for the hiring of additional maintenance personnel.
Licensor agrees to maintain all fixtures and equipment, but will not be held
responsible if fixtures and equipment are not in working order.
12. CONCESSIONS & CATERING. CAF's authorized concessionaire, HKS Catering,
shall have exclusive right to operate the concession facilities at all times. Should
Licensee desire catering services or to sell or distribute any additional items, it must
work exclusively with CAF and HKS Catering.
4
13. INTERMISSION CANCELLATION FEE. If performance is over one hour, Licensee
must take at least one intermission of not less than 15 minutes. Licensee
understands that if no intermission is taken for performances over one hour in
duration, Licensee shall pay Licensor a fee of $250 for lost concessions revenue.
14. MERCHANDISING COMMISSION. Licensor may, in its sole discretion, allow
Licensee the privilege of selling souvenir books, records or related articles, provided
such activities by Licensee are restricted to the lobby and that such privilege is
subject to revocation by Licensor with or without cause. Licensee agrees to pay ten
percent (10%) of all proceeds of such sales to Licensor, plus existing sales tax.
Licensee understands that merchandising commission is due in full prior to the load-
out of the final performance.
15. SMOKING. Smoking is strictly prohibited in all areas of the Colony Theater
including the auditorium, lobby, dressing rooms and box office.
16. FOOD & BEVERAGES. Food and beverages are allowed in the lobby area only
and are not to be brought into the theater. Performers may bring food and
beverages through the stage door for the backstage area only, and refrigerators are
located in each dressing room for use. Organizations are responsible for
maintaining the cleanliness of the backstage area and will be charged for any
damages to the facility, including, but not limited to, a $50 per day additional
maintenance fee.
17. BOX OFFICE. Licensee understands that the Colony Theater has an exclusive
agreement with TicketMaster for all ticketing for every performance, both paid and
unpaid events. All ticketing is subject to the terms and conditions of the RIDER TO
COLONY THEATER CONTRACT.
18. HOUSE SEATS. Licensor or his representative shall always have access to any
dress rehearsal or performance of Licensee. Moreover, Licensor shall have the
right to six complimentary (6) house seats to each and every performance. If any
of the six house seats are not requested by Licensor at least two (2) hours before
the scheduled performance Licensee has the right to sell the unrequested tickets
upon demand.
19. PHOTOGRAPHS & RECORDINGS. Licensee agrees not to photograph, record,
(either visual or audio) or take pictures, or give permission to anyone to do the
same, for the event period covered by this agreement without approval from the
Licensor. Licensor has the right to require payment in the amount of $600.00 for
for said privilege for commercial use or broadcast.
20. SECURITY. It is the recommendation of the Licensor that Licensee hire security
personnel for its production. If security personnel are hired by Licensee, Licensee
will be solely responsible for said security personnel and will make all necessary
5
arrangements to hire an off-duty police officer with the City of Miami Beach.
21. ADVERTISING. Licensor may advertise in The Miami Herald, New Times or other
publications with a strip advertisement of coming attractions. Licensee is
encouraged to submit program and ticket pricing information to the Colony for
inclusion in these advertisements, but the Colony accepts no responsibility for the
accuracy of Licensee's information or frequency of advertisements placed in any
publications.
22. MARQUEE SPACE. Licensor agrees to furnish sign display space, if available at
the sole discretion of Licensor, at least one (1) week prior to the opening date and
continuing throughout the run of the production. In addition, Licensor reserves the
right to publicize in the lobbies of the Theater, and as inserts in playbills, information
and brochures on subsequent programs in the Theater. Licensor shall maintain the
following marquee space: 2 large showcases 40" tall x 32" wide (facing Lenox
Avenue), and 2 medium showcases 37" tall x 23" wide (facing Lincoln Road) for
use, if available by sole discretion of Licensor, by Licensee.
23. THEA TER PROGRAMS. Licensee agrees to be solely responsible for supplying
its own theater programs and Licensor shall have no responsibility relating thereto.
Licensee must include billing information in programs for every performance as
follows:
The Colony Theater is managed by the Concert Association of Florida
Judy Drucker, President
Funding for the Colony Theater is provided in part by the Metro-Dade Cultural Affairs Council,
the Miami Beach Visitor & Convention Authority, and the City of Miami Beach.
24. NON-FULFILLMENT BY LICENSOR. In the event of the premises being rendered
unsuitable for standard presentation by fire, hurricane, tropical storm or other acts
of God, national or local calamity, riot or emergency or any unforeseen occurrence
or labor dispute, including strikes or lockouts by persons employed by either party,
which shall render the fulfillment of this agreement by Licensor impossible, Licensor
shall not be held legally responsible by Licensee for any damages caused thereby.
In the event that this agreement is terminated for any of the reasons stated above,
the Licensor shall return to Licensee the deposit paid by Licensee, as reduced by
any damages, unpaid bills or other unfulfilled obligations of Licensee which Licensor
may payout of such sums for the benefit of Licensee.
25. NON-FULFILLMENT BY LICENSEE. If Licensee fails to undertake rental period
for any reason, except that caused by the Licensor, the deposit shall be retained by
the Licensor and considered as liquidated damages. Licensee will remain liable for
any damages to the premises.
26. L1TIGA TION. In the event there is litigation arising from the agreement between the
parties, the prevailing party shall be entitled to recover its reasonable attorneys'
fees, including any appeals.
6
27. LICENSOR'S RIGHT TO CANCELLATION. Any engagement pursuant to this
agreement and all persons connected with such activity shall abide by, conform and
comply with all laws, ordinances and rules of the United States, the State of Florida,
the County of Dade, the City of Miami Beach and agencies thereof, and the rules
and regulations of Concert Association of Florida. Upon receipt of notice of violation
of any such laws, ordinances, rules or regulations on the part of the Licensee or any
person, firm, corporation or association employed by or admitted to the premises
by the Licensee, Licensee will immediately desist from and correct such violation;
and one of the express conditions of this agreement is that Licensee will not use
or permit to be used any part of the premises for any purpose which is contrary to
law or opposed to common decency or which, in the sole and absolute discretion
of Concert Association of Florida is improper or detrimental to the reputation of
Concert Association of Florida. Activity which violates this, or any other provision
of this agreement, or which, in the sole and absolute discretion of Concert
Association of Florida threatens to become subject of a riot or other civil commotion,
entitles Concert Association of Florida to cancel or terminate such activity, dismiss
the audience, turn on the house lights and terminate all rights and privileges
accorded Licensee under the terms of this agreement, and Concert Association of
Florida shall not be held liable for any damage thus caused by Licensee. Failure
to discharge any clause of this agreement by Licensee relieves Licensor of its
obligations to perform under this, or any subordinate agreement. In any such event,
Licensor shall be entitled to any monies paid or agreed to be paid to it under this
agreement, and may, at its option, retain any advance deposits as liquidated
damages.
The Licensor reserves the right to cancel this agreement for good cause (which
does not include subsequent scheduling of a more preferred event). In the event
the Licensor exercises this right, it shall refund to the Licensee any basic rental
monies paid to the Licensor.
28. LICENSOR'S RIGHT OF EJECTION. The Licensor reserves the right to eject or
cause to be ejected from the premises any person or persons causing a
disturbance, and neither the Licensor nor any of its officers, agent or employees
shall be liable to the Licensee for any damages that may be sustained by the
Licensee through the exercise by the Licensor of such right.
29. LICENSEE'S RIGHT TO CANCELLATION. This agreement may not be canceled
by Licensee without written consent of Licensor.
30. LICENSEE'S RIGHT OF ASSIGNMENT. No rights, privileges, duties or liabilities
for this agreement shall be delegated, assigned or transferred to any other party nor
any sublease of the premises nor any part thereof made without the express prior
written approval of Licensor. Approval shall be within the sole discretion of
Licensor.
31. INDEMNIFICATION. Licensee hereby agrees to assume full responsibility for and
to indemnify and hold harmless Concert Association of Florida, their officers, agents
7
and employees, and the City of Miami Beach, from and against any and all claims,
demands, judgments or liabilities (including but not limited to liabilities for penalties
and reasonable attorney's fees) of any nature whatsoever resulting from or arising
out of any engagement, including but not limited to, those resulting out of a) the
unauthorized use of any idea, creation, literary, musical or artistic material or
intellectual property in connection with any performance given under this
agreement;
b)
c)
any act done, omission or words spoken by Licensee, its officers,
agents, employees, performers or independent contractors, during
any such engagement;
any damage done to the premises or any part thereof caused by the
act of omission either of the Licensee or any officer, agent, employee,
performer or independent contractor of Licensee, or of any ticket
holder or other person admitted to the premises as part of the
audience for the engagement or otherwise, or;
the breach of Licensee of any provision of this agreement.
d)
It is also expressly agreed and understood that CAF and the City of Miami Beach,
shall in no way be responsible at any time for any property on the premises
belonging to Licensee, its employees or to persons admitted or invited by Licensee
to the premises, and Licensee hereby agrees to save harmless and indemnify CAF
and the City of Miami Beach from all liability and expense in relation thereto and
from any damage or injury in any way connected with Licensee's conduct or
management of the premises.
32. DEFAULT OF AGREEMENT. Default shall be defined as the untimely performance
of any and/or all clauses in this agreement. The Licensor may exercise any and all
of the remedies herein enumerated or permitted by law. Default may include:
a) Failure to pay any rent payment or any portion thereof within three (3)
days of due date;
b) Abandonment of the leased premises, whether partial or total;
c) Failure to carry insurance as required;
d) Any and all checks given by the Lessee returned for insufficient funds
or N.S.F.; and
e) Any other breach by Licensor of any of the terms and conditions of
their agreement.
Should the Licensee default in the performance of any of the terms and conditions
of this agreement, the Licensor at this option may terminate same and the Licensee
shall be liable for the full amount of the basic rental fee provided for herein.
33. REPRESENTATIONS OF AGREEMENT. It is expressly agreed and understood
by the parties that neither Concert Association of Florida nor its agents have made
any representations or promises except as herein set forth. The parties agree that
this agreement cannot be changed orally, but can be changed only to an agreement
in writing signed by the parties hereto. This agreement contains all of our terms of
the agreement between the parties hereto, and shall not be binding on Concert
Association of Florida and the premises are not secured for any of the dates
8
mentioned herein until this agreement has been signed by CAF and the Licensee
respectively, and a duly signed copy delivered to CAF. Nothing contained herein
shall be deemed to mean that Licensor and Licensee are partners in a joint venture
and neither of us at any time during the course of this agreement shall be or
become responsible for the debts of the other. Nothing contained herein shall be
deemed to alter our Licensor/Licensee relationship.
This agreement shall be considered to have been executed in the State of Florida
and shall be interpreted and enforced in accordance with the laws of said State and
no other.
ALL COPIES OF THIS EXECUTED AGREEMENT WITH THE STIPULATED INITIAL
RENTAL DEPOSIT, ARE TO BE RETURNED TO COLONY THEATER, BY THE
LICENSEE NO LATER THAN 5:00 PM, TWO WEEKS AFTER AGREEMENT IS
PREPARED OR DATE WILL BE AUTOMATICALLY CANCELLED.
IF A FULLY EXECUTED COpy OF THIS AGREEMENT IS NOT RECEIVED BY THE
COLONY THEATER BY SAID DATE, LICENSOR SHALL HAVE THE EXCLUSIVE RIGHT
TO UNILATERALLY REVOKE ANY PRIVILEGE WHICH MAY BE HELD BY LICENSEE
TO EXECUTE THIS AGREEMENT AND LICENSOR SHALL NOT BE HELD LEGALLY
RESPONSIBLE FOR ANY LOSS CAUSED THEREBY.
THIS AGREEMENT WILL BE IN FORCE ONLY IF COUNTERSIGNED BY AN
AUTHORIZED PERSON OF THE CONCERT ASSOCIATION OF FLORIDA WHO WILL
RETURN ONE (1) EXECUTED COpy TO LICENSEE.
IN WITNESS THEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE
DATES INSERTED BELOW.
LICENSOR:
CONCERT ASSOCIATION OF FLORIDA
LICENSEE:
BY: STEPHANIE NORMAN
BY:
TITLE: GENERAL MANAGER
TITLE:
DATE:
DATE:
SIGNATURE:
SIGNATURE:
THEATER ADDRESS: 1040 LINCOLN RD
ADDRESS:
MIAMI BEACH, FLORIDA 33139
TELEPHONE: 674-1040
TELEPHONE:
9
/"--
SUBLEASE AGREEMENT
This Sublease. is entered into on March I 1994, between the Concert
Association of -Florida, Inc. (the "Sublessor") and HKS, Inc. (the "Subtenant") for
the sublease of all food and beverage areas, consisting of approximately eight
hundred (800) square feet, plus use of related adjoining areas (e.g. the Colony
Theater rostrums), on the ground floor of the Colony Theater (the "Theater"), at
lenox Avenue and Lincoln Road, Miami Beach, leased by the Sublessor from the
City of Miami Beach, pursuant to a lease approved by the City Commission on
December 15, 1993 (the ~lease"), a copy of which lease is attached and
incorporated into this Sublease, which is subject to the lease (and the approval
of the Lessor, the City of Miami Beach).
Whereas, the Sublessor has a storefront that is part of the Theater and a
concession area inside the Theater's lobby and believes that the Subtenant could
better use such space and operate such concession area; and
Whereas, the Subtenant has expertise in food and beverage management and
desires to operate the Theater's concession area and to provide the design for and
to coordinate the improvement of the unused storefront as a cafe for use in
conjunction with the Theater (though not only when the Theater is operating).
Now, therefore, and based on the above recitations, which the parties
(respectively) acknowledge to be true, the parties hereby enter into a Sublease on
the following terms and conditions.
1. Incorporation of Terms of the Lease (and Concession Agreement). The
terms of the lease are hereby incorporated into this Sublease except where
specifically inconsistent with the terms of this Sublease, and the Subtenant agrees
to assume all obligations and responsibilities of the Tenant/Sublessor set forth in
the Lease, with respect to the subleased premises; and the Sublessor agrees to
assume (towards the Subtenant only and not towards the Landlord) the
responsibilities and obligations of the landlord set forth in the lease. The parties
acknowledge that such responsibilities and obligations imposed by this Sublease
(by reference to lease) relate only to the subleased premises, and that while the
Sublessor may be responsible to the Subtenant for certain items pursuant to this
Sublease, the Sublessor does not waive any of its rights under the lease (by
entering into this Sublease). Moreover, this Sublease is contingent on the
Subtenant's continued operation of the Theaters concession area pursuant to the
parties' Concession Agreement.
2. Term. The term of this Sublease will be from the date of execution until at
least August 31, 1997, unless sooner terminated in accordance with the terms of
this Sublease (including the terms of the lease and Concession Agreement), and
1
Exhibit "e"
will then automatically continue, at Subtenant's option, for as long as the Sublessor
leases or otherwise controls the Theater (in accordance with the Lease and any
renewals of the Lease or other agreements entered into by which the Sublessor
continues to rent or otherwise have control of the Theater).
3. Base Rental Payment. The Sublessor is leasing the subleased premises
to Subtenant for fifteen thousand dollars or six percent of the Subtenant's gross
~~ipts.. frqm qperati~t the Theater per year (whichever is Qreater). to be paid
to the Sublessor. in monthlv installments. commencing on obtaining a certificate
of occupancy or within one hundred and twenty (120) days, whichever is sooner,
plus any applicable sales tax, subject to any other charges and adjustments set
forth here and in the Lease. -Gross receipts" includes all sales made at the
premises or in the Theater, including any catering at the Theater. There will be
quarterly accountings of gross receipts and monthly submissions of sales
information (including actual receipts or register tapes and other original
documents, if requested).
4. Exclusivity. The Subtenant will have the exclusive right to cater (Le. to
provide food and beverage service for) all events at the Theater and to manage
all food and beverage operations at the Theater, subject to the Sublessor's
reasonable request of an alternative caterer (based on specific reasons) in which
case the Subtenant will not unreasonably withhold its consent to the (infrequent)
request; and the Subtenant agrees to be open for and to provide, as requested
by the Sublessor, appropriate food and beverage service for all events at the
Theater and as otherwise reasonably requested by the Sublessor. The Subtenant
agrees to purchase all necessary equipment and other removable items necessary
for the operation of the concession area and cafe and to purchase all necessary
food and beverages (other than liquor, not including beer or wine) for such
operation.
5. Subleased Premises. This Sublease is for the (to be constructed) cafe
area of the Theater, as reflected by the att.ached drawing.
6. Insurance. The Subtenant agrees to obtain insurance against public liability
relating to the Subtenanfs operations, with Sublessor and Landlord named as
additional insureds, as required of the Sublessor (as Tenant) pursuant to the
Lease, other than for the Theater building or its contents (not including those
relating to the Subtenanfs food and beverage operations).
7. Attorney's Fees. In any litigation brought by either party relating to this
Sublease, the prevailing party will be entitled to recover its attorney's fees and
legal costs from the other party.
2
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8. Brokers. The parties acknowledge that there is no broker involved in this
transaction, and each party agrees to indemnify the other; and the City of Miami
Beach, from any claims for commissions that might be brought by any broker
relating to this transaction.
9. Indemnification. In consideration of the Premises being leased to
Subtenant for the above Rent, Subtenant agrees that it will, at all times, indemnify
and hold the Sublessor and the City of Miami Beach, harmless from all losses,
damages, liabilities and expenses (including reasonable legal fees and court costs)
whatsoever, which may arise or be claimed against Sublessor and/or the City of
Miami Beach for any injuries or damages to the persons or property of any
persons, firms or corporations, occasioned by or arising from the use or occupancy
of the Premises and/or other portions of the Theater by Subtenant, or occasioned
by or arising from any acts, omissions, neglect or fault of Subtenant, Subtenant's
agents, employees, or invitees, or occasioned by or arising from Subtenant's
failure to comply with the terms and provisions of the Lease, this Sublease or any
laws, statutes, ordinances, codes or regulations. Sublessor and/or the City of
Miami Beach will not be liable to Subtenant for any damages, losses or injuries to
the persons or property of Subtenant which may be caused by the acts, neglect,
omissions or faults of any persons, firms or corporations, except when such injury,
loss or damage results from the negligence of Sublessor and/or the City of Miami
Beach, its agents or employees. All personal property placed or moved into the
Premises or Building will be at the risk of Subtenant, and Sublessor and/or the City
of Miami Beach will not be liable to Subtenant for any damage to such personal
property .
If Sublessor and/or the City of Miami Beach is made a party to any litigation, as
indicated above, then Subtenant will protect and hold the Sublessor and/or the City
of Miami Beach harmless and will pay all costs, expenses and reasonable
attorneys' fees incurred .or paid by Sublessor and/or the City of Miami Beach in
connection with such litigation (and any appeal); however, in the event that
Sublessor's right to possession to the premises is challenged then Sublessor will
so indemnify and hold Subtenant harmless.
10. Sale of Liquor. The Subtenant will obtain its own beer and wine license
to be used at the cafe when the Theater is not operating. When the Theater is
operating (Le. there is some event at the Theater), the Subtenant will operate the
Theater's full liquor license (for the sale of liquor, not beer or wine), in accordance
with the parties' related concession agreement, and each of the Subtenant's
principals agree to submit all necessary information and documents to the Division
of Alcoholic Beverages and Tobacco for the appropriate transfer of such license.
11. Subtenant's Improvements and Standards for Operation. The Subtenant
will provide all necessary furnishings and equipment for the food and beverage
3
, .,. ' .,. .... ,~ ,'" . .... " .".
r
operations and make the necessary improvements to the cafe area (the
contemplated improvements, not including furnishings or equipment, are estimated
to cost approximately sixty-five thousand dollars). The Subtenant agrees that it will
use its best efforts to enhance the food and beverage service at the Theater and
therefore the Theate~s reputation as a first class facility. The Subtenant
represents that its shareholders will devote substantially all of their day to day
working efforts toward the satisfaction of the Subtenant's responsibilities under this
Sublease (and any related agreements) and that its principals have the necessary
experience and expertise in Theater catering, as well as the provision of food and
beverage services generally, to satisfy the Subtenant's obligations under this
Sublease and to operate the cafe and concession area profitably and in a first
class manner, subject to the Sublesso~s reasonable satisfaction. The Subtenant
will provide the Sublessor, at least quarterly, with compilations of all financial
infonnation relating to the Subtenant's operations (and, upon request, to grant the
Sublessor complete access to all of the Subtenant's books and records).
12. Sublessor's Improvements. The Sublessor will provide a portion of the
funds anticipated to be necessary for the demolition and certain structural
improvements reflected in the plans prepared by the project Architect (and at least
share the cost of the new handicap access restroom to be installed in the cafe as
well as the counter and other necessary pennanent fixtures, not removable
equipment, that is specifically for the improved concession area). These items
have . been estimated to cost approximately sixty-fIVe thousand dollars
($65,000.00), per the attached estimate. Sublessor's obligation is limited to
$35,000.00 and Subtenant will fund the balance, subject to the explanations
contained in this paragraph. A copy of the Architect's drawing for this work is
attached along with a brief description of the parties' general responsibilities for the
work. Any additional costs for the improvements will be paid by the Subtenant,
which will be entitled to the refund of such costs if the Term of this Sublease does
not extend for at least the contemplated six full years, to be amortized equally
annually over the ultimate actual term of this Sublease; that is, if the Subtenant
exercises its option to renew and the Sublessor is unable to and/or does not renew
this Sublease, the Subtenant shall be entitled to receive a refund of all
unamortized costs expended to the Subtenant. The Subtenant's contribution to the
Improvements shall not exceed $35,000.00. If a firm construction contract for the
described Improvements cannot be obtained for $70,000.00 or less, the parties
shall attempt to agree on reasonable reduction of the scope of the Improvements.
If they cannot do so, this Sublease may be terminated at the option of either party.
All improvements as contemplated by this Agreement shall be submitted to the City
of Miami Beach for review and approval prior to commencement of construction
of such improvements.
13. Construction Escrow. Within thirty days of this Sublease, the parties will
establish an escrow account with Bradshaw Lotspeich to assure that there are
4
. -.,' ., ,....'. 'p .... ,\
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sufficient funds for the contemplated demolition and improvements. Each party will
fund the escrow with thirty-five thousand dollars, representing its estimated share
of the work and materials (and, in Subtenant's case, equipment), and the
contractor will furnish its requisitions directly to the escrow agent after their review
by the project architect. The Sublessor will attempt to obtain the Landlord's waiver
of the Lease's construction bonding requirements based on this escrow provision.
The parties agree that the escrow agent will only be liable in the event of his willful
misconduct or gross negligence. The construction funding procedures will be
subject to the Lessors approval.
14. Assignment and Subletting. The Subtenant agrees that it will not assign,
mortgage, pledge, or hypothecate this Sublease, or any interest in it, nor will the
Subtenant permit the use of the premises by any person or persons other than the
Subtenant, nor will the Subtenant sublet the Premises, without the Sublessors and
City of Miami Beach's prior written consent. Any sale of the majority of the stock
of the Subtenant (a corporation) or other device which has the effect of transferring
the practical benefits of this Sublease from the persons currently controlling the
Subtenant, is a prohibited transfer and will be considered a default. The Subtenant
may, however, transfer stock or other ownership indicia between current
stockholders upon written notice to the Sublessor without it being deemed an
assignment for the purposes of this paragraph. The Subtenant's shareholders are
Jeff Kant and Lidija and Peter Hauck, with each owning one-third of the Subtenant.
.15. Mediation and Arbitration. If a dispute or controversy arises, the parties
will first attempt to resolve it by mediation; if the parties are unable to so resolve
the dispute then the dispute will be settled in accordance with the procedures and
rules of the American Arbitration Association, except that discovery (in accordance
with the Florida Rules of Civil Procedure) will be available in the context of the
arbitration.
16. Complete Agreement of the Parties. This Sublease constitutes the entire
agreement of the parties (on its specific subject matter) and may not be modified
except by writing signed by the party to be charged with the modification. Based
on the foregoing, the parties have executed this Sublease on the date indicated
above, by their duly authorized representatives.
Witnesses
,b~
../
5
AMENDMENT TO SUBLEASE AGREEMENT
This Agreement, is made this ~day of August, 1997 by and between The
Concert Association of Florida, Inc., a Florida corporation (the "Sublessor") and HKS,
Inc., a Florida corporation (the "Subtenant").
WHEREAS, Sublessor and Subtenant entered into that certain Sublease
Agreement dated March 7, 1994, (the "Sublease'') for the Sublease of certain areas
located on the ground floor of the Colony Theater located at Lennox Avenue and Lincoln
Road, Miami Beach, Florida (the "Subleased Premises'') which is made under and
pursuant to that certain Lease Agreement by and between Sublessor and the City of
Miami Beach (the "Lessor") dated September 27, 1994 (the "Lease''); and
WHEREAS, Subtenant has defaulted under the Sublease by virtue of its failure to
pay the rentals due pursuant to the terms of the Sublease and the parties have reached an
agreement with respect to curing such default and modifying certain other terms of the
Sublease, as more particularly provided herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the forbearance from suit and other good and valuable consideration, the receipt and
sufficiency of which is hereby conclusively acknowledged., the parties agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein by this
reference. All capitalized terms used herein shall have the meaning ascribed to them in
the Sublease. Except to the extent expressly modified herein, the Sublease shall remain
in full force and effect and is hereby ratified and confirmed by all parties hereto.
2. In that the Subleased Premises have now been constructed, the parties wish to
clarify the description of the Subleased Premises. For purposes of clarification, the
Subleased Premises shall consist of the following areas:
a. Approximately 800 square feet of restaurant/cafe space located adjacent to the
Colony Theater, equipped with handicap accessible restrooms; and
b. Storage room above the cafe space which may be utilized by Subtenant and
Subtenant is granted the right to remove any excess equipment located in this room not
being utilized by Sublessor, provided that this storage room is securely pad-locked each
and every evening with a key provided to the Colony Theater Technical Director;
c. Bar area extending between the cafe and the Colony Theater lobby; and
d. Seating area located in the Colony Theater lobby.
3. The tenn of this Sublease is hereby extended to have an expiration date which
coincides with the expiration date of the Lease which is currently August 31, 2000.
Awl\Amendmen.doc
Exhibit "D"
Sublessor agrees that if the Lease is again renewed by and between the Sublessor and the
City of Miami Beach, Subtenant shall be given the opportunity to extend the Sublease
term to a date which coincides with the expiration of the renewed Lease, provided that the
Sublessor and Subtenant can agree on or before August 31,2000 on a rental rate for such
extended term. In the event that the parties cannot agree on a rental rate for the renewed
term of the Sublease, then this Sublease shall expire as of August 31,2000 and Sublessor
shall be free to Sublease the Subleased Premises to any third party of its choosing.
4. Subtenant unconditionally acknowledges that it has defaulted under the terms of
the Sublease and owes Sublessor the sum of $25,090.60 as past due rent under the
Sublease on account of its use and occupancy of the Subleased Premise through August
31, 1997 and legal fees and costs in the amount of $1,000.00. Subtenant represents and
warrants that it has no defense, off-set or counter-claim of any kind or nature which
would effect, obviate, eliminate, diminish or set-off its obligation to pay the above sum of
$26,090.60 to Sublessor as provided herein. As a material inducement for Sublessor to
enter into this Amendment to Sublease Agreement and forebear its rights to pursue
eviction proceedings against Subtenant, Subtenant covenants and agrees that the past due
balance in the amount of 526,090.60 shall be delivered to Sublessor in current funds
within ten (10) business days from the execution of this Amendment to Sublease
Agreement It is specifically agreed that in the event that payment is not timely received
by Sublessor as provided in this Subparagraph, Subtenant will have acquired no rights
under this Agreement and Subleasee shall be deemed. to have waived and relinquished
any and all rights it may have in and to the Sublease and/or the Subleased Premises and
shall immediately vacate the Subleased premises and deliver possession to Sublessor
forthwith. In this regard, Subtenant expressly waives any and all notice of non-payment
or default that may be required by operation of law or pursuant to the terms of the
Sublease or the Lease and agrees that Sublessor shall be entitled to immediate possession
of the Subleased Premises.
5. Paragraph 3 of the Sublease is hereby amended to provide for base rental
payments according to the following schedule:
a. For the period of September 1, 1997 through August 31, 1998, Subtenant
shall pay the sum of 530,000 per year, or 52,500.00 per month, plus sales
taxes due thereon (currently at 6.5%), for a total sum of $2,662.50 per
month;
b. For the period of September I, 1998 through August 31, 2000, Subtenant
shall pay the sum of $36,000 per yeat, or 53,000 per month, plus sales tax
due thereon, for a total sum of 53,195 per month (based on current sales
tax);
In addition to the above base rental, Subtenant shall pay percentage rent equal to
Six (6%) Percent of the Subtenant"s gross receipts from its concession and catering
operations at the Colony Theater, to be paid in arrears in monthly installments. All base
2
rent and percentage rent shall be due and payable on the lSdl day of each morith, and shall
be delivered to Sublessor's principal offices located at 555 l-ra Street, Miami Beach,
Florida 33139 Attn.: Abel Lopez. Subtenant agrees to pay a latc fce on any payments of
rent or percentage rate which are not paid as and when due as provided above a.cc:ording
to the following schedule:
Up to 30 days late, a SSO.OO late fee shall be due and payable;
Between 31 and 60 days late, a $100 late fee shall be due and payable; and
Between 61 and 90 days late, a late fee equal to 5200 shall be due and payable.
It is understood that in the event that the Subtenant will be late in the payment. of
any rent due hereunder, that is shall provide prior written notice to Sublessor (i.e. before
the 15th of the month) and Sublessor may, in its sole and absolute discrction, either grant
or withhold its consent to the late payment of base rent and/or percentage rent Sublessor
shall not be obligated to grant any extension of time for the payment of rent and may
serve upon Subtenant a statutory three (3) day notice to deli'\:"er possession or pay rent, at
any time subsequent to the 1 Sill day of any month in which the required rent due
hereunder has not been paid. With respect to percentage rent, Subtenant specifically
agrees that the term "gross receipts" shall include all sales from all theater concession
activities and catering prepared at the Subleased Premises for both on-site and off.site
activities. All percentage rental payments will be accompanied by a monthly statement of
gross sales receipts, accompanied by register tapes and such other original documents as
may be reasonably requested by Sublessor to support the percentage rate calculation. All
statements of gross sales must include a break-down based on the categories of
"Restaurant Sales," "Concession Sales" and 'fCatering Sales" (accompanied by copies of
all catering contracts).
. 6. With respect to paragraph 6 of the Sublease, the insurance which must be
maintained by Subtenant throughout the term of the Sublease shall consist of
Comprehensive General Liability coverage in the minimum amount of One Million
Dollars, workman's compensation and employer's liability coverage in the amotmts
required by law and liquor liability insurance in the minimum amount of One Million
Dollars, all of which shall be in fonn and substance, and written through underwriters
reasonably satisfactory to Sublessor and the City of Miami Beach and shall name the City
of Miami Beach and Sublessor as additional insureds on all of such policies, with
appropriate 30 day non-cancellation provisions.
7. Paragraph 10 of the Sublease is hereby modified to provide that Subtenant shall
procure and/or maintain in good standing its own liquor And beer and wine licensees} for
all restaurant sales, concessions and catering at the Subleased Premises. Subtenant shall
n2t be permitted to use the liquor license of Sublessor and Subtenant agrees that it shall
timely report and pay all liquor sales surcharges to the Department of Business and
Professional Regulation and all other fees and charges due with regard to such liquor
licenses. In the event that it is found that there are any amounts due on account of
Subtenant's prior use of Sublessor's performing arts center liquor license for liquor sales
3
at the Colony Theater, all such amounts shall be immediately paid by Subtenant upon
demand by Sublessor. The failure to pay such amounts shall constitute a default under
this Sublease. The parties agree that the Food and Beverage Concession Contract
between Sublessor and Subtenant which is of even date with the Sublease shall be, and is
hereby, amended to conform to the terms set forth in this Agreement relating to the
prohibition on the use of Sublessor's performing arts center liquor license by Subtenant.
8. With respect to utilities at the Subleased Premises, Subtenant agrees that it shall,
at its sole cost and expense, install a separate electric meter with Florida Power & Light
for service to the Subleased Premises and shall promptly pay before their delinquency all
fees or charges due with respect to any and all utilities serving the Subleased Premises.
With respect to garbage service, Subtenant shall be responsible for opening its own
account with Waste Management for trash disposal and recycling service with pick-ups at
least 3 days per week. Subtenant shall pay all fees or charges due with respect to such
waste service. Sublessor agrees that it shall continue to pay for service by Waste
Management under its own independent account for pick-ups two days per week, but the
failure to do so shall not constitute a default by Sublessor.
9. With respect to the use of the Colony Theater lobby, Subtenant acknowledges and
agrees that the lobby area may not be used to store any cafe equipment, freezers, food or
office or restaurant supplies or equipment. All such equipment or materials must be
stored in the cafe area, behind the caf~ bar or in the upstairs storage room referred to
above. The Subtenant agrees that the small lobby bar area shall remain accessible for
Colony Theater renters to use for T-shirt, music or other sales approved by the Colony
Theater Management. Sublessor agrees that such Colony Theater renters shall not be
permitted to sell or serve any food or beverages in the Subleased Premises. Subtenant
further expressly agrees that during any performances at the Colony Theater, the only
cafe transactions that may conducted in the Colony Theater lobby shall be the selling of
concessions to Colony Theater patrons. Any food or bar service from one hour prior to
advertised curtain time shall be limited to the caf~ premises only. In addition, from one
hour prior to curtain time, the sound system in the cafe must be turned to a minima..!
decibel level until the Theater performance has concluded, it being the understanding of
the parties that music from Subtenant's cafe shall not cause a disturbance or annoyance to
Theater performances. It is further agreed that any time that a Theater performance is in
session, the cafe partition must remained closed and blocked off with stantions and all
restaurant patrons and employees must use only the cafe restroom during this time.
10. Subtenant acknowledges that Sublessor has fulf1lled its obligations with respect to
funding and/or performing certain demolition and/or construction related to the Subleased
Premises. Subtenant agrees that it shall maintain the Subleased Premises and the fixtures
and appurtenances therein at its sole cost and expense' and shall make all repairs as and
when needed to preserve the Subleased Premises and its fixtures and appurtenances in
good working condition. Said duty to maintain by the Subtenant shall include but not be
limited to the restoration, repair or replacement (as may be required) of the electrical
system, plumbing system, sound system and air conditioning system. Subtenant shall, at
4
it own expense and at all times during this Agreement, have in force air conditioning and
pest control maintenance agreements reasonably acceptable to Sublessor. Sublessor shall
be responsible only for the maintenance of the roof, structure and exterior of the building
and any plumbing repairs necessitated by the breakage of water pipes within the walls or
Wlder the Subleased Premises, unless damage to any of the above is caused by the
negligence or willful acts of the Subtenant, in which case Subtenant shall be responsible
for any such damage. Any and all damage or injury of any kind to the Subleased
Premises or any person or property or to any fixtures (including glass, appurtenances and
equipment or the building, etc.) shall be the sole responsibility of the Subtenant and shall
be repaired, restored or replaced, as the case may be, promptly by Subtenant at its sole
cost and expense to the reasonable satisfaction of Sublessor, except to the extent that any
such loss or damage results out of the gross negligence or willful misconduct of the
Sublessor or its agents or representatives. Subtenant agrees that any repair3, restoration
or replacements shall be of quality and class equal to the original work or installations
and shall be done in a good and workman-like manner. In the event Subtenant fails to
make any repairs, replacement or restorations, as required herein, the same may be made
by Sublessor at the expense of Subtenant and all sums expended by Sublessor in
connection with such work shall be connection work shall be collectible as additional rent
hereunder and shall be paid by Subtenant within ten (10) days after rendition of the bill or
statement therefore. In all other respects, the Subtenant agrees that the property is being
leased in present "AS-ISn condition, it being understood that the Subtenant has occupied
the Subleased Premises for a substantial period of time and has fully inspected and
accepts the Subleased Premises in its present condition. It shall be the Subtenant's
responsibility and obligation to insure that the Subleased Premises comply with all
applicable building codes and life safety codes of governmental authorities having
jurisdiction over the Subleased Premises, except only as to such matters as are to be
maintained by Sublessor, as provided herein.
j.
11. Subtenant CQvenant;S and agrees to fulfill and comply with all statutes, ordinances,
rules, orders, regulations and requirements of any and all governmental bodies having
jurisdiction over the Subleased Premises, including but not limited to Federal, State and
City governments and their departments and bureaus applicable to the Subleased
Premises and to also comply with and fulfill all rules, orders and regulations for the
operation of the cafe, all at Subtenant's own cost and expense. Subtenant shall pay all
costs, expenses, claims, fines, and penalties and damages as may be imposed for the
failure of Subtenant to comply with this paragraph and shall indemnify and hold this
Sublessor harmless from and against any and all liability arising from such non-
compliance.
12. During the term of the Sublease, Subtenant shall be responsible for and pay any
and all taxes of whatever nature, lawfully levied upon or assessed upon the Subleased
Premises, the personal property located on the Subleased Premises or the operations
withiIl the Subleased Premises.
5
13. Subtenant agrees to establish and maintain such records as may be reasonably
prescribed by the Sublessor and Subtenant grants to Sublessor the absolute right and
authority to audit all records, documents and books pertaining to management of the
Subleased Premises and any other expenses pertaining to Sublessor and Subtenant. Such
audit shall be conducted at such locations and at a frequency detennined by Sublessor and
communicated to Subtenant. Subtenant agrees to produce materials for the audit at the
designated place within three (3) business days after Sublessor's notification is received.
Subtenant shall inform. all entities retained by it to provide services in connection with the
Subtenant's lease of the Subleased Premises pmsuant to this Agreement that they must
also agree to this provision and to an audit upon request of the Sublessor.
14. Should Subtenant desire to perform any construction or other work to alter,
remodel, demolish or otherwise improve the Subleased Premises, Subtenant must notify
Sublessor and provide Sublessor with copies of all proposed plans and specifications for
Sublessor's and Lessor's approval, which shall not be unreasonably withheld in the case
of Sublessor. Sublessor may condition the approval of such plans upon a satisfactory
showing by Subtenant (in the form of a bond or cash escrow) of its ability to pay for all
contemplated improvements. All additions, fixtures or improvements (expect furniture
and fixtures which may be removed without injury or damage 10 the Subleased Premises)
shall be and remain a part of the Subleased Premises at the expiration of this Sublease.
15. With respect to hours of operations, Subtenant agrees to post hours of daily
operations for its cafe, with lunch and dinner service available not less then five (5) days
per week.
16. With respect to sidewalk cafe service, Subtenant agrees that it shall be solely
responsible, at its sole cost and expense, to procure and maintain all necessary permits for
any sidewalk cafe service which is desired by Subtenant.
IN WITNESS WHEREOF, the parties have hereunto set their hand and seal as of
the date herein first above written.
HKS, INC., a Florida corporation
BY: ~~ '1 ~L
0A-f-'r ~- aa ~f\1.~ , President
t1. -J
CONCERT ASSOCIATION OF FLORIDA,
INC. .
a .. " ./)
By' ''-J(, ' / I / j I. ' / /, t
'Jnd;o~~,Pr~~e~; -~- '
" 'J
6
AMENDMENT TO LEASE AGREEMENT
This Amendment to the Lease Agreement dated September 27, 1994, for the Colony Theatre
located at 1040 Lincoln Road, Miami Beach, Florida, between the City of Miami Beach (City), a
Florida Municipal Corporation, having its principal office at 1700 Convention Center Drive, Miami
Beach, Florida, hereinafter referred to as the "Lessor" and the Concert Association of Florida, Inc.
(Concert Association) as having its principal office at 555- 17th Street,'Miami Beach, Florida,
hereinafter referred to as the "Lessee", is entered into this i;: day of I. ; " ,', 1997.
WITNESSETH
WHEREAS, on July 27, 1988, the Mayor and City Commission adopted Resolution
No. 88-19309, approving a Lease Agreement with the Concert Association of Greater Miami, Inc.
for the lease of the Colony Theatre located at 1040 Lincoln Road; and
WHEREAS, on December 15, 1993, the Mayor and City Commission adopted Resolution
No. 93-20990, approving the execution of a new Lease Agreement, which expires on the 31 st day
of August, 1997; and
WHEREAS, pursuant to Article 3 of the of the current Lease Agreement, the Concert
Association notified the City of its intent to exercise its option to extend the Lease for a period of
three years, commencing September 1, 1997 and ending August 31, 2000; and
WHEREAS, the City and the Concert Association have agreed on an operating subsidy of
$55,000 for the Lease Year ending August 31, 1998, $50,000 for the Lease Year ending August
1999, and $45,000 for the Lease Year ending August 31,2000; and
WHEREAS, the City and the Concert Association have agreed that any revenues derived
from the cafe will be paid to the City, and the City will use said monies to offset the cost of any
repair and maintenance required at the Colony Theatre that is the responsibility of the City.
NOW, THEREFORE, the Lease Agreement is hereby amended as follows:
1. Any reference to the Concert Association of Greater Miami, Inc. shall be amended to the
Concert Association of Florida, Inc., as successor in interest thereto.
2. Article 24 on Page 9 of the Lease Agreement is deleted in its entirety and replaced with the
following language:
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 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 $55,000 for the Lease
Y t::.lr ending August 3 I, 1998, $50,000 for the Lease Ye:.lr ending August 1999, and
$~5.000 for the Lease Year ending August 3 I, 2000. Additionally, any revenues
derived from the cafe described in Paragraph 22. its successors or assigns, will be
paid to the City and the City will use said monies to offset the cost of any repair and
maintenance, required at the Colony Theatre, that is the responsibility of the City.
Any obligation of Lessor within this lease which extends beyond the current fiscal
ye:.lr is subject to the budget appropriations in subsequent years.
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.
3. All other terms and conditions of the Lease Agreement between the Lessor and the Lessee
shall remain in full force an effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Lease
Agreement to be executed by their duly authorized officials on the day first above indicated.
ATTEST:
CITY OF MIAMI BEACH, FLORIDA
140R
, '}
J~~ rWL~
CITY CLERK
WITNESSES:
CONCERT ASSOCIATION OF FLORIDA, INC.
0:/i~~
Judith Drucker, President
Name and Title of Signatory
MDB:JD:rd
F:IPURCISALLIASSETSICOLONY\CLNY _EXT.AMD 7/9/97
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECUTION
/Iii fJUAli:;
City Attorney
II/ell)
... Dt.:ttA
LEASE AGREEMENT
"
THIS LEASE AGREEMENT, made and entered into this J -q-tt.
day of I~f't\,l(" '199f 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):
WIT N E SSE T 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 desires to promote cultural programs and
facilities; and
WlIEREAS, 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
wrLting at least sixty (60) days prior to the expiration of this
Lease or any extension thereof and further having said opt.ion
approved by the Mayor and City Commission.
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
I
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,
I irnb 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 Riqht 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.
permit entry into the Leased Premises at any time, for any reason,
If the Lessee shall not be personally present to open and
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
2
agent or agents shall accord reasonable care to the Lessee t s
propeI.ty), and without in any manner affecting the obligations and
covenants of this Lease.
Les~ee shall not change the locks to the Leased Premises
witho~t the prior written consent of Lessor and in the event such
consent is given Lessee shall furnish Lessor duplicate keys to said
16cks'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
tnat 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,
~ine or liquor, Lessee shall obtain liquor liability insurance in
3
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 Florida 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
m~intain 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
LEissor.
Lessor shall only be responsible for the maintenance of
4
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
I
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
after rendition of a bill or statement therefor.
as additional rent and shall be paid by Lessee within ten (10) days
all sums spent and expenses incurred by Lessor shall be collectable
the same may be made by the Lessor, at the expense of Lessee, and
Lessee fails to make such repairs or restorations or replacements,
condition.
respects, the property is being leased in its present "as is"
In all other
premises comply with all applicable bUilding codes and life safety
It shall be Lessee's obligation to insure that the
codes of governmental authorities having jurisdiction, except as to
the roof and exterior.
10. Governmental ReQulations
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
g?vernments, 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
5
this Paragraph, and shall indemnify the Lessor from all liability
arising from each non-compliance.
11. Siqns-
If exterior signs are requested, they will be
of a desi~n 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.
6
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 damag~ to said personal property unless caused by or due to the
negligence of Lessor, its agents, servants or employees.
14. Liabil i tv for Damaqe or Iniury - 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
have, hold and enjoy the premises above described, without
and covenants, I~ssor agrees that Lessee shall any may peaceably
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
beginning of the term of the Agreement, ordinary wear and tear, and
Premises in as good condition as said premises were at the
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
7
with a copy to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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,
LESSEE:
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
determined by Lessor and communicated to the Lessee.
Such audit will be conducted at locations and at a frequency
between the City and the Concert Association of Greater Miami.
the management of the Colony Theater and nay other expenses shared
authority to audit all records, documents, and books pertaining to
been and are being observed. Lessee grants to Lessor the right and
The Lessee
within three business days after Lessor's notice is received.
agrees to provide materials for the audit at the designed place
services in connection with Lessee's lease of Lessor's premises
Lessee shall inform all entities retained by it to provide
pursuant to this Agreement, that they must also agree to this
provision relating to an audit upon request of Lessor.
21. Assiqnment 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
U!Ssor in writing by no later than February 15, 1994, whether such
Premises for a cafe, provided Lessee determines, and so notifies
al terations, additions, and improvements in and to the Leased
8
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
Premises.
to the Leased Premises) shall be and remain a part of the Leased
furniture and fixtures which are removable without injury or damage
d~ly authorized to do business in Florida, naming Lessor, covering
Labor Bond and a Material Payment Bond, both issued by a company
the Leased Premises by Lessee, furnished Lessor a Performance and
e) Lessee shall, prior to commencement of construction on
and materials.
100% of the cost of constructing the improvements, including labor
23. Rental Fees - A schedule of rental fees to be charged to
users of the Colony Theater is attached hereto as Exhibit "B".
written consent of Lessor.
Lessee shall not change the scheduled rental fees without the prior
24. In keeping with Lessor's desire to actively participate
in providing cultural facilities, and recognizing the unique public
s~rvice benefits provided by the Lessee, Lessor shall contribute
the facility for the use of the Lessee as a performing arts center
9
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
,
I
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
Lessee and agreed to by Lessor.
renegotiation if and when the option to renew is exercised by
Lessor reserves the right to use the premises twelve (12) days
beneficial to the City or may be City-sponsored special events.
per year at no fee for special not-for-profit events which may be
with dates or events already scheduled by the Lessee.
Said events shall be scheduled in advance so as to not conflict
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
cured within thirty (30) days after written notice is given to
terms and conditions herein contained, and such default is not
c) If Lessee fails to perform in accordance with any of the
Lessee, then Lessor may terminate the Agreement and pursue any and
all legal remedies available to seek redress for such default, with
\
t~e 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
10
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 d1verse mix of
performances are presented at the Colony Theater which address the
needs and interest of a multi-cultural community ~uch 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
~iability 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
11
. '" \ (l
$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 thisfAgreement, 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 Chanqes
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.
and the respective
presents to be signed by the respec ive duly authorized officers,
f{...
ZT day of
IN WITNESS WHEREOF, the parties hereto have caused these
~ff-( ",.L~v'
corporate seals
199{.
~T EST:
',e tYvvJ [. T>-.-tvv-
CITY CLERK
CONCERT ASSOCIATION OF
GREA~H Mr~r, rNC~ '
BY 'tuiirtJ;:~ j~~
.' PRtS DENT
ATTEST:
FO~RM APPR9VED ~
lEG pEPT. <y . /)/
\ ~..-."v.) ~
By
Dale / J /.:J~ Ie; 3
. I
C: \IIPSl \OA T A \COlCHY. AGR