Lease Agreement with Spiegel LP~~A~ A~R~~M~~IT
BETWEEN THE CITY OF MIAMI BEACH
AND
SPICGEL LP
FOR "SPIEGELWORLD",ALIVE PERFORMANCE VENUE WITH THEATRICAL SHOWS, MUSICAL
PERFORMANCES AND ANCILLARY FOOD AND BEVERAGE SERVICES.
THIS LEASE AGREEMENT, made this ~~~"day of ~U~ _, 2007, by and
between the CITY OF MIAMI BEACF°l, a Florida municipal corpor t' n, (hereinafter referred
to as "City"), and Spiegel LP, a corporation, having its principal office at 22 West 19tH
Street, Stn Floor, New Yor~l<, NY 10011 (hereinafter referred to as "Lessee").
Demised Premises.
City, in consideration of the rentals hereinafter reserved to be paid anti of the
covenants, conditions and agreements to be kept and performed by the Lessee,
hereby leases, lets and demises to the Lessee, and Lessee hereby leases and
hires from the City, those certain premises hereinafter referred to as the "Demised
Premises", located in the City of Miami Beach, as commonly referred to as the
"Collins Park Beach Spoil Area", located between 21St and 22"d Streets (between
the City Boardwalk and the City municipal parking lot at 2100 Miami Beach Way),
Miami Beach, Florida, 33141, and more fully described as follows:
[Here Insert legal, and attach surveylsketch delineating Demised
Premises as Exhibit A]
2. Term.
2.1 _ Lessee shall be entitled to have and to hold the Demised Premises for an
initial term of up to three (3) months, commencing on the 14t1~ day of
December, 2007 (Commencement Date), and ending on the 'i3th day of
March 2008.
2.2 (i) Provided Lessee is in good standing and free from default(s) hereunder,
and (ii) upon written notice from Lessee, which notice shall be submitted to
the City Manager no later than ninety (90) days following the expiration of the
initial term, tl~is Agreement may be extended by the City Manager, in his sole
and absolute discretion (as the Chief Operating Officer of the City), for two
(2) additional fihree (3) month terms on dates on or around as follows:
Second Year -December 15, 2008 -March 10, 2009
Third Year - Deceirtber 16, 2009 -March 19, 2010
-- _--.__Any__extensionsT__if_approve~l,___shalLbe_memorialized_in_vuriting_and~igned_hy_the_____ _____
parties hereto (with the City hereby designating the City Manager as the individual
authorized to execute such extension on its behalf).
3. Rent.
3.1 Base Rent:
Base Rent for the Demised Premises shall begin to accrue from the date of
the first performance or December 24, 2007, whichever is earlier (the Rent
Commencement Date), and shall continue to be payable until the date of the
last performance. If the first or last performance occurs during any portion of
a week, the whole Base Rent will be required.
3.1.1 Throughout the Term herein, the Base Rent for the Demised
Premises shall be Three Thousand ($3,000.00) Dollars perweek,
payable by Lessee, commencing on the Rent Commencement
Date and, thereafter, weekly. Failure to vacate premises within
seven (7) days of last performance will result in accrual of Base
Rent for each week.
3.1.2 Concurrent with the payment of the Base Rent, Lessee, if deemed
applicable by the City, shall also include any and all additional
sums for all applicable sales and use tax, now or hereafter
prescribed by Federal, State or local law.
3.1.3 Base Rent and all other payments will be due on the last business
Friday of each month throughout the Term of this Agreement.
3.2 Additional Rent:
Lessee shall also pay, as "Additional Rent", any and all other tax(es),
including without limitation, Property Taxes, if imposed, levied or assessed
against the Demised Premises as a result of Lessee's use thereof, or any
other charge or payment required here by any governmental authority having
jurisdiction there over, even though the taxing statute or ordinance may
purport to impose such tax against the City.
4. location for Payments.
All rents or other payments due hereunder shall be paid to the City of Miami Beach
at the following address:
City of Miami Beach
Tourism and Cultural Development Department
c/o Max Sklar, Director
1700 Convention Center Drive
Miami Beach, Florida 33139
5. Parking.
- - -- -tr~tor}tionall~4mitte~---- ----- _ ---------- - -- --------
6. Security Deposit.
Following execution of this Lease by the parties hereto, and in no event later than
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sixty (60) days prior to the Commencement Date, Lessee shall pay to City the Sum
of Five Thousand Dollars ($5,000), as security for the faithful performance by
Lessee of the terms, conditions and covenants of this Lease. In the event of
Lessee's default of a term, condition and/or covenant of this Lease, the City shall be
entitled to retain such Security Deposit as liquidated damages. In the event that
Lessee shall fully comf~ly with all of the terms, conditions, and covenants of this
Lease, the Security Deposit shall be returned to Lessee, without interest, at the end
of the Term.
7. Use and Possession of Demised Premises.
7.1 The Demised Premises shall be used by the Lessee for the installation,
operation and maintenance of the event to be commonly referred to as
"Spiegelworld", which shall consist of the following:
(a) 1. Circus themed cabaret show, featuring live amplified music, acrobatics,
sang and dance, and comedy, which may include the following shows:
i. "ABSINTHE" -Acre-burlesque variety show;
ii. "La Vie" -- performed by Les 7 Doigts de la Main (.Circus Arts
Theater Company from Montreal);
iii. Lessee may also offer additional entertainment offerings including,
but not limited to other theatrical shows, programmed music and
musical performances.
iv. Lessee may also erect, install and operate a trapeze apparatus for
performances and public instruction.
(b) Normal hours of operation for Lessee's uses/events, as contemplated in
subsection 7.1 (a) above, shall commence no earlier than 12:OOpm, with the
last event ending no later than 4:00 am, seven day pr:r week, throughout the
Term hereof.
(c) As an ancillary use to the uses/events described in subsection 7.1(a) above,
Lessee shall also be permitted to serve, for sale and consumption within the
Demised Premises, food and beverages, including the saieand on-premises
serving/consumption of alcoholic beverages.
(d) Normal hours of operation for Lessee's sale/serving of food and beverages
shall be from noon to 4:00 am daily; provided that Lessee shall not be
permitted to sell and/or serve any food and beverages on the Demised
Premises when there are no performances and/or events scheduled (as
contemplated in subsection 7.1 (a)).
(e) Lessee, and/or its food and beverage concessionaire, shall be solely
responsible for applying for, obtaining, and maintaining (through the Term
_-_--hereof) alto}uorlioens~from_th~_apRr4pr_iate go~cecnmantal__authQrities.__-_
7.2 It is understood and agreed that the Demised Premises shall be used by the
Lessee during the Term of this Agreement only for the purposes set forth in
this Section 7, and for no other purposes or uses whatsoever. The Lessee
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will not make or permit any use of the Demised Premises that, directly or
indirectly, is forbidden by law, ordinance or government regulation, or that
may be dangerous to life, limb or property. Lessee may not commit (nor
permit) waste on the Demised Premises, nor permit the use of the Demised
Premises for any illegal purposes, nor commit a nuisance on the Demised
Premises. In the event that the Lessee uses the Demised Premises (or
otherwise allows the Demised Premises to be used) for any purposes not
expressly permitted herein, or permits andlor allows any prohibited uses as
provided herein, then the City may declare this Agreement in default
pursuant to Section 18 hereof, or, without notice to Lessee, restrain such
improper use by injunction or other legal action.
8. Improvements.
8.1 Lessee accepts the Demised Premises in their present "AS IS" condition
and shall, at its own cost and expense, be responsible for the erection,
construction, assembly, installation, operation, repair, and maintenance of
any and all improvements and non-permanent structures (including, without
limitation, the Spiegeltent) furnishings, and/or fixtures, as reasonably
necessary for it to carry on its permitted use(s), as set forth in Section 7
hereof. "fhe plans for any and all improvements shall be submitted to the
City, through its Tourism and Cultural Development Department, forthe City
Manager's (or his authorized designee's) prior review and approval, which
will not be unreasonably withheld or delayed. All permanent (fixed)
improvements to the Demised Premises shall remain the property of the City
upon termination and/or expiration of this Agreement. Upon termination
and/or expiration of this Agreement, all personal property and non-
permanent improvements, fixtures and/or furnishings (including without
limitation the Spiegeltent) shall be removed by the Lessee from the Demised
Premises without damage to the Demised Premises. Lessee will permit no
liens to attach to the -Demised Premises arising from, connected with, or
related to the erection, construction, assembly, installation, operation, repair-,
and maintenance of any improvements. Moreover, any assembly and/or
construction of structures, fixtures, and/or furnishings, of whatever type and
nature, shall be accomplished through the use of licensed, reputable
contractors who are acceptable to the City. Any and all permits and or
licenses required for fhe installation of all improvements shall be the sole
cost and responsibility of Lessee.
8.2 Notwithstanding Subsection 8.1 above, upon termination and/or expiration of
this Agreement, any and all alterations or additions made by Lessee to or in
the Demised Premises including, without limitation, any and all
improvements, non-permanent structures, furnishings and/orfixtures, shall,
be promptly removed by Lessee, at its sole cost and expense, and Lessee
_____further- hereby_a~crees~_in such event to re_s_tore__the Demised_Premises to_
their original condition prior to the Comrnencement Date of this Agreement.
9. Landlord's Right of Entry.
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9.1 The City, or its authorized agent or agents, shall have the right, but not the
obligation, to enter upon all or any part of the Demised Premises at all
reasonable times for the purpose of inspecting same, preventing waste,
making such repairs as the City may consider necessary, and for the
purpose of preventing fire, and/or addressing other life safety issues.
However, the City agrees that, whenever reasonably possible, the City shall
provide notice to Lessee, unless the need to enter the Demised Premises is
an emergency, as deemed by the City, at its sole discretion, which if not
immediately addressed could cause property damage, loss of life or limb, or
other injury to persons. Nothing herein shall imply any duty on the part of the
City to do any work that under any provisions of this Agreement the Lessee
may be required to perform, and the performance thereof by the City shall
not constitute a waiver of the Lessee's default.
9.2 If the Lessee shall not be personally present to open and permit entry into all
or any part of the Demised Premises at any time, for any reason, and any
entry thereon shall be necessary or permissible, the City, or its agents, may
enter the Demised Premises by master key (if applicable), or may forcibly
enter the Demised Premises without rendering the City or such agents liable
therefore.
0.3 Lessee shall furnish the City with duplicate keys to all locks including exterior
and interior doors, as applicable, no later than the Commencement Date of
this Agreement. Lessee shall not change any locks on the Demised
Premises without the priorwritten consent of the City, not to be unreasonably
withheld, and in the event such consent is given Lessee sha{I furnish the City
with duplicate keys to said locks in advance of their installation.
10. Lessee's Insurance.
10.1 The Lessee shall, at its sole cost and expense, secure prior to the
Commencement Date, and shall keep in force at all times during the Term of
this Lease, all insurance requirements of the City, asset forth in this Section
10. It is agreed by the parties that the Lessee shall not occupy the Demised
Premises until proof of the following insurance coverages has been furnished
to and approved by the City's Risk Manager:
10.1.1 Cornprehensive General Liability, in the minimum amount of
$1,000,000 per occurrence, with a $2,000,000 per location, for
bodily injury and property damage. The fire legal liability shall not
be less than $100,000. This policy shall contain a Contractual
Liability Endorsement. The City of PJliami Bey=ch, Florida must be
named as additional insured parties on this policy.
10.1.2 Em~o~ers Liability_ ca~!erage, _the _amount of $11000 000__per
person, for each accident or disease, and Worker's Compensation
Insurance in accordance with Florida statutory requirements.
10.1.3 All-Risks property and casualty insurance, written at a mirrimum of
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80% of replacement cost value and with replacement cost
endorsement, covering all of Lessee's personal property in the
Demised Premises (including, without limitation, all non-permanent
structures, inventory, trade fixtures, floor coverings, furniture and
other property removable by Lessee under the provisions of this
Agreement).
10.1.4 Liquor Legal Liability Insurance, with policy limits of $2,000,000
per occurrence, naming the City of Miami Beach, Florida, as an
additional insured, either as an endorsement to its Comprehensive
General Liability policy or as a separate policy. Lessee shall
provide the City with evidence of this insurance prior to selling or
serving alcoholic beverages at or from the Demised Premises. If
Lessee fails to obtain or to continue this coverage, Lessee shall
irnmediately discontinue selling and serving alcoholic beverages
from the Demised Premises.
10.2 Proof of these coverages must be provided by submitting original certificates
of insurance to the City's Risk Manager. All policies must provide thirty (30)
days written notice of cancellation, lapse, reduction in amount of coverage, or
any other adverse change to the policy or to the insured, to both the City's
Risk Manager and the City's Tourism & Cultural Development Department, at
1700 Convention Center Drive, Miami Beach, Florida, 33139. All insurance
policies shall be issued by companies authorized to do business under the
laws of the State of Florida and must have a rating of B+:VI or better per A.M.
Best's Key Rating Guide, latest edition, and certificates are subject to the
approval of the City's Risk Manager. All coverages/policies required herein
must remain current at all times during the Term herein.
11. Property Taxes and Assessments
For the purposes of this Section and other provisions of this Agreement:
11.1 The term "Property Taxes" shall mean (i) the real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the
Demised Prerises and/or the tax lot which may include the Demised
Premises, and (ii) any expenses incurred by the City in obtaining a reduction
of any such taxes or assessments.
11.2 The term "Property Tax Year" shall rriean the period of twelve (12) calendar
months, beginning on January 1St of each year.
11.3
City acknowledges that the Demised Premises are currently tax-exempt.
Notwithstanding the preceding, if as a result of any of Lessee's use of the
Demised Premises, as contemplated herein, such use triggers a taxable
_~vent~ fherL Lessee_shall,_u~olt~em~nd_from_the-Gity_Y~~rosp~ nsible_ fo~it~___
proportionate share of said Pro;~erty 1"axes, to be payable as set forth in
subsection 11.4 below.
11.4 Lessee shall pay, as Additional Rent pursuant to Section 3.2_, for such
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Property Tax Year, an amount ("Property Tax Payment") equal to Lessee's
proportionate share of the Property Taxes (if any) for such Property Tax
Year; said proportionate share to be determined by the City based upon the
ratio of the Demised Premises to the tax lot. If a Property Tax Year ends
after the expiration or termination of the Term of this Agreement, the
Property Tax Payment therefore shall be prorated to correspond to that
portion of such Property Tax Year occurring within the Term of this
Agreement. The Property Tax Payment shall be payable by Lessee
immediately upon receipt of notice from the City. A copy of the tax bill(s) or
other evidence of such taxes issued by the taxing authorities, together with
the City's computation of the Property Tax Payment, will be made available
to Lessee rmce received from the taxing authorities, if requested by Lessee.
Lessee shall pay any difference in the amount between the estimated
property taxes and the actual property taxes to the City immediately upon
receipt of request for said payment from the City.
12. Assignment and Subletting.
Lessee shall not have the right to assign or sublet all or any part of the Demised
Premises withoufi the prior written consent of the City which consent, if given at a[I,
shall be, at the City's sole and absolute discretion.
13. Operation, Maintenance and Repair.
13.1 Excluding the public restrooms and the power distribution panel located on or
near the Demised Premises, which the City shall continue to operate and
maintain in accordance with its operation/maintenance of similar public
facilities, Lessee shall be solely responsible forthe operation, maintenance
and repair of the Demised Premises and all of Lessee's improvements,
structures, fixtures, furnishings, equipment, and other personal property
thereon, so as to rriaintain said Premises and all improvements thereon in
first-class working order and condition, ordinary wear and tear excepted.
13.2 Excluding the public restrooms and the power distribution panel located on or
near the Demised Premises, which the City shall continue to operate and
maintain in accordance with its operation/maintenance of similar public
facilities, all damage or injury of any kind to the Demised Premises and to
any fixtures, structures, furnishings, equipment, and other personal property
thereon, except damage caused by the wrongful acts or negligence of the
City, shall be the obligation of Lessee, and shall be repaired, restored or
replaced promptly by Lessee, at its sole cast and expense, to the satisfaction
of the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality
and class equal to or better than the original work or installations and shall
be done in good and workmanlike manner.
13.4 If Lessee faits to make such repairs or restorations or repl:=cements, the
same may be made by the City, at tl~e expense of Lessee, and all sums
spent and expenses incurred by the City shall be collectable by the City and
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shall be paid by Lessee within ten (10) days after rendition of a bill or
statement thereof.
13.5 It shall be Lessee's obligation to insure that any renovations, repairs and/or
improvements made by Lessee pursuant to this Section 13 and this Lease
comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
13.6 Lessee Responsibilities for Utilities.
Lessee is solely responsible for, and shall promptly pay when due, all
charges for water, electricity, and any other utility service provided to the
Demised Premises; provided, however, that the City shall be responsible for
any connection fees and/or other "hook-up" fees such that the City will
ensure that said utilities have been connected and are available for Lessee's
use on the Demised Premises. In addition to other rights and remedies
hereinafter reserved to the City, upon the failure of Lessee to pay for such
utility services when due, City may elect to pay same, whereby Lessee
agrees to promptly reimburse the City upon demand. In no event, however,
shall the City be liable, whether to Lessee and/or any third parties, for an
interruption or failure in the supply of any utilities or utilities services to the
Demised PremisesLexcept to the extent that such interruption or failure is
caused by the negligence or willful misconduct of the City (and,
notwithstanding such event, the City shall at no time be liable to third
parties).
13.7 Payment of electricity and/any and all other utilities used on and/or provided
to the Demised Premises utilized during the previous month shall be made to
City with the current monthly rental payment.
Calculation of payment for electrical usage shall be based on the actual
kilowatt hours used times an average rate per kilowatt hour and any
applicable demand charges. An electrical sub-meter installed by the City will
determine the actual usage. The rate per kilowatt hour will be determined
monthly, as of December 14th, 2007, using Florida Power & Light's (FP&L)
current billing rates and billing structure for the Demised Premis~:s. Lessee
will arrange to be billed directly by FPL for its electrical usage.
13.8 LESSEE HEREQY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARF QEING LEASED IN TF-IEIR PRESENT "AS IS"
CONDITION. LESSEE REPRESENTS AND AGREES THAT, PRIOR TO
THE COMMENCk~MEIJT DATE, LESSEE.. HAS INSF~FCTED THE DEMISED
PREMISES AND Hi~REC~Y ACCEPTS THE DEMISED PREIJItSES "AS-IS,
~`Y~lHERE-Iv; AND WITH ALL FAULTS."
~~_9_less~e_shall_he_requiredr_at~ts.~ole_cnst and_~xpensc~ fn~pro_viding-security
for the Demised Prerises. Lessee shall provide security personnel or shall
contract with a security guard during operating hours and non-operating
hours.
8
13.10 City shall have no liability to Lessee for any loss of personal property
fixtures, equipment, or other property arising from theft or vandalism upon
the Demised Premises.
14. Governmental Regulations.
The Lessee covenants and agrees to fulfill and comply with all statutes, ordinances,
rules, orders, regulations, and requirements of any and all governmental bodies,
including but not limited to Federal, State, Miami-Dade County, and City
governments, and any and all of their departments and bureaus applicable to the
Demised Premises and Lessee's proposed use(s) thereof, 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 cost, expenses, claims,
fines, penalties, and damages that may be imposed because of the failure of the
Lessee to comply with this Section, and shall indemnify and hold harmless the City
from all liability arising from each non-compliance.
15. Liens.
Lessee will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements thereto for any labor or materials
to Lessee or claimed to have been furnished to Lessee's agents, contractors, or
sub-Lessees, in connection with work of any character performed or claimed to
have perforrrred on said Premises, or improvements, by or at the direction or
sufferance of the Lessee; provided however, Lessee shall have the right to contest
the validity or amount of any such lien or claimed lien. In the event of such contest,
Lessee shall give the City reasonable security as may be demanded by the City to
insure payment thereof and prevent sale, foreclosure, or forfeiture of the Premises,
or improvements, by reasons of such non-payment. Such security need not exceed
one and one half (1'/z) times the amount of such lien or such claim of lien. Such
security shall be posted by Lessee within ten (10) days of written notice from the
City, or Lessee may "bond off' the lien according to statutory procedures. Lessee
will immediately pay any judgment rendered with all proper cost and charges and
shall have such lien released or judgment satisfied at Lessee's own expense.
16. Enforcement.
Lessee agrees to pay the Base Rent, Additional Rent, and any otl~er amounts, as
may be due and payable by Lessee under this Agreement, at the time and in the
manner provided herein, and should said rents and/or other additional amounts due
herein, at any time remain due and unpaid for a period of fifteen (15) days after the
same shall become due, the City may exercise any or all options available to it
hereunder, which options may be exercised concurrently or separately, or the City
may pursue any other remedies enforced by law.
17. Condemnation.
17.1
If at any time during tl~e Term of this Agreement, all or any part or portion of
the Demised Premises is taken, appropriated, or condemned by reason of
Eminent Domain proceedings (except if the Eminent Domain proceedings
are initiated by the City of Miami E3each), then this Agreement shall be
9
terminated as of the date of such taking, and shall thereafter be completely
null and void, and neither of the parties hereto shall thereafter have any
rights against the other by reason of this Agreement or anything contained
therein, except that any rent prepaid beyond the date of such taking shall be
prorated to such date, and the Lessee shall pay any and all rents, additional
rents, utility charges, or other costs for which it is liable under the terms of
this Agreement, up to the date of such taking.
18. Default.
18.1 Default by Lessee:
At the City's option, any of the following shall constitute an Event of Default
under this Agreement:
18.1.1 The Base Rent, Additional Rent, or any installment thereof, is not
paid promptly when and where due within fifteen (15) days of due
date, and if Lessee shall not cure such failure within three (3) days
after receipt of written notice from the City specifying such default;
18.1.2 Any other payment provided for under this Agreement is not paid
promptly when and where due;
18.1.3 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.4 The Lessee shall fail to comply with any material term, provision,
condition or covenant contained herein other than the payment of
rent and shall not cure such failure within ten (10) days after the
receipt of written notice from the City specifying any such default;
or such longer period of time acceptable to the City, at its sole
discretion;
18.1.5 Receipt of notice of violation from any governmental authority
having jurisdiction dealing with a law, code, regulation, ordinance
or the like, which remains uncured for a period of ten (10) days
from its issuance, or such longer period of time acceptable io the
City, at its sole discretion;
18.1.6 Any petition is filed by or against Lessee under any section or
chapter of the Bankruptcy Act, as amended, which remains
pending for more than thirty (30) days, or any other proceedings
now or hereafter authorized by the laws of the United States or of
any state for the purpose of discharging or extending the time for
payment of debts;
1.7__ Lessee shall become insolvent;-.,
18.1.8 Lessee shall make an assignment for benefit of creditors;
18.1.9 A receiver is appointed for Lessee by any court and shall not be
1U
dissolved within thirty (30) days thereafter; or
18.1.10 The leasehold interest is levied on under execution.
18.1.11 Failure to comply with any term and/or condition of the Special
Event Permit, as contemplated pursuant to Section 39 hereof.
19.
Rights on Default.
19.1 Rights on Default:
In the event of any default by Lessee as provided herein, the City shall have
the option to do any of the following in addition to and not in limitation of any
other remedy permitted by law or by this Agreement:
19.1.1 Terminate this Agreement, in which event Lessee shall
immediately surrender the Demised Premises to the City, but if
Lessee shall fail to do so the City may, without further notice, and
without prejudice to any other remedy the City may have for
possession or arrearages in rent or damages for breach of
contract, enter upon the Demised Premises and expel or remove
Lessee and its effects in accordance with law, without being liable
for prosecution or any claim for damages therefore, and Lessee
agrees to indemnify and hold harmless the City for all loss and
damage which the City may suffer by reasons of such Agreement
termination.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remairiderof the
Term of this Agreement to be due and payable immediately, in
which event Lessee agrees to pay the sar;~e at once, togetherwith
all rents therefore due, at the address of the City, as provided in
the Notices section of this Agreement; provided, however, that
such payment shall not constitute a penalty, forfeiture, or
liquidated damage, but shall merely constitute payment in
advance of the rents for the remainder of said Term and such
payment shall be considered, construed and taken to be a debt
provable in bankruptcy or receivership.
19.1.3 Take possession of any personal property owned by Lessee on
said Demised Premises and sell the same at public or private sale,
and apply same to the payment of rent due, holding the Lessee
liable for the deficiency, if any.
19.1.4 It is expressly agreed and understood by and between the parties
_______.__her_eto_that~ny_installrnen.ts Qflent_a~ctuir~_unsler_th~provisions.
of this Agreement which shall not be paid when due, shall bear
interest at the maximum legal rate of interest per annum then
prevailing in Florida from the date when the same was payable by
the terms hereof, until the same shall be paid by Lessee. Any
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failure on the City's behalf to enforce this Section shall not
constitute a waiver of this provision with respect to future accruals
of past due rent. No interest will be charged for payments made
within the grace period, such grace period to be defined as within
five (5) days of the due date. In addition, there will be a late
charge of Fifty Dollars ($50.00) for any payments submitted after
the grace period.
19.1.5 If Lessee shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
may pay such expense, but the City shall not be obligated to do
so. Lessee upon the City's paying such expense shall be obligated
to forthwith reimburse the City for the amount thereof. All sums of
rnoney payable by Lessee to the City hereunder shall be deemed
as rent far use of the Demised Premises and collectable by the
City from Lessee as rent, and shalt be due from Lessee to the City
on the first day of the month following the payment of the expense
by the City.
19.1.6 The rights of the City under this Agreement shall be cumulative
but not restricfiive to those given by law and failure on the part of
the City to exercise promptly any rights given hereunder shall not
operate to waive or to forfeit any of the said rights.
19.2 f)efault by the City:
The failure of the City to perform any of the covenants, conditions and
agreements of this Least: which are to be performed by the City and the
continuance of such failure for a period of ten (10) days after notice thereof
in writing from Lessee to the City (which notice shall specify the respects in
which Lessee contends that the Cifiy failed to perform any such covenant,
conditions and agreements) shall constitute a default by the City, unless
such default i ,one which cannot be cured within ten (10) days because of
circumstances beyond the City's control, and the City within such ten (10)
day period shall have commenced and thereaftershall continue diligently to
prosecute all actions necesscry to cure such defaults.
However, in the event the City fails to perform within the initial 10 day period
provided above, and such failure to perform prevents Lessee from operating
its business in a customary manner and causes an undue hardship for tho
Lessee, then such failure to perform (regardless of circumstances beyond it:',
control) as indicated above, shall constitute a default by the Gity.
19.3 Lessee's Rights on Default:
tf an event of the City's default shall occur, Lesse~:.~, to the fullest exent
___permitted by lawy__shall have the._r~ht_ to_~ursue_any__~rlsL__alLremedies__________
available at lavr or in equity, including the right to sue for and collect
damages, including reasonable attorney fees and costs, to terrinate this
Agreement (and all of its obligations hereunder by giving notice of such
election to the City, whereupon this Agreement shall terminate as of the date
12
of such notice), to specifically enforce Lessee's righfis; and/or to enjoin the
City.
20. Indemnity Against Costs and Charges.
llntentionally Omittedl
21. Indemnification Against Claims.
21.1 The lessee shall indemnify and save the City harmless from and against
any and all claims or causes of action (whether groundless or otherwise) by
or on behalf of any person, firm, or corporation, for personal injury or
property damage occurring upon the Demised Premises or upon any other
land or other facility or appurtenance used in connection with the Demised
Premises, occasioned in whole or in part by any of the following:
21.1.1 An act or omission on the part of the Lessee, or any employee,
agent, contractor, concessionaire, invitee, guest, assignee, sub
lessee, or subcontractor of the Lessee;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by
Lessee, or any employee, agent, contractor, concessionaire,
invitee, guest, assignee, sub lessee, or subcontractor of the
Lessee, but not to include trespassers upon the Demised
Premises;
21.1.3 l'3ny breach, violation, or non-performance of any undertaking of
the Lessee under this Agreement;
21.1.4 Anything arising out of the use or occupancy of the Demised
Premises by the Lessee or anyone holding or claiming to t}old
through ar under this /agreement.
21.2 Subject to City's maintenance obligations for the public restrooms and power
cistribution panels as sot forth in sections 13.1 and 13.2, Lessee agrees to
pay all damages to the Demised Premises and/or other fcycilities used in
connection therewith, caused by the t_essee or any employee, guest, or
invitee of the Lessee.
21.3 Notwithstanding subsections 21.1 and 21.2, Lessee shall not be obligated to
indemnify and hold the City harmless for any claims resulting from the
negligence or willful misconduct of the City, its officers, agents, and
employees.
_2__1 4 _The provisions of this S_e_ction_21_ shall sur~yive_~x~iration_or terrr~na.tiQn_Qf_
this Lease.
22. Hazardous substanc_eu.
City, to the best of its knowledge, information, and belief but without making
13
independent inquiry, does not know of any substance, chemical or waste
(collectively, "substance") on the Demised Premises that is identified as hazardous,
toxic or dangerous in any applicable Federal, State or local law or regulation.
Lessee shall not introduce or use any such substance on the Demised Premises in
violation of any applicable law. In the event Hazardous Substances, as said term is
hereinafter defined, are discovered on, in or under the Demised Premises as of the
Commencement Date or thereafter, and such Hazardous Substances is located on,
in or under the Demised Premises due to an act of or as a result of fault or
negligence of Lessee, Lessee, at its sole expense, shall, remove all such
Hazardous Substances in accordance with all applicable laws, rules, ordinances,
and regulations ("Removal"). Lessee (the "Indemnifying Party")shall indemnify and
hold City, (the "Indemnitee") harmless against any claims arising out of such
Hazardous Substances including all of Indemnitee's attorney's fees and costs
("Indemnity"). For the purposes hereof, the term "Hazardous Substances" shall
mean pollutants, contaminants, toxic or hazardous substances or wastes, oil or
petroleum products, flammable or any other substances whose nature and/or
quantity of existence, use, release, manufacture or effect renders it subject to
Federal, state or local environmental, health, community awareness or safety laws
or regulations, now or hereafter enacted or promulgated by any governmental
authority or court ruling, or any investigation, remediation or removal. Further,
Hazardous Substances shall be required to be removed from the Site only if
required by the proper governmental authorities.
23. Signs and Advertising.
The Lessee shall not permit the painting and display of any signs, plaques, lettering
or advertising material of any kind on or near the Demised Premises without first
having obtained the prior written consent of the City. All signage shall comply with
standards with standards established by the City and comply with all applicable
building codes, and any other municipal, County, State and federal laws.
24. Dama~ae to the Demised Premises/Force Majeure.
24.1 If the Demised Premises shall be damaged by the elements or other casualty
not due to Lessee's negligence, or by fire, whether or not said Demised
Premises are rendered untenantable or unfit for Lessee's intended uses
herein, whether in whole or part, as determined by the City, in its sole
discretion, the City shall have the option, but not the obligation, to cause
such damage to be repaired, and the rent meanwhile shall be abated.
However, the City shall have the right, to be exercised by notice in writing
delivered to Lessee within fifteen (15) days from and after said occurrence,
to elect not to reconstruct the destroyed and/or damaged Demised Premises
and, in such event, this Agreement and the tenancy hereby created shall
cease as of the date of said occurrence, with the rent to be adjusted as of
such date. Upon such termination, the provisions of Section 29 shall apply.
24.2 Force Ma~P) .are.
No party will be liable or responsible to the other par'iy far any delay,
damage, loss, failure, or inability to perform caused by "force majeure" if
14
~iotice is provided to the other party within ten (10) days of the date on which
such party gains actual knowledge of the event of "force majeure" that such
party is unable to perform. The term "force majeure", as used in this
subsection, means the following: an act of God, strike, war, public rioting,
terrorism, unusual tidal activity affecting the use of the Demised Premises,
fire, hurricane, explosions, epidemics, earthquakes, floods, civil
disturbances, and any other cause which is not reasonably within the control
of the party whose performance is to be excused, and by which the exercise
of due diligence could not be reasonably prevented or overcome.
25. Quiet Enjoyment.
The Lessee shall enjoy quiet enjoyment of the [demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Lessee
complies with the terms of this Agreement.
26. Waiver.
26.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise
any option herein conferred, will not be considered or construed as a waiver
or relinquishment for the future of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in full force and
effect.
26.2 A waiver of any term expressed herein shall not be irrsplied by any neglect of
the City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated subsequently and any express waiver
shall not affect any term other than the one specified in such waiver and that
one only for the time and in the manner specifically stated.
27. Notices.
The addresses for all notices required under this Agreement shall be as follows, or
at such other address as either party shall be in writing, notify the other:
CITY: City Manager
City of Miami Beach
1700 Convention Center Drive
PViiami Beach, Florida 33139
With copies to: Tourism & Cultural Developn`ient
Max Sklar, Director
_-- -_ _-_- --_ _ __ ____ _-City_ of Mia__mi Beach ___--
1700 Convention Cente.~ Drive
Miami Beach, Florida 33139
LESSEE: Executive Director
15
Spiegel LP
22 West 19t" Street,5t" Floor
New York, NY 10011
All notices shall be hand delivered and a receipt requested, or by certified mail with
Return Receipt Requested, and shall be effective upon receipt.
28. Limitation of City's Liability.
28.1 "("he City desires to enter into this Agreement only if in so doing the City can
place a limit on the City's liability for any cause of action for money damages
(but expressly excluding any action in tort) due to an alleged breach by the
City of this Agreement, so that its liability for any such breach never exceeds
the sum of Thirty Three Thousand ($33,000.00) Dollars and 00/100. Lessee
hereby expresses its willingness to enter into this Agreement with the
Lessee's recovery from the City for any damage action for breach of contract
to be limited to a maximum amount of Thirty Three Thousand ($33,000.00)
Dollars and 00/100. Accordingly, and notwithstanding any other term or
condition of this Agreement, Lessee hereby agrees that the City shall not be
liable to Lessee for damage in an amount in excess of Thirty Three
Thousand ($33,000.00) Dollars and 00/100 for any action or claim for breach
of contract arising out of the performance or non-performance of any
obligations imposed upon the City by this Agreement. Nothing contained in
this Section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability as set forth in Florida
Statutes, Section 768.28.
28.2 IN NO EVENT SHALL THE CITY BE LIABLE FOR LOSS OF PROFITS OR
OTHER BUSINESS LOSS, (JR ANY OTHER INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH
LESSEE'S USE OF THE DEMISED PREMISES OR THIS AGREEMENT,
WHETHER UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY. THIS LIMITATION SHALL APPLY
EVEN IF THE CITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
28.3 The City and the Le see agree that the provisions of Section 28.2 shall not
apply in the event of loss or damage sustained by the Lessee that:
i) arises nut of the suspension of amenities to the Demised Premises
caused by the gross negligence or willful misconduct of tl~te City, its
officers, agents, and employees.
29. Surrender of the Demised Premises.
The Lessee shall, on or before the last day of the Term herein, or the sooner
term_ination_ th~~eQf,~~ac~abl~_artsL~uietLy_Lea;ce~urrender_and_yielc~upon_to_the_ __ ___
City the Demised Premises, free of ail liens, claims grid encumbrances and rights of
others, and shall restore said Premises to their original condition prior to the
Commencement Date of this Lease. Any property which pursuant to the provisions
of this Section is removable by Lessee on or at the Demised Premises upon the
16
termination of this Agreement and is not so removed may, at the option of the City,
be deemed abandoned by the Lessee, and either may be retained by the City as its
property or may be removed and disposed of at the sole cost of the Lessee in such
manner as the City may see fit. If the Demised Premises are not surrendered at the
end of the Term as provided in this Section, the Lessee shall make good the City all
damages which the City shall suffer by reason thereof, and shall indemnify and hold
harmless the City against all claims made by any succeeding Lessee or purchaser,
so far as such delay is occasioned by the failure of the Lessee to surrender the
Demised Premises, as and when herein required. Failure to vacate premiseswithin
seven (7) days of last performance will result in accrual of Base Rent for each
additional week.
30. Attorneys Fees.
[Intentionally Omitted]
31. Venue.
This Agreement shall be enfiorceable in Miami-Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any and all the
terms or conditions herein, exclusive venue for the enforcement of same shall lie in
Miami-Dade County, Florida.
The City and Lessee hereby knowingly and intentionally waive the right to trial by
jury in any action or proceeding that the City and Lessee may herein after institute
against each other with respect to any matter arising out of or related to this
Agreement.
32. Additional Terms & Conditions.
32.1 City shall be responsible for:
32.1.1 Using reasonable efforts to ensure that Lessee has access to
water, electricity, drainage and sewerage on the Demised
Premises; provided however, that Lessee shall be solely
responsible for payment of all utility charges (except
connection/hook-up fees), and provided further that the City
shall not be liable to Lessee or third parties for an interruption
or failure in the supply of any utilities or utilities services to the
Demised PremisesLexcept to the extent that such interruption
or failure is caused by the negligence or willful misconduct of
the City (and, notwithstanding such event, the City shall at no
time be liable to third parties).
32.1.2 Providing Lessee access to the public restrooms located on
the Demised Premises throughout Lessee's hours of
__ _____- oper~tion.Ypr_QVicLed_th~t_said restrooms_have been_complet~:_d__
and received a Final Certificate of Completion from the City of
Miami Beach Building Department prior to the Commencement
Date.
1i
32.1.3 Subject to the provisions of subsection 32.1.2 above, using
reasonable efforts to ensure that the public rostrooms located
on the Demised Premises are cleaned and maintained in
accordance with the City's routing cleaning/maintenance of
other comparable public facilities, during the City's standard
hours, which are from 3 am to 6 pm, Monday -Sunday.
Lessee will be solely responsible for cleaning and maintaining
said public rostrooms outside of the City's standard operating
hours.
32.1.4 Providing promotional support to the Lessee for its scheduled
events, including but not be limited to, listing the events err City
of Miami Beach websites; promoting events in the City's
weekly "e-blast"; including the events in the City's community
advertising space in the Miami Herald; including the events in
the City's bi-monthly magazine; promoting the events as part of
the City's bi-weekly NP~t and NBC promotional spots;
promoting the events in conjunction with Lessee's public
relations company; and waiving City of Miami Beach light pole
banner permit fees.
32.1.5 Providing Lessee with sufficient space on or in close proximity
of the Demised Premises for dumpsters.
32.2 Lessee shall be responsible for:
32.2.1 Covering all costs associated with presentation of the live
performances, musical events, and any and all other events
contemplated herein including, without limitation, the provision of all
required performance venues, including but not limited to the
- Spiegeltent.
32.2.2 Selecting, training, supervising and directing all employees,
contractors, concessionaires and any and all other personnel (which
shall be employees and/or contractors of Lessee or third parties and
not the City) in sufficient number and in such manner as is necessary
and/or appropriate for Lessee to satisfy its obligations under this
Agreement, and to operate and maintain its events, businesses, and
operations, as cotemplated herein, in a first-class manner.
32.2.3 All j~:nitorial and other maintenance, repair and upkeep of the
Demised Premises and all improvements thereon including, without
limitation, the following structures on the Demised Premises; three(3)
or more dressing rooms; two(2) or more F~ortable bathroarns for
_Lessee°s-stafffood-and-beverage {~roparation-area-;~.ervinc~ station-;-
ticket booth; trapeze ~.pparatus; perimeterfence; and "beer garden".
32.2.4 Ensuring that the area surrounding the exterior perimeter of the
Demised Prerniscs (vrithin a 50 foot radius of tl~e Premises), but
18
excluding the public restrooms during the City's normal operating
hours) are kept free of any trash and debris that might emanate from
the Premises.
32.2.5 Running promotion and providing event coordination, logistics, and
staff, as well as providing a detailed event flow prior to all scheduled
events.
32.2.~i All set-up and tear down of structures, fixtures, furnishings,
equipment, and zany and all other personal property.
33. Sponsorship.
The City of Miami Beach will be recognized as a sponsor of the Spiegeltent. As
such, the City will receive recognition (logo or line listing) in all print advertising and
promotion, electronic, print, on-site, and media promotions.
34. Rent Free City Use.
City may use the Demised Premises rent free, subject to availability and pre-
scheduling with Lessee. In respect of any such use, the City shall be responsible
for any direct costs associated with its use of the Demised Premises.
35. Complimentar r~Cit~Tickets.
Lessee agrees to provide fihe City with a minimum of six (5) complimentary tickets
for each week during the Term hereof, for the Mayor, City Commissioners, City
Manager, City Attorney, or other City Staff. Tickets will be reserved at the box office
until two hours before fihe advertised time of each show. !f the City intends to use
the tickets, Lessee must be notified at least 48 hours prior to the show. All tickets
requested under this Section will be provided subject to ticket availability.
36. Resident Ticket Program.
Lessee shall provide a resident ticket program, offering first priority to pre-purchase
tickets for residents of the City, at a fifteen percent (15%) discount. The
priority/discount offer will be applied to the purchase of a maximum of two tickets
per household and will be limited to performances occurring within the first four (4)
weeks of the event. 1~he City will provide Lessee with avenues to promote the offer
(i.e. City website and newsletters).
37. Senior Ticket Program.
Lessee shall provid~:: 10 senior tickets for each show at a fifteen percent (15%)
discount. Seniors must be 62 years of age or older and reside in the City of Miami
Beach to qualify. The Senior Ticket discount will be applied to the purchase of Er
maximum of two tickets per t~ouseholci. The City will provide Lessee with avenues
to pror~note the offer (i.e. City website and newsletters).
'~H~ ---~hitdr-~~'~~-ro~ram~n- inch.
Lessee may offer free children's programming on weekend days, or will make fihe
Demised Premises available rent free for the City to program free children's
programming. In the event that Lessee makes the Demised Premises available to
the City, the City agrees to be responsik~le for any direct costs associated with its
19
use of the Demised Premises.
39. Special Event/Film Permit.
As a condition to this Agreement, Lessee must obtain a Special Event Permit and/or
Film Permit, which includes building, structural, electrical permits. All fees for said
Permit(s) will be waived, except for hard costs associated with City sE~rvices (i.e.
Police, Fire, Sanitation, utilities). All hard costs shall be the sole responsibility of
Lessee. Issuance of such Special Event Permit shall be subject to and contingent
upon Lessee meeting all the requirements and conditions of the City's Guidelines,
other than payment of fees as specified herein. Copies of the City's Special Events
and Film/Print Guidelines are attached hereto. IN -SHE EVENT OF LESSEE'S
FAILURE TO COMPLY WITH ANY TERM AND OR CONDITION OF THE
AFORESTATED PERMIT, SUCH DEFAULT SHALL BE DEEMED AN EVENT OF
DEFAULT HEREUNDER.
40. Miscellaneous.
40.1 GOVERNING LAW: This Agreement shalt be governed by, construed and
enforced in accordance with fihe laws of the State of Florida. The parties
hereby waive trial by jury.
40.2 ENTIRE AGREEMENT: This Agreement contains the entire agreement
between the parties. The parties agree that the execution of this Agreement
has nat been induced by any promises, understandings or representations not
expressed herein and fihere are no collateral agreements between thei~~r
dealing with the subject matter of this Agreement.
40.3 COUNTERPARTS: City and Lessee acknowledge that this Agreement has
been or may be executed in several counterparts, each of which shall be
deemed an original and a!I such counterparts together shall constitute one and
the same instrument.
40.4 RELATIONSH IP OF PARTIES: The Parties to the Agreement are independent
contractors. tJeither party is an agent, representative or partner of the other
party. Neither party shall have any right, power or authority to enter into any
agreement for or on behalf or, or incur any obligation or liability or to otherwise
bind the other party. This Agreement shall not be interpreted or construed to
create an association, agency, joint venture or partnership between the parties
or to impose any liability attributable to such relations upon any party.
40.5 USE OF TRADEMARKS: The Parties to this Agreement are hereby authorized
to use the other party's trademarks, label designs, artwork and other symbols
and devices associated with the products in advertisting and promoting this
Agreement dLrringthe Term of this Agreement, provided each party shall have
--the ~tf>ht to approve-all sE=ck~-uses-in~uri#ingin-~dva~rc~. -- -- - -------------
40.6 This Agreement contains all agreements, promises and understandings
between City and Lessee and no verbal or oral agreement, promises or
understandings relating to fihe Demised Premises shall be binding upon either
20
City or Lessee in any dispute, controversy or proceeding at law. Any addition,
variation or modification to this Agreement shall be void and ineffective unless
made in writing and signed by the parties. If any term or provision, or any
portion thereof, of this Agreement, or the application thereof to any person or
circumstances shall, to the extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons or
circumstances, other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforced to the fullest extent permitted by
law.
40.7 This Agreement and the obligations of fihe parties, and the performance
thereof shall be governed, interpreted, constructed and regulated by the laws
of the State of Florida.
40.8 This Agreement shall inure to the benefit of and be binding upon the heirs,
personal representatives, successors and assigns of the parties hereto.
40.9 ~leither this Agreement nor any notice of it shall be recorded in any Public
Records.
40.10 Whenever under this F:greemFnt the consent or approval of either party is
required or a determination must be made by either party, no such consent
or approval shall be unreasonably withheld or delayed, and all such
deterrriinatiorrs shall be made on a reasonable basis and in a reasonable
manner.
40.11 If any article, paragraph, section, provision, sentence, clause, or portion of this
Agreement is determined to be illegal, invalid or unenforceable, such
determination shall in noway affect the legality validity or enforceability of any
article, paragraph, section, provision, sentence, clause or portion of this
Agreement and any such affected portion or provision shall be modified,
amended, or deleted to the extent possible and permissible to give the fullest
effect to the purposes of the parties and of this Agreement, ar~d the parties
hereby declare that they would have agreed to the remaining parts of this
Agreement if they had known that such provisions or portions thereof would
be determined to be illegal, invalid, or unenforceable.
40.12 Captions and headings are for convenience of reference only and in noway
shall be used to construe ar modify the provisions :~,et forth in this Agreement.
2i
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed by the respective duly authorized officers and the respective corporate seals to be
affixed this f $ TGG~~ day of J"~~t ~ y , 2007.
ATTEST:
BY: ~~~
Robert Parcher, City Clerk
ATTEST: "
. ~ ~: ~
~.
BY:
Secretary
~,
(Print Name)
CORPORATE SEAL
(affix here)
CITY OF MIAMI BEACH, FLORIDA
BY: \ ~r- ~
Jo; ge M. onzalez, ity a ager
SPIEGEL, L~.
'~
;` f ~ ~
~~ r `°~. ~
BY: 7
President
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