Resolution 2021-31749 RESOLUTION NO. 2021-31749
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION
OF THE FINANCE AND ECONOMIC RESILIENCY COMMITTEE AT ITS
APRIL 30, 2021 MEETING, RELATING TO A PROPOSED LEASE
BETWEEN THE CITY OF MIAMI BEACH AND MIAMI NEW DRAMA INC.,
FOR THE DEVELOPMENT AND OPERATION OF A COLLINS PARK
CULTURAL ARTS FACILITY WITHIN THE CITY OWNED COLLINS PARK
GARAGE (THE "LEASE"), AND APPROVING THE TERM SHEET FOR
THE LEASE ATTACHED AS AN EXHIBIT TO THE COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION; FURTHER,
DIRECTING THE ADMINISTRATION TO DRAFT AND FINALIZE THE
LEASE WITH MIAMI NEW DRAMA, INC., CONSISTENT WITH THE TERM
SHEET, WITH THE LEASE SUBJECT TO APPROVAL BY A 4/7THS
VOTE OF THE PLANNING BOARD AND A 6/7THS VOTE OF THE CITY
COMMISSION, PURSUANT TO SECTION 1.03(B)(4) OF THE CITY
CHARTER; AND FURTHER, REFERRING THE PROPOSED LEASE TO
THE PLANNING BOARD FOR REVIEW, IN ACCORDANCE WITH THE
REQUIREMENTS OF THE CITY CHARTER AND CITY CODE.
WHEREAS, on November 9, 2016, the City Commission established the Collins
Park Arts District Overlay via Ordinance No. 2016-4061, in response to an expressed
desire by the Collins Park Neighborhood Association to incentivize arts and
entertainment-related uses; and
WHEREAS, the ground floor of the recently completed Collins Park Garage,
located at 340 23rd St., includes approximately 16,000 gross sq. ft. of unfinished interior
commercial space with an elevated exterior terrace providing access from the street; and
WHEREAS, on May 22, 2020, the Finance and Economic Resiliency Committee
discussed tenant programming for the unleased commercial space of the Collins Park
Garage, emphasizing the importance of community engagement and neighborhood
enhancement, and the possibility of using City funds to curate cultural activation; and
WHEREAS, on December 18, 2020, Miami New Drama, Inc. ("Miami New Drama"
or "MIND") presented the Finance and Economic Resiliency Committee with an
unsolicited proposal to program the tenant space of the Collins Park Garage as a flexible
black box studio, however, the Committee recommended preparation of a Request for
Proposals to solicit interest from cultural arts institutions with independent financial
support; and
WHEREAS, on January 27, 2021, pursuant to City Commission Resolution No.
2021-31568, the City Commission found that the City's best interests were served by
waiving formal competitive bidding requirements in favor of MIND's unsolicited proposal
and authorized the negotiation of a term sheet with MIND to include the following material
terms:
• Miami New Drama must remain functionally located within the City of Miami Beach,
with Miami Beach as its primary performance venue;
• Existing principal directors Michel Hausman, Moises Kaufman, and Nicholas
Richberg must remain directly involved with Miami New Drama;
• Miami New Drama's board of directors must include voting representation by the
City of Miami Beach; and
• Miami New Drama's sublease of any restaurant or retail component must be
negotiated at market rates; and
WHEREAS, the Administration has negotiated a term sheet pursuant to the
direction provided by City Commission Resolution No. 2021-31568 (the "Term Sheet"),
which is attached as an Exhibit to the Memorandum accompanying this Resolution; and
WHEREAS, pursuant to the Term Sheet, MIND will enter into a lease for the
ground floor space for an initial term of five (5) years, with options for three (3) additional
five (5) year terms, in order to activate the Facility as a theater for its not-for-profit cultural
presentations, production of live theatrical performances and uses ancillary thereto,
including its administrative and business functions and rehearsal, costume, and set
design facilities for performances, as well as a restaurant café pursuant to a sublease to
a third-party operator; and
WHEREAS, as proposed, MIND is responsible for funding all design and
architectural and engineering professionals associated with the buildout improvements
("Project"), at an amount anticipated to be approximately $250,000 (the "Tenant
Contribution"), and MIND must demonstrate it has secured funding in an amount equal to
the Tenant Contribution within 365 days from City Commission approval of the lease
agreement; and
WHEREAS, pursuant to the Term Sheet, the City is responsible for the
construction of the Project and the funding for the construction hard costs related to the
buildout, in an amount not to exceed $4.75 million (the "Landlord Contribution"), and at
the present time, the City has not yet identified any funding sources for the Landlord
Contribution; and
WHEREAS, the parties agree that, subject to the appropriate budget appropriation
by the City, the Project will be developed with a design-to-budget approach based upon
a budget equal to the sum of the Landlord Contribution and Tenant's Contribution; and
WHEREAS, the City shall utilize a Construction Manager at Risk with Guaranteed
Maximum Price ("GMP") delivery method for the construction of the Project, and the City
and the City's construction manager shall have the right to review and reasonably
approve and provide comment as the plans and specifications are prepared at the 30%,
60%, 90% and final completion stages by the architect; and
WHEREAS, the City must identify and appropriate City funds in an amount equal
to the Landlord Contribution no later than October 1, 2024, or either party may terminate
the Lease; and
WHEREAS, on April 30, 2021, the Finance and Economic Resiliency Committee
provided guidance on the Project and recommended that the Administration negotiate a
lease agreement consistent with the Term Sheet for the City Commission's consideration;
and
WHEREAS, pursuant to Section 1.03(b)(4) of the City Charter governing leases of
ten years or longer of City-owned property, the Lease requires approval by a majority 4/7
vote of all members of the Planning Board and 617 vote of the City Commission; and
WHEREAS, pursuant to the favorable recommendation of the Finance and
Economic Resiliency Committee, the Administration requests this item be referred to the
Planning Board for review of the Lease and direction to draft and finalize the lease
agreement with Miami New Drama, Inc., consistent with the Term Sheet and contingent
upon the identification and appropriation of sufficient Project funding, with the final
agreement subject to prior approval of the City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, hereby accepts the
recommendation of the Finance and Economic Resiliency Committee at its April 30, 2021
meeting, relating to the proposed lease between the City of Miami Beach and Miami New
Drama Inc., for the development and operation of a Collins Park cultural arts facility within
the City owned Collins Park Garage (the "Lease"), and approves the term sheet for the
Lease attached as an exhibit to the Commission Memorandum accompanying this
Resolution; further, directing the Administration to draft and finalize the Lease with Miami
New Drama, Inc., consistent with the term sheet, with the Lease subject to approval by a
4/7ths vote of the Planning Board and a 6/7ths vote of the City Commission, pursuant to
Section 10.3(b)(4) of the City Charter; and further, referring the proposed Lease to the
Planning Board for review, in accordance with the requirements of the City Charter and
City Code.
PASSED and ADOPTED THIS .13 day of June, 2021.
ATTEST:
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MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Aline T. Hudak, City Manager
DATE: June 23, 2021
3:30 p.m.
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE FINANCE AND ECONOMIC RESILIENCY COMMITTEE AT ITS APRIL
30, 2021 MEETING, RELATING TO A PROPOSED LEASE BETWEEN THE
CITY OF MIAMI BEACH AND MIAMI NEW DRAMA INC., FOR THE
DEVELOPMENT AND OPERATION OF A COLLINS PARK CULTURAL
ARTS FACILITY WITHIN THE CITY OWNED COLLINS PARK GARAGE
(THE "LEASE"), AND APPROVING THE TERM SHEET FOR THE LEASE
ATTACHED AS AN EXHIBIT TO THE COMMISSION MEMORANDUM
ACCOMPANYING THIS RESOLUTION; FURTHER, DIRECTING THE
ADMINISTRATION TO DRAFT AND FINALIZE THE LEASE WITH MIAMI
NEW DRAMA, INC., CONSISTENT WITH THE TERM SHEET, WITH THE
LEASE SUBJECT TO APPROVAL BY A 4/7TH VOTE OF THE PLANNING
BOARD AND A 6/7TH VOTE OF THE CITY COMMISSION, PURSUANT TO
SECTION 1.03(8)(4) OF THE CITY CHARTER; AND FURTHER,
REFERRING THE PROPOSED LEASE TO THE PLANNING BOARD FOR
REVIEW, IN ACCORDANCE WITH THE REQUIREMENTS OF THE CITY
CHARTER AND CITY CODE.
RECOMMENDATION
Accept the recommendation of the Finance and Economic Resiliency Committee and authorize
the Administration to negotiate a lease agreement consistent with the term sheet, subject to any
direction on policy and business terms and for final review by the City Commission, and refer
the draft lease agreement to the Planning Board for review.
BACKGROUND/HISTORY
On November 9, 2016, the City Commission established the Collins Park Arts District Overlay
via Ordinance No. 2016-4061, in response to an expressed desire by the Collins Park
Neighborhood Association to incentivize arts and entertainment-related uses. Today, the Collins
Park neighborhood is home to cultural institutions including the Bass Museum of Art, the Miami
City Ballet,and
the Regional Library. In addition, the Collins Park neighborhood will become home to Starwood
Capital's headquarters currently under construction at 2340 Collins Avenue.
Page 1027 of 1884
The recently completed Collins Park Garage, located at 340 23rd Street, spans an entire block
of 23rd Street between Park Avenue and the vacated Liberty Avenue. The Collins Park Garage
is located immediately adjacent to the Miami City Ballet headquarters and the future site of the
City's public-private artist and educator workforce housing project. The parking structure's
ground floor includes approximately 16,000 gross sq.ft. of unfinished interior commercial space
with an elevated exterior terrace providing access from the street.
On May 22, 2020, the Finance and Economic Resiliency Committee (the "FERC" or
"Committee") discussed tenant programming for the unleased commercial space of the Collins
Park Garage, emphasizing the importance of community engagement and neighborhood
enhancement, and the possibility of using City funds to curate cultural activation.
On July 29, 2020, Miami New Drama, Inc. ("Miami New Drama" or"MIND") presented the City
Commission with an unsolicited proposal to program the tenant space of the Collins Park
Garage as a flexible black box studio. The City Commission directed FERC to examine the
financial feasibility of the activation once MI ND prepared a cost estimate and further developed
its proposal.
On December 18, 2020, MIND presented FERC with an unsolicited proposal featuring a
Concept Plan, which is attached as Exhibit A. In light of the fact that MIND had not yet identified
any outside funding sources, the Committee recommended preparation of an RFP to solicit
interest from cultural arts institutions who may offer independent financial support without relying
solely on the City to subsidize construction.
On January 27, 2021, upon review of the Administration's draft RFP for the Collins Park Cultural
Arts Facility and MI ND's unsolicited proposal, the City Commission found that the City's best
interests were served by waiving formal competitive bidding in favor of MI ND's unsolicited
proposal. The City Commission adopted Resolution No. 2021-31568, authorizing negotiation of
a term sheet with MIND to include the following material terms:
• Miami New Drama must remain functionally located within the City of Miami Beach, with
Miami Beach as its primary performance venue;
• Existing principal directors Michel Hausman, Moises Kaufman, and Nicholas Richberg
must remain directly involved with Miami New Drama;
• Miami New Drama's board of directors must include voting representation by the City of
Miami Beach; and
• Miami New Drama's sublease of any restaurant or retail component must be negotiated at
market rates.
On March 26, 2021, the FERC reviewed a draft of the proposed term sheet and provided
direction to the Administration regarding four salient issues, which subsequently were resolved
by the parties and incorporated into the Term Sheet (i.e., trigger for the third renewal term;
allocation of risk for construction cost overruns; minimum days of Facility operation; and allowing
MIND to apply for the City's cultural arts grants in relation to programming at the Facility.)
On April 30, 2021, the FERC voted to move the item as presented for review by the City
Commission, with requests for continued negotiation on two topics: (i) further development of
Miami Beach-specific branding for the Facility and (ii) incorporation of a deadline for the City to
identify sufficient Project funding.
Page 1028 of 1884
ANALYSIS
MI ND's Colony Theatre Management Agreement
Since 2016, Miami New Drama has successfully activated the Colony Theatre pursuant to a
Management Agreement that provides an annual operating subsidy from the City ("Colony
Management Agreement"). Pursuant to the terms of the Colony Management Agreement, which
expires in September 2023, MIND has received a cumulative amount of $2 million since the
inception of the Colony Management Agreement in 2016.
Colony Theatre Annual Annual utility
Subsidy reimbursement
Management Agreement(2016) $170,000 $80,000
Management Agreement $420,000 $80,000
Amendment No. 2 (2018)
In addition, notwithstanding the City's obligations pursuant to the Colony Management
Agreement, MIND receives Cultural Arts Council (CAC) grant funding that is not tied to the
Colony Management Agreement nor MI ND's operation at the Colony, but is available to MIND
because it is a nonprofit operating within Miami Beach.
CAC grant funding FY 18/19 $26,400
CAC grant funding FY 19/20 $24,204
CAC grant funding FY 20/21 $22,533
COVID-19 emergency relief grant $69,458
Colony Annual Benchmarks.
Performances Attendance
Required Provided Required Provided
FY 18-19 150 198(132%) 35,000 39,497(113%)
FY 19-20 150 146(97%) 35,000 26,407(75%)
The Colony Theatre has been closed since March 12, 2020, which prevented the run of two
major productions. MIND pivoted to virtual programming, reaching some 7,000 people online,
and recently completed an acclaimed production of 7 Deadly Sins on Lincoln Road. Recently,
the production was awarded the Drama League Award for Outstanding Interactive or Socially-
Distanced Theater at the 2021 Drama League Awards. According to MIND, they are the first
theater company in Florida to be nominated for and to win this award.
Term Sheet dated June 9. 2021
The Administration has negotiated a term sheet based on MI ND's unsolicited proposal and as
further refined by City Commission Resolution No. 2021-31568 ("Term Sheer'). Attached as
Exhibit B, the Term Sheet incorporates the final guidance provided by the FERC when the
Committee last heard the item on April 30, 2021.
Key Lease Terms
Tenant Miami New Drama, Inc.,a 501(c)(3)entity
Page 1029 of 1884
Address 340 23rd Street,Collins Park Cultural Arts Facility
Premises Ground floor of Coffins Park Garage, approximately 16,000 sq.ft. interior
space plus exterior terrace areas
Commencement Lease Year One commences at Temporary Certificate of Occupancy
Date (TCO)for the Buildout Improvements
Initial Term Five(5)years
Total of fifteen(15)years possible:
•Two (2) renewal options of five (5) years each, subject to Tenant
Renewal Terms being in good standing
• Following completion of initial two (2) renewal terms, one (1) final
renewal period of five(5)years,upon mutual agreement of the parties.
$1 per year. Tenant's obligations limited to those operating expenses
solely applicable to the Facility itself and Tenant shall not pay any
Rent additional common area maintenance expenses with respect to any other
portion of the building.
Tenant solely responsible for operational and programming expenses,
including utilities, maintenance, and applicable. taxes (sales taxes,
use/excise taxes, personal, and ad valorem applicable to the Premises
and Tenant's business) with no City funding obligation whatsoever with
respect to such costs. City will have no payment obligations with respect
Operating to Operating Expenses.
Expenses
MIND to make reasonable efforts to apply for the Florida Division of
Cultural Affairs Cultural Facilities Grant. Tenant, as a local cultural
organization, may apply for Cultural Arts Council grants, and may pursue
other grant opportunities offered by the City..
Tenant responsible for day-to-day cleaning, maintenance, and repairs.
City responsible for major building systems (HVAC, electric, fire, water,
water intrusion, etc.) and the building structure, including walls, windows,
Maintenance and exterior. Tenant also responsible for reasonable maintenance and
repairs of the exterior frontage of the Premises, i.e. the sidewalk and
stairs walk-up, in a manner consistent with similarly situated commercial
establishments
City responsible for funding of construction services,contractor selection,
construction for buildout of the Premises, and procurement and/or
installation of all theatrical equipment (collectively, the `Buildout
Improvements"or"Project').
Tenant responsible for selection and funding of Project design and
Cultural Center Architect, for the City's review and reasonable approval in its proprietary
Page 1030 of 1884
Buildout capacity, and subject to Property Managements citywide design
guidelines. In no event shall the City be responsible to fund any portion of
design services.
Buildout Improvements will be developed with a design-to-budget
approach based upon a Budget equal to the sum of the Landlord
Contribution and Tenant's Contribution.
City's total anticipated funding and construction budget shall not exceed
$4,750,000.00.While there is desire to support this Cultural Anchor,
the City has not identified or budgeted a funding source for the
buildout of the Facility.
The parties have mutually agreed to language contained in the Term
Sheet that limits the City's exposure by stipulating that construction costs
may not exceed $4.75 million. Provision of a 10% contingency of overall
project costs has been included in the Term Sheet to ensure that in no
City Financial event shall the use of the contingency cause for the Gross Maximum Price
Contribution of$4.75M to be exceeded, and in any such event, the City's Contractor
shall be solely responsible for all costs that exceed this price,without any
reimbursement from the City.
Update: In accordance with direction provided by the FERC, the
Administration recommends that a deadline be established for October 1,
2024 in order for the City to identify all funding for the total budgetary costs
associated with the Project buildout. In the event that funding is not
identified,the City would not be responsible for any of its obligations under
the Lease,unless future City Commission action provided otherwise.
Tenant shall be responsible for retaining and funding all design
professionals, including the Architect, in the amount anticipated by Tenant
to be$250,000.00,which Tenant shall raise through grants and donations
(the "Tenant's Contribution"). Tenant's Contribution shall cover payment of
all design services and soft costs (architectural and/or engineering fees)
Tenant Financial and, funds permitting, the acquisition of equipment for the theatrical
Contribution performance space.
City may terminate the Agreement in the event Tenant fails to demonstrate
it has secured funding for the design services and fails to contract with an
Architect within 365 days following City Commission approval of the
Lease.
Tenant shall use the Facility solely and exclusively as a theater for its not-
for-profit cultural presentations, production of live theatrical performances
and uses ancillary thereto, including its administrative and business
Uses functions and rehearsal, costume and set design facilities for
performances, and may activate the agreement as further provided herein
with activations that are complementary and ancillary to the cultural
component of the facility.
Page 1031 of 1884
•Café sublease shall be market rate and selection of Café operator
subject to City Manager approval.
• Tenant may offer one (1) concession or for-profit third-party
activation (i.e. Books and Books) at below market lease rates in a
footprint not to exceed 250 sq.ft.,subject to City Manager approval.
•All other concessions(or similar for-profit activations by third parties)
Cafe and offered at below market rates shall be subject to City Manager's
Concession reasonable approval, limited to a term of 30 days (but up to 90 days
Subleases upon City Manager approval), and ancillary and complementary to
Facility's cultural programming.
Update: In accordance with direction provided by the FERC, in
order to ensure continuous activation of the Facility,the City shall have the
right to the assignment of all MIND's concessions, subleases and
subtenants at the Facility,in the event of a default or termination of MIND.
During initial two (2)years of the Term, Facility shall operate at least four
(4) days per week and the Café at least six (6) days per week, during
Minimum hours consistent with similar café operations within the vicinity. Following
Operation the initial two-year ramp up, minimum operation shall consist of six (6)
days for the Facility and six(6)days for the café,and the Facility shall not
be dark on the same day that the café is closed.
As required in the Resolution waiving bidding, principal directors, Michel
Hausmann and Nicholas Richberg must remain actively involved in the
company throughout Lease Term. If any one of the key individuals leaves
the company or is no longer actively involved, MIND must locate a
Key Individual comparable replacement within 180 days,with the reasonable approval of
Clause the City Manager,otherwise City may terminate.The parties have agreed
to remove Moises Kaufman as a "Key Individual" as he is not actively
involved with MIND as would be required for a Key Individual. The
Administration believes that this will have little, if any, material impact on
MIND's creative leadership or the ultimate success of the Facility.
City Manager or designee serves as one (1)voting member on board of
Representation on directors,with one(1)additional non-voting member,designated at option
Board of Directors of the City Manager.This is an increase above the one(1)non-voting city
representative on the board currently.
Extension of Term of Management Agreement for the Colony Theatre to be extended
Colony Theater coterminous with the Collins Park Lease Term (including renewal
Management periods), including cross-default provision for both the Management
Agreement Agreement and Lease Agreement
City may terminate for convenience if:
1. City Commission, in its sole and absolute discretion, does
not appropriate sufficient funds for the Buildout
Improvements no later than October 1, 2024.
Page 1032 of 1884
2. City does not obtain regulatory approvals required for the
Buildout Improvements.
3. Tenant does not secure funding and enter into contract
Termination for with an Architect within 365 days following Lease
Convenience approval by City Commission.
4. Tenant fails to replace a Key Individual.
MIND may terminate for convenience if:
1. City Commission, in its sole and absolute discretion, does
not appropriate sufficient funds for the Buildout
Improvements no later than October 1, 2024.
During the first twelve (12) months following Commencement Date (such
period constituting "Lease Year I", with each successive twelve (12)
month period thereafter constituting another "Lease Year"), Tenant shall
cause the Facility to host at least:
1. 125 cultural or community activations per year
2. 25,000 patrons per year (inclusive of virtual patrons for
hybrid events)
3. 150 students per year
4. 75 seniors per year
5. 50 pro bono nonprofit/community rental hours per year
6. 500 discounted tickets provided per year
Benchmark
Performance Benchmarks shall increase during the Initial Term as follows:
Standards 1. Lease Year 2: 150 events, 30,000 patrons, 175 students,
80 seniors, 50 pro bono nonprofit/community rental hours
2. (Lease Year 3: 175 events 35,000 people, 200 students,
85 seniors, 55 pro bono nonprofit/community rental hours
3. Lease Year 4: 200 events 40,000 people, 225 students,
90 seniors, 55 pro bono nonprofit/community rental hours
4. Lease Year 5 (and thereafter including Renewal Terms):
220 events 45,000 people, 250 students, 95 seniors, 60
pro bono nonprofit/community benefit rental hours
Prior to any renewal periods, performance benchmarks may be adjusted
as mutually agreed to by the parties
In addition to the City's Community Benefit Fund program for nonprofit
rental waivers which are funded by the City, the City also has the right to
use the Facility, excluding the restaurant/cafe, up to four (4) times per
Community Lease Year, subject to availability and reasonable notice, for public
Benefit Proffer purposes (recreational programs, public meetings, trainings, City-
sponsored special events, receptions), without payment of any rental or
use fee,except reimbursement by the City of Tenant's direct out-of-pocket
expenses reasonably incurred
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Project Delivery Structure
Since MI ND's original proposal, the Concept Plan featured an architectural design by Mexico-
based TEN Arquitectos, whose founder, Enrique Norten, serves on MI ND's board of directors.
According to MIND, TEN Arquitectos has agreed to considerably reduce the cost of services to
MIND, which will enable the design of a world-class cultural facility by a prominent architect at an
attractive price. Given that the City is responsible for construction costs, the property is City-
owned and will be leased rent free, the City would typically prefer to control all aspects of design
and construction. However, considering that MIND has agreed to fund all design-related
services and soft costs in furtherance of a superior facility (that the City will own and control
upon lease expiration), the Administration recommends acceptance of MI ND's proposed
arrangement, as long as the City retains control of construction management for the Project and
retains the ability to reasonably approve the design of the project. Although MI ND initially
requested control of construction, MIND has consented to this compromise since the City is
funding the balance of hard costs. The Term Sheet provides that the City will utilize a
Construction Manager at Risk with Guaranteed Maximum Price ("GMP")delivery method for the
construction of the Project.
In addition to MI ND's proffer to allow the City and City's construction manager's reasonable
design input, with approvals at the 30%, 60% and 90% design stages, the City will also require
the Tenant to include certain provisions in its Architectural/Engineering (NE) contract that would
otherwise be included in all NE contracts to which the City is a party, i.e. the City's minimum
design standards, third-party beneficiary rights, and ownership/use rights to drawings and
specifications. The Term Sheet requires that MIND raise all the funds necessary for
architectural services, which MIND has indicated to be approximately $250,000. The parties
have agreed that the City shall have the right to terminate the agreement if, after 12 months of
Lease approval by the City Commission, MIND is unable to demonstrate that it has secured this
funding and entered into contract with the architect.
In order to protect the City against project over-runs, the Term Sheet contemplates that the
parties enter into a Guaranteed Maximum Price Agreement and the schedule of values attached
thereto or contained therein (collectively, the "GMP Agreement") shall: (i)contain a
contingency line item equal to ten percent (10%) of the overall project costs, and (ii) not
exceed the amount of the Landlord Contribution. In no event shall the use of the contingency
cause for the GMP to be exceeded, and the City's Contractor shall be solely responsible for all
costs that exceed the GMP,without any reimbursement from the City.
City Financial Contribution
To address any potential City exposure for unanticipated construction costs, the parties have
mutually agreed to the City's guaranteed maximum contribution amount of $4.75 million for the
cost of construction, with assurances in the Term Sheet of (i) a contingency line item equal to
ten percent (10%) of the overall Project costs, (ii) which shall not exceed the amount of the
Landlord Contribution. In no event shall the use of the contingency cause for the Gross
Maximum Price (GMP) be exceeded, and the City's Contractor shall be solely responsible for
all costs that exceed the GMP,without any reimbursement from the City.
To avoid adverse cost overruns for which the City would be liable and to ensure that the City's
contribution to the Project does not exceed the amount of the agreed Landlord Contribution
(i.e., $4,750,000.00), prior to the commencement of the Buildout Improvements, the City shall
cause the City's Contractor to buy-out, at a minimum, (i)each line item of the schedule of values
Page 1034 of 1884
which exceeds $200,000.00 (and to the extent not exceeding $200,000.00, each major trade
within the schedule of values), and (ii) eighty percent (80%) of the overall project costs
(schedule of values), with the cost of such bought-out line items being consistent with the
approved project budget (which shall not exceed the amount of the Landlord Contribution). In
addition, if at any point during construction, the contingency amount drops below 20% of the
initial contingency amount, the Furniture, Fixtures and Equipment (FFE) budget will be adjusted
down to free up addition funds, to ensure that sufficient contingency funds remain available. The
Administration believes these provisions are sufficient to safeguard the City from incurring
unanticipated costs which are grossly in excess of that which has been agreed to in the Term
Sheet. This is important considering that MI ND will not cause to be created the architectural
plans, which can be used to better estimate construction costs, until such time as a lease is
definitively negotiated.
The foregoing considerations pertain to cost overrun contingencies which would only be
implicated once the City commits the funding for the Landlord Contribution and following the
commencement of construction.At the present time, the City has not yet identified any
funding sources for the $4.75 million hard costs. It is for this reason that the Term Sheet
conditions Project performance upon the City Commission identifying a budgetary source for
the entire $4.75 million construction costs. The Administration is supportive of this unique
opportunity for a celebrated resident cultural partner to further activate Collins Park, however,
budgetary limitations present a crucial obstacle which must be overcome in order to proceed
with the Project. In the event the City Commission, in its sole and absolute discretion, does not
appropriate sufficient funds for the Buildout Improvements no later than October 1, 2024, either
party may terminate the Lease for convenience.
April 30. 2021 FERC Meeting
Notwithstanding the significant issue related to yet-to-be identified funding for the Project, in
providing a favorable recommendation for the Project terms, the FERC highlighted certain
outstanding issues for the parties to address. The Administration has incorporated the direction
provided by the FERC on April 30, 2021, into the Term Sheet. Therefore, it is not the same
document presented in the April 30th FERC agenda, but the Term Sheet differs only in that it
now includes the guidance provided by the FERC:
• First, the Committee requested further development of Miami Beach-specific branding for
the Facility. In response to this request, MIND has proffered to develop site-specific
branding for the Facility that includes a new logo that will be utilized in all literature
associated with the Facility. A copy of the proposed branding collateral is attached as
Exhibit C.
• Secondly, the Committee requested incorporation of a deadline by which the City must
identify and allocate sufficient Project funding. In response to this request by FERC, the
Administration recommends that the City Commission have until October 1, 2024 to
identify and appropriate the full amount of the Landlord Contribution. If the total funding is
not identified by this date, then MIND and City would not be obligated to perform under
the Lease.
• Third, the Committee addressed risk mitigation to ensure continuous activation of the
commercial restaurant space if Miami New Drama is nonoperational or unsuccessful. As
standard practice, City agreements require the assignment of any vendors, sub vendors,
sublessors, or subtenants should the lease be terminated. This will enable the City to keep
the facility active by assigning restaurant operations to another entity if Miami New Drama
is unable to manage the Facility or Café successfully.
Page 1035 of 1884
SUPPORTING SURVEY DATA
According to the 2019 Community Satisfaction Survey, 85.5% of the polled residents agreed
that cultural activities contribute to quality of life in Miami Beach. The lease for the development
and operation of a cultural arts facility within the Collins Park Garage will further the cultural
activities in the Miami Beach and, as a result, resident quality of life will prosper.
FINANCIAL INFORMATION
The City's financial responsibility, discussed in the foregoing Analysis above, is $4.75 million.
MIND has 12 months to demonstrate it has raised the costs associated with the design of the
Project, anticipated to be $250,000.00, whereas the City has approximately three (3) years to
identify and appropriate the funding associated with the hard costs of the Project. At the
present time. the City has not yet identified any funding sources for the $4.75 million
hard costs.
CONCLUSION
Subject to direction as to the policy and business issues outlined in this Memorandum, the
Administration recommends that the City Commission approve the Term Sheet in concept and
authorize the Administration to continue its negotiations and develop the lease agreement for the
City Commission's consideration.
Pursuant to Section 1.03(b)(4) of the City Charter governing leases of ten years or longer for
City-owned property, the Lease requires approval by a majority 4R vote of the Planning Board
and 6/7 vote of the City Commission. Accordingly, the Administration requests that the City
Commission refer the Project and draft agreement to the Planning Board for review, in
accordance with the requirements of the City Charter and City Code.
Applicable Area
South Beach
Is this a"Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Strategic Connection
Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality
entertainment destination.
Legislative Tracking
Economic Development
ATTACHMENTS:
Description •
❑ Attachment A-Concept Plan
❑ Attachment B -Term Sheet
❑ Attachment C - Branding
Page 1036 of 1884
❑ Resolution
Page 1037 of 1884
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• ... COLLINS PARK ,1
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•• ••• CENTER :
••••••
In four short years Miami New Drama hasf*----U3' 'I.:- --'
transformed the Colony Theatre from an
underused rental space,that was dark 80%of
the year, into a world-class dynamic theater,
serving over 40,000 people annually in over
175 active nights,generating over$10 million `r - Y
in economic impact on Lincoln Road alone since
its residency began. Producing theater of the
highest artistic caliber, reflecting our unique ,
cultural diversity,we help to solidify Miami
Beach as a cultural capital of the world. _.. , `f- j
Nationally recognized for our daring work,we s' -
have become one of the fastest-growing cultural ?
1_,`institutions in the state of Florida. ,
• ‘,
fir: - d .`.
"Miami New Drama is the theatre that most exemplifies �•,
the city right now" -American Theatre Magazine -. y.. ..`°
q ,
••••••
• ••• COLLINS PARK
• •
••• CENTER
••••••
Miami New Drama programming attracts audiences that are --",,{.
multilingual, multicultural, multigenerational.With an annual
economic impact of over$3.5 million on the area and _ '� t
generating over$154,755 in local government revenue,our Q _ "
presence is significant. (Source.Aroericansfor the Arts) `� --` _- -
on ........; _= r
Audience surveys reveal: • - .- .,
1111
if ifsit f i ,M,,, ' FS
•86% have dinner or drinks around Lincoln Rd
• 77% drive to the theater and pay for parking
•55% have a household incomes over$100,000
•87% are full time residents, 8%seasonal,5%tourists
"Miami New Drama [...] has crafted works that speak to and reflect
South Florida's richly diverse 21st century audiences." -Miami Herald
• • • 4111
•N •••• COLLINS PARK -
• •
• ••• CENTER
••••MO• 11111r
IMP. 41.0
Miami New Drama believes in the power _ Mb _
of theater to educate, excite, and enlighten - —-- = _�
our youth. In the last two years alone, .1 - -
MIND has introduced nearly 20,000 n _ 4 II
Miami-Dade County public school students -._ �,` - - �••,,
to vibrant and relevant storytelling through
free live performances at the Colony .-' .`V „.''gr .4.„4. - ice~ ir
Theatre and in-school tours. � ��. r0 '�. ii. ,
Our work bridges cultural divides and �•
promotes conversation about important : '"
emotional, social, and political topics. _....... -=
I4. -
Robust programming at the Colony
Theater is currently a limiting factor to the '
growth of MiND's educational -71
programming.Additional space would t
serve as the educational hub for Miami
New Drama allowing for consistent .
workshops for adults and youth, camps, t•:
and Theatre for Young Audiences -iv-�; „ -iv-._
programming to occur. -
fa -EcUR1r
Pap.10•1 d .f
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j ... COLLINS PARK
• ••• CENTER
I.••••
NIGHT-TIME ACTIVATION:
*Collins"Park Cafe-indoor and outdoor seating •200 seat robustly programmed theater
*The Living Room-Gallery,Bookstore,Coffee,and Cultural Lounge •Collins Park Cafe serving dinner
*Weekend Theater for Young Audiences •Live music events in the cafe and Liberty Plaza
*Educational Programming and-Workshops •Evening rehearsals
*Streetlacing rehearsal studio.;;.; •Gallery events
There are currently over 66 retail vacancies on Lincoln Road and over 35,000sf of vacant space in the immediate vicinity of Collins
Park. (LR BID,costar)
By blending commerce and culture, Miami New Drama will prove to be a transformative economic catalyst to the Collins Park
neighborhood.The already developing cultural campus, home to Miami City Ballet,The Bass,and the Regional library would be
enhanced by day and night activation that will bring people and cars to the Collins Park Garage and solidify the area as a
cultural hub for the community.
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N.1042011834
••••N
• ••• COLLINS PARK
• •
••• CENTER
••••N
Miami New Drama is a tested and proven organization that can infuse this project with dynamic artistic programming while
supporting our current programming with much needed educational, rehearsal and administrative space.
23RD STREET
With an innovative space
usage plan and design -
developed by renowned C„,
architect Enrique Norten ` e d - d
and TEN Arquitectos, w;, ;.:.: .: :.. -,
Miami New Drama will .. F
p
provide ample community
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Y ri M GYery�Ca0ee19aoltafc� .
programming contributing Educxm ,udo w
i RenaS •:qr. fi°i:EC • }`
to the public realm both ,s,sy-t E
day and night. Ilfr ,_
:,e ee a �m 1 ______________ .,, .,,
Y a-
"Miami New Drama f _ i
has become the
pulse of the Miami `
Theatre Scene" 'i: .%
-Broadway World - r ... $ I
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i ••• COLLINS PARK ik ' .E ,
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With 33 years since its foundation by Enrique Norten(Mexico City, FORUM-"`'^'"'°° 114,____L.... {i 11'
IEI Pow CT.4yen•,Museum•iaa,.USA ' ! New Yak Rabic i bury•New V.A.USA
1954)and more than 60 projects built,TEN Arquitectos has an 1 ' +l
extensive portfolio of cultural, residential, hotel and infrastructure I i I I
projects.With offices in Mexico City, New York and Miami, projects 1 i �. s —
include the Guggenheim Museum in Guadalajara,the New York ( ;,� s I . - ,
Public Library,the National Theater School in Mexico City and the ,
Rutgers Business School in New Jersey. j - - = '
Sebav a..•Ba9+r GaFry•New Ya*USA ! PARK®120-Miami Beach,USA
i i Me.can Mu,ean-Son F.aicxe USA-'
TEN Arquitectos projects reconcile aesthetics with the common 1,,., :; I I I
good:sustainable projects that are socially,environmentally, I ' l
• -
politicallyand economicallyresponsible. 11".' la' II ` 't `
-
Foy R...Aa:a•N.w Yoh.USA - {( '�eI`••-•.1.1 ?- ��
This approach has brought national and international recognition
M•w.-..i 44..e.An aMeoa,. CoV•6c
such as the Mies van der Rohe Prize for Latin American ;... vtro„Sc„ao"P Kota.,N;
Architecture, recognitions by the American Institute of Architects, TENARQUITECTOS
national and from various US states,Architectural Record,Architect
Magazine,Architizer, Biennials in Mexico,Argentina and Ecuador; 1
the Royal Institute of British Architects,among others. I
I 131s
' Iesa,geeb,❑..oVr•MKca Cry I i Sa. ..I..•Mem.Cry
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••••••• t .-.• .`
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• ••• COLLINS PARK i-
• ••• CENTER _
••••••• ..t•
The Living Room • •
/ ( . {.
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....-,1 .-_,,,i-ei : , -I_ •••r'. • . '', .n. • --; •
• Cultural Lounge open all day _. - s. �
• Rotating art installations from partner nonprofits - • z A�
featuring early-mid career marginalized artists ,. . r' { + b
• Comfortable and Inviting Seating t'- .. v-,, - ,
• Complimentary Wi-Fi , -
i
• Coffee bar 1 1 __• _
• Bookshop curated by Books&Books - ` P+
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VIk •-' ,,LkneV -)..;11,.,;, 1� BuoKs 'P3001
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'photos are representatfrf"""'
I••.••
••• COLLINS PARK - .
•
••• CENTER • _-
Ilan Park Cafe _ : , A
4 ek
Collins atrill.,
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A e
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A dynamic and instantly welcoming neighborhood cafe r
serving sustainably sourced coffee,world-class affordable :' s _ — �1 • I i x
cuisine, and featuring a carefully curated roster of cutting ' 1 T
edge live music. • •
A nonprofit/private partnership between an experienced *
restaurateur and Miami New Drama. -
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'photos are representat1tram°"0°' 1 I _
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:.:... COLLINSPARK =_
I, ... CENTER:. ... 'i:
•••••• - .. -
Community Education and Rehearsal Studio
•Home for classes,workshops,educational programing,and camps — ' .
•Home for Monday night Dance Seniors and other community activities _
•Open space that accommodates the footprint of Colony Theatre stage - -
•Event space for MIND and others,combinable with the Studio Theater • -
•Outward facing to the street so pedestrians can see how the work is developed -- k `
-Featuring sprung floors and mirrors for dance rehearsals
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•••• _ -
PARK `... COLLINS . — --
t
••• CENTER C' ¢ h �
1 �f •- r Hik { ,�.,
Costume Design Studio ,. €-
A space that would serve as a tailor and fitting studio for Miami New $4— _ �_' ' •it e
Drama productions, as well as hosting skills building education through ZQ_
craft and sewing. rrt ,
Creating Miami Beach jobs and Artist residencies in textile arts that
can be featured in the lobby gallery. y= `.7- 1R
Office Space
• Serving as MIND headquarters _ `{ ' " r -,
• Closed glass front offices -
• Divided work stations 1- �' F - g .
IC• Conference space �r t. '
• Providing a healthy,productive _ •= - : . F-1--21
work environment.. - ~3 / --
-
'photos are representattbe"°"'"
050000•
• ••. COLLINS PARK 111
• •••• CENTER
.S..... "
MiND Studio Theater
Programming to include
• World class theater in an intimate setting
• Spanish Language Programming
• Theater for Young Audiences
• Film Screenings
• Special Events +i, ` '
•
• Cultural Parter and Community Programming .
• •
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•
•
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0000••
• . . COLLINS PARK
• •
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Featured Cultural Partners at CPCC
JN--- GUITARS DANN 0 W! 1,
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AAAMI CLASSICAL MUSIC FESTNAL dim your.ad. 333333 L c
BOOKS &BOOKS
Cultural Partners presented by Miami New Drama at the Colony Theatre
Alma ArtlBasel Wain ru.1%,e, A� CINEMA
Dance �� cast�ili) On CbiS in
Theater Miami beach G4FESTIVAL ITALY
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or_ 1 _%II. [I ± . Rmer
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___ ` TUllial nivatusolia$40004_. 1.1.401,SLAMDANCE
UglMO t YEW'ki+IL'OYx3J: ' _�—'�.-. 7..:,dq/C4...:,./3f..,iat I{E ALES
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••••••
SUPPORTED BY
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MIAMI .1110o.•.-
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CITY
BALLET New World Symphony BASS
America's Orchestral Academy
' I BETS . .
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BEACH . , ._
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1 m 30..,1 -. 3.,,0:. • •
13tflal C01 I i ns
CHAMBER OF COMMERCE
SOBESAH- On NE*,-4BORHOOD
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CULTURE,.AN_DGQMMERCE
14 F it !..;,'%,..k,.--.A5.. ..;-
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Ai i i;ihi j a;�y .0,0001i�"ple rnivally
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IIIIIIIIAPIIIrf .
Transforming and serving the Collins Park neighborhood
through dynamic theater, the celebration of culinary,
visual and literary arts, and engaging community spaces.
TERM SHEET—MIAMI NEW DRAMA LEASE
TENANT: MIAMI NEW DRAMA INC. ("Tenant"or"MIND")
LANDLORD: CITY OF MIAMI BEACH, FLORIDA("Landlord"or"City")
LEASE: Proposed Lease Agreement by and between Tenant and City(the"Lease")with
respect to the Premises(defined below) and generally consisting of the ground
floor of Collins Park Garage,340 23rd St. Miami Beach
LEASE TERMS
1.Facility: Ground floor of Collins Park Garage, approximately 16,000 sq.
ft.interior space and additional exterior terrace areas,including
a to be constructed 200 seat black box theater, cultural
lobby/lounge/gallery, general use areas, rehearsal space,
costume studio, office space for Tenant, café and general
purpose studio (such space, together with the Buildout
Improvements, as hereafter defined, the "Facility" or
"Premises").
2.Term: Initial Term of five (5) years (the "Initial Term"),with three (3)
renewal options for a period of five(5)years,as provided below:
(a) Two (2) renewal options for a period of five (5) years each
subject to Tenant being in good standing(as a not-for-profit
corporation and in compliance with applicable provisions of
the City Code) and not otherwise in default of the Lease,
including with respect to achieving Benchmark Performance
Standards(addressed below);and
(b) Following the initial two (2) renewal options, the City may
renew the Term for a final renewal period of five (5) years
upon mutual agreement of the parties.
Because of the long programming lead time,for the initial two
(2)renewal terms only(depending on 2.b above),the Lease will
provide for the exercise of the option to extend for the
applicable Renewal Term during the ninety (90) day period
commencing one (1) year before the expiration of the Initial
Term or Renewal Term (as applicable and then in effect). Each
renewal term shall be on same terms and conditions of Initial
Term. In the event Tenant fails to meet the Benchmark
Performance Standards for the Lease Year immediately
preceding a Renewal Term (subject to the occurrence of any
Force Majeure Events), City may elect to not to accept the
renewal option with respect to such Renewal Term at its sole
1
Page 1053 of 1884
and absolute discretion, provided that City must communicate
its election not to accept such renewal to Tenant within sixty
(60)days after Tenant exercises its renewal option with respect
to the applicable Renewal Term.
3.Benchmark Performance Standards: During the first twelve (12) months following the
Commencement Date (as set forth below)(such period being
"Lease Year 1",with each successive twelve (12) month period
thereafter being a "Lease Year"),Tenant shall cause the Facility
to host at least: (1) 125 cultural or community activations per
year;(2)25,000 patrons per year(inclusive of virtual patrons for
hybrid events TBD); (3) 150 students per year; (4)75 seniors per
year; (5) 50 Pro bono nonprofit/community rental hours per
year; and (6) 500 discounted tickets provided per year. These
benchmarks shall increase during the Initial Term as follows: (i)
Lease Year 2: 150 events, 30,000 patrons, 175 students, 80
seniors, 50 pro bono nonprofit/community rental hours; (ii)
Lease Year 3: 175 events 35,000 people, 200 students, 85
seniors, 55 pro bono nonprofit/community rental hours; (iii)
Lease Year 4: 200 events 40,000 people, 225 students, 90
seniors,55 pro bono nonprofit/community rental hours;and(iv)
Lease Year 5 (and thereafter including the Renewal Terms):220
events 45,000 people, 250 students, 95 seniors, 60 pro bono
nonprofit/community benefit rental hours. Prior to any renewal
term, as provided in Section 2 above, the Benchmark
Performance standards may be adjusted based on the mutual
agreement of the parties. In addition to Landlord's rights with
respect to the renewal terms, Tenant's failure to achieve the
Benchmark Performance Standards for two consecutive years
shall be an event of default.
4.Commencement Date: The Lease will commence upon the earlier of Tenant's beneficial
occupancy of the Premises or the Certificate of Occupancy for
the Buildout Improvements.
5.Rent: Rent shall be $1 per year. For avoidance of any doubt, except
as expressly provided in Section 6 below, Tenant shall not pay
any additional rent under the Lease, with Tenant's obligations
with respect to operating expenses being limited to those
operating expenses being solely applicable to the Facility itself
and Tenant shall expressly not pay any additional common area
maintenance expenses with respect any other portion of the
building (Collins Park Garage) within which the Facility is
located.
2
Page 1054 of 1884
6.Operating Expenses/Grants: Except as provided below,Tenant shall be solely responsible for
the operation and programming expenses of the Facility,
including, without limitation, utilities, maintenance expenses,
and applicable taxes(sales taxes,use/excise taxes,personal and
ad valorem applicable to the Premises and Tenant's business
therein) with no City funding obligation whatsoever with
respect to such costs.
As a condition of the Lease, MIND agrees to make reasonable
efforts to apply for the Florida Division of Cultural Affairs
Cultural Facilities Grant. Except as set forth herein,the City will
have no other funding or other payment obligations with
respect to the Facility or its Operating Expenses; provided,
however, that City acknowledges and agrees that given the
application cycle for such grants,MIND may not be able to apply
for such grant prior to the execution of the Lease and in such
event MIND shall apply for such grants in the next applicable
application cycle. Notwithstanding the foregoing, Tenant, as a
local cultural organization, may apply for Cultural Arts Council
grants,and may pursue other grant opportunities offered by the
City for programming, provided,however,that in recognition of
City's significant contributions to Tenant by making the
Premises available to Tenant rent-free and providing significant
funding for the Buildout Improvements, Tenant shall not apply
for any City grants related to the Buildout Improvements and
Tenant shall not apply for City grants to improve, maintain or
operate the Facility.
7. Maintenance: Tenant shall be responsible for day to day cleaning,
maintenance, and repairs of the Premises. City shall be
responsible for the major building systems(HVAC, electric,fire,
water, water intrusion, etc.) and the building structure,
including walls, windows, and exterior. Tenant shall be
responsible to maintain,in a clean and orderly manner, the
exterior frontage of the Premises, i.e. the sidewalk and stairs
walk-up, in a manner consistent with similarly situated
commercially establishments. For avoidance of any doubt,City
shall,at its sole cost and expense(and without any pass through
or charge to Tenant), be responsible for any and all (including
day to day) maintenance, cleaning, and repairs with respect to
any and all portions of the Collins Park Garage other than the
Facility.
8.Cultural Center Buildout: The City shall be responsible for the funding for the construction
services, permitting, selection of the contractor, and the
construction for the buildout of the Premises and procurement
3
Page 1055 of 1884
and/or installation of all applicable theatrical equipment to be
utilized by Tenant in connection with Tenant's use of the Facility
(collectively, the "Buildout Improvements" or "Project"). The
City's total available funding and budget for construction of the
Project shall not exceed Four Million Seven Hundred Fifty
Thousand Dollars ($4,750,000.00) ("Landlord Contribution").
The City shall utilize a CM at Risk with Guaranteed Maximum
Price ("GMP") delivery method for the construction of the
Project.
The Tenant shall be responsible for the selection and funding of
the Project's design and design professionals(i.e.Architect),and
will cause the Architect to deliver to the City the design layout
of the Premises for the City's reasonable approval and comment
(in City's proprietary capacity). IN NO EVENT SHALL THE CITY BE
RESPONSIBLE TO FUND ANY PORTION OF THE DESIGN SERVICES
AS SET FORTH HEREIN. Upon such approval, Tenant will cause
the Architect to engage with all required consultants and
prepare the Project plans and specifications.The design for the
Project shall contain the minimum design elements set forth in
Exhibit"A" (to be provided at a later date) hereto ("Mandatory
Design Elements"),as provided by the City. The City and/or the
City's Contractor will have the right to review and reasonably
approve and provide comment as the plans and specifications
are prepared at the 30%,60%,90%and final completion stages,
again in its proprietary capacity. Tenant's contract with the
Architect shall be subject to the City's reasonable approval and
shall contain required contract language,attached as Exhibit"B"
(to be provided at a later date).The parties agree that Buildout
Improvements will be developed with a design-to-budget
approach based upon a budget equal to the sum of the Landlord
Contribution and Tenant's Contribution.
Tenant will be provided the opportunity to participate in the
budget process and may retain, at its expense, a consultant to
monitor the construction of the Building Improvements and
such consultant will be invited to attend construction meetings
between the City and the Project professionals, contractor,
engineer and architect.The City shall maintain ownership of all
plans,specifications,permits,or other approvals,and any other
work product developed to date in connection with the Project
(the "Work Product"), along with a copy of all such Work
Product, in an electronic or other format as mutually agreed
upon by the Parties. The City will not charge the Project funding
for administering the planning, permitting, and construction of
4
Page 1056 of 1884
the Project,except for fees and costs it normally charges to third
parties in its regulatory capacity.
The Guaranteed Maximum Price Agreement and the schedule
of values attached thereto or contained therein(collectively,the
"GMP Agreement") shall: (i) contain a contingency line item
equal to ten percent(10%)of the overall project costs,and (ii)
not exceed the amount of the Landlord Contribution. In no
event shall the use of the contingency cause for the GMP to be
exceeded, and the City's Contractor shall be solely responsible
for all costs that exceed the GMP, without any reimbursement
from the City.
Prior to the commencement of the Buildout Improvements,City
shall cause the City's Contractor to buy-out, at a minimum, (i)
each line item of the schedule of values which exceeds
$200,000.00 (and to the extent not exceeding $200,000.00,
each major trade within the schedule of values) and (ii) eighty
percent (80%) of the overall project costs (schedule of values),
with the cost of such bought-out line items being consistent
with the approved project budget (which shall not exceed the
amount of the Landlord Contribution).
In the event Tenant requests any change to the Buildout
Improvements,Tenant shall submit such request to the City for
the City's review and approval in its sole and absolute
discretion; provided, however,with respect to any such change
requiring a change order to the GMP Agreement,the City agrees
not to unreasonably withhold, delay or condition its consent
provided that either(i) after giving effect to such change order
(and all prior change orders) at least twenty percent (20%) of
the original contingency line item remains unallocated, or(ii) if
the applicable change order (together with all prior change
orders) would cause the unallocated contingency line item to
fall below twenty percent(20%)of the original contingency line
item, then Tenant shall have either (a) agreed to decrease the
FF&E line item by the amount by which the unallocated
contingency line item falls below twenty percent (20%), which
decrease shall be reflected in the same requested change order,
or (b) funded in cash the amount by which the unallocated
contingency line item falls below twenty percent(20%).
The above provisions are being inserted in order to ensure that
City's contribution to the Project does not exceed the amount
of the Landlord Contribution(i.e.,$4,750,000.00).
5
Page 1057 of 1884
9.Tenant Contribution to Project: As set forth in Section 8,Tenant shall be solely responsible for
retaining and funding all design professionals, including the
Architect, as may be required for the Project, which Tenant
expects to cost Two Hundred Fifty Thousand Dollars
($250,000.00), which Tenant shall raise through grants and/or
donations (such amount being the "Tenant's Contribution").
The Tenant's Contribution shall be used to fund the payment of
all design services and soft costs (architectural and/or
engineering fees)which may be incurred in connection with the
Project and funds permitting to the acquisition of equipment for
the theatrical performance space. The City may terminate the
Agreement for convenience in the event Tenant fails to
demonstrate it has secured funding for the design
services/architect and fails to enter into a contract with an
Architect within 365 days following the City Commission's
approval of the Lease.
10. Use: Tenant shall use the Facility solely and exclusively as a theater
for its not-for-profit cultural presentations, production of live
theatrical performances and uses ancillary thereto,including its
administrative and business functions and rehearsal, costume,
and set design facilities for performances, and as further
provided herein. The public space of the Facility shall be used
primarily as a venue for cultural entertainment, education,
exhibitions, lectures, and uses ancillary thereto. Subject to the
reasonable approval of the City, and subject to the Prohibited
Uses in Section 13 and Section 11 below, the Tenant may
activate portions of the Facility through contractual
arrangements with outside vendors for retail, or other
commercial uses that are ancillary and complementary to the
cultural component of the Facility.
11.Café Sublease/Concession: With respect to any sublease or concession agreement(or other
similar agreement)for the operation of the restaurant or café at
the Facility (the "Café"),Tenant shall charge the Café operator
market rental rates and other terms and conditions comparable
to the rental rates and terms and conditions offered to other
similar food service establishments located in the vicinity of the
Facility(as adjusted to account for market conditions which may
vary for facilities located on a main street located within the City
of Miami Beach (e.g., Collins Avenue). The Café operator and
the economic terms of the agreement with the Café operator
shall be subject to approval by the City Manager(or designee),
shall have a term that does not exceed Initial Term (provided,
however, that such agreement may provide for renewal or
6
Page 1058 of 1884
extension terms which shall become effective upon any
Renewal Term under the Lease), and shall be automatically
assignable to the City in the event of termination of Lease.
Subject to City Manager's reasonable approval, Tenant may
offer one concession or other for profit activation by a third
party at below market rates to an approved vendor to be
identified in the Lease (i.e. Books and Books) and shall not
exceed 250 sq. ft. of the Premises. All other concessions or
similar for-profit activations by third parties at the Facility
offered at below market rates, shall be limited to a term of
under 30 days (and may be extended upon written approval
from the City Manager to 90 days), shall be ancillary and
complementary to the cultural activations and/or programming
within the Facility,and shall be subject to the City Manager's(or
designees) reasonable approval.
In the event that ad valorem taxes are assessed by the Miami-
Dade County Tax Appraiser on the Facility, by reason of this
Lease or by reason of any uses and/or activities of MIND or its
sub-lessees, upon or in connection with the Facility, MIND
agrees to pay,before delinquency,all such ad valorem taxes and
assessments (provided, however, that the foregoing shall not
preclude MIND from passing such costs along to the applicable
sub-tenants operating within the Facility); however, MIND
remains responsible notwithstanding.
MIND shall conditionally assign all sub-leases, sub tenants,
Cafe operator and MIND's concessionaires("Sub-lease")to the
City,such that in the event of a termination of the Lease, the
City may, upon written notice, assume the Sub-lease, and for
the Sub-lessor to continue to perform all of its obligations to
the benefit of the City. MIND shall also require language in
each of its Sub-leases that the sub-lessor consents to the
foregoing assignment.
12. Programming: N/A.
13.Prohibited Uses: No stand-alone bars (provide that the Café operator may
provide a theater concession stand-alone bar and/or any
temporary stand-alone bar operated in connection with any
applicable permitted activation of the Facility, provided the
stand-alone bar shall only serve alcohol 1.5 hours before
theatrical performances, during intermission of theatrical
performances,and one hour after theatrical performances,and
the bar shall only be geared towards guests, participants,
patrons and performers of the theatrical performances);
7
Page 1059 of 1884
Pawnshops and Secondhand dealers of precious
metals/precious metals dealers; Accessory outdoor bar
counters except in compliance with local law; Tobacco/vape
dealers; Check cashing stores; Medical cannabis dispensaries
(medical marijuana dispensaries); Convenience store; Grocery
stores; Occult science establishments; Pharmacy
stores; Souvenir and t-shirt shop; and Tattoo studios.
14. Key Person Clause: In recognition of the success of Tenant's programming,and Mr.
Michel Hausmann and Mr. Nicholas Richberg's (each, a "Key
Individual") instrumental efforts with regard thereto,the City's
selection of the Tenant,and the Key Individual's participation as
part of the Tenant's organization, is an integral and primary
consideration for City's decision to approve this
Lease. Accordingly, each Key Individual shall each be actively
involved in the operation,management,and artistic direction of
the Tenant and shall devote a substantial majority of their
business time in such efforts.
In the event that (i) one of the Key Individuals are no longer a
director of, or employed by, the Tenant; or (ii) one or more of
the Key Individuals are no longer devoting the necessary time,
attention, and resources described above, Tenant shall notify
City of such event (a "Key Individual Event"), and if no
replacement Key Individual has been identified by the Tenant
and reasonably approved by the City Manager within one
hundred and eighty(180)days of such Key Individual Event,City
shall have the right to terminate the agreement for
convenience.
15.Miami Beach Headquarters: Throughout the term of the Lease, MIND must keep its main
administrative offices and principal performance venue within
the City of Miami Beach, with reasonable flexibility for special
events or tour performances outside of the City.
16. Force Majeure: The Lease shall contain a mutual Force Majeure provision to toll
obligations of the parties in the event of an act of god, i.e.
hurricane, pandemic,etc. ("Force Majeure Event"). In addition,
if City performs the Buildout Improvements, any City obligation
to complete work shall be subject to extension for unavoidable
delays and Force Majeure Events. The period for tolling of
obligations under the Lease shall include the time associated
with the Force Majeure Event itself, and the period of time
following the Force Majeure Event that may be required to
restore the Facility and/or remediate any delay, damage, loss,
failure, or inability to perform as a consequence of the Force
Majeure Event.
8
Page 1060 of 1884
17.Community Benefit proffers: In addition, and notwithstanding any participation in the City's
Community Benefit Fund program, City shall have the right to
utilize the Facility,excluding the restaurant/cafe, up to four(4)
times per Lease Year, subject to availability and with
reasonable notice to the Tenant, for such purposes including,
but not limited to, recreational programs sponsored by the
City, public meetings, training classes, City sponsored special
events, receptions, and other public purposes as deemed
necessary by the City,without the payment of any rental or use
fee, except that direct out-of-pocket expenses incurred in
connection with such uses (including reasonable expenses
incurred by MIND in order to open and make the Premises
available in connection with a City use thereof)shall be paid by
the City.Additional community benefits to be developed with
the Administration.
18. Days and Hours of Operation: Subject to the occurrence of Force Majeure Events and
closures for reasonable periods for repairs, maintenance, and
alterations, during the initial two (2) years of the Initial Term,
Tenant shall open and operate the Facility at a minimum four
(4)days a week and Tenant shall cause the Café to open at least
six (6) days per week and generally during hours consistent
with other similar Café operations within the vicinity of the
Facility.
Thereafter, Tenant shall open and operate the Facility
(excluding the Café) at a minimum of six (6) days a week and
Tenant shall cause the Café to open six(6) days per week and
generally during hours consistent with other similar café
operations within the vicinity of the Facility. Notwithstanding
the forgoing, the day of the closure for the Café and the
remainder of the Facility areas open to the public shall not fall
on the same day,and accordingly,either the publicly accessible
Facility areas or Café shall be open 7 days a week.
19. Maximum Permitted Closing Time: All events and all uses shall conclude prior to 2:00 a.m. unless
otherwise approved by the City Manager,in writing; provided,
however, that MIND's employees and/or contractors may be
permitted to remain at the Facility beyond 2:00 a.m. in the
event that same is necessary for purposes of loading in or
dismantling a production, cleaning the Facility after a
performance, etc., so long as MIND's activities at the Facility
during this time do not disrupt or negatively impact the
surrounding neighborhood.In the event of such disruption,the
9
Page 1061 of 1884
City Manager or his/her designee shall have the right to strictly
enforce the hours of operation.
20.Sponsorship/Naming Rights: During the Term, Tenant shall have the right to erect interior
signage in recognition of individual(s)or corporate sponsors or
donors, including,without limitation banners. Any naming for
exterior signage (including, without limitation, any
sponsorship/donor names) shall be subject to approval as
required by the City's Naming Ordinance,as codified in Chapter
82,Article VI,Sections 82-501 through 82-505 of the City Code,
as amended from time to time. In no event shall any naming
rights be conferred on any corporate sponsor or donor for any
period of time that exceeds the term of this Lease (including
Renewal Terms). All signage and advertising, whether or not
related to approved naming, shall comply with signage
standards established by the City Code and comply with all
applicable building codes, and any other municipal, County,
State,and Federal laws,including the design review process for
any sign and/or graphic image. In no event may any approved
interior or exterior signage include the names of any company
selling the following types of products ("Prohibited Names"):
[guns,tobacco, etc.]. Any naming recognition shall be subject
to reconsideration in the event of any criminal conviction or
similar misconduct on the part of the corporate sponsor or
donor. If a sign or advertisement is deemed offensive or
inappropriate (as determined by City in its reasonable
discretion), the City may, in its proprietary capacity, require
removal of the advertisement or sign.
21.Audit and Financial Records: In addition to the Inspector General Audit rights, the Tenant
shall be required to maintain financial records and records of
services and programs it provides at the Facility; said records
shall be subject to audit by the City.
22. Reporting to City: Notwithstanding the Commencement Date, no less than
annually,within 15 days after filing with the Internal Revenue
Service,Tenant shall provide City with its 990 tax form.Tenant
shall also provide City with quarterly program reports,detailing
Benchmark Performance Standards (including total number of
participants, total number of Events, and total public benefits
provided,such as free or discounted tickets,and the like.)
23. License/Compliance with Laws: Tenant shall be solely responsible for obtaining, or shall cause
its food service vendors(including,without limitation,the Café
operator) to obtain, the requisite alcoholic beverage license
that may be required if alcoholic beverages shall be served in
connection with the operation of the Facility. Tenant or the
10
Page 1062 of 1884
Café operator shall obtain all applicable occupational licenses,
and all permits required for sale and service of food. Tenant
shall comply with all applicable laws related to sale and service
of food and alcohol.
24.Insurance: Tenant shall,at its sole expense, maintain any insurance which
may be reasonably required by the City including, without
limitation, General Liability, Property All Risk Coverage,
Workers' Compensation required by Florida law; Automobile
Liability insurance; and Liquor Liability Coverage.
25.City Approval of Assignments,
Subleases,and Other Contracts: No assignment, transfer, sublease, concession, or license
agreement for the entire Premises(or for the operation of the
Café, as set forth herein) shall be valid without the City's
written consent(at City's sole and absolute discretion),which
consent,if given,may require the contracting party to pay fair
market rent/value for the use of the Premises.
Notwithstanding the foregoing, Tenant will be permitted to
enter into (i) agreements consistent with the permitted uses
and (ii) subleases of less than the entire Premises, subject to
approval by the City Manager, which approval shall not be
unreasonably withheld or delayed.
26.Termination for Cause: City may terminate the agreement for cause upon an uncured
Event of Default by Tenant. Events of Default shall include:
failure to observe or perform any of the covenants or
provisions of the Agreement, which continues for thirty (30)
days following written notice(with the standard extension for
additional time as may be required if diligently pursuing cure
etc.); Insolvency of Tenant; any wrongful assignment,
sublease or transfer by Tenant not authorized by the
Agreement; failing to achieve Benchmark Standards for two
consecutive years; and failure of Tenant to maintain its
exempt organization status as a not-for-profit corporation
that exists for charitable or educational purposes.
•
27.Termination for Convenience: City may terminate the Agreement for convenience: (1) the
City does not obtain all regulatory approvals required for the
Buildout Improvements; (2)Tenant does not secure funding
and/or enter into contract with Architect within 365 days after
Lease approval by City Commission; and (3) Tenant fails to
replace Key Individual.
In addition to the foregoing,either party may terminate this
Agreement for Convenience in the event the City
Commission, at its sole and absolute discretion, does not
11
Page 1063 of 1884
budget and appropriate sufficient funds for the Buildout
Improvements on or before October 1,2024.
28.City Representation on MIND Board: City Manager or designee shall serve as a voting member of
the Miami New Drama, Inc.'s board of directors, with City
Manager having the option to designate one (1) additional
representative to serve as a non-voting member of Tenant's
board of directors. The City board appointees shall have the
same rights afforded to all Tenant board members.
29. Promotion of City of Miami Beach's
Lead Sponsorship Support of MIND: In recognition of the City of Miami Beach's foundational
support of MIND,the Tenant shall promote the City of Miami
Beach's cultural partnership with Tenant on Tenant's website,
digital and social media, at performances, and in all collateral
material where corporate sponsors or donors are referenced.
In addition, Tenant shall, in all appropriate materials,
platforms, and correspondence with the media, market itself
as being "headquartered" or "based" in the City of Miami
Beach.
30.Extension of Colony Theatre
As part of Tenant's commitment to be"headquartered"in the
City of Miami Beach for the entire term of this Lease(including
renewal periods thereof), and in furtherance of the Parties'
mutual desire to ensure the Tenant's continued activation and
operation of the Colony Theatre, Tenant agrees to an
extension of the term of its Management Agreement for the
Colony Theatre to align with the term (including renewal
periods) of this Lease. This Lease and the Management
Agreement will have a cross-default provision so that an
uncured material event of default of the Management
Agreement, as defined in the Management and Lease
Agreements, shall constitute an event of default under this
Lease(and vice versa).
12
Page 1064 of 1884
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