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Resolution 2025-33908 2025-33908 RESOLUTION NO. 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 TO AMEND THAT CERTAIN LEASE AGREEMENT DATED APRIL 18, 2022 BETWEEN THE CITY (LANDLORD) AND MIAMI NEW DRAMA, INC. (TENANT) FOR THE COLLINS PARK CULTURAL FACILITY, LOCATED IN THE CITY-OWNED COLLINS PARK GARAGE AT 340 23RD STREET; SAID AMENDMENT SUBSTANTIALLY IN THE FORM ATTACHED TO THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION AND CONSISTENT WITH THE TERM SHEET APPROVED PURSUANT TO CITY COMMISSION RESOLUTION NO. 2025-33710, IN MATERIAL PART, TRANSFERRING RESPONSIBILITY FOR THE CONSTRUCTION OF THE IMPROVEMENTS FROM THE CITY TO TENANT; AND FURTHER, AUTHORIZING THE MAYOR AND CITY CLERK TO FINALIZE AND EXECUTE THE LEASE AMENDMENT IN A FORM APPROVED BY THE CITY ATTORNEY. WHEREAS, on January 27, 2021, the Mayor and City Commission waived competitive bidding and accepted an unsolicited proposal from Miami New Drama, Inc. ("MiND")for the design and buildout of approximately 16,000 square feet of ground floor space, including a 200-seat black box theater, rehearsal spaces, dressing rooms, administrative offices, and ancillary commercial uses including a restauranUcafe, within the City-owned Collins Park Garage at 340 23rd Street (the "ProjecY'); and WHEREAS, on July 27, 2021, the Planning Board approved the terms of a proposed Lease Agreement between the City (Landlord) and MiND (Tenant), in accordance with Section 1.03(b)(4) of the City Charter, requiring approval by a 4/7th vote of the Planning Board; and WHEREAS, on October 27, 2021, pursuant to Resolution No. 2021-31914, the City Commission approved the Lease Agreement, under which MiND assumed responsibility for design and architectural services, while the City undertook responsibility for financing and managing construction of the buildout, subject to MiND raising a Tenant Contribution of $250,000.00 and the appropriation of $4.75 million in City funds for the buildout (the "Landlord Contribution"); and WHEREAS, subsequent to execution of the Lease on April 18, 2022, further planning and the development of the General Obligation Bond for Arts and Culture ("GOBAC") Program resulted in an increased funding allocation of $7.67 million for the Project, approved by Miami Beach voters in November 2022 and formally designated by Resolution No. 2023-32713 on July 26, 2023; and WHEREAS, on August 6, 2024, MiND proposed material modifications to the Project, including transferring responsibility for construction management from the City to MiND, increasing the Landlord Contribution to align with the full GOBAC allocation, and converting the City's funding into a structured project grant under the GOBAC program; and WHEREAS, on November 8, 2024, the Finance and Economic Resiliency Committee (FERC) recommended that the City Commission authorize the Administration to negotiate a Lease Amendment and corresponding GOBAC Grant Agreement based on MiND's proposed terms; and WHEREAS, on June 25, 2025, the City Commission adopted Resolution No. 2025-33710, accepting the FERC recommendation, approving the Term Sheet, and directing the Administration to prepare a Lease Amendment and corresponding Grant Agreement; and WHEREAS, while the Project offers significant cultural and programmatic value in activating the Collins Park Cultural District, the revised Term Sheet includes safeguards to protect the City's financial and operational interests; and WHEREAS, the Administration and MiND have prepared a Lease Amendment, attached to the Commission Memorandum accompanying this Resolution, which includes the following material terms: i. The City shall deliver the Premises in shell condition, with MiND assuming full responsibility for design development, permitting, construction, and construction administration of the Buildout Improvements. ii. MiND shall utilize a Construction Manager at Risk (CMAR) model with a Guaranteed Maximum Price (GMP) contract, incorporating cost containment provisions, contingency limits, and strict approval protocols. Any cost overruns exceeding the GMP shall be borne by the Construction Manager. iii. The Project shall be managed through a design-to-budget approach, covering preconstruction services, permitting, theatrical equipment, furniture, fixtures, and equipment(FF&E), a 5% contingency allowance, and hard construction costs, all required to remain within the established GMP. iv. The City's maximum financial contribution shall be modified from $4.75 million to $7.604 million, in accordance with the GOBAC appropriation for the Project, which shall be disbursed as a grant due to MiND's assumption of construction responsibilities. v. MiND shall remain solely responsible for all Architectural and Engineering (A&E) costs, currently estimated at no less than $240,000.00, and shall engage consultant services, including Touzet Studio and Enrique Norten/TEN Arquitectos, and other necessary consulting services; vi. The City shall retain oversight of Project by: • Reviewing and approving design submissions at 30%, 60%, 90%, and 100% completion; • Requiring 20% of the Project Budget to be designated as discretionary funds for value engineering, as needed, • Withholding 10% of the Grant in reserve during construction, with all grant disbursements contingent on complete draw requests and City liaison approval. vii. A separate GOBAC Grant Agreement, substantially in the form of the standard GOBAC Grant Agreement template, shall be executed to govern the $7.06 million grant, including construction protocols, performance and payment bond requirements, and monthly reimbursement procedures. WHEREAS, for the reasons outlined in the City Commission Memorandum accompanying this Resolution, the City Manager recommends that the City Commission: (1) accept the recommendation of the FERC to transfer responsibility for construction of the improvements from the City to the Tenant; (2) approve the Lease Amendment, consistent with the Term Sheet approved via Resolution No. 2025-33710 and substantially in the form attached to the City Commission Memorandum; and (3) authorize the Mayor and City Clerk to finalize and execute the Lease Amendment in a form approved by the City Attorney. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the recommendation of the Finance and Economic Resiliency Committee to amend that certain Lease Agreement dated April 18, 2022 between the City (Landlord) And Miami New Drama, Inc. (Tenant) for the Collins Park Cultural Facility, located in the City-owned Collins Park Garage at 340 23rd Street; said amendment substantially in the form attached to the City Commission Memorandum accompanying this Resolution and consistent with the Term Sheet approved pursuant to City Commission Resolution No. 2025-33710, in material part, transferring responsibility for the construction of the improvements from the City to Tenant; and further, authorizing the Mayor and City Clerk to finalize and execute the Lease Amendment in a form approved by the City Attorney. PASSED and ADOPTED this �� day of S ��r 2025. Steven Meiner, Mayor ATTEST: :��Cr �-' � :'J�;, . ,,,,,, =�,�r'�.B.Ea�'',,, Rafael . Granado, City Clerk =�� ti-,,, �� .INCOR'r��ATED;�- ��'-,�'. �_ �'.. .�: ,,,9•�c��`�,: APPROVED AS TO FORM & LANGUAGE & FO UTION ql� �I�zs- City Attorney %'�' Date Resolutions - C7 B MIAMIBEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Eric Carpenter, City Manager DATE: September 17, 2025 TITLE: 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 TO AMEND THAT CERTAIN LEASE AGREEMENT DATED APRIL 18, 2022 BETWEEN THE CITY (LANDLORD) AND MIAMI NEW DRAMA, INC. (TENANT) FOR THE COLLINS PARK CULTURAL FACILITY, LOCATED IN THE CITY-OWNED COLLINS PARK GARAGE AT 340 23RD STREET; SAID AMENDMENT SUBSTANTIALLY IN THE FORM ATTACHED TO THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS P.ESOLUTION AND CONSISTENT WITH THE TERM SHEET APPROVED PURSUANT TO CITY COMMISSION RESOLUTION NO. 2025-33710, IN MATERIAL PART, TRANSFERRING RESPONSIBILITY FOR THE CONSTRUCTION OF THE IMPROVEMENTS FROM THE CITY TO TENANT; AND FURTHER, AUTHORIZING THE MAYOR AND CITY CLERK TO FINALIZE AND EXECUTE THE LEASE AMENDMENT IN A FORM APPROVED BY THE CITY ATTORNEY. RECOMMENDATION The Administration recommends that the Mayor and City Commission adopt a resolution to: 1. Accept the recommendation of the Finance and Economic Resiliency Committee (FERC) to approve Miami New Drama's (MiND) request to modify the project development structure for the Collins Park Cultural Facility, specifically by transferring construction responsibilities from the City to MiND. 2. Approve an Amendment to the Lease Agreement with MiND, consistent with the Term Sheet approved under Resolution No. 2025-33710, to formalize the transfer of construction management responsibilities from the City to the Tenant. 3. Authorize the Mayor and City Clerk to finalize and execute the amended Lease Agreement, in a form approved by the City Attorney, with appropriate safeguards to protect the City's interests. BACKGROUND/HtSTORY Proiect Oriqin In January 2021, the Mayor and City Commission, via Resoluti�n No. 2021-31568, waived competitive bidding to accept an unsolicited proposal from MiND for approximately 16,000 square feet of ground floor space, including interior areas and an exterior terrace, at the City-owned Collins Park Garage (340 23rd Street). The proposal envisioned transforming the space into MiND's primary performance venue and headquarters, featuring a 200-seat black box theater, rehearsal spaces, dressing rooms, administrative offices, and a standalone restauranUcafe (the "ProjecY'). In October 2021, the City Commission unanimously approved the initial Lease Agreement (Resolution No. 2021-31914), under which MiND would fund design and architectural services, 173 of 1214 while the City would finance and manage construction, contingent on a Tenant Contribution equal to the total cost of aii design and architectural services (then estimated at $250,000) and a $4.75 million City funding commitment(the Landlord Contribution). The Lease Agreement was executed in April 2022. FundinQ Enhancements In November 2022, Miami Beach voters approved the G.O. Bond for Arts and Culture (GOBAC) Program, increasing the City's allocation for the Project to $7.67 million. This revised budget, reflecting updated cost estimates, was formally appropriated in July 2023 via Resolution No. 2023-32713, fulfilling the City's funding commitment under the Lease. Proposed Chanqe in Proiect Delivery In August 2024, MiND proposed a significant change to the project delivery model, including: • Transfer of full construction management responsibility from the City to the Tenant; and • Increase in the City's financial contribution to $7.604 million (aligned with the GOBAC allocation). This proposal was referred to FERC in September 2024, and in November 2024, FERC recommended approval of the mo�lifications, including conversion of the City funding to a GOBAC Program grant. On June 25, 2025, the City Commission unanimously adopted r�esolution No. 2025-33710, accepting the FERC recommendation and approving the Term Sheet outlining these changes. ANALYSIS The Collins Park Cultural Facility is envisioned as a flagship activation that will enhance neighborhood cultural identity within the Collins Park Cultural District, offe:i.�g year-round programming, educational initiatives, and community gathering spaces. The pmject has strong support from the Collins Park Neighborhood Association. While MiND has successfully programmed the Colony Theatre since 2016, overseeing capital construction introduces additional levels of operational and financial complexity. From Citv-Manaqed to Tenant-Led Construction Under the original Lease, the City retained full control over construction. MiND's shifts this responsibility to the Tenant, with the City delivering the premises in its existing shell condition. Potential Benefits: • Reduced administrative burden for the City • Potential for expedited project comple:ion Potential Risks: • Reduced City oversight on budget, schedule, and construction quality • Precedent-setting transfer of construction responsibilities for a City-owned cultural facility to a GOBAC grantee • Contractual Safequards To mitigate risks and ensure accountability, the City and MiND have incorporated the following safeguards for City protection: • Risk Mitigation: Standard construction contract protections via the Grant Agreement, including reimbursement protocols, documentation standards, and performance expectations 174 of 1214 • Design Oversight: City retains approval rights for design at 30%, 60%, 90%, and final design stages • Guaranteed Maximum Price (GMP): Required use of a Construction Manager at Risk (CMAR) model with a GMP Agreement, with cost containment and approval provisions. o The core principle of a GMP is a structure that shifts risk for cost overruns to the contractor and ensures the project owner wili not pay more than the agreed-upon maximum • Value Engineering: 20% of the project budget identified by Tenant as discretionary for potential cost adjustments (if necessary) • Funding Controls: Each incremental grant disbursement requires detailed documentation and City approval • Cross-Default Clause: Lease and Grant Agreement are contractually linked to enforce compliance, and Lease is contractually linked to Colony Theatre Management Agreement; therefore, a default under one agreement triggers a default under the other The draft Lease Amendment is attached in substantial form as Exhibit A. The proposed resolution authorizes the Administration and the City Attorney's Office to finalize the agreement wiin MiND, incorporating the City's safeguards. These protections will also be mirrored and reinforced in the corresponding Grant Agreement, which is under consideration as companion item C7 C. A summary of the essential project terms is included in Exhibit B. FISCAL IMPACT STATEMENT Financial Overview: • City Contribution: $7.604 million in GOBAC fiunds (already appropriated) • Tenant Contribution: All architectural and engineering (A&E) costs, estimated at approximately $250,000 Risk Mitigation: • City Oversight: Final approval of key construction documents and disb�irsement drawdowns • Contingency Reserves: City will retain 10% of grant funds during construction, in addition to a 5% contingency within the GMP Agreement • Value Engineering: 20% of project budget identified as discretionary for potential cost adjustments Does this Ordinance require a Business Imaact Estimate? (FOR ORDINANCES ONLY) If applicable, the Business Impact Estimate (BIE) was published on: See BIE at: https://www.miamibeachfl.qov/citv-hall/citv-clerk/meetinq-notices/ � FINANCIAL INFORMATION CONCLUSION Should the City Commission accept the FERC recommendation and consent to delegate construction management responsibilities to Miami New Drama under the enhanced safeguards 175 of 1214 outlined above, the Administration recommends authorizing execution of the Lease Amendment, subject to any additional direction by the City Commission. This recommended action will allow the City to advance a transformative cultural project while maintaining strong protections for its investment and long-term interests. Applicable Area South Beach Is this a "Residents Riqht to Know" item, Is this item related to a G.O. Bond pursuant to City Code Section 2-17? Proiect? No Yes Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a qrinciqal enctaqed in lobbvinq? Yes If so, specify the name of lobbyist(s) and principal(s): Nicholas Richberg, Miami New Drama Department Economic Development Sponsor(s1 Co-sponsor(s) Condensed Title Accept Rec/Approve Lease Amendment w/ Miami New Drama, Collins Park Cultural Facility. ED Previous Action (For Citv Clerk Use Onlv) 176 of 1214 AMENDMENT NO. 1 TO AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND MIAMI NEW DRAMA, INC. This Amendment No. 1 ("Amendment") to the Collins Park Cultural Arts Facility Lease Agreement, dated April 18, 2022 ("Agreement"), by and between the City of Miami Beach, Florida, a municipal corporation organized and existing under the laws of the State of Florida, having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida 33139 (City), and Miami New Drama, Inc. a Florida not-for-profit corporation, having its principal place of business at 1040 Lincoln Road, Miami Beach, FL 33139 ("MiND" or "TenanY'), is entered into this day of , 2025. RECITALS WHEREAS, on January 27, 2021, the Mayor and City Commission adopted Resolution No. 2021- 31568, waiving competitive bidding in favor of an unsolicited proposal submitted by Tenant for the development of approximately 16,000 square feet of ground floor space, including a 200-seat black box theater, rehearsal space, dressing rooms, administrative o�ces, and ancillary commercial uses, within the City-owned Collins Pa�k Garage at 340 23rd Street (the "Project"); and WHEREAS, on July 27, 2021, the Planning Board approved the terms of the proposed Agreement between the City (Landlord) and Tenant, in accordance with the requirements of Section 1.03(b)(4) of the City Charter, requiring approval by a majority 4/7th vote of all members of the Planning Board; and WHEKEAS, on October 27, 2021, pursuant to Resolution No. 2021-31914, the City Commission approved the Lease Agreement between the City (Landlord) and MiND (Tenant) under which MiND �Nas responsible for obtaining necessary design and architectural services while the City committed to funding the Buildout Improvements (as defined in the Agreement), permitting, selecting a contractor and construction of the Buildout Improvements, subject to MiND raising a Tenant Contribution of$250,000.00 and pending appropriation of$ 4.75 million for the buildout (the "Landlord Contribution"); and WHEREAS, following execution of the Agreement on April 18, 2022, further planning and the development of the General Obligation (G.O.) Bond for Arts and Culture ("GOBAC") Program resulted in a revised funding allocation of$7.67 million for the Project, which was formally designated by Resolution No. 2023-32713 on July 26, 2023; and WHEREAS, on August 6, 2024, MiND submitted a memorandum requesting material modifications to the ProjecYs delivery model, which included the delegafion of construction management responsibilities to the Tenant and an increase in the Landlord contribution to align with the full G.O. Bond allocation; and WHEREAS, on November 8, 2024, the Finance and Economic Resiliency Committee (FERC) recommended that the City Commission authorize the Administration to negotiate a Lease Amendment together with a G.O. Bond Grant Agreement based upon TenanYs proposed terms included in the FERC Memo; and WHEREAS, on June 25, 2025, the Mayor and City Commission adopted Resolution No. 2025- 33710, accepting the FERC recommendation to amend the Agreement; said Amendment, in material part, transferring from the City to Tenant the responsibility for the construction of the Buildout 177 of 1214 Improvements; further, approving the term sheet attached to the City Commission Memorandum accompanying the Resolution, containing the essential terms of the Amendment; and further, authorizing the City Manager to negotiate the Amendment and a corresponding GOBAC Grant Agreement, consistent with the term sheet, with the final agreements being subject to the prior approval of the Mayor and City Commission. NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the City and MiND hereby agree to amend the Agreement as foliows: 1. ABOVE RECITALS; DEFINED TERMS. The above recitals are true and correct and are incorporated as part of this Amendment. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement. 2. MODIFICATIONS. The Agreement is hereby amended (when applicable, deleted items st�sl�e� and inserted items ur�derlined) as follows: (a) Section 9 of the Acreement's Lease Summary is hereby ieleted in its entirety and replaced with the following: "9. Term of Lease (Section 1.1): Initial term of five (5) years ("Initial Term"). "Lease Commencement Date": The date of execution of this Amendment. "Expiration Date": Five (5) years from the earlier of (a) beneficial occupancy or (b) issuance of Certificate of Occupancy, but in no event, no later than eight (8) years following the Lease Commencement Date. "Renewal Options": Two (2) options to renew the Lease for a period of five (5) years each at the option of the Tenant, and one (1) option to renew the Lease for a period of five (5) years at the option of Landlord and upon mutual agreement of the Parties (each, a "Renewal Term" and together with the Initial Term, the "Term"), each subject to the terms hereof." (b) Section 1.4 of the Agreement is hereby amended to read as follows: "1.4 Condition of the Premises. � , « „ , , � a#�asb �ee�; Tenant acknowledges and agrees that it is accepting possession of the Premises in their AS-IS WHERE-IS condition and that, ��^�^+ ,.,;f►, �e�.,e,.+ +� , Landlord has no other obligation to furnish, render, or supply any money, work, labor, material, fixture, equipment, or decoration or make any other contribution with respect to the Premises other than the Landlord Contribution to be made pursuant to a G.O. Bond for Arts & Culture Grant Agreement between Landlord and Tenant, in accordance with 178 of 1214 Exhibit "B-2". Upon the expiration of five (5) business days following the Lease Commencement Date, the Premises shall be conciusively deemed to be accepted by Tenant unless Tenant shall have given Landlord written notice of any asserted defects in the Premises." (c) Section 2.3 of the Agreement is deleted in its entirety and replaced with the following: "2.3 Applications for Grants. Pursuant to Miami-Dade County Resolution No. R-111- 25, Tenant is the recipient of a Miami-Dade County Cultural Arts Grant in the amount of $250,000.00, awarded for use with costs and expenses related to architectural and engineering services for the Project. The Miami-Dade Cultural Arts Grant shall be applied to the Tenant Contribution, as more particularly described in Exhibit "B-2". Tenant, as a local cultural organization, may apply for Cultural Arts Council grants, and may pursue other grant opportunities offered by the City of Miami Beach, in its governmental capacity (the "City"), for programming at the Facility; provided, however, that in recognition of Landlord's sigrificant contributions to Tenant by making the Premises available to Tenant at the agreed upon Minimum Rent and providing the Landlord Contribution towards the funding of the Buildout Improvements, Tenant shall not apply for any City grants related to the Buildout Improvements ana/or to improve, maintain or operate the Facility." (d) Section 6.4 of the Agre�ment is hereby amended to read as follows� "6.4 Removal of Improvements and Fixtures. All Buildout Improvements and any other leasehold improvements and fixtures (other than unattached, movable trade fixtures which can be removed without damage to the Premises) shall at the expiration or earlier termination of this Lease becor;e La�dlord's property. Tenant may, during the Term, in the usual course of its business, remove its trade fixtures that have been paid for by Tenant without any funding provided by Landlord pursuant to this Agreement or any other agreement, provided that Tenant is not in default under this Lease; and Tenant shall, at the expiration or earlier termination of the Term, at its sole cost, remove such of the leasehold improvements (except for the Buildout Improvements ) and trade fixtures in the Premises that have been paid for by Tenant without any funding provided by Landlord pursuant to this Agreement or any other agreement as Landlord shall require to be removed and restore the Premises to tr�e condition existing prior to such removal. Tenant shall at its own expense repair any damage caused to the Premises or the Project by such removal. If Tenant does not remove its trade fixtures at the expiration or earlier termination of the Term, the trade fixtures shall, at the option of Landlord, become the property of Landlord and may be removed from the Premises and sold or disposed of by Landlord in such manner as it deems advisable without any accounting to Tenant but at TenanYs sole cost and expense." (e) Section 6.5 of the Agreement is hereby amended to read as follows: ��6.5 Liens. ��^�^++„#I�e cv4en4 nf Fhe Ri�ilrlinn Imr�r��icmer�4 ' , Tenant shall promptly pay for all materials supplied and work done in respect of the Premises by, though, or under Te,�ant so as to ensure that no lien is recorded against any portion of the Premises, or the Project, or against Landlord's or TenanYs respective interests therein. If a lien is so recorded, Tenant shall discharge it promptly by payment or bonding. If any such lien against the Premises, or the Project (solely with respect to work done in respect of the Premises by, through, or under Tenant) is recorded and not discharged by Tenant as above required within fifteen (15) days following written notice to Tenant, Landlord shall have 179 of 1214 the right to remove such lien by bonding or payment and the cost thereof shall be paid immediately from Tenant to Landlord. Landlord and Tenant expressly agree and acknowledge that no interest of Landlord in the Premises or the Project shall be subject to any lien for improvements made by Tenant in or for the Premises, and Landlord shall not be liable for any lien for any improvements made by Tenant, such liability being expressly prohibited by the terms of this Lease. Tenant hereby agrees to inform all contractors and material suppliers performing work in or for or suppiying materials to the Premises of the requirements of this Section." (� Section 7.1(e) of the Agreement is hereby amended to read as follows: "(e) Builder's risk insurance during the course of construction of any alterations by Tenant in accordance with this lease, issued in the name of Tenant, its contractor(s) and Landlord as their interests may appear, in amount(s) not less than 1Q0% of the insurable value of such alterations, covering perils on an "all risk" basis, including damage by water, flood, tornado, hurricane and earthquake. Policy(ies) must clearly indicate that underground structures (if applicable) and materials being installed are covered. Not��ithstanding the foregoing, the builder's risk insurance with respect to the Buildout Improvements shall be the responsibility of Tenant's ��s general contractor pursuant to the terms of the GMP Agreement(as defined on Exhibit B-2 attached hereto)." (g) Sec:ion 10.6 of the�,greement is �ereby amended to read as follc ws: "(a) Landlord may terminate the Lease for convenience in the event: (1) �d Tenant does not obtain all regulatory approvals required forthe Buildout Improvements after using its good faith efforts to do so bv or before (NEED TO INCORPORATE MILESTONES STIPULATED IN TERM SHEETI; or ('�) Ter�ant does not �+ ��+ +�,o Tcn�n� ' " " enter into the Approved Architect Agreement (as defined in Exhibit"B-2") within 180 days after this Amendment is approved by City Commission ' " "; or (3) Tenant fails to timely replace any Key Individual as required by this Lease; or (4) any of Landlord's policies of insurance with respect to the Facility or the Project are canceled or adversely changed as a result of TenanYs or any Permittee's (other than the City solely in connection with the City's use of the Premises pursuant to Section 3.7) use or occupancy of the Premises other than for the Permitted Use; provided that if such cancelation or adverse change can be cured by, and such insurance will remain in full force and effect upon, the payment of an additional premium, Tenant may elect to fund such additional premium within five (5) business days after notice from Landlord, and upon such timely payment, Landlord shall not have the right to terminate this Lease in connection with such cancellation or adversE change. T�l Cii{�e�n.�hv m��i 4ermin��a #L�ic I e� e fnr nr.n.ienier�r�e ir� 44�0 o er�4 I nnrll�rrl'c C'`i4�i � � i � �3(b) Tenant shall have the one-time right to terminate this Lease for convenience in the event that �eaa� Landlord does not approve the GMP Agreement within sixtv (60) dav$ after Landlord's receiqt of the qroposed final GMP Aqreement fas defined in Exhibit "B-2") (the ��Landlord GMP Review Period��.� �"��"" }F'� �m��int nf 4he (�RAD /�c ce4 fnrFh in 1he cnhcr�l�ilc �c �f . If Tenant has not terminated this Lease by written notice delivered to Landlord within forty-five (45) days after 180 of 1214 ' " " the expiration of the Landlord GMP Review Period, then Tenant shall conclusively be deemed to have waived such right of termination. (h) Exhibits B-1, B-2, B-3, and B-4 to the Agreement are deleted in their entirety and replaced with the attached Amended Exhibits B-1, B-2, B-3, and B-4. Exhibit B-5 is inserted following Exhibit B-4. 3. RATIFICATION. Except as amended herein, all other terms and conditions of the Agreement shall remain unchanged and in full force and effect. In the event there is a conflict between the provisions of this Amendment and the Agreement, the provisions of this Amendment shall govern. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. 181 of 1214 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their appropriate officials, as of the date first entered above. FOR LANDLORD: CITY OF MIAMI BEACH, FLORIDA ATTEST: By: Rafael E. Granado, City Clerk Eric Carpenter, City Manager Date FOR TENANT: MIAMI NEW DRAMA, INC., a Florida not-for-profit corporation ATTEST: By: Print Name Print Name Title Title Date 182 of 1214 AMENDED EXHIBIT"B-1" Site Plan of Premises and Location of Premises within the Property To Be Included ! ��"°.' .�� h}.f"f.� �y� s, 4�.+ f�, b � Y ��q ¢^� Y �.�,, �+�'.A. w�;$ �'� :: ��, � � "" '. ��,. ,��, �.�' ;�. . �� a , �a�,+�z��. ��.-N' �` x C' �� m a' # �. ! :. . �4a.t �� £�"� m � >i � ?• � � � bK 4,.:: '�.:.. �.�".o. � 9�� L � .€ �`�`. '" �L�;w �,��_,� k� ;_ ��" �F:., �;"R. �"' � v�� ; �, �� '�"'&'' T,�� "` ��,; �, � ': �' �; �,x�?'q_. R ��iCc �� '"q ,,. �e.fi�: �✓.�a'� ��',A � ��p � �r �Yi ♦�� .i� .`-�.r�: �t jv`;'S� �t � . nM �T$. �'.: �� '4 X� ? �� d � a 4 • . � 183 of 1214 AMENDED EXHIBIT "B-2" Buildout Improvements TENANT ACKNOWLEDGES AND AGREES THAT IT IS EXPRESSLY ACCEPTING POSSESSION OF THE PREMISES WITH SHELL IMPROVEMENTS IN THEIR "AS IS" "WHERE IS" CONDITION. TENANT SHALL BE RESPONSIBLE FOR THE CONSTRUCTION OF THE BUILDOUT IMPROVEMENTS DESCRIBED IN THIS AMENDED EXHIBIT "B-2" ATTACHED TO AND MADE A PART OF THE LEASE, INCLUDING ANY AND ALL UTILITY IMPACT FEES AND CONNECTION FEES, CHARGES AND/OR DEPOSITS AS MAY BE REQUIRED TO CONSTRUCT THE BUILDOUT IMPROVEMENTS AND OPERATE THE PREMISES. 1. Buildout Imqrovements. The Buildout Improvements shall consist of a 200-seat black box theater, including all applicable theatrical equipment to be utilized by Tenant in connection with TenanYs use of the Premises, a cultural lobby/lounge/gallery, general use areas, rehearsal space, office space for Tenant, a stand-alone Cafe that may be operated independently and securely from the rest of the Facility, whether or not the rest of the Facility is open for business, and general purpose studio as further described in the Approved Plans (collectively, the "Buildout Improvements"). 2. Additional Minimum Scoae ReQuirements. In addition to the design elements set forth in Amended Exhibit B-3, Tenant shall comply with th^following minimum scope requirements: i. Cafe / Restaurant Buildout Contribution. The Cafe/ Restaurant Space shall be constructed to be a fully operational cafe in accordance with the approved plans and shall include, at a minimum: utility for plumbing, electrical, and HVAC; ventilation sleeves and structural provisions and grease trap and hood installation, for fully operational cafe; and structural elements to accommodate future commercial kitchen equipment installation. ii. Theater and Rehearsal Studio Minimum Scoae. At a minimum, the Theater Space and Rehearsal Studio Space must be constructed as a finished, conditioned space with acoustic isolation appropriate for performing arts and rehearsal activities, a resilient sprung floor system, dimmable theatrical overhead lighting, and necessary AV infrastructu�e (e.g., sound playback and intercom system), to ensure the space supports its intended education and public programming function. 3. Landlord Contribution. Concurrently with the execution Amendment No. 1 to the Agreement, Landlord and Tenant shall enter into a separate G.O. Bond for Arts � Culture Grant Agreement (the "Grant Agreement") pursuant to which the Landlord shall fund the "Landlord Contribution" which shall under no circumstances exceed the amount of Seven Million Six Hundred Four Thousand Dollars ($7,604,000.00). Tenant shall be respcnsible for the funding of the construction services, permitting, selection of the architect (subject to the reasor.able approval of Landlord), contractor (suC;�ct to the reasonable approval of Landlord), and the construction of the Buildout Improvements including the oversight of construction activities all in accordance with the terms of the Grant Agreement; provided, however, that Tenant's total available funding and budget for construction of the Buildout Improvements shall not exceed Six Million Eight Hundred Forty-Three Thousand Six Hundred Dollars ($6,843,600.00) in G.O. Bond Grant funding, exclusive of a ten percent (10%) contingency, in the amount of Seven Hundred Six Thousand Four Hundred Doltars ($760,400.G0) to be held by the Landlord. 4. Desiqn Services and Tenant Contribution. Tenant shall be responsible for the selection and funding of the design and the design professionals, including the architect (the "ArchitecY') and engineer, and all architectural and engineering fees related thereto, in connection with the Buildout Improvements, including funds for the acquisition of equipment for the theatrical performance or rehearsal 184 of 1214 space to the extent not covered by the Landlord Contribution, which total amount the Tenant expects will not exceed Five Hundred i housand Dollars ($500,000.00), but regardless of the actual amount, Tenant will be solely responsible for all such sums, which Tenant wiil raise through grants and/or donations (such sums, the "Tenant Contribution"). IN NO EVENT SHALL LANDLORD BE RESPONSIBLE TO FUND ANY PORTION OF THE DESIGN SERVICES OR ANY OTHER EXPENSES OF ANY KIND IN EXCESS OF THE LANDLORD CONTRIBUTION. All design professionals engaged by Tenant shall be licensed in the State of Florida. Tenant's agreement with the Architect shall be subject to Landlord's reasonable approval and shall contain the required contract language and insurance coverages set forth in Amended Exhibit "B-4" to this Lease (such Landlord-approved agreement, the "Approved Architect AgreemenY'). All actions taken or caused to be taken by the Architect hereunder shall be pursuant to the Approved Architect Agreement. The approved Budget shall not exceed the amount of the Landlord Contribution. The parties acknowledge and agree that the Budget does not include costs incurred by Tenant pursuant to the Approved Architect Agreement. 5. Desiqn to Budqet. The Parties agree that the Buildout Improvements will be constructed in accordance with the Approved Plans and with a design-to-budget approach based upon the approved Budget and not exceeding the approved G.O. Bond Grant Funds. This includes: i. Preconstruction services ii. Permitting iii. Theatrical Equipment and Furniture, Fixtures & Equipment (FF&E) iv. Art in Public Places (AIPP) contributions if applicable v. LEED certification vi. Suniey and materials testing vii. Contingency allowance viii. Hard construction costs 6. Landlord Aaarovals. Tenant will cause the Architect to deliver to Landlord the design layout c� the Premises for Landlord's reasonable approval and comment, in Landlord's proprietary capacity. Upon receipt of written approval from Landlord, Tenant will cause the Architect to engage with all required consultants and prepare the plans and specifications for the Buildout Improvements. The design for the Buildout Improvements shall contain the minimum design elements set forth in Amended Exhibit "B-3" ("Mandatory Design Elements"). Landlord and Tenant's general contractor (the "Contractor') will have the right to periodicatly review and reasonably approve and provide comments to the plans and specifications for the Buildout Improvements as the plans and specifications are prepared in order to develop Approved Plans (as hereafter defined), subject to Landlord's approval. The Tenant shall submit the following for review and approval by Landlord and Tenant's Contractor: i. 30% construction drawings within 90 days of execution of the this Agreement; ii. 60% construction drawings within 90 days of approval of the 30% drawings; iii. 90% construction drawings within 90 days of approval of the 60% drawings; and iv. Final plans and specifications within 30 days of 90% drawing approval (such Landlord-approved plans and specifications, the "Approved Plans"). 7. Participation. Landlord will be provided the opportunity to pa�ticipate in the budget proce5s and monitor the construction of the Buildout Improvements and will be invited to attend construction meetings between Tenant and the professionals engaged in connection with the Buildout Improvements. 8. Work Product. Landlord shall maintain ownership of all plans, specifications, permits, or other approvals, and any other work product developed in connection with the Buildout Improvements (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. Tenant shall secure any required assignments and ownership to ensure Landlord has ownership of such Work Product. 185 of 1214 9. Construction Manas�er at Risk. Tenant shall retain a Construction Manager at Risk ("CMAR") using a Guaranteed Maximum Price ("GMP") contract delivery method. The CMAR shall provide both pre-construction and construction phase services. Any costs of constructing the Buildout Improvements in excess of the Landlord Contribution shall be borne solely by Tenant. Landlord shall not initiate any change orders increasing the GMP except to the extent required by City Code. Tenant's agreement with the contractor shall be subject to Landlord's reasonable approval and shall contain the required contract language and insurance coverages set forth in Amended Exhibit "B-4" to this Lease (such Landlord-approved agreement, the "Approved Contractor Agreement") 10. GMP As�reement. The Guaranteed Maximum Price construction contract and the schedule of values attached thereto or contained therein (collectively, the "GMP Agreement") shall: i. Include a contingency line item equal to five percent (5%) of the overall costs of the Buildout Improvements; ii. Not exceed the total available G.O. Bond Grant Funds for the Project improvements covered by the GMP construction contract iii. In no event shall the use cf the contingency cause for the guaranteed maximum price ("GMP") to be exceeded, and the Contractor shall be solely responsible for all costs that exceed the GMP, withou't any reimbursement from Tenant. Prior to the commencement of the Buildout Improvements, Tenant shall cause the 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 iiams reing consistent with the approved Pro;ect Budget. Landlord shall have the right to approve the GMP F.greement, including the amount of the GMP (as set forth in the schedule of values attached thereto) within twenty-one (21) days after Landlord's receipt thereof by delivering written notice to Tenant within such twenty-one (21) day period, which approval will not be unreasonably withheld. If Landlord fails to app�ove or disapprove the GMP Agreement by written notice to Tenant within such forty-five (45) day period, then Landlord shall conclusively be deemed to have approved the GMP Agreement, including the amount of the GMP if not in excess of the total available G.O. Bond Grant Funds for the Project 11. Discretionary Elements. Landlord approval of final construction drawings is contingent upon the TenanYs identification of components totaling up to twenty percent (20%) of the Project Budget as "non-essential."These non-essential elements are considered discretionary and may be omitted, upon mutual agreement, to accommodate cost overruns or necessary value engineering. 12. P�ioritization of Theater Space. It is the understanding of the Parties that the cultural elements of the F'roject shall be prioritized at all times. 13. Theatrical Equipment and Furniture, Fixtures, and Equipment (FF8�E). Theatrical Equipment (as defined herein) and FF&E-related expenses may be processed either as reimbursed expenses or payment issued in advance, however, any request for upfront payment is limited to an amount not to exceed $500,000. Theatrical Equipment shall mean any furniture, fixtures and equipment for the Theater Space, necessary to accommodate a fully functioning performance theater, which would include, without limitation, lighting, cameras, sound, auditorium seating, curtains and other related theatrical improvements and personalty. FF&E shall mean any other improvements and items of personal property for the Project, which are typically purchased after substantial completion of the Project and may include, without limitation, props, decorations, seating and other furnishings outside of the theater (Cafe/Restaurant Space, Lounge Space, Rehearsal Studio Space and Office Space), decorations, 186 of 1214 booths, tables, kitchen and Cafe related appliances and equipment. Prior to requesting an advance for any Theatrical Equipment or FF&E-related expenses to be procured outside of the GMP Agreement (GMP Agreement to delineate Theatrical Equipment and FF8�E included), the Tenant shall provide the City with an itemized list of the FF&E items to be paid from the G.O. Bond Grant Funds. Tenant shall be responsible for payment of any costs associated with the Theatrical Equipment and FF&E which exceed the amount of the G.O. Bond Grant Funds. 14. Change Orders. In the event Tenant requests any change to the Buildout Improvements, Tenant shall submit such request to Landlord for Landlord's review and approval, which approva) shall not be unreasonably withheld or delayed; provided, however, that Buildout Improvements are at least ninety percent (90%) complete, and all associated payments have been made (excluding retainage), and sufficient funds remain in the Budget to cover such retainage, the required unallocated contingency amount shall be reduced from twenty percent (20%) to ten percent (10%). 15. Reauirement for G.O. Bond Grant A�reement. The Grant Agreement shall include terms generally included in a Work Letter to govern construction procedures, approval processes, the disbursement of the G.O. Bond Grant Funds, and other matters relating to Project delivery. 16. Disbursement of G.O. Bond Grant Funds. Disbursement of G.O. Bond Grant Funds shall be based on approval, by the City's assigned liaison, of monthly draw requests with supporting documentation, including invoices, lien releases, contractor affidavits, consent of surety, progress reports, progress schedule, progress photos, and other documentation typically required in a construction Work Le.ter and as may also be requested by the City, all in accorddnce with the terms of the Grant Agreement. 17. Performance and Pavment Bond. Tenant shall require its general contractor to obtain performance and payment bonds in the full contract value, issued by a surety acceptable to the City. 18. Ccndominium. Upon approval of the final plar,s for the construction of the Project, t�e City may requ�re that the Property be converted into a condom�nium form of ownership. In such case, the City, at its sole cost, shall prepare a Declaration of Condominium, subdividing the Property into separate condominium units, based upon the intended uses for the Project, currently anticipated to be: i. A RestauranUCafe condominium unit; ii. Parking Garage condominium unit(s); and iii. A Culturat Center condominium unit. Tenant agrees to join in the execution of said Declaration of Condominium if requested by the City. IN NO EVENT SHALL THE LANDLORD CONTRIBUTION TO THE BUILDOUT IMPROVEMENTS OR OTHERWISE IN CONNECTION WITH THE TENANT'S USE OF THE PREMISES OR THE FACILITY EXCEED THE AMOUNT OF THE LANDLORD CONTRIBUTION OF $7,604,000.00. 187 of 1214 AMENDED EXHIBIT "B-3" Mandatory Design Elements i. Approximately 3,300 sq. ft. 200-seat studio theater ("Theater Space") ii. Approximately 2,250 sq. ft. multifunctional lounge / bookstore ("Lounge Space") iii. Approximately 2,000 sq. ft. "Cafe / Restaurant Space" capable of secure operation, independent from the remainder of the Premises, regardless of whether the remainder of the Premises is open to the public iv. Approximately 2,000 sq. ft. community education and rehearsal studio ("Rehearsal Studio") v. Approximately 1,700 sq. ft. administrative office space ("Office Space") �2 188 of 1214 AMENDED EXHIBIT "B-4" Required Contract Language For purposes of this Amended Exhibit "B-4," the term "Construction Agreements" shall mean those contracts between the Tenant and the CMAR, the Architect and any other contractors or design professionals with whom Tenant is in direct privity of contract for the construction of the Buildout Improvements. All Construction Agreements which provide for the performance of labor for the construction of the Buitdout Improvements shall, to the extent applicable to the scope of work governed by such Construction Agreement, include the following provisions (or language substantially similar thereto which is approved in advance by City)(the"Required Clauses"). If any Construction Agreement has already been executed by Tenant prior to the effective date of Amendment No. 1 to the Agreement, Tenant shall require the applicable contractor or design professional to execute an addendum to incorporate the Required Clauses into such Construction Agreement. Terminoiogy and Definitions The phrases "this AgreemenY' and "the Construction AgreemenY' as used below refer to the applicable Construction Agreement. The term "Buildout Improvements" as used below shall be rtplaced in the applicable Construction Agreement with the appropriate defined term for the scope of work covered by such Construction Agreement. The term "Contractor" as used below shall be replaced in the applicable Construction Agreement with the appropriate defined term for the contractor or design professional. The term "Tenant" as used below shall be replaced in the applicable Construction Agreement with the appropriate defined term for Miami New Drama, Inc. The term "Premises" as used below shall be replaced in the applicable Construction Agreement with the appropriate defined term. The term "Contract Documznts" as used below shall mean the Construction Agreement and the permit plans and specifications. The term "Substantial Completion" �nd words of similar import shall mean that the Buildout Improvements have been completed in accordance with the permit plans and specifications and the requirements of(i) through (iv) below have been satisfied, and that the Premises is ready for occupancy, except for so-called "punch list" items (including, without limitation, adjustments to equipment, fixtures, landscaping, and similar items of work) that can be completed after occupancy has been taken without causing substantial interference with the use of the Premises. Upon Substantial Completion of the Buildout Improvements, Contractor shall furnish the Tenant the following: 13 189 of 1214 (i) certification of the architect (certified to Tenant and the City of Miami Beach, Florida on the standard AIA certification form) that it has examined the plans and specifications and that, in its professional judgment, after diligent inquiry, the Buiidout Improvements have been Substantially Completed in accordance with the plans and specifications and, as constructed, the Buildout Improvements comply with afl applicable laws, constitutions, rules, regulations, orders, ordinances, charters, statutes, codes, executive orders and requirements of all governmental authorities having jurisdiction over the Premises; (ii) a copy or copies of the temporary certificates of occupancy and/or certificates of completion for the Premises issued by the City of Miami Beach Building Department; (iii) lien waivers in form and substance reasonably satisfactory to Tenant and the City from the Contractor and any other contractor, subcontractor, supplier or materialman retained by Tenant in connection with the construction of the Buildout Improvements, evidencing that such persons have been paid in full for all work perfcrmec` or materials supplied in connection witfi the construction of the Buildout Improvements; and (iv) a complete set of °as builY' plans and a survey showing the Buildout Improvements as Substantially Completed. City shall have an unrestricted license to use such "as bu�lt" plans and survey for any purpose related to the Premises without paying any additional cost or compensation therefor, subject to copyright and similar rights of the architect to prohibit use of designs for purposes unrelated to the Premises, as such rights exist in law or may appear in the architect's contract, and subject to applicable public records laws. The foregoing requirement with respect to "as built" plans shall be satisfied by Tenant furnishing to City, at Tenant's expense, a complete set of plans and specifications, with all addenda thereto and change orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Buildout Improvements up to Substantial Completion. Required Clauses (a) "Contractor shall provide, prior to the commencement of its portion of the work, and maintain during the performance thereof, the insurance set forth on Exhibit "B-5" attached hereto and incorporated by reference herein. Such Contractor shall procure an appropriate clause in, or endorsement on, any policy of insurance carried by it pursuant to which the insurance company waives subrogation or consents to a waiver of riyht of recovery consistent with the release, discharge, exoneration and covenants not to sue contained herein. Original certificates of insurance shall name Tenant and the City of Miami Beach, Florida, as additional insureds (the "Certificate of Insurance"), and shall be furnished to Tenant by the Contractor prior to commencement of design work related to, or construction of, the Buildout Improvements, as applicable, denoting all insurance required of the Contractor pursuant to the terms of the contract. The Contractor shall 14 190 of 1214 secure an original Certificate of Insurance from each of its sub-contractors with limits of liability appropriate to such sub-contractor's scope of work"; (b) "Contractor hereby waives all rights of recovery, claims, actions or causes of action against the City of Miami Beach, Florida, and its elected and appointed officials (including, without►imitation, the City's Mayor and City Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals, invitees and affiliates, for any loss or damage to property of Contractor which may occur at any time in connection with the Buildout Improvements, except to the extent arising out of or related to the gross negligence or willful misconduct of the City, the City's officers, directors, officials, employees, contractors, or agents."; (c) "To the fullest extent permitted by law, Contractor shall and does hereby indemnify and hold harmless the City of Miami Beach, Florida, and its respective officers and employees, from liabilities, damages, losses and costs including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Agreement. Notwithstanding anything to the contrary, Contractor shall not be required to indemnify, defend or hold the City of Miami Beach, Florida or any of its respective o�cers and employees from liabilities, damages, I�sses or costs to the extent caused b � the acts, omissions, or negligence of the City of Miami Beach, Florida or any of its officers or employees. The indemnification obligations set forth in this paragraph shall survive the termination and/or expiration of this Agreement." (d) "Tenant shall have the right to assign to City, this Agreement and Tenant's rights thereunder, at the City's request, without the consent of the Contractor, and (2) that without the necessity of such assignment and without thereby assuming any of the obligations of Tenant under the Construction Agreement occurring prior to such assignment and/or purchase order, except for Tenant's payment obligations, City shall have the right to enforce the full and prompt performance by the Contractor of such Contractor's obligations under the Construction Agreement; and (3)the City is a third party beneficiary of this AgreemenY'; (e) "Contractor agrees to comply with all laws and requirements applicable to Contractor and the Buildout Improvements"; (fl "Upon an Event of Default by Tenant resulting in a termination of that certain Lease Agreement between Tenant and City, dated as of April 18, 2022, Contractor shall, at the option of the City of Miami Beach, Florida, be terminated or Contractor will honor this agreement as if this agreement had been originally entered into with the City of Miami Beach, Florida."; (g) "Upon an Event of Default by Tenant resulting in a termination of that Lease Agreement between Tenant and City, dated as of April 18, 2022, all covenants, representatior,s, guarantees and warranties of Contractor hereunder shall be, deemed to be made for the benefit of the City of Miami Beach, Florida, (and the City of Miami Beach, Florida, shall be deemed to be a third party beneficiary hereofl and shall be, subject and subordinate to the rights of Lender, enforceable by the City of Miami Beach, Florida."; �5 191 of 1214 (h) "Nothing contained in this contract is in any way intended to be a waiver of the prohibition on Contractor's ability to file liens against property of the City of Miami Beach, Fiorida, or of any other constitutional, statutory, common law or other protections afforded to public bodies or governments."; (i) "Unless and until the City of Miami Beach, Florida, expressly assumes the obligations of Tenant under this Agreement (and then only to the extent the same arise from and after such assumption), the City of Miami Beach, Florida, shall not be a party to this Agreement and will in no way be responsible to any party for any claims of any nature whatsoever arising or which may arise in connection with this Agreement."; and (j) "Contractor hereby agrees that notwithstanding that Contractor performed work at the Premises, the City of Miami Beach, Florida shall not be liable in any manner for payment or otherwise to Contractor in connection with the work performed at the Buildout Site, except to the extent the City of Miami Beach, Florida, expressly assumes the o5ligations of Tenant hereunder (and then only to the extent such obligations arise from and after such assumption)." (k) "Contractor warrants that all materials and equipment included in the work will be new, and that such work will be of good quality, free from impr�per workmanship and defecti�e matF,rials and in conformance with the C�ntract Documents, and that such work will provide proper and continuous service under all conditions of service required by, specified in, or which may be reasonably inferred from the Contract Documents. With respect to the same work, Contractor further agrees to correct all work found by Tenant or the City of Miami Beach, Florida to be defective in material and workmans��ip cr not in conformance with the Contract Documents for a period of one year from Substantial Completion of the work or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Contract Documents, as well as any damage to the work resulting from defective design, materials, equipment, or workmanship which develop during construction or during the applicable warranty period. Contractor shall collect and deliver to Tenant and the City of Miami Beach, Florida any specific written warranties given by subcontractors or others as required by the Contract Documents (and such warranties shall be in addition to, and not substitutes for, those warranties mandated to be obtained pursuant to the Contract Documents). All such warranties shall commence upon Substantial Completion or such other dates as provided for in the Contract Documents, or unless the warranted work is not completed or has been rejected, in which case the warranty for the work shall commence on the completion or acceptance of the work." t6 192 of 1214 � EXHIBIT "B-5" Insurance Requirements for Contractors and Design Professionais I. BONDING REQUIREMENTS 1. The Performance Bond and the Payment Bond must each be executed by a surety company in good standing with the Florida Office of Insurance Regulation and an adequate rating from A.M. Best indicated in this Exhibit, which surety is authorized to do business in the State of Florida as a surety, having a resident agent in the State of Florida and having been in business with a record of successful, continuous operation for at least five (5) years. 2. The surety company that is bound by the Performance Bond and Payment Bond, respectively, shall be responsible for CMAR's acceptable performance of the work under Construction Contract for the Buildout Improvements, and/or for the payment of all debts pertaining thereto in accorda�ce with Section 255.05, Florida Statutes. 3. The City will accept a surety bond from a company in accordance with the requirements set forth below; provided however, that if any surety company appears on the watch list that is published quarterly by Intercom of the Office of the Florida Irsurance Corimissioner, the City shall revieN and either accept or reject the surety company based on the financial information available to the City. The following sets forth, in general, the acceptable parameters for bonds: Policy - Financial Holder's Size Amount of Bond Ratings Category $500,001 to $1,000,000 A- Class I $1,000,001 to $2,000,000 A- Class II $2,000,001 to $5,000,000 A Class III $5,000,000 to $10,000,000 A Class IV $10,000,001 to $25,000,000 A Class V $25,000,001 to $50,000,000 A Class VI $50,000,001 or more A Class VII I1. INSURANCE REQUIREMENTS CMAR and Architect shall provide, pay for and maintain in force at all times (unless otherwise provided) and any extensions thereof, the fotlowing insurance policies: A. Worker's Compensation Insurance for all employees as required by Florida Statute 440. and Employer Liability Insurance with a limit in an �� 193 of 1214 amount not less than $1,000,000 per accident for bodily injury or disease for the Tenant and CMAR and Statutory Limits for the Architect. B. Commercial General Liability Insurance on an occurrence basis, including products and completed operations, property damage, bodily injury and personai & advertising injury with limits in an amount not less than $1,000,000 per occurrence and $2,000,000 policy aggregate. C. As to CMAR only: Umbrella Liability Insurance with limits in an amount not less than $4,000,000 per occurrence. The umbrella coverage must be as broad as the primary General Liability coverage. The total limits for the Commercial General Liability and Umbrella Liability Insurance (set forth in Sections II.B and II.0 above) shall be in an amount not less than $5,000,000, and may be provided through a combination of primary and excess/umbrella liability policies. D. Automobile Liability Insurance covering any automobile, if vendor has no owned automobiles, then coverage for hired and non-owned automobiles, with limits in an amount not less than $1,000,000 combined per accident for bodily injury and property damage. E. As to Architect only: Design Professional Liability (Errors 8 Omissions) Insurance with limits in an amount not less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate, subject to a maximum deductible acceptable to the City, and not-to-exceed $100,000 Architect shall maint�in the claims m<�de form coverage with a minimum of 10 years extended reporting following Final Completion and shalf annually provide City with evidence of renewal coverage. Architect is responsible for all deductibles in the event of a claim. Architect shall indicate the deductible for this coverage on its Certificate of Insurance. Architect shall notify City in writing within thirty (30) ��ys of any claims filed or made again�t th� Professional Liability Insurance Policy(ies). F. As to CMAR: Contractors' Pollution Legal Liability with limits in an amount not less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, subject to a maximum deductible acceptable to the City. G. As to CMAR only: Installation Floater Insurance including coverage for material 8 equipment to be installed during the course of this Project. City shall be included as a Named Insured on this policy, as its insurable interest may appear. This policy shall remain in force until acceptance of the Project by the City. 18 194 of 1214 III. ADDITIONAL TERMS AND CONDITIONS: 1. Notice to Citv. If the initial insurance expires prior to the completion of the work, certificates of insurance evidencing the renewal of the coverage required shall be furnished to the City ten (10) days prior to the date of their expiration. The insurance policy(ies) must be endorsed to require the relevant insured to provide the City with at least thirty (30) days' notice of cancellation and/or restriction, except for non-payment of premium, which shall be subject to ten (10) days' notice. 2. Certificates of Insurance. Tenant shall provide the City with Certificates of Insurance from its CMAR and Architect prior to the commencement of any work or services by any such entity. However, failure to obtain the required documents prior to the work beginning shall not waive the obligation to provide them. The Certificates of Insurance shall be in form acceptable to, and subject to, reasonable approval by City. Tenant's failure to timely provide the Certificates of Insurance as required by this paragraph, and failure to cure within fifteen (15) days following receipt of written notice of such failure from the City, shall be the basis for the rescission of this Agreement by the City, without any liability to Tenant. The official title of the certificate holder is City of Miami Beach, Florida. This official title shall be used in all insurance documentation. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. CERTIFICATE HOLDER ON ALL COI MUST READ: CITY OF MIAMI BEACH c/o EXIGIS Insurance Compliance Services P.O. Box 947 Murrieta, CA 92564 Kindlv submit all certificates of insurance, endorsements, exemption letters to our servicinQ aQent, EXIGIS, at: Certificates-miamibeach(a�riskworks.com 3. Ristht to revise or reiect. City's Risk Management Division reserves the right, but not the obligation, to review and revise any insurance requirements at the time of insurance contract renewal and/or any amendments, not limited to deductibles, limits, coverages and endorsements based on insurance market conditions affecting the availability or affordability of coverage; or changes in the scope of work/specifications affecting the scope and applicability of coverage. 4. Additional Insured. City shall be expressly included as an AJditional Insured on all policieG (except Professional Liability and worker�' Compensation), and with an endorsement that is acceptable to the City. Additional insured certificates for the City shall read "City of Miami Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139, Attn: Risk Management, 3rd Floor. 5. Notice of Cancellation and/or Restriction. The policy(ies) must be endorsed to require the relevant insured to provide City with at least thirty (30) days' notice of cancellation or non-renewal and/or restriction, except for non-payment of premium, which shall be subject to ten (10) days' notice. A copy of the endorsement(s) shall be provided with the Certificates of Insurance. 19 195 of 1214 6. Duty of Care. The furnishing of insurance coverage by Tenant, CMAR and/or Architect shall in no way relieve or limit, or be construed to relieve or limit, Tenant or any of its contractors of any responsibility, liability, or obligation imposed under this Agreement or the applicable contract documents relating to the Buildout Improvements, or by applicable laws, including, without limitation, any indemnification obligations which Tenant or any of its contractors have to City thereunder. 7. TenanYs Failure to Procure. Tenant's failure to cause the CMAR, Architect and any other contractor or design professional in contractual privity with Tenant to procure or maintain the insurance required by this Exhibit "B-5" during the entire term of the work shall constitute a material breach and an Event of Default under this Agreement, as long as it is available based on prevalent market conditions. In the event of such a breach (and following all notice and right to cure periods have expired), the City may exercise all available rights and remedies hereunder, including the right to immediately suspend or terminate this Agreement without any further notice to or liability to Tenant or, at its discretion, procure or renew such insurance to protect the City's interests and pay any and all premiums in connection therewith, and withhold or recover all monies so paid by the City from the Tenant. 8. Waiver of Subrogation. Where permitted by law, Tenant hereby waives and shall cause the CMAR to waive �II rights of recovery by subrogation or otherwise (including, without limi ation, claims related to deductible �r self-insured retention ;lauses, inadequacy of limits of any insurance policy, insolvency of any insurer, limitations or exclusions of coverage), against City, and its officers, directors, officials, employees, contractors, and agents. Certificates of insurance shall evidence the waiver of subrogation in favor of the City, and that coverage shall be primary and noncontributory, and that each evidenced policy includes a Cross Liability �r Severability nf Interests provision, with nc+ requirement of premium payment by the City. zo 196 of 1214 Exhibit B Summary of Terms Lease Agreement (Key Terms - No Change Proposed) Lease Agreement ! The Lease Agreement between the City and Tenant, dated April 18, 2022, authorized by Resolution No. 2021-31914 Miami New Drama, Inc., a Florida 501(c)(3) not-for-profit corporation, currently Tenant operates the Colony Theatre under a Management Agreement, which is linked by cross-default to the Lease Agreement. Approximately 16,000 square feet of ground floor interior and exterior space at Premises the Collins Park Parking Garage, a municipal parking facility located at 340 23rd Street (the "Property") j Initial Term: 5 years, commencing upon TCO/occupancy Renewal Terms: Two 5-year renewal options at TenanYs sole Term �� discretion, followed by one 5-year renewal at City's option Potential Total Term: Up to 20 years i - ---__ _ - � T��a Lease requires the following elements as part of the buildout: 1) Theater Space: Approximately 3,300 sq. ft., 200-seat studio theater with all theatrical equipment necessary for Tenant's operations (primary design priority). 2) Lounge Space: Approximately 2,250 sq. ft. multifunctional lounge/bookstore activation space. Mandatory 3) CafelRestaurant Space: Approximately 2,000 sq. ft., capable of Design secure, independent operation from the rest of the premises, regardless Elements � of whether the remainder of the premises is open to the public. � 4) Rehearsal Studio Space: Approximately 2,000 sq. ft. for community ' education and rehearsals. 5} Office Space: Approximately 1,700 sq. ft. administrative office area. Note: The original requirement for a costume design studio was removed due to space needed for back-of-house functions and public restrooms. Rent $1.00 annually MiND is responsible for all operatioral and nrogramming costs, including Operating utilities, maintenance, and applicable taxes (sales, use, excise, personal Expenses property, and ad valorem taxes related to the Premises, TenanYs business, or any other business on Premises). The City has no obligation to cover operating expenses. Tenant is responsible for, among other obligations, day-to-day cleaning, routine maintenance, and repairs, including reasonable upkeep of the exterior frontage Maintenance � (such as sidewalk and stairs), in a manner consistent with comparable commercial establishments. For a comprehensive outline of each party's maintenance obligations, please refer to the Lease Agreement. 197 of 1214 Lease AgreEment (Key Terms — No Change Proposed) i • The CafeJRestaurant Space must be subleased at market rate, with � operator setection subject to City Manager approval. I • MiND may host one (1) concession or for-profit third-party activation at i below-market rent in a footprint not exceeding 250 sq. ft., subject to City Subleasing � Manager (or designee) approval. i • Additional below-market concessions (or similar for-profit activations by I third parties) require City Manager's reasonable approval, are limited to 30 days (extendable to 90 days with approval), and must complement � cultural programming. , _ i As required by Resolution No. 2021-31568, the following conditions apply: � • Miami Beach Headquarters: MiND must remain functionally based in Miami Beach, with Miami Beach as its primary performance venue. • Key Individuals: Principal directors Michel Hausmann and Nicholas Additional Richberg must remain actively involved. If either departs the company or j is no longer actively involved, a comparable replacement must be Material i.ientified within 180 days, subject to City M�nager reasonable appro��al, Terms �' or the City may terminate the Lease. ' • City Board Representation: City Manager (or designee) to serve as j one (1) voting member on MiND's Board, plus an optional second non- voting member, designated at City Manager's option. This increases City representation from one non-voting seat to one voting and one non- voting seat. i During the initial 12 months following Lease Commencement Date(such period j constituting Lease Year 1, with each successive twelve (12) month period ithereafter constituting another''Lease Year"), Tenant must achieve: 1) 125 cultural or community events per year; 2) 25,000 patrons per year(including virtual attendees); 3) 150 students per year; 4) 75 seniors per year, ; 5) 50 pro bono nonprofiUcommunity rental hours per year; and Benchmark i 6) 500 discounted tickets to seniors per year. Performance ' Standards � Benchmarks increase as follows: I I Lease i i i Pro Bono Senior ' !, Year I Events � Patrons Students Seniors� Hours ' Tickets � 2 150 30,000 175 80 50 500 � 3 175 35,000 200 85 55 500 ; 4 200 � 40,000 225 90 55 500 i 5 220 ' 45,000 250 95 60 500 ! Benchmarks for Renewal Terms may be adjusted by mutual agreement. Exhibit B — Page 2 of 3 198 of 1214 Lease Amendment (Proposed Terms) Originally, the City was responsible for constructing the Buildout Project improvements. Under the Amendment, the City will deliver the Premises to Delivery MiND in shell condition, and MiND will assume full responsibility for design, Structure permitting, and construction administration, including all financial and administrative obligations for completion. . Mandatory use of a Construction Manager at Risk (CMAR) with a � Guaranteed Maximum Price (GMP) contract containing cost-control provisions, contingency limits, and approval protocols. Construction . CMAR to bear any costs in excess of the Guaranteed Maximum Price Management established in the GMP Agreement. Requirements ' Requirement for design-to-budget approach and mandatory adherence to • Guaranteed Maximum Price for project improvements, including preconstruction services, permitting, theatrical equipmert and FF8�E, 5% contingency allowance, and hard construction costs. ��ry The Lease originally capped City funding for Buildout Improvements at $4.75 Contribution million. The Amendment increases this to$7.604 million (matching the GOBAC appropriation), provided as a GOBAC Grant. Tenant MiND remains responsible for all architectural and engineering(A&E)costs and Contribution design consultants, estimated at no less than $240,000. MiND has engaged Touzet Studio and Enrique Norten/TEN Arquitectos, with Architects consultants for mechanical, electrical, and plumbing engineering, acoustics, � theater design, and structural engineering. • City retains design approval at key milestones (30%, 60%, 90%, and Final ; Drawings). i i • Tenant must designate 20% of the Project Budget as discretionary, for City's value engineering, if necessary. Construction Oversight • City witiiholds 10% of grant funds during construction as contingency i (separate from 5% contingency in GMP agreement). � Grant disbursements require complete, documented incremental draw ! • requests and City liaison approval. Grant I A separate GOBAC Grant Agreement will govern construction protocols, Agreement ; incorporating standard provisions such as performance and payment bonds, and detailed documentation requirements for reimbursement requests. Exhibit B — Page 3 of 3 199 of 1214 2025-33710 RESOLUTION NO. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND ECONOMIC RESILIENCY COMMITT�EE TO AMEND THE LEASE AGREEMENT BETWEEN THE CITY (LANDLORD) AND MIAMI NEW DRAMA, INC. (TENANT); SAID AMENDMENT, IN MATERIAL PART, TRANSFERRING FROM THE CITY TO TENANT THE RESPONSIBILITY FOR THE CONSTRUCTION OF THE IMPROVEMENTS FOR THE COLLINS PARK CULTURAL FACILITY, LOCATED IN THE CITY-OWNED COLLINS PARK GARAGE AT 340 23RD STREET; FURTHER, APPROVING THE TERM SHEET ATTACHED TO THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION, CONTAINING THE ESSENTIAL TERMS OF THE AMENDMENT; AND FURTNER, AUTHORIZING THE CITY MANAGER TO NEGOTIATE THE AMENDMENT AND A CORRESPONDING GENERAL OBLIGATION BOND FOR ARTS 8 CULTURE ("GOBAC") GRANT AGREEMENT, CONSISTENT WITH THE TERM SHEET, VYITH THE FINAL AGREEMENTS REING SUBJECT TO THE PRIOR APPROVAL OF THE MAYOR AND CITY COMMISSION. WHEREAS, on January 27, 2021, the Mayor and City Commission waived competitive bidding in favor of an unsolicited proposal submitted by Miami New Drama, Inc. ("MiND") for the development of approximately 16,000 square feet of ground floor spac�including a 200-seat black box theater, rehearsal spaces, dressing rooms, administrative o�ces, and ancillary commercial uses—within the City-owned Collins Park Garage at 340 23rd Street (the "Project"); and WHEREAS, on July 27, 2021, the Planning Board approved the terms of a proposed Lease Agreement between the City (Landlord) and MiND (Tenant), in accordance with the requirements of Section 1.03(b}(4)of the City Charter, requiring approval by a majonty 4/7"' vote of all members of the Planning Board; and WHEREAS, on October 27, 2021, pursuant to Resolut�on No. 2021-31914, the City Commission approved the Lease Agreement between the City (Landlord) and MiND (Tenant) under which MiND was responsible for obtaining necessary design and architectural services while the City committed to funding the buildout improvements, subject to MiND raising a Tenant Contnbution of $250,000.00 and pending appropriation of $4.75 million for the buildout (the "Landlo�d Contribution"); and WHEREAS, subsequent to the Lease's execution, on April 18, 2022, further planning and the development of the General �bligation (G.O.} Bond for Arts and Culture Program resulted in a revised funding allocation of $7.67 million far the Project, which was forrnally designated by Resolution No. 2023-32713 on Juiy 26, 2023; and WHEREAS, on August 6, 2024, MiND submitted a memorandum requesting material modifications to the Project's delivery model, which includes the delegation of construction management responsibilities to the Tenant and an increase in the Landlord contribution to align with the full G.O. Bond allocation ("Landlord Contribution"); and 200 of 1214 WHEREAS, on November 8, 2024, the Finance and Economic Resiliency Committee (FERC) recommended that the City Commission authorize the Administration to negotiate a Lease Amendment together with a G.O. Bond Grant Agreement based upon Tenant's proposed terms, included in the FERC Memo; and WHEREAS, while the Project possesses significant programmatic and cultural value as a catalyst for activating the Co(lins Parlc Cultural District, the proposed changes necessitate robust safeguards to ensure the City's financial and operational interests remain protected and that final agreements be subject ta prior City Commission review and approval; and WHEREAS, since the FERC meeting, the City and MIND have negotiated further the essentiat terms of Amendment No. 1 to the Lease, which terms are set forth in the Term Sheet attached to the City Commission Memorandum accompanying this Resolution and include the following material terms: i. The City shall deliver the Premises to MiND in shell condition, with MiND assuming full responsibility far design development, permitting, construction and construction administration of the Buil�out Improvements; ii. The Tenant shall adopt a Canstruction Manager at Risk (CMAR) model, utilizing a Guaranteed Maximum Price (GMP) contract that incorporates cost containment provisions, contingancy limits, and strict approval protocals, thereby mandating that ar�y cost oveRuns exGeeding the GMP be borne by the designated Construction Manager; iii. The construction of the Project shall be managed through a design-to-budget approach, covering preconstruction services, permitting, theatrical equipment, fumiture, fixtures, and equipment (FF8�E), a 10°/r contingency aflawance, and hard c.mstn�ction costs, all required to remain within the established Guaranteed Maximum Price; iv. The Gity's financial contribution for the Buildout Improvements shall be modified from an initial cap of $4.75 million to $7.604 million, in accordance with the General Obligation Bond Grant appropriation for the Project, with the funds being disbursed in the form of a grant since MiND will assume construction administration responsibilities; v. MiND shall remain solely responsible for all costs related to Architectural and Engineering (A8E) services, which are currently estimated to be no less than $240,000.00, and shall engage architectural and design consultant services, including those proposed by Touzet Studio and Ennque Norten/TEN Arquitectos, as well as other necessary consulting servic,es; vi. The City �hall retain critical oversight af Project execution by (a) approving construction drawings at key milestones !30%, 60%, 90°/a, and final), (b) requiring that 20% of the Project Budget be designated as discretionary funds to allow for value engineering as nesded, and (c) holding 10% of the Grant funds in reserve during construction for contingency purposes, with all grant disbursements to be contingent upon the submission of complete monthly draw requests supparted by appropriate documentation and subject to City liaison approval; vii. A separate Grant Agreement will be executed to govem construction protocols, containing provisions typically found in a work lette� agreement, including the requirements for performance and payment bonds and for the submission and review of monthly reimbursement draw requests with supporting documentation; and 201 of 1214 WNEREAS, for the reasons outlined in the City Commission Memorandum accompanying this Resolution, the City Manager recommends that the City Commission: accept the recommendation of the FERC to amend the Lease; approve the updated essen6al terms contained in the Term Sheet; and authonze the City Manager to negotiate a Lease Amendment and a corresponding General Obligation Bond for Arts 8� Culture ("GOBAC") Grant Agreement, based upon the proposed Term Sheet, subject to approval af the negotiated agreements by the Mayor and City Commission. NaW, THEREFORE, BE 17 DULY RESOLVED BY THE MAYOR AND CITY COMMISSION aF THE CITY OF MIAMI BEACH, FLORIDA� that the Mayor and City Commission hereby accept the recommendation of the Finance and Economic Resiliency Committee to amend the Lease Agreement between the City (Landlord) and Miami New Drama, Inc. (Tenant}; said Amendment, in material part, transfeRing from the City to Tenant the responsibifity for the construction of the improv�ements for the Collins Park Cultural Facility, located in the City�wned Collins Park garage at 340 23rd Street; further, approve the term sheet attached to the City Cammission Memorandum accompanying this Resolution, containing the essential terms of the Amendment; and fu�ther, authorize the City Mandger to negotiate the Amendment and a corresponding General Obligation Bond for Arts 8 Cultu�e ("GOBAC") Grant Agreement, consistent with the term sheet, with the final agreements being subject to the prior approval of the Mayor a��d City Commission. PASSED and ADOPTED THIS as day of ��'+'� 2025. ATTEST: � st;N ,� � ��2� � ' EL . GRANADO, CITY CLERK STEVEN MEINER, MAYOR �� REGIS BARBOU :��``'^`,'e,�—�.��., � �:: .� 's � �.4�:��aa':�: s ;,�� : .. �`f; ��; ,..., aa:�ui�vtr�a-. t�� n•z .��.. .� )R C.., , ��1.� . 61 t7)�o Z.,S' < . .,,:� ,,, . 202 of 1214 R�safutlons -C7 A 1�i11A�/1I BEA� � � COMMISSiON MEMORANDUM r � TO: Honarable Maycx arb Members of the Ci1y Commission FR(�M: Eric Carp�entsr, City Ntanager DATE: June 25. 2025 '' TiTLE: A RESt7lUTtQN OF THE MAYOR AND CITY COMMISSI�N OF TME CITY OF i MIAMi BEACH, FLORIDA, ACCEPTING THE RECOMMENDATlON OF THE t FiNANCE AND ECONOMIC RESILIENCY COMMtTTEE TO AMEND THE �EASE AGREEMENT BETWEEN THE CITY (1.ANDLORD}AND MtAMi NEW DRAMA, INC. �': (TENANT); SAiD AMENDMENT, fN MATERIAL PART, TRANSFERRING FROM ;;, TWE CITY TO TENANT THE RESPONSIBILI7Y FOR THE CONSTRUGTION OF THE IMPR�VEMENTS FOR THE COLLfNS PARK CUITURAI FAClLITY. ;' LOCATED iN THE C1TY-OWNED COLUNS PARK GARAGE AT 340 23RD � STREET; FURTHER, �PPROVING TNE TERM SHEET ATTACHED TO THE rITY GOMMISSION MEMORANDUM ACCOMPANYiNG THIS RESOLU7IQN, GONTAINtNG �`HE ESSENTIAL TERMS OF THE AMENdMENT; ANfJ FURTHER, AUTHORIZING THE CITY MANAGER �f0 NEGOTlATE THE AMEND�IAENT AND A CQRRESPONDiNG GENERAL OBLiGAT10N Bf�ND FOR ARTS 8 CULTURE (`GOBAC")GRAN7 AGREEMENT, C�NSlSTENT WITH THE TERM SHEET, WITH THE FINAL AGREEMENTS BEING SUBJECT TO THE PRI4R APPROVAL OF THE MAY�R AND ClTY CQMMtSSIQN. f� ;; RECOMMENDATION � � The Administration recQmmends that the Mayor and City Comm�ssio� authonze the AdminisVation to pre�re a Lease Ame�ment and con�espatding Generai Obligation Bond fo� i� Arts 8 Culiure (`G4B+4C") Grant Agreement with Miami New Drama, Inc. br trie Coiiins Par1c Cultura! Facitity, based on the matanal terms autiined in the atiached Term Sheet, with all finai � agreements sub�eci to the approvai af the City Commission. � , 3 � BACKGROUNDIHtSTORY � laass Approvai �� * ,�enuary 27. 2t}21: The Mayar and C�ty Commission waived competitive bidding to accept ;: an un5o{icited propos�l submitted by Miami New Drama. Inc. (MiND} for approximately �' 16,000 square feet of grourxi floor sp�, �nclud+ng interior space and exterior teRBce �; areas, in the aty-�med Collins Pa�c Garage at 340 23rd Stre�et. 7he prc;pasal out{ined } tho dev�apment of MiND's primary per�nance venue and headquarters, inciud+ng a ` 2U0-seat black box theater, rehearsal space, dressing rooms, and administrarive otfices, �. as weli as anciiiary commeraal uses. induding a sta�dalone restaurandcaf� (the � "Pro�ect'}. �' • October 27. ZQ21: Resalution f�#o. 2021-31914 approved tfie initial Lease Agreemer�t �: beMreen the City (Lancibrd) and MiNO (Tenant), wt�reby MiND comm�tted to independently funding its design and architectura{serv+ces, while the City provided � � 20�1��1214 3 '" . w . , r:�.�=;;; „ �..;;�. ,.. ��,:K ~��d�� .;� ;r :" � �. �,�� e^*�; funding arxf cortstruction for Ewildout impravements, cantin�ni a� a 5250.0� T�ant Confibut�n and a�ropriation of a$4.75 miliion Landlord Cantribution. • Aori! 18. ZQ22: The Lease Agreement was executed. Revised Fundin Altocation . November 2022� Miam� Beach voters approve �e GO$AG Program, which induded a revised ailocatian af$7.67 mrliion to tfie Pro}ect, 4`o!{owing revisian of Project buiid�t cost estimates. • Ju/y 26, 2�23: Resdution No. 2�23-32713 fo�matiy�located $7.67 miNion, sstisfying the C�ty's funding commitment under the�ease. �as�Madification Rac�uest • Auaust 6. 2024 MiND submitted a request to the City Manager for material modifications to the delivery mader, induding transferring fulf responsib;lities for CORSVLjCt10R management and projeci execut� co the Tenant, as well as increasing the La�dlond Cantribution fram $4.75 m�lion to$7.604 m�tion, atigning with the G08AC ailoca�. � September 11. 2Q24: tt►e Administration recommended the Mayor and Gity Commission, refer the Project to the Finance ant! Economic Resiiiency Cnmmittes (FERC) tor further discu5sion. • November 8,2Q24: �e FERC transmitied a fav�able r�ommendation of proposed E.ease modifica#ions, indt�ding conversion afi the ProjecYs funding albcation inta a GQBAC Program grant. , • November 2�. 2t?24: In paralle! with onyoing discussions on propos�c Lease modi�cations, Resolution No 2024-33398 approv+�tfie installation of a temporary a�tistic window cdvering. This installation, funded by the C+ty, no! onty hiqhlights MiND's �rfonnances but��enhances the e�ctenor aesthetics vf the vacant leased premisea. ANALYSlS The follovring sections outtine the risks, key operationa! safeguards, and City oversight mQci�anisms relevar�#to ffie proposed Lease Amendmant. Pro�tammstic an�!Cultural Valu� The Proiect is envisioned as a ccxnerstate aciivation of tt�e Gv�ins Par1c Cuttural Distrtet. Anchared by M�NO's arts progf�rnming, ttfe faciiity �s expected to dnve year-round pubtic engagement through theatncal performances, educationat initiatives, and community events. Under the executed Lease, the GC}AAC aHocatic�n was inten�d to fund capital improvements reiated to the b�:�dt�ut af the CoNins Park Cu#tural �aeiiity, w+th the City rata+ning fttli cantrol and aversight ov�r Pro�ecf exacutic�n. Whiie MiND has demonstrated su�ss managing the programming of the C�y Theatre, devetopm�nt of a new cultural tacility introduces different levels oi ope�ational and financiat complexity. Therefore, any approval of the proposed Lease Ame+�dment and associated Grant Ag�esment shoutd be contmgent upon finanaai safeguards. measurable performance benchmarks, and continu�d City ov�rsight. Z� 14U214 R Shift tn Proiect D�Ihreni Mode! MfND's request represents a signficant shift from a ciry-managed construction mod� to one led by the Tenant. While tfiis may ease administrative burden and potentially expedite delivery, it introduces risks cammonly associated w�cn m�ro-parry canstruction management, such as reduced City oversight on budgeting, c;onstruction quality, a�d project schedul�ng. Although the G.O Bond for Arts and Cufture Program includes limrted-scope grants, for example, funding theate� equipment or digiial upgrades, those grants do not compare in scale or complexity, and there is currently no precedent within the program for delegating full construction management responsibilitiss for a City-owned fac�lity to a third-party grantee. Accordingly, the proposed Lease Amendment and Grant Agreement would establish a precedent for capital delivery in publ�cly awned fac�ht�es and should De carefully evaluated for iong-term implicaUons. Pr�nosad City Safaauards To mitiyafe rasks associated w�th ihe tenant-led canstruction management model, the Admimstration and MiND joindy developed critical safeguards to preserve the Citys financial and operaticnal interests: • execution of a Grant Agreement that �ncorporates provisians typ�cally found in cc�nstruc�ion agreements, mduding reimbursement proto.;ois, dacumentation standards, and parformance expectations; • mdusion of a cross-defautt dause linking the l.ease and Grant Agreement to strengthen enforr,ement mechanisms, • reiention af City oversight nghts with appmvals at ma�or design milestones (309�a, 60%, ;A%, and final construction drawingsj; • required approval of draw requests by the City liaison, with accompanying backup documentation; and • mandating that MiND employ a Construction Manage�at Risk (GMAR) under a Guaranteed Maximum Price(GMP)cantract. inciuding cost containment and approvai p�ovisions. Outstanding Conaiderations 1. Protect Deliv�ry Risk The Admin►sVat►on recommends that any dev�ation from a City-managed delivery model undergo a thorough evaluation of the Tenant's capacity to manage scope, cast, and quality assurance. Although MiND has demonstrated a strong record in cultural programming, it has iimited experience in averseeing targe-scale, municipai capitat im�ovement projects. 2. A�PP Waiver R�uest MiND must request a waiver fram the City's Art m Pub��c Places (AiPP)contribution requ�rement. The G.O. Bond �s sub}ect to public bond covenants; accordingly, the waiver may be in the City's best interest to ensure full ali�ation of available resou�ces to core Project elements. Term Sheet The Administrat�an and MiNO have developed a Term Sheei for a proposed Amendment to the Lease Agreement (Attachment A), which incorporates several key terms to proteci the C�ry's financrai and operatianal fnteresls. au- 205,�1214 L '1 E�es6n��.as.ttin*s•No ci1Mq�rro�os�a l.a..nyr.«w...� ` r�,• c.,c� +�ge..orr cyli+.w+r�e cJl. ,�,a r.nu+t a�e �yw te raz: �nt/�o�d by C:�y C_a+�erswn WasoiiAan t�b d02t-3t9tt -- 'Wrer iN.r fkans inr. •Fbetl�na-fx-peot corpwMen urr�aa.ar+:, T«rwt �urWu�flana�nwx 4qr«nwnt(a M CtMm+1 T'N�atu wAidt k hit�a to 9sr [eua�v a etosb ddauR pretw�ea --�-- _-- -- -— �'PPo��Y 16 000 xqrare fwl d y�w�4 Ibv.r«iw and��brrx spa_e�,— Pt�w�rra ��ae Ga�rrf Plrt PrtYq"v�yqp ��pM+rkp taC�{iocaMtl�t SW 2;tr . �hr.e/�tfre PrapNfyi .___ ._._. _. _ -----.___— . � • ��il�a�'� 5 pNR '.w"n�"d^4°^x.u+D+'K.Y . 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Ch r�t�rw��1r d Gan�Mr�M d+rin4 caw�rnal br cw�w�cif . G�nl�e�rs�wwKs to w co�y�r+a��wMen d corw�w To�xM Oia�.��qwsb rlM w�aAnp docM+�hion wd C1r won Npwal --- , �yprale Gr�t h¢w�rwl rM qov�ons crnnwdq lwrw n�wo�M Mllr C.ir.e Aqreew,w�t � +# goAT cpMYYdbn P� ��M ��`�'^�s �°' �!'xT�Y`c� +nA G+V+�sK bW�� lr6Ria� ol rwdM111y �rmMrt�en�rt' ��w«q�trs#�n.pportnq iof:�an�+ 20zq�„1214 L4J �ISCAl� IMPACT STATEMENT City Financial Conttibution: . $7.604 milli�n in G,O. Bond Grant funding already apprapnated. • No additional cantribution is proposed. • Cansistent with the ariginal Lease, MiND remains solely responsible for all architectural and engineering (A8E)costs that exceed 3250,000. This measure ensures that any averrun beyorxi this threshald is bome entirely by tt►e Tenant. Risk Mitigatio� Measurea: • 10°/a of the Grant to be retained by the City as a contingency dunng constructian, separate from the 5°to contingency contained in the GMP Agreement. • 209�0 of pro�ect scope iden6fied as discretionary for patential value engineenng. • City retains final approval of key canstruction documents and disbursement drawdowns, Does this Ordinanca �eduire a Business Impact E:�tjmate? (FOR ORDINANCES UNLY) If applicable, the Business Impact Estimate (81E)was published on: See BIE at: https:tlwww.miamibeachfl.povicihr-ha{flcity-clerk/meetinq-notices/ FiNANCWL iNFORMATION CONCLUSiON The Administration recommends ihat, upon careful evaluation af these implica6ons, the City Commiss�on author�ze the Administration to negotiate the Lease Amendment and assoc�ated GOBAC Grant Agreement, with MiND, in alignment with the attached Term Sheet and subject to final City Commissian review and approval. Ao licabte Area South Beach {s this a "Residents Ri�ht to Kr�ow" item, Ia thia item related to a G.O. Bond pursuant to City Code Section 2-1T? Proiect? No Yes Was thia A�enda{tem initialtv re�uested bv a lobbyist which� as defined in Code Sec. 2-481, includes a princiQal enaaaed i� lobbyinq? Yes if so, spectify the name of lobby�st(sj and pnncipal(s): Miam� New Drama, Inc_ / N�ck Richberg 20�qf 1214 44 Department Economic Development Sponsor(s� Casponsor(s� Condensed Titte Accept RecJAmend Lease Agreement w/ Miami New Drama, 340 23rd Street. ED Previous Action (For City Clerk Use Oniy) 20�q�214 4 Miami New Drama/Cotlins Parfc Cultural Arts Facility 3�0 23r° Street, Miami Beach Lease Amendment: Key Proposed Terms June 25, 2025 t. Overviaw ot Proiect and Transactio�. The City of Miami Beach ("Gty" or "Landlord") is the fee simpie owne�of certain reai property (the "Property'}known as the "Collins Park Parking Garage,"located at 340 23rd Stre�t, Miami Beact�, Fbnda. The Property indudes a rnunicipal parking garage and associated improvements (the 'Par4cing Garage'), and approximatety 16,Q00 square feet of ground-floor retail space (the "Reta�l Spa�"}. The City and Miami New Drama, Inc. ("MiND" or "Tenant") desire to amend the Lease Agreement dated April 18, 2022('Lease'), which govems the TenanYs use of the Retail Space ('Premises") within the Property. Mind contemplates building out the interior space and additia�al exterior teRace areas pursuant to the essential terms set forth herein and in accordance with the cuRent Conceptual Plan. descnbed in Exhibit "A", wh�ch includes, among other improvements, the mandatory design elements described in Section 4 (the "Buildout Improvements') (collectively, the "Proje�.�t`). 2. B�ildout Resuonsibility. The Lease shall be amended to reflect that the Landbrd will deliver the Premises �n shell condition. Subject to the terms of the Lease Amendme�t and the G.O. Bond Grant Agreement, the Tenant shall be responsibfe for construciing and installing all waNs, partitivrts, f�xtures, fumiture. and equipment (FFSE), and otfier �nterior P►�ect improvements necessary ta make fhe Premises suitable for its inta��ded use. 3. landlard CantributioN Grant A�reement/Construction. The Lease shatl be amended to reflect that the Tenant wili receive a G.O. 6ond Grant. Pursuant to a Grant Agreement, tfie Tenant shalt �ssume full responsibility for aU Pro�ect elements set forth in Section 4 inGuding, withouf limitation, constructron Oelivery, funding, permitting, Contractor selectian (subjeci to the reasonable approval of the Cityj, and aversight of the buildout improvements for the Project. a. Landlard Ccntributian. The totaf G.O. Bond Grant funding ava�lable for this Pro�ect shall not exceed $7,604,400.00 ("G.O. Bond Grant Funds"j; however, Tenant's tota! ava�able funding and budget for construction of the Buildout Improvements shall not exceed Six M�lion Erc�ht Hundred Forty-Three Thousand Six Nundred Ddlars (56,843,600 40) in G.O. Bond Gra�t funding, exdusive of a ten perc,ent (10%} cantin�ency, in the amount of Seven Hundred Six Thousand Fa�r Hundred Dollars(�76Q.40Q.00)to be held by the City, which shall be re{eased in accordance with the terms of the G.O. Bond G�ant Agreement b. Continaencv Drawa. The City shall ho{d !n the event Tenant requests any portion of the contingency he4d by the City for the Buildout Improvements, Tenant shait submit such request to Landlord for Landbrd's review and approval, which approval shall not be unreasonably withheki or delayed; provided, however, that following such request (and taking into account all prior apprav�ci contingency draws}, no less than twenty percent (20°l0) of the onginal cvntrngency tine item shall remain unallocated. Natw�thsta�dmg the faregoing, once the 21�qf�.1214 4v l'ugr_'uJ? Buildout Improvements are at least ninety percent (90�Dj complete, and all associated payments have been made (exduding retainage), and sufficient funds remain in the Budget to cover such retainage, the required unallocated contingency amourtt shall be reduced from Mrenty percent (20%)to ten percent(10°1�). c. Archit� The architect for the Pro�ect shail continue to be TouZet Studio, Inc.("ConsuitanC), subject to the City's reasonaWe approval of the contract beMreen Tenant and tt�e City ("Consultant's Contrad'), to ensure the Ciry's interests are �otected. Te�ant responsible for all required Architecturai and Engineenng ("A&E") costs. CuRendy, Tenant has secured a commitrnent from Miam�-Dade County to fund the A8E c�sts, in the amount of 5250,000.00. and any A&E costs exceeding $250,000.00 shaA be bome by the Tenant. d. �udaet. Tenant shall be responsible for providing tfie City with a budget for the entire Pro�ect ("Project BudgeY}, reflecting all Pro�ed estimated c�ts, induding, without limrtation, A8E expenses, construction costs,and FFB,E costs, for approval by the C�ty. A current budget with the estimated costs is attached hereto as Exhibit "B". 4. Mandatonr Desl�n Elements. The Tenant's approved design plan indudes the folbwing core camponents, subject to possible modi�cations dunng the development process a. Approximately 3,300 sq. ft., 200-seat studio theater ('Theater Space"). including all applicable theatnca) equipment reqwred for Tenant's use af the Prem�ses, b. App�oximately 2,250 sq. R. mullifunctional lounge/bookst�e activation space ("Lvunge Space'); c. Approximatety 2,000 sq. ft. of caf�/restaurant space ("Caf�/Restaurant Space') capable ot secure, �ndependent operation from the remainder ot the Premises, regardless of whether the remainder of the Premises is open to the public; d. Approximately 2,000 sq. ft. community education and rehearsal studio ("Rehearsal Studio Space'�; and . e. Approx�mately 1,700 sq. R. admirnstrative ofFce space ("Office Space'). 5. Additional Minimum Scooe Reauir�nertts. In addiuon to ihe des�gn etements set forth in Section 4 and more part�culariy descnbed in Exhibft B-2 ta the Lease, Tenant shall be responsible for: a. CafeJ Restau�ant Buildaut Contributio�. The Cafe/Restaurant Space shall be construcied to be a fully operational cafe �n accordance with the approved plans and shall indude, at a m�nimum utdity for plumbing, electncal, and HVAC; ventilation sleeves and structural provisians and grease trap and hood irtstallation, for fully operational caf&; and structural elements to accommodate future commercial kitchen equipment installation. b. Th�ator�nd Reheusal Studfo Minimum Scooe. At a minimum, the Theater Space and Rehearsa! Stud�o Space must be constructed as a finished, condiUoned space w�th acousGc isolation appropriat? for performfng arts and rehearsal activ�ties, a res►iient sprung floo� system, dimmable theatrical overhead lighting, and necessary AV infrasWcture (e.g., sound playbade and intercom system), to ensure the space supports its mtended education and publ+c programming function. 211��fT1214 Pagr i nJ S 6. Discretionary Elemenb. City approval of final construction drawings is contingent on the Tenant identifying components totali�g up to 20°,6 of t�e Project Budget as 'non�sseMial." These non-essentiai elements are cons�dered discretionary and may be omitted, upon mutual agreement, to accommodate c�st overruns or necessary value engineenng. 7. Theatrical EQuipnsnt snd Fumitun, Fixtures, and Equfpme�t (FFbEI. Theatrical Equipment (as defined herein) and FF&E-related expenses may be processed either as reimbursed expenses or payment issued in advance, however, any request for upfront payment is limited to an amount not to exceed 3500,000. Theatrical Equipment shall mean any fumiture, fixtures and equipment for the Theater SpBce, necessary to accommodate a fully iunctioning performance theater, which would indude, without limitation, tighting, cameras, sound, auditorium seating, curtains and other related theatrical improvemertts and persaiatty. FFBE shall mean any other improvements and items of personal property for the Project, wh�ch are typicaNy Furchased after substantial campletion af the Pro�ect and may indude, without limitation, props, decorations, seating and other fumishings outside af the theater(CafelRestaurant Space, Lounge Space, Rehearsal Studio Space and Office Spac�), decaations. booths, tables, kitchen and Cafe related appliances and equipment. Pnor to request�ng an advance for any Theatrical Equipment or FFBE-related expenses to be procured outside of the GMP Agreement(3MP Agreement to delineate Theatncal Equipmant and FF$�E inciuded), the Tenant shall provide the City with an item�zed list of the FFBE ftems to be paid from the G.O. Bo�d Grant Funds. Tenant shafl be responsible for payment of any costs assoaated with tt►e Theatrical Equipment and FF�E which exceed the amount of the G.O. 6ond Grant Funds. 8. Desjan to Buds�et. Atl Pro�ect improvements shall c�nform to a des�gn-to-budget approach, not excesding the approved G.O. Bond Grant Funds. This indudes: a. Preconstrvction services b. Perrrtitting c. Theatncal Equipment and Fumiture, Fixtures & Equ�pment (FFBE) d. Art in Public Places (AIPPj contributions, if app{icaWe e. LEED ceRification f. Survey and matenais tes6ng g. Contingency allowance h. Hard construc6o� costs 9. Landlord A�Droval of Design QevQloament. The Tenant shall submrt the follcmnng for landbrd s rev�ew and approval: a. 30•� construction drawinqs within 90 days of execution of the Lease amendment, b 60% construction drawinys within 90 days ot approval of the 30°% drawmgs; c. 90°/.conatructlan drawings within 90 days of approval of the 60% drawings; and d. Final plana and specifications within 30 days of 9096 drawing approval. Landbrd commeMs shatl be provided wrth�n 14 calendar days after each submittal. 21?,�f81214 L P��r d u/ i 10. Roquirem�r�t for G.O. Bond Grant A�reerrNnt. The G.O. Bond Grant Agreement shall indude teRns generally included in a work tetter to govem constructiqn procedures, approval processes, the disbursement of the G.O. Bond Grant Funds, and other matters relating to Project delivery. 11. Const�uction Manats�er at Risk. Tenant sha11 retain a Construction Manager at Risk (CMAR1 usirtg a Guarantee�Maximum Price(GMP)contract defivery method.The CMAR shaf!provide both pre-construction and construction phase serv+ces. 12. GMP Agreement. The GMP c�nstruction contract between the Tenant and Contractor shall be subject to the approval by the City of the construction agreement between the Tenant and the Contractor, to ensure that the City's inte�ests are protected. The GMP construction contract and the schedule of values attached thereto (cdlectively, the "GMP AgreemenC) shall: a. tnciude a co�Ungency tine item equal to 5?'0 of the total Project impravement costs; b. Nai exceed the total avadab�e G.O. Bond Grant Funas for the Project improvements covered by the GMP consirudion contrct. c. Require that the contractor bear any costs in excess of the GMP Agreement, d. Require buy-out of: i. Each line item over 5200,000, and ii. 80% of totai Pro�ect costs pnor to co�strudion commencement. The Cfty shall have 21 days to approve or disapprove the GMP Agreement following receipt. If no response ;s provided, the GMP shall be deemed approved. 13. PrioritizaUvn of Theate� $pace. It is the understanding of the Parties that the cultural elements of the Pro�ect shall be pr�w�t�zed at all Gmes. 14. Disbursemtrtt oT G.O. Bond Grant Funds. Disbursement of G.O. Bond Grant Funds shall be based on approval, by the City's ass�gned tia�son, of monthly draw requesis with supporting documentatbn, induding invoices, lien releases, contractor alFdaviis, consent of surety, progress reports, progress schedule, progress photos, and other documentation typ�cally required m a construct�on Work Letter and as may elso be requested by the City. 15. Performanc� and Pavment Bond. Tenant shall require its general contractor to obtain performance and payment bonds in the full contract va{ue. issued by a surety acceptabie to the C�ry. �&. ondominium. Upan approval of the final plans for the construction of the Protect, the C+ty may requrre that the ProQerty be ooriverted into a condomirnum form oi ownersh�p. !n such case, the City, at its sde cost, shaN p�epare a Oeclaration of Condominium, subdividing the Property i�to separate condaminium units, based upon the intended uses for the Project, currendy anticipated to be a. A RestauranUCafe cpndominium unit; b. Parlung Garage condominium unit(s}; and c. A Cunural Center condominium un�t. 21�,p��214 L ".!: Tenant agrees to�om �n the execuhon of sa�d Dedarat�on of Condom�n�um �f requested by the c:ty 214,{;f�214 L� Pagt 6 u/S Exhibits "A"- Current Co�ceptual Pfan "8'-Preliminary Project Budget `C" - Preliminary Development Timeline 215,��214 L MIAMI NEW DRAMA COLLINS PARK CULTURAL CENTER PROJECT BUDGET ESTIMATE PLANNING PHASE DRAFT PROJECT NAME: M'sa�ri New Dr�na Co�ins Parlc Culturat C� Interior buildout of Collins Park Garage ground floor - elements as perLease agreement and G.O.B. funding PROJECT DESCRIPTION: requirements. ITEM DESCRIPTION P�NING PHASE PROJECT COST A. Construction Costs $ 5,104,000.00 B. Furnishings, Fixtures 8 Equipment $ 1,000,000.00 C. Construction Admin $ 150,000.00 D. Pre-con Management $ 100,000.00 E. Other Costs (LEED, etc) $ 100,000.00 F. Permiting $ 150,000.00 G. CoMB Cantin enc $ 760,400.00 H. MiND Contin ency $ 239,600.00 TOTALS: s 7,604,000.00 216��214 21��1214 j� . , .�� :111 � ��.. ,�_�. 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