83-17402CITY OF MIAMI BEACH
TO: Mayor Norman Ciment DATE: August 5, 1983
FROM: Elaine Matthews, City Clerk
SUBJECT: Amended and Restated Agreement between Capital Bank and
City of Miami Beach - Resolution No. 83-17402, July 6, 1983
Attached for signature by you are three copies of the captioned agreement
which were forwarded to me today for signature.
In verbal discussion with Mr. Ed Gross, Assistant City Manager, I have been
advised that they are in order for execution by you.
cc. Mr. Ed Gross, Assistant City Manager
AUGUST 11, 1983
A COPY OF THE FULLY EXECUTED AMENDED AND RESTATED AGREEMENT, WHICH REPLACES
THAT APPROVED BY THE CITY COMMISSION ON MAY 17, 1983, IS ENCLOSED FOR YOUR
INFORMATION AND RECORDS.
LUCIA DOUGHERTY,
FRANK AYMONIN,
BARBARA STRAHM
BILL HARRISON
ED DAVIS
R. RUMBAUGH
PAT DE YOUNG
IZZY BINSTOCK
BILL MACDONAZD
RITA MARTELL
•GLADYS KANE
CITY ATTORNEY
PUBLIC WORKS DIRECTOR
RECREATION DEPT. DIR.
PROPERTY MANAGEMENT
PURCHASING AGENT
PUBLIC PROPERTIES
ASST. CITY MANAGER
INTERNAL AUDIT
FINANCE DIR
INSURANCE DIV
DEPT OF HUMAN SERVICES, ETC.
ELAINE MATTHEWS, CITY CLERK
RESOLUTION NO. 83-17402
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING THE EXECUTION
OF THE APIENDED TENNIS AGREEMENT ENTERED INTO BY
AND BETWEEN CAPITAL .BANK AND THE CITY OF PlIA14I
BEACH.
WHEREAS, the parties desire to enter into this Agree-
ment for the purpose of providing the CITY with a Tennis Stadium
facility located at Flamingo Park, Miami Beach, Florida; and
WHEREAS, the parties believe that the construction of
said facilities would be of great public benefit to the CITY and
its citizens and constitutes a valid public purpose; and
WHEREAS, CAPITAL, wishes to make a Qift and donation of
certain of such facilities to the CITY for its use and benefit;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF MIAMI BEACH:
That the City Commission authorizes the execution of
the amended Tennis Agreement entered into by and between Capital
Bank and the City of :Miami Beach.
A.TTEST:
C .TY CLERK
I' S:1, N
7013
PASSED and ADOPTED this 6th day of July, 1983.
DIAYOR
OFFICE OF THE CITY ArTOHNFY 1700 CON\VFNTION CFNI1 N DRIVF - MIAMI HFACH, FI 011MA 33139
AMENDED AND RESTATED AGREEMENT
THIS' AGREEMENT entered into thisday of�1Cj�S ,
1983, by and between CAPITAL BANK, a Florida commercial bank
organized under the laws of the State of _Florida (hereinafter
"CAPITAL") and the CITY OF MIAMI BEACH, a Florida municipal
corporation (hereinafter the "CITY").
W I T N E S S E T H:
WHEREAS, the parties desire to enter into this Amended and
Restated Agreement for the purpose of providing clarification of
that certain Agreement by and between the parties and approved by
CITY Resolution No. 83-17343 and dated June 1, 1983 (the
"Existing Agreement") and to provide the CITY with a Tennis
Stadium in conjunction with existing CITY tennis facilities
located at Flamingo Park, Miami Beach, Florida; and
WHEREAS, the parties believe that the construction of said
facilities would be of great public benefit to the CITY and its
citizens and constitutes a valid public purpose; and
WHEREAS, the parties acknowledge that the existing agreement
is in full force and effect and shall remain so until the
operative date hereof;
NOW, THEREFORE,
In consideration of the mutual covenants and agreements
herein contained, the parties hereto do hereby agree and restate
their prior agreement as follows:
1. CAPITAL hereby agrees to construct, have constructed
or cause to be constructed certain tennis related improvements
(hereinafter the "Improvements") at Flamingo Park, Miami Beach,
Florida, and more specifically located at or around Thirteenth
Street and Meridian Avenue, adjacent to the existing Flamingo
Park Tennis Courts #1-5. These improvements will include:
a. Three (3) clay composition tennis courts
surrounded on the north and south by permanent grandstand seating
for approximately two -thousand (2,000) spectators and surrounded
on the east and west by portable grandstands of aluminum or hot
dipped galvanized steel or weathered steel, if adequate to our
climate, (on wheels) with a capacity for an additional
approximately three -thousand (3,000) spectators, for a total
seating capacity of approximately five -thousand (5,000)
spectators.
b. Appropriate fencing, landscaping, sidewalks and
pedestrian paths for access to and from the stadium noted above.
C. Appropriate lighting and electric scoreboard
meeting professional tennis standards.
d. A water sprinkling system for landscaping and
tennis court maintenance.
e. All interior conduits for communications
facilities other than main lines running into the building.
2. CAPITAL shall be responsible for providing all neces-
sary architectural services and their accompanying fees and
costs, construction and labor costs and engineering fees for the
improvements. The improvements shall be constructed in
accordance with architectural plans to be approved and provided
by CAPITAL and subject to approval of the CITY Planning Depart-
ment, Recreation Department, Code Enforcement Department and
Public Works Department and the CITY's approval shall not be
unreasonably withheld. Preliminary plans have been prepared by
Architects Di Geronimo and are titled "Abel Holtz Stadium for
Capital Bank Tennis Center" and are dated the 25th day of May,
1983. Within sixty (60) days from the date hereof, CAPITAL shall
submit its final approved architectural plans to the CITY
Planning, Public Works, Code Enforcement Recreation, Fire and
Zoning Departments for their approval and said plans shall be
generally consistent with the preliminary plan noted above. Said
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approvals shall not be unreasonably withheld. However, final
approval of the plans shall be indicated by the parties
initialling on the final drawings and those final drawings shall
become a supplement to this agreement by reference herein.
CAPITAL shall construct the approved improvements within twelve
(12) months from the date of issuance of the appropriate building
permits for the improvements.
3. CAPITAL shall submit any and all contracts entered
into with the general contractor for the construction of the
improvements to the CITY for its review and approval.
4. Within sixty (60) days of the date of the submittal
and approval of the final architectural plans, CAPITAL shall
solicit and receive appropriate bids indicating the total costs
for the improvements and CAPITAL reserves the right to reject the
bids and cause this agreement to become null and void within ten
(10) days from receipt thereof. In the event CAPITAL so
terminates this Agreement, CAPITAL shall be responsible to the
CITY for any actual costs incurred by CITY regarding and directly
arising as a result of this Agreement including actual costs of
fill, if any, outside survey costs or amounts paid to outside
consultants or contractors. CAPITAL shall be responsible for
CITY staff time or in-house services arising directly out of this
Agreement but only if said time is separately reported and
accounted for.
5. CAPITAL shall, at no expense to the CITY, provide and
show proof that insurance as per the attached insurance Check
List and said insurance shall remain in effect until such time as
the improvements are completed and turned over to the CITY for
operation. The insurance coverage shall extend to and include
the following contractural indemnity and Hold Harmless Agreement:
"The Permitee hereby agrees to indemnify and
hold harmless the City of Miami Beach, a
municipal corporation, its officers, agents,
and employees from all claims for bodily
injuries to the public in and up to the
amount of $1,000,000 for each occurrence and
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for all damages to the property of others in
and up to the amount of $1,000,000 for each
occurrence with an aggregate of $1,000,000
per the insurance requirement under the
specifications including costs of
investigation, all expenses of litigation,
including reasonable attorneys' fees and the
cost of appeals arising out of any such
claims or suits because of any acts or
omissions or commission of any by the
contractor, his agents, servants, or
emloyees, or through the mere existence of
the project under contract.
The foregoing Indemnity Agreement shall
apply to any and all claims and suits other
than claims and suits arising out of the
sole and exclusive negligence of the City of
Miami Beach, its officers, agents and
employees as determined by a court of
competent jurisdiction. The Permittee shall
specifically and distinctly assume all
responsibility for reporting any and all
operations performed or to be performed
under any existing contract made by or on
behalf of the assured and the City of Miami
Beach."
6. The CITY shall permit the construction of the improve-
ments on the CITY property located at Flamingo Park at a location
approved by the CITY Manager and CAPITAL as shown, tentatively,
on Exhibit "A".
7. The obligations of the CITY hereunder include the
following, at the CITY's sole cost and expense:
a. The CITY shall assure that the property upon
which the improvements are to be constructed is at proper grade
and elevations pursuant to all applicable governmental regula-
tions and if any additional fill is required to be brought in, it
shall be suitable, clean fill materials. The parties recognize
and agree that this condition must be accomplished by the CITY
immediately upon execution hereof in order for CAPITAL's
construction to commence in time to be completed by approximately
December of 1983.
b. Except for the grading called for in Paragraph
7(a) above, CAPITAL shall provide to CITY within thirty (30) days
of the date hereof, a proposed time schedule that enumerate
"milestones" relative to the proposed construction of the
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improvements. Whereupon, the CITY shall provide, in place and
in coordination with the time of CAPITAL's construction, all
required utility services to within 5 feet of the property line,
directly adjacent to the tennis stadium and/or to the building
location noted in Paragraph 7(d), including, water, sewer,
electricity, telephone and appropriate communications facilities
required for transmission of radio and television coverage at
events to be held at the improvements. These communications
facilities shall include those normally required to allow the
hook-up and transmission of radio and television signals to
network transmission facilities but does not require installa-
tion of independent transmission facilities located on-site.
C. CITY hereby agrees that the name of the im-
provements shall be the "Abel Holtz Stadium" in perpetuity, and
the entire Flamingo Park tennis facilities shall be renamed the
"Flamingo Park - Capital Bank Tennis Center" and said name will
not be removed, altered or changed unless approved by CAPITAL or
unless as set forth in Paragraph 7f hereof.
d. CITY agrees to construct a + 3,000 square foot
building (hereinafter the "building") at a location to be shown
on the final approved architectural plan and said building shall
be air-conditioned and contain a VIP lounge, restrooms, locker
rooms, and appropriate facilities for the press, radio or
television coverage and broadcast of events taking place within
the Stadium and Center. Said construction shall be done by the
CITY at its sole cost and expense and shall be completed within
one year after CAPITAL acquires a construction permit. Such
expense shall not exceed $250,000 for the building and
furnishings and if so, then CITY has the option not to construct
said building.
e. Within one (1) year from the date of completion
of the improvements, the CITY shall upgrade and refurbish the
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present facilities located at Flamingo Park Tennis Center (to be
renamed the Flamingo Park -Capital Bank Tennis Center) and shall
complete said work no later than twelve (12) months after the
start thereof at its sole cost and expense, not to exceed a total
cost of $100,000. The upgrading shall include refurbishing of
existing restrooms, fence repair or replacement and drainage
improvements.
f. CAPITAL will provide to the CITY an appropriate
signage plan designating the appropriate names (as noted in
Paragraph 7c) for the facility and, upon CITY's approval, said
signs shall be installed by CAPITAL at CAPITAL's sole cost and
expense. In the event CAPITAL chooses to change the name of the
Tennis Center, it should submit the name and appropriate new
signage plan to the CITY for approval and CAPITAL may, thereafter
change the signage at its sole cost and expense. All approvals
required in this paragraph shall not be unreasonably withheld.
Any signage, advertising or institutional promotional
material to be emplaced by those providing services in conjunc-
tion with the construction of the improvements or building shall
be subject to approval and such conditions imposed and agreed to
by CAPITAL and the CITY.
g. CITY shall be responsible, at its own cost and
expense, to obtain and pay for all CITY required zoning
approvals, licenses, permits, certificates, surveys and other
approvals of a like nature that may be necessary in order for
CAPITAL to perform the work hereunder.
h. The CITY, within ten (10) days from the date
hereof shall appoint a CITY project coordinator and said
coordinator shall act as CITY liason with CAPITAL for the prompt
and efficient completion of the facilities.
i. CITY shall make the facilities, building and the
presently existing tennis courts designated 1-5, available to
CAPITAL or its designee with six month's advance notice, subject
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to other CITY's scheduling, for a Capital Bank sponsored tennis
tournament (or sponsorship by CAPITAL's designee) once per year
for a period not to exceed three (3) consecutive weeks at any one
time for a period of ten years and at no license cost to CAPITAL
or its designee as partial consideration for the donation herein
made, at CAPITAL's option. CITY retains the right of approval of
CAPITAL's designee and said approval shall not be unreasonably
withheld. CAPITAL shall have an opportunity to extend this
period for an additional five (5) years. CAPITAL shall provide
for all expenses relating directly to such tennis tournament and
use of the facilities, courts 1-5 and building, other than
license fees, after the second year. For the first two (2)
years, CITY shall be responsible for the following costs of such
a tournament sponsored by CAPITAL or its designee: license fees,
grounds maintenance and upkeep, utility costs and security, but
CITY shall not be responsible for sponsorship costs such as
promotional and advertising fees, travel expenses and prize
monies. Proceeds from such a tournament (if held), other than
concession receipts, shall be kept by CAPITAL or its designated
sponsor.
j. CITY hereby agrees to maintain and upkeep the
improvements and building herein noted in a condition capable of
meeting acceptable standards necessary to attract, on a con-
tinuing basis, major tennis tournaments.
8. CAPITAL shall donate the improvements to the CITY upon
completion of construction and shall, thereafter, retain no
possessory right to the improvements save and except for those
rights set forth hereunder.
9. The CITY agrees to accept the donation of the improve-
ments by CAPITAL for the public purpose for which it is intended.
10. The CITY agrees that the character of the improvements
will remain as a tennis stadium unless CAPITAL approves a
proposed change in character or unless the use of the entire
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Flamingo Park property is changed the CITY may use the facility
for non -tennis events while still maintaining its general
character as a tennis stadium.
11. CAPITAL stipulates and agrees that it is now and will
be at the time of completion of the improvements able to give the
CITY complete possession of said premises and will make all
necessary arrangements for the delivery of such possession to the
CITY upon completion of construction of the premises.
12. CAPITAL agrees that upon completion of the improve-
ments, it will warrant that there are no existing liens for
construction costs or any other costs, including mechanic's
liens, save and except for the building to be constructed thereon
by the CITY and noted above. A Contractors' Affidavit and
Release of Liens in accordance with the Florida Mechanics Lien
Law shall be provided the CITY prior to acceptance of the
improvements by the CITY.
13. CAPITAL agrees that it will assign to the CITY all
contractors' building warranties.
14. CITY, as an entity of Government, is subject to the
appropriation of funds by its legislative body in an amount
sufficient to allow continuation of its performance in accordance
with the terms and conditions of this Contract. The funding will
not be unreasonably withheld.
15. CAPITAL hereby agrees to make available to the CITY a
loan in an amount not to exceed $250,000 at an interest rate not
to exceed six and one-half percent (6-1/2%) per annum payable in
three (3) years so that the CITY will have available adequate
funding to construct the building noted in Paragraph 7(d)
above. CITY, at its option, may agree to request such a loan and
shall be approved subject to the execution of a Loan Agreement
prepared and approved by CAPITAL and provision of adequate non -ad
valorem-. security therefor and subject to the execution of a
Promissory Note prepared and approved by CAPITAL and payable to
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CAPITAL. Said loan shall be approved by the CITY by duly enacted
Ordinance of the City Commission approving the Loan Agreement and
form of Promissory Note indicating the specific terms of the loan
and adequate security therefor. CITY shall notify CAPITAL within
four (4) weeks of the date hereof as to its intent to exercise
this option or to provide alternate funding for the construction
of the building noted above.
16. In the event the CITY receives other private donations
specifically designated for the improvements, said funds shall be
transferred to CAPITAL for its use in construction of the
improvements and for that purpose alone. Said funds shall be
segregated by CAPITAL and separately accounted for to the CITY at
the time of completion of the improvements. CITY may retain and
utilize other private donations not so designated for the purpose
of construction of the building or to defray other CITY incurred
costs in connection herewith.
17. In accordance with the CITY Charter, and if required
as a matter of law, should project require bond financing, such
bonding shall require CITY referendum before the funding of this
project.
18. CITY may exclusively lease or operate concessions
within the Tennis Center as permitted by applicable statutes,
charters and ordinances and any proceeds received by the CITY for
said concessions shall be the property of the CITY. However,
CAPITAL shall be entitled to all proceeds of television, radio or
advertising promotions during a CAPITAL sponsored tournament,
held pursuant to paragraph 7i. hereof and the percentage (%) of
concession receipts permitted by the CITY in its normal
facilities' leases at the time of said tournament.
19. This Amended and Restated Agreement shall only become
effective when approved by the CITY, through its Commission, and
by CAPITAL, and upon execution hereof. Upon such execution by
all parties this Agreement shall supersede and nullify the
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Existing Agreement. Until such time the Existing Agreement shall
remain in full force and effect.
CAPITAL NK
SIMON PORTNOY, EXECUTIVE VICE PRESIDENT
CITY OF MIAMI BEAC
MAYOR, CITY OF MIAMI BEAC
EXECUTION OF CONTRACT APPROVED
by City Commission on July 6 ,
1983 pursuant to Resolution
No. 83-17402 adopted July 6 ,
1983 by the City Commission.
ATTEST:
CITY CLERK, CITY OF MIAMI BEACH
FORM APPROVED
LEGiAl DEPT.
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OFFICE OF THE CITY MANAGER CITY HALL
ROB W. PARKINS 1700 CONVENTION CENTER DRIVE
CITY MANAGER TELEPHONE: 673.7010
COMMISSION MEMORANDUM NO. WS 3
DATE: July 6, 1983
TO: Mayor Norman Ciment and
Members of the City Commission
FROM: Rob W. Parkins
City Manager
SUBJECT: TENNIS STADIUM. CONTRACT
A meeting was held on Monday, June 20, 1983 with Clifford Schulman, Attorney for
Mr. Abel Holtz of Capital. Bank, Assistant City .Manager Ed Gross, Assistant City Attorney
Louise Barrett, several citizens, and myself to discuss the various concerns pertaining to the
contract signed on June 1, 1983 between the City of Miami Beach and Capital Bank for the
Tennis Stadium at.Flamingo Park.
After this meeting, the contract was re -written by Mr. Schulman, and a number of the
changes we requested were made. I have attached a copy of the revised contract with the
additions to the contract indicated by an underline, and the deletions indicated with an
over -strike through the wording.
The major contract changes deal with the deletion of those items that required Capital Bank
to approve the City's actions. The following are the items that were added to the contract:
Section 2: Capital must complete construction within 12 months.
Section 4: In the event Capital terminates agreement due to cost of their
project being higher than expected they will pay to the City any
actual out-of-pocket expenses incurred by the City.
Section 7b: Communication facilities limited to normal telephone lines. No
independent transmission facilities are included.
Section 7e: Cost of upgrading by the City not to exceed $100;000.00.
Section 7e: Rename Flamingo Park Tennis Center to Flamingo Park/Capital
Bank Tennis Center:
Section 7i: Courts 1-5 and Stadium to be leased to Capital Bank under this
agreement.
Wording now clarifies City to be responsible only during the
first two years for the following expenses of tournament,
license fees, ground maintenance, utility costs, and security.
Proceeds of tournament are to be retained by Capital.
All concession receipts are the property of the City.
The following are the items that were deleted:
Section 7e: Conversion of four existing hard tennis courts to clay courts.
continued...
AGENDA
ITEM ITEM
DATE 7`6-$3
RFX;ULAR AGENDA - JULY 6, 1983
R-3. TIME CERTAIN ITEMS (CONTINUED)
3:30 P.M. PUBLIC HEARING
E. COMMISSION MEMORANDUM NO. 353-83
PLANNING BOARD RECOMMENDATION ON A
PROPOSED ORDINANCE AMENDING SECTION
22-7(D), EXCEPTION FOR SUBSIDIZED
HOUSING.
1. DRAFT ORDINANCE.
2. NOTICE OF PUBLIC HEARING.
(SCHEDULED 6/1/83)
4:00 P.M. TIME CERTAIN
ACf.1ON
Hearing rescheduled for 9/7/83 at 11:30 a.m. per
request of Related Housing Corporation of Florida
and Mayor's Ad Hoc Committee on Planned Area De-
velopment for South Shore.
(Cost of re -advertising to he borne by
Related Housing)
F. COMMISSION MEMORANDUM NO. 399-83 Deferred to 7/20/83 at 4:00 p.m. Time Certain at
CORRESPONDENCE FROM ATTORNEY SAMUEL request of Mr. Blum.
BLUM REGARDING THE REQUEST OF HIS
CLIENTS, LANDAU, LTD. AND EDGAR
SANCHEZ, TO ACQUIRE TITLE TO A
PORTION OF THE THIRTY --FOOT RIGHT-OF-
WAY SOUTH OF 101 EAST DILIDO DRIVE.
ADiu.INISTRATION RECOMMENDATION: THAT
IF THE CITY COMMISSION SHOULD DECIDE
TO ABANDON OR SELL THIS PROPERTY, IT
DOES 30 ONLY AFTER A PUBLIC HEARING
IS HELD WITH ALL OTHER PROPERTY
OWNERS IN THE AREA TO BE NOTIFIED OF
SUCH. IT IS ALSO THE
ADMINISTRATION'S RECOMMENDATION THAT
THE CITY SHOULD NOT ABANDON OR SELL
THIS PROPERTY.
(DEFERRED FROM 6/15/83)
R-7. RESOLUTIONS
A. C(ValISSION MEMORANDUM NO. 448-83
A RESOLUTION OF THE CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA,
AUTHORIZING THE EXECUTION OF THE
AMENDED TENNIS AGREEMENT ENTERED INTO
BY AND BETWEEN CAPITAL BANK AND THE
CITY OF MIAMI BEACH.
1. AMENDED AND RESTATED AGREEMENT.
2. CORRESPONDENCE FROM ROB W.
PARKINS, CITY MANAGER, TO ABEL
HOLTZ, PRESIDENT AND CHAIRMAN OF
THE BOARD, CAPITAL BANK.
ADMINISTRATION RECOMMENDATION: THE
CITY ADMINISTRATION RECOM14ENDS THE
CITY COMMISSION TO REVIEW THE REVISED
CONTRACT AND RECOKIIEND ACTION TO BE
TAKEN BY THE CITY ADMINISTRATION.
(DEFERRED FROM 6/15/83)
Attorneys Clifford Schulman and Alan Rauzin ap-
peared representing Capital Bank.
Discussion held.
Resolution No. 83-17402 adopted, authorizing exe-
cution of Amended and Restated Agreement as fur-
ther amended during discussion (transcription t
tW furnished affected departments).
`C111IN 6, 191,," -1''.
COMMISSION MEMO PAGE 2 JULY 6, 1983
TENNIS STADIUM CONTRACT
Section 7j: Capital is hereby given the right to enforce the provisions of
the agreement by action in law or equity with the prevailing
party to be entitled to costs and reasonable attorneys fees.
The major area of discussion with those citizens in attendance at the meeting was the name
change in Section 7e. The citizens were against the name of the facility being changed.
This matter was discussed by the Commission, and Mr. Holtz agreed to the compromise that
the Facility be named Flamingo Park/Capital Bank Tennis Center.
ADMINISTRATION RECOMMENDATION
The City Administration recommends the City Commission review the revised contract and
recommend action to be taken by the City Administration.
RWP:EAG:lg
Attachment
2