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CAO 99-22 .....,., JM _,~ _'t, c " ., . .~. , '. . . ~.:.. '.' -, -~,. , . ~- -.;> J "} ,--: '", ~'-'. ~. -;- ~ CITY OF MIAMI BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM FROM: Sergio Rodriguez City Manager Murray H. Dubbin ,,1\..Iv City Attorney ~ ~\JV"'" Lawrence A. Levy K First Assistant City Attorney C.M.O.# 3-8/99 TO: C.A.O.# 99-22 SUBJECT: 711 Deco, Inc. Lease DATE: August 25,1999 QUESTION: By memorandum dated August 17, 1999, you requested our legal opinion as to whether the following uses of the 3,000 square feet of space that the City has leased, pursuant to a lease agreement (the "Lease") between 711 Deco, Inc., a Florida corporation ("Landlord") and the City of Miami Beach, Florida (the "City") effective as ofJune 20, 1997, are legally supported within the framework of the restrictions in the Lease: 1. Wages Coalition operated by Miami-Dade County 2. One-Stop Center, operated by the Hispanic Community Center 3. Clerk, Circuit and County Court System, operated by Miami-Dade County, to be relocated from Old City Hall 4. Performing Arts Network ("PAN") 5. Other cultural organizations ANSWER: The tenus "public meeting space" and "municipal offices" are used in Section 8.10 of the Lease to enumerate the uses permitted on the leased premises, but such tenus are not defined in the Lease, or in any statutory definition. Thus, they take their common usage and meaning. It is clear that if the space were to be used as public meeting space, it could be used by various community groups for meetings at different times; however, if it were dedicated to. a single, non-profit community group it would lose its character as being "public"space. Although, it is clear that a City department could occupy the "~"n'DU\lt.lCAO"lo.-l.M~"" -- <~_:_''-''''''__",_-" , _. "c-, , n ~'.'__.- ..--~.. space for a "municipal purpose," non-profit corporations, being separate entities in the contemplation of the law, would not fit the definition of use for "municipal offices." FACTUAL BACKGROUND: The City of Miami Beach entered into an agreement dated November 7, 1995 (the "1995 Development Agreement") with West Side Partners, Ltd. ("West Side") and a number of related entities. The 1995 Development Agreement provided, among other things, for approximately 3,000 square feet of space in the South Pointe Redevelopment area to be leased to the City to be utilized, as stated in Section 8.1 of the Lease, "solely for public meeting space and/or municipal offices." The Lease is effective as of June 20, 1997 and is for a term offorty (40) years at $1.00 per year, plus the proportionate common share area maintenance after the third lease year. The 3,000 square feet has not yet been built out, although West Side is responsible for a payment (at the time of the buildout) of$20,000 toward the construction of new bathrooms. The Lease also provides for the City to have the use of three parking spaces in the back of the building. At the time of the 1995 Development Agreement, it was contemplated that the space would either be built out as meeting space so that it could be used by groups such as the South Pointe Advisory Board and other community groups or that it would be utilized for office space for one or more City departments. Section 5.1 0 of the 1995 Development Agreement stated that the leased space was "....for use by the City as public meeting space and/or City offices...." DISCUSSION: Section 8.10 of the lease provides that the leased space "....shall be occupied and used by Tenant solely for public meeting space and/or municipal offices..." The words "public meeting space" and "municipal offices" are not defmed in the Lease or in any applicable statute. Therefore, common meaning and usage are attributed to such terms. With regard to use of the space as public meeting space, we would advise you that it may be used for boards and committees of the City to meet and, in our opinion community groups, including groups such as PAN and other cultural organizations could use the space from time to time for public meetings (Le., meetings which any member of the public may attend). As to the term "municipal offices," we have found no case in the State of Florida or in any other jurisdiction where the term has been construed by a court oflaw in terms of the use to which physical space may be put. Section 166.021(2) defines "municipal purpose" as "any activity or power which may be exercised by the state or its political subdivisions." Thus, "municipal offices" should be interpreted to mean offices in which "municipal purposes" are being carried out. Any department or agency of the City, including the Redevelopment Agency, could legitimately utilize such space for its office operations. However, use of the 3,000 square feet of space by a legal entity separate from the City, such as a non-profit corporation or Miami-Dade County, would not be within the contemplation of the use clause in the Lease. Further, Section 20 of the Lease states that: '.."mJI..f.\.LC,\Ollllo.-t...l....... . "Tenant shall not, directly or indirectly, (i) sublet the Premises or permit the use of the same or any part thereof by anyone other than Tenant or (ii) assign or in any other marmer transfer this Lease or any estate, interest or benefit therein, without the prior written consent of Landlord which consent may be withheld in Landlord's sole discretion." [emphasis added] Thus, use by the Wages Coalition operated by Miami-Dade County, the One-Stop Center, operated by the Hispanic Community CenteJ; Clerk, Circuit and County Court System, operated by Miami-Dade County, PAN, or other cultural organizations, although performing non-profit or quasi- governmental functions, would not be within the uses contemplated by Section 8.10. Unless the Landlord consents to such tenancy, an assignment, sublease or other transfer of the City's rights under the Lease would violate the provision prohibiting subletting or assignment in Section 20 of the Lease. LALlbfg cc: Mayor Neisen Kasdin Vice Mayor Martin Shapiro Commissioner Simon Cruz Commissioner David Dermer Commissioner Susan Gottlieb Commissioner Nancy Liebman Commissioner Jose Smith Christina Cuervo, Assistant City Manager Marla Dumas, Redevelopment Coordinator '~"!"I'rJoU.VL'C"OI'llo.-&....l.""