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HomeMy WebLinkAboutExhibitDRAFT 04/10/06 LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease") is made and executed this day of , 2006 (but effective as of May 1, 2006 being the "Effective Date"), by and between COMMODORE CAPITAL, LLC, A Florida limited liability company ("COMMODORE") as lessor/landlord, and the DEPARTMENT OF OFF-STREET PARKING, an agency and instrumentality of the City of Miami (hereinafter referred to as the "DOSP"), on behalf of the Coconut Grove Business Improvement Committee (the "BIC") as lessee/tenant. BACKGROUND STATEMENT A. DOSP on behalf of the BIC and COMMODORE intend to enter a MONTHLY LEASE for Store #4 (approximately 800 square feet), next to Kromos Hair Salon on the ground floor of 3112 Commodore Plaza, Coconut Grove, in the City of Miami, Florida (the "Premises" as attached hereto in Exhibit A and made a part hereof). B. DOSP on behalf of the BIC is authorized to enter into this Lease with COMMODORE and to use BIC funds for the purposes specified in this Lease pursuant to and in accordance with Resolution No. adopted by the City of Miami City Commission on , 2006, in accordance with DOSP's Board of Directors on April 10, 2006, and in accordance with Sections 35-221 and 35-222 of the City of Miami Code, as amended (hereinafter "City Code"), all attached hereto as composite Exhibit B and made a part hereof, upon the terms and conditions set forth below. C. COMMODORE'S limited liability company resolution authorizing its indicated manager to execute this Lease with the City of Miami is attached hereto as Exhibit C, incorporated hereby and made a part hereof. NOW, THEREFORE, in consideration of the matters stated in the Background Statement, and mutual obligations expressed herein, and other .good and valuable consideration passing between the parties, the receipt and sufficiency of which are acknowledged by the parties, COMMODORE and DOSP on behalf of the BIC hereby mutually agree and covenant as follows: TERMS AND CONDITIONS Section 1. Background Statement and Exhibits. The matters stated in the Background Statement and all Exhibits attached hereto are true and correct and hereby incorporated herein and made a part of this Lease by this reference. Section 2. Initial Term. Extension, and Termination. The initial term of this Lease is hereby agreed to be on a monthly basis, beginning on the Effective Date and shall continue on a monthly basis until September 30, 2006 (the "Initial Expiration Date"), unless COMMODORE and DOSP on behalf of the BIC have agreed in writing by 06-641 1 July 31, 2006 to extend and continue the term of this Lease on a monthly basis beyond the Initial Expiration Date until May 31, 2007 (the "Extension Period Expiration Date"). The term of each monthly Lease period is hereby agreed to begin on the Effective Date and to end on a date which is thirty (30) days after either COMMODORE or DOSP on behalf of the BIC shall give the other written notice of termination of the monthly term of the Lease. Such notice of termination may be given at any time at the option of either party and such notice given shall effect the termination thirty (30) days after the effective date of such notice of termination. In the event of the giving of such notice of termination, rent shall continue to be payable on the first day of each month during the initial term of the Lease and any monthlybeginson ends on other than theereof. irst or last ding the foregoing, in the event the term of this Lease g ns or day of a month, rent for such month(s) shall be prorated on a per diem basis. Section 3. Use, Rent and Utilities. The Premises shall be used for general office purposes and for no other purpose. Except as provided above if the Effective Date occurs on a date other than the first day of a month, during the term .of the Lease and any monthly extensions thereof, rent in the amount of one thousand, two hundred dollars and no cents ($1,200.00) per month shall be payable to COMMODORE by DOSP on behalf of the BIC from BIC funds on the first day of each month, without notice or demand. No sales tax is applicable to DOSP or the BIC as instrumentalities of the City of Miami (the "City"), as indicated in the sales tax exemption certificate attached hereto as Exhibit D. DOSP on behalf of the BIC shall pay from BIC funds for the BIC's electric utility usage. Failure of DOSP on behalf of the BIC to pay to COMMODORE the full amount of said monthly rent as and when the same shall become due shall constitute a default under this Lease, entitling COMMODORE to all of the rights and remedies provided by the Lease and by law, subject to the provisions of Florida Statutes Section 768.28. Section 4. Maintenance and Condition of Premises. DOSP on behalf of the BIC hereby accepts the Premises in the condition they are in at the beginning of this Lease and agrees to maintain said Premises in the same condition, order and repair as they are- at,the :commencement of said term of this Lease. DOSP on behalf of the BIC shall perform, in good and workmanlike manner and promptly as needed, all routine maintenance in the leased Premises, including but not limited to cleaning, normal operational repairs such as light bulbs, ballasts, and upkeep to the bathroom, and all facilities in the leased Premises. DOSP and/or the BIC shall cause the courtyard adjacent to the Premises to be swept with a broom as needed. Any items broken by the BIC in the leased Premises shall be replaced or fixed promptly by DOSP on behalf of the BIC using BIC funds, from time to time as needed, to maintain the Premises in good, sound and attractive condition. However, neither DOSP nor the BIC shall have any responsibility to renovate COMMODORE'S leased Premises. COMMODORE shall maintain, repair, and fix base building systems such as air conditioning, lighting systems, hot water systems, and plumbing systems in good, sound and attractive conditions as necessary for BIC's intended office space use of the Premises. DOSP on behalf of the BIC shall give written notice to COMMODORE not less than thirty (30) days prior to the end of the term of this Lease, or at the end of any extension of the term hereof as the case may be, for the 2 064641 express purpose of arranging a meeting with COMMODORE for a joint inspection of the Premises. Section 5. Security Deposit and Insurance. Upon execution hereof, DOSP on behalf of the BIC from BIC funds has paid to COMMODORE a security deposit in the amount of two thousand, four hundred dollars and no cents ($2,400.00). Said security deposit shall secure the faithful performance by DOSP and the BIC of the obligations of lessee under this Lease. Within thirty (30) days after the BIC vacates the Premises in accordance with the terms of this Lease, said security deposit shall be returned to DOSP on behalf of the BIC, less any unpaid rent, any unmade operational repairs and the reasonable costs of such repairs made by COMMODORE of the leased Premises as determined by COMMODORE and DOSP on behalf of the BIC during a joint inspection of the Premises. Each party to this Lease shall maintain its own insurance for both property and liability exposures. Section 6. Entry by COMMODORE. Except for in the case of emergencies, COMMODORE shall provide DOSP and the BIC with twenty-four (24) hour notice prior to entering the Premises and agrees to be escorted by a representative of DOSP or the BIC as are available to accommodate COMMODORE's request(s). COMMODORE, or any of its agents, upon notice to DOSP and BIC as set forth above, shall have the right to enter said Premises during all reasonable hours, to examine the same to make such repairs beyond routine repairs, additions or alterations as may be deemed necessary for the safety, comfort, or preservation thereof, or of said building, or to exhibit said Premises, and to put or keep upon the doors or windows thereof a notice "FOR RENT" at any time within thirty (30) days before the expiration of this Lease or before the expiration of any extension hereof. Section 7. Public Records. COMMODORE understands that the public shall have access, at all reasonable times, to all documents and information pertaining to this Lease with DOSP on behalf of the BIC, subject to the provisions of Chapter 119, Florida ..Statutes, and COMMODORE agrees to allow access by the B.I.C.,.DOSP, the City, and the public to all documents subject to disclosure under applicable law. COMMODOk's failure or refusal to comply with the provisions of this section shall result in immediate termination of this Lease by DOSP. Section 8. Award of Lease. COMMODORE represents and warrants to DOSP, to the BIC, and to the City that it has not employed or retained any person or company employed by DOSP, the BIC, or the City to solicit or secure this Lease and that it has not offered to pay, paid or agreed to pay any person any fee, commission, percentage, brokerage fee, finders fee, or gift of any kind contingent upon or in connection with, the award of this Lease. COMMODORE'S failure or refusal to comply with the provisions of this section shall result in immediate termination of this Lease by DOSP. Section 9. No Conflicts of Interest. COMMODORE is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade 06-641 3 County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. COMMODORE covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Lease, has any personal financial interests, direct or indirect, with DOSP, the BIC, or the City. COMMODORE further covenants that, in the performance of this Lease, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of COMMODORE, its employees or associated persons, or entities must be disclosed in writing to DOSP, the BIC, and the City before the Effective Date of this Lease. COMMODORE'S failure or refusal to comply with the provisions of this section shall result in immediate termination of this Lease by DOSP. Section 10. Compliance with Federal, State, and Local Laws. COMMODORE understands that Leases between private entities and local governments and their instrumentalities are subject to certain laws and regulations, including laws pertaining to open public meetings, public records, audits, inspections, conflicts of interest, procurement procedures, record keeping, ete. DOSP, the BIC and COMMODORE agree to comply with and to observe all applicable laws, codes and ordinances as they may be amended from time to time. COMMODORE'S failure or refusal to comply with the provisions of this section shall result in immediate termination of this Lease by DOSP. Section 11. Notices. All notices or other communications required or permitted to be given by either party to the other under the terms of this Lease shall be in writing and shall be given by hand -delivery, or sent by nationally recognized overnight courier service (e.g.FedEx) or by registered or certified U.S. Mail, return receipt requested, with sufficient postage prepaid addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given pursuant to this paragraph. Notice given by hand delivery shall be effective when so delivered, notices given by overnight courier service shall be effective upon the date of delivery other than a Saturday, Sunday or legal holiday, and notices given_by certified or registered U.S. Mail shall be effective on the fifth day after being posted or the date of actual receipt, whichever is earlier. To COMMODORE: Commodore Capital, LLC P.O. Box 330808 Coconut Grove, Florida 33233 With Hand Delivery: c/o Michael B. Smith 2889 McFarlane Road, No, 2001 Coconut Grove, Florida 33133 06-641 To DOSP: Arthur Noriega, Executive Director Miami Parking Authority 190 N.E. 3`d Street Miami, Florida 33132 4 To the BIC: David Collins Interim Executive Director 3112 Commodore Plaza, Store #4 Coconut Grove, Florida 33133 With Copv To: City Attorney City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 Section 12. Contingency Clause. Funding for this Lease is contingent upon the availability of funds and continued authorization of BIC activities and the Lease is subject to (a) amendment due to lack of funds, reduction of funds, and/or change in regulations or the Code, upon thirty (30) days written notice, or (b) termination pursuant the terms and conditions hereof. Section 13. Successors and Assigns: No Third -Party Beneficiary. This Lease shall bind COMMODORE and its assigns or successors as lessor/landlord, and the heirs, assigns, administrators, legal representatives, executors or successors as the case may be, of DOSP on behalf of the BIC as the lessee/tenant. No persons other than COMMODORE and DOSP on behalf of the BIC (and their respective successors and assigns) shall have any rights whatsoever under this Lease. DOSP on behalf of the BIC as lessee/tenant shall neither assign nor sublease the Premises without prior written approval and consent of COMMODORE. Section 14. Force Majeure. A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is -delayed in the performance of any act or obligation pursuant to or required by this Lease by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party toovercome any delay that has resulted. Section 15. DOS?. the BIC and the City Not Liable for Delays. COMMODORE hereby understands and agrees that in no event shall DOS?, the BIC, 06-641 5 or the City be liable for, or responsible to COMMODORE or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in obligations herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which DOSP, the BIC, and the City have no control. Section 16. Miscellaneous. A. This Lease shall be construed and enforced according to the laws of the State of Florida. The parties hereto agree that venue for all federal, state and local matters, if any, arising under this Lease shall be in the applicable respective federal, state, and/or local courts located in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Lease. C. Should any provision, paragraph, sentence, word, or phrase contained in this Lease be determined by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Lease shall remain unmodified and in full force and effect or limitation of its use. D. No waiver or breach of any provision of this Lease shall constitute a waiver of any subsequent breach of the same or any other . provision hereof, and no waiver shall be effective unless made in writing. E. This Lease constitutes the sole and entire Lease between the Parties hereto relating to the subject matter hereof and correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior Leases, promises, negotiations, or representations not expressly set in this Lease, including the Exhibits hereto, are of no force and effect. No modification to, supplement of, deletion from, amendment or addition to this Lease shall be valid unless in writing and executed by the properly authorized representatives of the parties hereto. F. This Lease shall be binding upon the parties -hereto as of the Effective Date. G. This Lease is executed by DOSP on behalf of the BIC pursuant to and in accordance with City Commission and DOSP Board approvals as indicated in the Section 06-641 6 B of the Background Statement above, with copies of those applicable approvals attached hereto and incorporated herein as Composite Exhibit B. H. This Lease may be executed in three (3) or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same lease agreement. IN WITNESS WHEREOF, COMMODORE, DOSP and the BIC have executed this Lease on the day and year first above written. COMMODORE CAPITAL, LLC, a Florida limited liability company Signature of Witness Print Name: Signature of Witness Print Name: Al"1 EST: By: Name: Title: Signature of Witness Print Name: Signature of Witness Print Name: APPROVED AS TO FORM AND CORRECTNESS: By: Michael B. Smith, Manager DEPARTMENT OF OFF STREET PARKING ("DOSP"), an instrumentality of the City of Miami, Florida By: Arthur Noriega, Executive Director COCONUT GROVE BUSINESS IMPROVEMENT COMMITTEE, an instrumentality of the City of Miami, Florida By: Sylvan() Bignon, Vice Chairman APPROVED AS TO INSURANCE REQUIREMENTS: Jorge L. Fernandez Dania Carrillo City Attorney Risk Management Administrator 06-641 7 Exhibit A — Description of the Premises — To come at document execution Composite Exhibit B- Authorizations by City Commission, DOSP Board, and Code Provisions — to come at document execution Exhibit C-Limited Liability Company Resolution/Authorization from Commodore's Manager to execute Lease — to come at document execution Exhibit D — Sales Tax Exemption Certificate — to come at document execution 06-641 8