Mystery Parks Arts Company Lease AgreementLEASE AGREEMENT
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THIS LEASE AGREEMENT, made this 10th day of September , 2008, by and
between the CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred
to as "City" or "Landlord"), and Mystery Parks Arts Company, Inc. (d/b/a SoBe Music
Institute), anot-for-profit corporation, (hereinafter referred to as "Tenant").
Demised Premises.
City, in consideration of the rentals hereinafter reserved to be paid and of the
covenants, conditions and agreements to be kept and performed by the Tenant,
hereby leases, lets and demises to the Tenant, and Tenant hereby leases and hires
from the City, those certain premises hereinafter referred to as the "Demised
Premises", located in the City of Miami Beach, at 2100 Washington Avenue, Miami
Beach, Florida, 33139, and more fully described as follows:
Approximately 3,080 square feet of leasable space, as more
specifically delineated in Exhibit 1, attached hereto and incorporated
herein, located in the 21St Street Community Center Complex located
at 2100 Washington Avenue, and also known as the "Carl Fisher
Clubhouse".
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises for an
initial term of one (1) year, commencing on the 1 St day of September, 2008
(the "Commencement Date"), and ending on the 31St day of August, 2009.
2.2 (i) Provided Tenant is in good standing and free from default(s) hereunder,
and (ii) upon written notice from Tenant, which notice shall be submitted to
the City Manager no earlier than sixty (60) days, but in any case no laterthan
thirty (30) days prior to the expiration of the initial term (or any renewal term,
as the case may be), this Lease may be extended for an additional one (1)
year renewal term. Any extensions, if approved, shall be memorialized in
writing and signed by the parties hereto (with the City hereby designating the
City Manager as the individual authorized to execute such extension on its
behalf).
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Agreement (upon expiration of the initial term or any
renewal term, as the case may be), the City Manager shall notify Tenant of
same in writing, which notice shall be provided to Tenant within fifteen (15)
business days of the City Manager's receipt of Tenant's written notice.
2.3 NOTWITHSTANDING SUBSECTIONS 2.1 AND 2.2 HEREIN, THIS
AGREEMENT MAY BE TERMINATED BY EITHER PARTY, WITHOUT
CAUSE AND FOR CONVENIENCE AT ANY TIME DURING THE TERM
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(INCLUDING ANY RENEWAL TERM, AS THE CASE MAY BE), UPON
FURNISHING THIRTY (30) DAYS WRITTEN NOTICE TO THE OTHER
PARTY.
3. Rent.
3.1 Base Rent:
Base Rent for the Demised Premises shall begin to accrue on September 1,
2008 (the Commencement Date).
3.1.1 Throughout the Term herein, the Base Rent for the Demised
Premises shall be Six Thousand ($6,000.00) Dollars per year,
payable by Tenant monthly, commencing on the Commencement
Date and, thereafter, on each first day of subsequent months.
3.1.2 Concurrent with the payment of the Base Rent, Tenant 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.
3.2 Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also
pay to Landlord Additional Rent as provided below:
3.2.1 Operating Expenses:
Intentionally Omitted.
3.2.2 Property Taxes:
The Property Tax Payment shall be payable by Tenant, in
accordance with Section 11 herein.
3.2.3 Insurance:
Intentionally Omitted.
3.4 Sales Taxes:
Concurrent with the payment of the annual or monthly installment of Base
Rent and Additional Rent as provide herein, Tenant shall also pay any and
all sums for all applicable tax(es), including without limitation, sales and use
taxes and Property Taxes, imposed, levied or assessed against the Demised
Premises, 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 Lessor at the
following address:
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City of Miami Beach
Finance Department
c/o Revenue Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
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or at such other address as the City may, from time to time, designate in writing.
Parkin .
Intentionally Omitted.
Security Deposit.
Intentionally Omitted.
Use and Possession of Demised Premises.
7.1 The Demised Premises shall only be used by the Tenant for the following
approved use(s):
The Demised Premises shall be open for operation seven (7) days a week,
with normal hours of operation being from Monday through Sunday, from
7 A.M. to Midnight. Tenant shall not otherwise modify the days or hours of
operation without the prior written approval of the City Manager. Nothing
herein contained shall be construed to authorize hours contrary to the laws
governing such operations.
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7.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the above
purpose(s)/use(s), and for no other purpose(s) and/or use(s) whatsoever.
Tenant will not make or permit any use of the Demised Premises that,
directly or indirectly, is forbidden bylaw, ordinance or government regulation,
or that may be dangerous to life, limb or property. Tenant 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 Tenant uses the Demised Premises
(or otherwise allows the Demised Premises to be used) for any purpose(s)
not expressly permitted herein, or permits and/or allows any prohibited use(s)
as provided herein, then the City may declare this Agreement in default
pursuant to Section 18 or, without notice to Tenant, restrain such improper
use by injunction or other legal action.
7.3 Intentionally Omitted
Improvements.
8.1 Tenant accepts the Demised Premises in their present "AS IS" condition
and may construct or cause to be constructed, such interior and exterior
improvements and maintenance to the Demised Premises, as reasonably
necessary for it to carry on its permitted use(s), as set forth in Section 7;
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provided, however, that any plans for such improvements shall be first
submitted to the City Managerfor his priorwritten consent, which consent, if
granted at all, shall be at the City Manager's sole and absolute discretion.
Additionally, any and all approved improvements shall be made at Tenant's
sole cost and expense. 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 trade fixtures may be
removed by the Tenant from the Demised Premises, provided that they can
be (and are) removed without damage to the Demised Premises. Tenant will
permit no liens to attach to the Demised Premises arising from, connected
with, or related to the design and construction of any improvements.
Moreover, such construction shall be accomplished through the use of
licensed, reputable contractors who are acceptable to the City. Any and all
permits and or licenses required forthe installation of improvements shall be
the sole cost and responsibility of Tenant.
8.2 Notwithstanding Subsection 8.1, upon termination and/or expiration of this
Agreement, and at City's sole option and discretion, any or all alterations or
additions made by Tenant to or in the Demised Premises shall, upon written
demand by the City Manager, be promptly removed by Tenant, at its cost
and expense, and Tenant further hereby agrees, in such event, to restore the
Demised Premises to their original condition prior to the Commencement
Date of this Agreement.
8.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 8.3 only, shall also include improvements as necessary for
Tenant's maintenance and repair of the Demised Premises) which do not
exceed Five Hundred ($500.00) Dollars, provided that the work is not
structural, and provided that it is permitted by applicable law.
9. Landlord's Right of Entry.
9.1 The City Manager, and/or his authorized representatives, shall have the right
to enter upon 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, theft or
vandalism. The City agrees that, whenever reasonably possible, it shall use
reasonable efforts to provide notice (whether written or verbal), unless the
need to enter the Demised Premises is an emergency, as deemed by the
City Manager, in his 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 Tenant may be required to
perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
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9.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at any time, .for any reason, and any entry thereon
shall be necessary or permissible, the City Manager, and/or his authorized
representatives, may enter the Demised Premises by master key, or may
forcibly enter the Demised Premises without rendering the City or such
agents liable therefore.
9.3 Tenant shall furnish the City with duplicate keys to all locks including exterior
and interior doors prior to (but no later than by) the Commencement Date of
this Agreement. Tenant shall not change the locks to the Demised Premises
without the prior written consent of the City Manager, and in the event such
consent is given Tenant, shall furnish the City with duplicate keys to said
locks in advance of their installation.
10. Tenant's Insurance.
10.1 The Tenant shall, at its sole cost and expense, comply with all insurance
requirements of the City. It is agreed by the parties that the Tenant shall not
occupy the Demised Premises until proof of the following insurance
coverages have been reviewed and approved by the City's Risk Manager:
10.1.1 Comprehensive General Liability, in the minimum amount of
$1,000,000 per occurrence for bodily injury and property damage.
The City of Miami Beach must be named as an additional insured
on this policy.
10.1.2 Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
10.1.3 All-Risk property and casualty insurance, written at a minimum of
eighty (80%) percent of replacement cost value and with
replacement cost endorsement, covering all leasehold
improvements installed in the Demised Premises by or on behalf
of Tenant and including without limitation all of Tenant's personal
property in the Demised Premises (including, without limitation,
inventory, trade fixtures, floor coverings, furniture, and other
property removable by Tenant under the provisions of this
Agreement).
10.2 Proof of these coverages must be provided by submitting original certificates
of insurance to the City's Risk Manager and Asset Manager respectively. All
policies must provide thirty (30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager (to be submitted to the addresses
set forth in Section 27 hereof). 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.
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) real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the
Demised Premises and/or the tax lot and/or property/building which may
include the Demised Premises (hereinafter referred to as the "tax lot"), 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 mean the period of twelve (12) calendar
months, beginning on January 1St of each year.
11.3 The term "Tenant's Proportionate Share" shall mean the ratio that the square
footage of the Demised Premises bears to the square footage of the leasable
space in the entire building.
11.4 Tenant shall pay, as Additional Rent pursuant to Section 3.2, for such
Property Tax Year an amount ("Property Tax Payment") equal to Tenant's
proportionate share of 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 Tenant 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 Tenant once received from the taxing
authorities, if requested by Tenant. Tenant 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.
12.1. Tenant shall not have the right to assign or sublet the Demised Premises, in
whole or in part, without the prior written consent of the City Manager, which
consent, if granted at all shall be at the City Manager's sole and absolute
discretion. Such written consent is not a matter of right and the City is not
obligated to give such consent. If granted as provided herein, the making of
any assignment or sublease will not release Tenant from any of its
obligations under this Agreement. A sale or transfer of a majority interest of
the stock of Tenant's corporate entity shall be deemed an assignment, and
for purposes of this Agreement, the City shall have the right to approve the
new majority owner. Said approval shall be provided in writing. A change in
majority interest shall not be deemed to occur if ownership interests change
among any of the Tenant's current shareholders. However, any such change
in majority interest shall be communicated to the City in writing immediately
upon said occurrence. Tenant is prohibited from assigning or subletting to
any person or entity which is not of the same or higher financial responsibility
as Tenant, as shall be determined by the City, in its sole judgment and
discretion.
12.2 Any consent by the City to any act of assignment shall apply only to the
specific transaction thereby authorized. Such consent shall not be construed
as a waiver of the duty of the Tenant or the legal representatives or assigns
of the Tenant, to obtain from the City consent to any other or subsequent
assignment, or as modifying or limiting the rights of the City under the
foregoing covenants of the Tenant not to assign without such consent.
12.3 Any violation of the provisions of this Agreement, whether by act or
omissions, by assignee, sub-tenant, or under-tenant or occupant, shall be
deemed a violation of such provision by the Tenant, it being the intention and
meaning of the parties hereto, that the Tenant shall assume and be liable to
the City for any and all acts and omissions of any and all assignees, sub-
- tenants, orunder-tenants or occupants. If the Lease be assigned, the City
may and is hereby empowered to collect rent from the assignee; if the
Demised Premises or any part thereof be underlet or occupied by any
person, other that the Tenant, the City, in the event of the Tenant's default,
may, and is hereby empowered to, collect rent from the under-tenant or
occupants; in either of such events, the City may apply the net amount
received by it for rent herein reserved, and no such collection shall be
deemed a waiver of the covenant herein against assignment or the
acceptance of the assignee, under-tenant or occupant as tenant, or a
release of the Tenant from the further performance of the covenants herein
contained on the part of the Tenant.
13. Operation, Maintenance and Repair.
13.1 Tenant shall be solely responsible for the operation, maintenance and repair
of the Demised Premises. Tenant shall, at its sole cost and expense,
maintain the Demised Premises, and all fixtures and appurtenances therein,
and shall make all repairs thereto, as and when needed, to preserve them in
good working order and condition. Tenant shall be responsible for all interior
walls and the interior and exterior of all windows and doors, as well as
immediate replacement of any and all plate glass or other glass in the
Demised Premises which may become broken, using glass of the same or
better quality.
The City shall be responsible for the maintenance of the HVAC system, roof,
structural exterior of the building, the structural electrical and plumbing (other
than plumbing surrounding any sink(s) and/or toilet(s), including such sink(s)
and toilet(s) fixtures, within the Demised Premises).
13.2 All damage or injury of any kind to the Demised Premises, and including
without limitation its fixtures, glass, appurtenances, and equipment (if any),
or to the building fixtures, glass, appurtenances, and equipment, if any,
except damage caused by the sole negligence and/or willful misconduct of
the City, shall be the sole obligation of Tenant, and shall be repaired,
restored or replaced promptly by Tenant, at its sole cost 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 Tenant fails to make such repairs or restorations or replacements, the
same may be made by the City, at the expense of Tenant, and all sums
spent and expenses incurred by the City shall be collectable by the City and
shall be paid by Tenant within three (3) days after submittal of a bill or
statement therefore.
13.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs and/or improvements made by Tenant to the Demised
Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
13.6 Tenant Responsibilities for Utilities.
Tenant is solely responsible for and shall promptly pay when due all charges
(including, without limitation, all hook-up fees) and impact fees for cable, gas,
telephone and any other utility services (excluding electric, water, sewer, and
garbage removal costs which shall be the responsibility of the City), provided
to the Demised Premises. In addition to other rights and remedies hereinafter
reserved to the City, upon the failure of Tenant to pay for such utility services
when due, City may elect to pay same, whereby Tenant agrees to promptly
reimburse the City upon demand. In no event, however, shall the City be
liable, whether to Tenant and/or third parties, for an interruption or failure in
the supply of any utilities or services to the Demised Premises.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION.
14. Governmental Regulations.
The Tenant 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 shall also comply with and fulfill all rules, orders, and
regulations for the prevention of fire, all at Tenant's own cost and expense. The
Tenant shall pay all cost, expenses, claims, fines, penalties, and damages that may
be imposed because of the failure of the Tenant to comply with this Section, and
shall indemnify and hold harmless the City from all liability arising from each non-
compliance.
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15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements for any labor or materials to Tenant
or claimed to have been furnished to Tenant's agents, contractors, orsub-tenants,
in connection with work of any character performed or claimed to have performed
on said Premises, or improvements by or at the direction or sufferance of the
Tenant; provided however, Tenant shall have the right to contest the validity or
amount of any such lien or claimed lien. In the event of such contest, Tenant 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'/2) times the amount of such lien or such claim of lien. Such security
shall be posted by Tenant within ten (10) days of written notice from the City, or
Tenant may "bond off' the lien according to statutory procedures. Tenant will
immediately pay any judgment rendered with all proper costs and charges and shall
have such lien released or judgment satisfied at Tenant's own expense.
16. Enforcement.
Tenant agrees to pay the Base Rent, Additional Rent, and any other amounts as
may be due and payable by Tenant under this Agreement, at the time and in the
manner provided herein, and should said rents and/orotheradditional amounts due
herein provided, 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 the Term of this Agreement (including any renewal term
hereunder) all or any part or portion of the Demised Premises is taken,
appropriated, or condemned by reason of Eminent Domain proceedings,
then this Agreement shall be 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
Tenant shall pay any and all rents, additional rents, utility charges, and/or
other costs for which it is liable under the terms of this Agreement, up to the
date of such taking.
17.2 Except as hereunder provided, Tenant shall not be entitled to participate in
the proceeds of any award made to the City in any such Eminent Domain
proceeding, excepting, however, the Tenant shall have the right to claim and
recover from the condemning authority, but not from the City, such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right on account of any and all damage to Tenant's business
by reasons of the condemnation and for or on account of any cost or loss
which Tenant might incur in removing Tenant's furniture and fixtures.
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18. Default.
18.1 Default by Tenant:
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 Tenant shall not have cured such failure within five (5)
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, orvacated;
18.1.4 The Tenant 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 thirty (30) 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 thirty (30) days
from its issuance, or such longer period of time as may be
acceptable and approved in writing by the City Manager, at his
sole discretion;
18.1.6 Any petition is filed by or against Tenant under any section or
chapter of the Bankruptcy Act, as amended, which remains
pending for more than sixty (60) days, or any other proceedings
now or hereafter authorized by the laws of the United States or of
any state for the purpose of discharging or extending the time for
payment of debts;
18.1.7 Tenant shall become insolvent;
18.1.8 Tenant shall make an assignment for benefit of creditors;
18.1.9 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
18.1.10 The leasehold interest is levied on under execution.
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19. Rights on Default.
19.1 Rights on Default:
In the event of any default by Tenant as provided herein, 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 Tenant shall
immediately surrender the Demised Premises to the City, but if
Tenant 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
Tenant and its effects in accordance with law, without being liable
for prosecution or any claim for damages therefore, and Tenant
agrees to indemnify and hold harmless the City for all loss and
damage which the City may suffer by reasons of such Agreement
termination, whether through inability to re-let the Demised
Premises, or otherwise.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
term of this Agreement to be due and payable immediately, in
which event Tenant agrees to pay the same at once, together with
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 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for
damages therefore; remove Tenant's property there from; and re-
letthe Demised Premises, or portions thereof, for such terms and
upon such conditions which the City deems, in its sole discretion,
desirable, and to receive the rents therefore, and Tenant shall pay
the City any deficiency that may arise by reason of such re-letting,
on demand at any time and from time to time at the office of the
City; and for the purpose of re-letting, the City may (i) make any
repairs, changes, alterations or additions in or to said Demised
Premises that may be necessary or convenient; (ii) pay all costs
and expenses therefore from rents resulting from re-letting; and
(iii) Tenant shall pay the City any deficiency as aforesaid.
19.1.4 Take possession of any personal property owned by Tenant on
said Demised Premises and sell the same at public or private sale,
and apply same to the payment of rent due, holding the Tenant
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liable for the deficiency, if any.
19.1.5 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the 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 Tenant. Any
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 from the due date. In addition, there will be a late
charge of Fifty ($50.00) Dollars for any payments submitted after
the grace period.
19.1.6 If Tenant 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.
Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof. All sums of
money payable by Tenant to the City hereunder shall be deemed
as rent for use of the Demised Premises and collectable by the
City from Tenant as rent, and shall be due from Tenant to the City
on the first day of the month following the payment of the expense
by the City.
19.1.7 The rights of the City under this Agreement shall be cumulative
but not restrictive 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 Default by City:
The failure of the City to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed by the City and the
continuance of such failure for a period of thirty (30) days after notice thereof
in writing from Tenant to the City (which notice shall specify the respects in
which Tenant contends that the City failed to perform any such covenant,
conditions and agreements) shall constitute a default by the City, unless
such default is one which cannot be cured within thirty (30) days because of
circumstances beyond the City's control, and the City within such thirty (30)
day period shall have commenced and thereafter shall continue diligently to
prosecute all actions necessary to cure such defaults.
However, in the event the City fails to perform within the initial thirty (30) day
period provided above, and such failure to perform prevents Tenant from
operating its business in a customary manner and causes an undue hardship
for the Tenant, then such failure to perform (regardless of circumstances
beyond its control) as indicated above, shall constitute a default by the City.
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19.3 Tenant's Rights on Default:
If an event of the City's default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right to pursue any and all remedies
available at law or in equity, including the right to sue for and collect
damages, including reasonable attorney fees and costs, to terminate this
Agreement; provided however, that Tenant expressly acknowledges and
agrees that any recovery by Tenant shall be limited to the amount set forth in
Subsections 19.4 and 33 of this Agreement.
19.4 Limitation of City's Liability in the Event of City's Default:
NOTWITHSTANDING SUBSECTIONS 19.2 AND 19.3 OF THIS
AGREEMENT, TENANT AND CITY HEREBY ACKNOWLEDGE AND
AGREE THAT, AS CITY HAS AGREED TO LEASE THE DEMISED
PREMISES TO TENANT (AS ANOT-FOR-PROFIT ENTITY) FOR RENT AT
SUBSTANTIALLY BELOW-MARKET VALUE, THE CITY'S LIABILITY FOR
ANY DAMAGES AND OR OTHER RECOVERABLE COSTS SHALL BE
SUBJECT TO THE MAXIMUM AMOUNT AS SET FORTH IN SECTION 33
("LIMITATION OF LIABILITY") OF THIS AGREEMENT.
20. Indemnity Against Costs and Charges.
20.1 The Tenant shall be liable to the City for all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of the Tenant's breach of any of the
provisions of this Agreement. Any sums due the City under the provisions of
this item shall constitute a lien against the interest of the Tenant and the
Demised Premises and all of Tenant's property situated thereon to the same
extent and on the same conditions as delinquent rent would constitute a lien
on said premises and property.
20.2 If Tenant shall at any time be in default hereunder, and if the City shall deem
it necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, the Tenant will reimburse the City for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
reasonable attorney's fees, whether suit be brought or not and if suit be
brought, then Tenant shall be liable for expenses incurred at both the trial
and appellate levels.
21. Indemnification Against Claims.
21.1 Tenant 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 Tenant, or any employee,
13
agent, contractor, invitee, guest, assignee, sub-tenant or
subcontractor of the Tenant;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by
Tenant, or any employee, agent, contractor, invitee, guest,
assignee, sub-tenant or subcontractor of the Tenant;
21.1.3 Any breach, violation, or non-performance of any undertaking of
the Tenant under this Agreement;
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by the Tenant or anyone holding or claiming to hold
through or under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises and/or other
facilities used in connection therewith, caused by the Tenant or any
employee, agent, contractor, guest, or invitee of the Tenant.
22. Signs and Advertising.
Without the prior written consent of the City Manager, which consent, if given at all,
shall be at the City Manager's sole and absolute discretion, Tenant shall not permit
the painting and display of any signs, plaques, lettering or advertising material of
any kind on or near the Demised Premises. All additional signage shall comply with
signage standards established by the City and comply with all applicable building
codes, and any other municipal, County, State and Federal laws.
23. Effect of Conveyance.
The term "City" and/or "Landlord" as used in the Agreement means only the owner
for the time being of the land and building containing the Demised Premises, so that
in the event of any sale of said land and building, or in the event of a lease of said
building, the City shall be and hereby is entirely freed and relieved of all covenants
and obligations of the City hereunder, and it shall be deemed and construed without
further agreement between the parties, or between the parties and the purchaser at
such sale, or the lease of this building, that the purchaser or Tenant has assumed
and agreed to carry out all covenants and obligations of the City hereunder.
24. Damage to the Demised Premises.
24.1 If the Demised Premises shall be damaged by the elements or other casualty
not due to Tenant's negligence, or by fire, but are not thereby rendered
untenantable, as determined by the City, in its sole discretion, in whole or in
part, and such damage is covered by the City's insurance, if any, (hereinafter
referred to as "such occurrence"), the City, shall, as soon as possible after
such occurrence, utilize the insurance proceeds to cause such damage to be
repaired and the Rent shall not be abated. If by reason of such occurrence,
the Demised Premises shall be rendered untenantable, as determined by the
City, in its sole discretion, only in part, the City shall as soon as possible
utilize the insurance proceeds to cause the damage to be repaired, and the
Rent meanwhile shall be abated proportionately as to the portion of the
14
Demised Premises rendered untenantable; provided however, that the City
shall promptly obtain a good faith estimate of the time required to render the
Demised Premises tenantable and if such time exceeds sixty (60) days,
either party shall have the option of canceling this Agreement.
24.2 If the Demised Premises shall be rendered wholly untenantable by reason of
such occurrence, the City shall have the option, but not the obligation, in its
sole discretion, to utilize the insurance proceeds 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 Tenant within
sixty (60) days from and after said occurrence, to elect not to reconstruct the
destroyed Demised Premises, and in such event, this Agreement and the
tenancy hereby created shall cease as of the date of said occurrence, the
rent to be adjusted as of such date. If the Demised Premises shall be
rendered wholly untenantable, the Tenant shall have the right, to be
exercised by notice in writing, delivered to the City within thirty (30) days from
and after said occurrence, to elect to terminate this Agreement, the Rent to
be adjusted accordingly.
24.3 Notwithstanding any clause contained in this Section 24, if the damage is not
covered by the City's insurance, then the City shall have no obligation to
repair the damage, but the City shall advise Tenant in writing within thirty (30)
days of the occurrence giving rise to the damage and of its decision not to
repair, and the Tenant may, at any time thereafter, elect to terminate this
Agreement, and the Rent shall be adjusted accordingly.
25. Quiet Enioyment.
The Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Tenant
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 implied 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.
26.3 The receipt of any sum paid by Tenant to the City after breach of any
condition, covenant, term or provision herein contained shall not be deemed
15
a waiver of such breach, but shall be taken, considered and construed as
payment for use and occupation, and not as rent, unless such breach be
expressly waived in writing by the City.
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:
LANDLORD: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to: Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: Mystery Parks Arts Company, Inc.
751 Euclid Avenue, Suite 2
Miami Beach, Florida 33139
All notices shall be hand delivered and a receipt requested, or by certified mail with
Return receipt requested, and shall be effective upon receipt.
28. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it
may not be modified in any manner other than by agreement in writing signed by all
the parties hereto or their successors in interest. The terms, covenants and
conditions contained herein shall inure to the benefit of and be binding upon the City
and Tenant and their respective successors and assigns, except as may be
otherwise expressly provided in this Agreement.
29. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any 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 be
enforced to the fullest extent permitted by law.
30. Captions.
The captions contained herein are for the convenience and reference only and shall
not be deemed a part of this Agreement or construed as in any manner limiting or
amplifying the terms and provisions of this Agreement to which they relate.
31. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural
shall include the singular, and the use of one gender shall include all genders.
16
32. Governing Law.
This Agreement shall be governed by and construed in accordance with the law of
the State of Florida.
33. Limitation of Liability.
The 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 due to an
alleged breach by the City of this Agreement, so that its liability for any such breach
never exceeds the sum of Five Thousand ($5,000.00) Dollars. Tenant hereby
expresses its willingness to enter into this Agreement with the Tenant's recovery
from the City for any damage action for breach of contract to be limited to a
maximum amount of $5,000.00. Accordingly, and notwithstanding anyotherterm or
condition of this Agreement, Tenant hereby agrees that the City shall not be liable to
Tenant for damage in an amount in excess of $5,000.00 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.
34. Surrender of the Demised Premises.
The Tenant shall, on or before the last day of the Term herein demised, or the
sooner termination thereof, peaceably and quietly leave, surrender and yield upon
to the City the Demised Premises, together with any and all equipment, fixtures,
furnishings, appliances or other personal property, if any, located at or on the
Demised Premises and used by Tenant in the maintenance, management or
operation of the Demised Premises, excluding any trade fixtures or personal
property, if any, which can be removed without material injury to the Demised
Premises, free of all liens, claims and encumbrances and rights of others orbroom-
clean, together with all structural changes, alterations, additions, and improvements
which may have been made upon the Demised Premises, in good order, condition
and repair, reasonable wear and tear excepted, subject, however, to the
subsequent provisions of this Section. Any property which pursuant to the provisions
of this Section is removable by Tenant on or at the Demised Premises upon the
termination of this Agreement and is not so removed may, at the option of the City,
be deemed abandoned by the Tenant, and either may be retained by the City as its
property or may be removed and disposed of at the sole cost of the Tenant in such
manner as the City may see fit. If the Demised Premises and personal property, if
any, be not surrendered at the end of the Term as provided in this Section, the
Tenant 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 tenant or purchaser, so far as such delay is occasioned by the
failure of the Tenant to surrender the Demised Premises as and whem herein
required.
35. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
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36. Venue:
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by either party with respect to the enforcement of any and all the
terms or conditions herein, exclusive venue for the enforcement of same shall lie in
Miami-Dade County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY
AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
38. Radon is a naturally occurring radioactive gas that, when it is accumulated in a
building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of Radon that exceed Federal and State guidelines
have been found in buildings in Florida. Additional information regarding Radon and
Radon testing may be obtained from your County Public Health Unit.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
ATTEST:
BY: ~ G~'""""`"~
Robert Parcher, City Clerk
CITY OF MIAMI BEACH
BY:
atti Herr Bower, ayor
ATTEST:
~. C
BY: .~2.~
Signature/Secrets
L~~
Print Name
CORPORATE SEAL
(affix seal here)
MYSTERY PARK ARTS
COMPANY, INC.
BY: L-------_.__
Carson Kievman, President
aPPROVEaASTo
FORM 8~ LANGUAGE
~ FO TION
2~ ~
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