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97-22574 RESO RESOLUTION NO. 97-22574 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A SECOND AMENDMENT TO GROUND LEASE AND CONSTRUCTION AGREEMENT BETWEEN THE CITY AND MIAMI CITY BALLET, INC., FOR THE PROPOSED PERMANENT FACILITY FOR THE MIAMI CITY BALLET TO BE LOCATED IN THE COLLINS PARK DISTRICT OF MIAMI BEACH. WHEREAS, on April 13, 1994, the City and Miami City Ballet, Inc. executed a Ground Lease Agreement for a proposed permanent facility for the Ballet on a certain site located near the City Center of Miami Beach (Designated Site); and WHEREAS, on June 18, 1997, the Mayor and City Commission approved Resolution No. 97-22420, amending the Ground Lease Agreement by changing the location of the Designated Site for the proposed permanent facility for the Ballet to one located in the Collins Park District of Miami Beach (New Site); and WHEREAS, pursuant to the terms of the Amendment to Ground Lease, the City and the Ballet have negotiated the foregoing Second Amendment to Ground Lease and Construction Agreement, identifying and designating the site for the proposed Miami City Ballet permanent facility within the aforestated area, and further clarifying certain terms and conditions of the Ground Lease Agreement, as well as incorporating the terms of the Construction Agreement required pursuant to same. 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 approve and authorize the Mayor and City Clerk to execute the attached Second Amendment to Ground Lease and Construction Agreement between the City and Miami City Ballet, Inc., for the proposed permanent facility for the Miami City Ballet to be located in the Collins Park District of Miami Beach. PASSED and ADOPTED this October ATTEST: ~t{J~ CITY CLERK APPROVED AS TO FORM & lANGUAGE & FOR EXECUTION F:\A TTO\$ALL IBEVlBALLETLS. RJ A ~ 1P{rf'7 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 COMMISSION MEMORANDUM NO. 7 ol..r,- 'if TO: Mayor Seymour Gelber and Memben of the City Commission .~ FROM: Jose Garcia-Pedrosa ~ltr/ City Manager J H: 'I DATE: October 21, 1997 SUBJECT: RESOLUTION OW THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A SECOND AMENDMENT TO GROUND LEASE AND CONSTRUCTION AGREEMENT BETWEEN THE CITY AND MIAMI CITY BALLET, INC., FOR THE PROPOSED PERMANENT FACILITY FOR THE MIAMI CITY BALLET TO BE LOCATED IN THE COLLINS PARK DISTRICT OF MIAMI BEACH. RECOMMENDATION: Approve the Resolution BACKGROUND: At the June 18, 1997 City Commission meeting, an Amendment to the Ground Lease between the City of Miami Beach and the Miami City Ballet was approved, changing the location of the designated site to a portion of. the property intended for the Cultural Complex in the Collins Park area. Specifically, the Miami City Ballet facility will be on the southern portion of the block bounded by 22nd Street, Park Avenue, 23rd Street and Liberty Avenue, as indicated on the attached survey. At the time that the building plans are finalized and approved, a specific legal description of the site for the Miami City Ballet building will be prepared. ANALYSIS: Currently, the Commission is being requested to approve a Second Amendment to the Ground Lease and the Construction Agreement. The revisions to the Ground Lease reflect changes resulting from the location of the facility within the proposed Cultural Complex. Additionally, the Administration is recommending waiver of permit fees to assist the Miami City Ballet in expediting tITe process by relieving them of this financial obligation. DATE R-;J-L 10,21"11 AGENDA ITEM ... The original Ground Lease references a Construction Agreement. This document has been incorporated into the Second Amendment in Paragraph 19. Furthermore, the Administration recognizes that a Third Amendment to the Ground Lease will be required to address parking. The Miami City Ballet will meet its parking requirements within the proposed parking garage for the Cultural Complex. The original Ground Lease indicated that parking would be provided at a discounted rate. However, the proposed garage will be built utilizing Parking Bonds and may require that parking rates be based on fair market value. The Administration will seek clarification from Bond Counsel and Bond Advisors on this matter and submit a Third Amendment to the Commission resolving the parking provisions. CONCLUSION: The Administration believes that approval of the Second Amendment to the Ground Lease and Construction Agreement will enable the Miami City Ballet to continue to the momentum necessary to enable this project to break ground in the spring of 1998. Therefore, the Administration recommends that the Commission authorize the Mayor and City Clerk to execute the Second Amendment to Ground Lease and Construction Agreement between the City and Miami City Ballet, Inc. JGP :HSM :MSD: jm Attachment ...,,, .. ~~~ e~T_r ::-~ .. 11 nIl'" III ,c.. - , - ., ~~ "':il~ ~ ,,~ ~ ,.. .... ( , , .1' c,....'~ c ~. I?~ ... . ;.,. JlI joJ ~ ~,~ ... 11 r1 =.il- I ~II l> ~I .~~tl ~ .,. , . ~ g '. ' ~ .' N N ~ ~ ~. " c !,. 00 '^ \/I 6 II -<. J . I ~ ~ ~ 1 b ~~ H ~ ?i ~ F " lq.. :!: , oj ~: H i~ ~ ~ ~o ii 'I !- ,d I , ! H ,m dfl'. ii fj , <:... " !; " ----------r-------'--~--- t t~ -~ I' '" - -< n"i ~t i j~ t " " I'! ~ 11 ~ii 1-, v i , I -, if;;! ~, ! 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H ,., fl t t t,."", I.. .j, i';~. : ). ,~.,~ , . ~: ' '. :--', SECOND AMENDMENT TO GROUND LEASE AND CONSTRUCTION AGREEMENT THIS SECOND AMENDMENT TO GROUND LEASE AND CONSTRUCTION AGREEMENT, is made as of the 11: day of Dc tober , 1997, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation (Landlord or City) and MIAMI CITY BALLET, INC., a Florida not-for-profit corporation (Tenant or Ballet). WITNESSETH: WHEREAS, on April 13, 1994, the City of Miami Beach and Miami City Ballet, Inc. executed a Ground Lease Agreement for a proposed permanent facility for the Ballet on a certain site located near the City Center of Miami Beach (Designated Site); and WHEREAS, on June 18, 1997, the Mayor and City Commission approved Resolution No. 97-22420 amending the Ground Lease Agreement by changing the location ofthe Designated Site for the proposed permanent facility for the Ballet to one located in the Collins Park District of Miami Beach (New Site); and WHEREAS, pursuant to the terms of the Amendment to Ground Lease, the City and the Ballet have negotiated the foregoing Second Amendment to Ground Lease and Construction Agreement, identifying and designating the site for the proposed Miami City Ballet permanent facility within the aforestated area, and further clarifying certain terms and conditions of the Ground Lease Agreement, as well as incorporating the terms of the Construction Agreement required pursuant to same. NOW THEREFORE, in consideration of the premises and other good and valid consideration, the City and the Ballet now agree to amend the said Ground Lease Agreement as follows: 1. The Recital of the said Ground Lease Agreement shall be amended to read as follows: Landlord, in order to create a significant educational and cultural facility for the use and enjoyment of the general public and for and in consideration of the covenants hereinafter made by Tenant, and the covenants and agreements hereinafter contained to be kept and performed by Tenant, does hereby agree to use its best efforts to acquire the fee ownership of that certain real property described in Exhibit "A" attached hereto and made a part hereof 'vvfiieh eongigtg of approximfitc1y 113,800 gqUttl'e feet ofland, morc or }egg, located in the City of Miami Beach, Dade County, Florida, and, subject to such acquisition, Landlord agrees to demise, lease and let unto Tenant for the terms and upon the conditions hereinafter stated, a site located within the said real property, to be mutually agreed on by Landlord and Tenant that ifteludc3 fl minimum of 40,000 gqUftfC feet, together with all appurtenances to such land, including, without limitation, all vegetation air rights, easements, rights- of-way or appurtenances to be acquired by Landlord and held in connection with such land, and all rights Landlord shall acquire in and to any streets, sidewalks, alleys and land lying in the bed of existing or proposed streets adjacent to such land (collectively, the "Land"), for the Term (as defined in Section 2.01) subject to the covenants, agreements, terms and conditions hereinafter set forth, to each and all of which Landlord and Tenant mutually agree. 2. The first sentence of Section 3.01 shall be amended to read as follows: Section 3.01 Building Defined. "Building" shall mean an approximately Sixty Thousand (60,000) square foot building, complete with utility equipment for space and after heating, plumbing and electrical systems, air conditioning, interior and exterior lighting fixtures, finished carpentry and mill work, yard work, entrances and exits, sewage disposal, water lines, electrical, power and gas lines and connections, soil compaction, grading, site improvements, curbing, pa-.iftg for pa:rkiftg tlfea8 flfid 'n alk.Vay8, landscaping, exterior lighting for the Building, exterior and interior finishes and such other items relating to such building as shall be specified in the Working Drawings. "Working Drawings" shall mean detailed architectural working drawings and materials specifications for the construction of the Building prepared by Tenant's architect at Tenant's sole cost, to be prepared and sealed in such a manner as may be required for the issuance of the Building Permit (as defined in Section 3.05). The Building shall be designed and constructed by Tenant for the use ofthe Miami City Ballet as a Dance Pavilion, Museum and School (the "Facility") pursuant to the terms of this Lease and the Construction Agreement. t6 be elt1:erea ilt1:6 bet-v';eeft the partie8 v.ithift five (5) mOftth8 6fthe Lea8e Exeeutioft Date (the "Cc)ft3truetielft Agreemclt1:"). 3. Sections 3.02, 3.03, and 3.05 shall be amended only to the extent that Landlord agrees to waive any City of Miami Beach application fees related to zoning approvals for the Building, and any building permit fees required to commence construction of the Building. 4. Section 3.03 shall be amended to read as follows: Section 3.03 Zoning. The parties acknowledge that, as a condition precedent to the construction of the Building, Landlord shall secure all final, non-appealable zoning approvals and actions required by the City of Miami Beach in order (a) to build the Building in accordance with that certain site plan entitled Miami City Ballet, prepared by Arquitectonica, dated March 15, 1994 and dated la8t revi8ed April 12, 1994 September 29, 1997 (the "Site Plan"), and (b) to utilize the Facility for its intended purpose. If such zoning approvals and action are appealed, then Tenant shall be responsible for the payment of both parties' attorneys' fees and costs. 5. Section 3.06 shall be amended to read as follows: Section 3.06 Delivery of Possession of Land to Tenant. No later than five (5) days after receiving Tenant's Building Permit notice, Landlord shall deliver possession of the Land to Tenant in writing (the "Possession Date"). On or before the Possession Date, Tenant shall provide evidence to Landlord of the insurance required by Article 15 below. Prior to the Possession Date, Landlord, its employees, agents, invitees and licensees, may pftfk their vehiele3 Oft the use any portion of the Land that is presefttly used a3 a public parking lot, provided that, Landlord shall insure this use of the Land at Landlord's expense. 2 6. Section 3.07 shall be amended to read as follows: Section 3.07 Commencement of Construction. Within six (6) months of the Possession Date, Tenant shall commence construction of the Building; notwithstanding the foregoing, in no event shall Tenant commence construction of the Building later than thirty (30) months after execution of the Second Amendment to Ground Lease and Construction Agreement by both Landlord and Tenant. Thereafter, Tenant shall diligently prosecute and complete construction ofthe Building no later than eighteen (18) months after commencement of such construction subject to Unavoidable Delays, as such term is defined in the; Celfi3truetion Agrccmc1t1:. below. "Unavoidable Delay" means delays due to strikes. slowdowns. lockouts. acts of God. inability to obtain labor or materials. war. enemy action. civil commotion. fire. casualty. catastrophic weather conditions. a court order which causes a delay (unless resulting from disputes between or among the party alleging an Unavoidable Delay. present or former employees. officers. members. partners or shareholders of such alleging party or affiliates or present or former employees. officers. partners. members or shareholders of such affiliates of such alleging party). the application of any Law. or another cause beyond such party's control or which. if susceptible to control by such party. shall be beyond the reasonable control of such party. Such party shall use reasonable good faith efforts to notifY the other party not later than twenty (20) days after such party knows of the occurrence of an Unavoidable Delay: provided. however. that either party's failure to notifY the other of the occurrence of an event constituting an Unavoidable Delay shall not alter. detract from or negate its character as an Unavoidable Delay or otherwise result in the loss of any benefit or right granted to the other party under this Lease. In no event shall (i) any party's financial condition or inability to fund or obtain funding or financing constitute an "Unavoidable Delay" with respect to such party and (ii) any delay arising from a party's (or its affiliate's) default under document as defined in this Lease constitute an "Unavoidable Delay" with respect to such party's obligations hereunder. The times for performance set forth in this Lease (other than for monetary obligations of a party) shall be extended to the extent performance is delayed by Unavoidable Delay. except as otherwise expressly set forth in this Lease. 7. Section 3.09 shall be amended to read as follows: Section 3.09. Tenant's obligations at Substantial Completion. Upon the Substantial Completion of the Building, fi3 defined in the Construetion Agreeme1t1:, Tenant, at its sole cost and expense, shall furnish to Landlord; (a) a certificate from Tenant's' architect certifying that the Building has been completed substantially in accordance with the Working Drawings, (b) a true copy of the permanent certificate of occupancy issued by the City of Miami Beach Building Department, (c) a true copy of all other permits and certificates issued by governmental authorities for the operation of the Building for its intended use, and (d) a true copy of the "as built" plans for the Building. "Substantial Completion" means. with respect to the Building. that (i) it shall have been substantially completed in accordance with the Working Drawings as certified by the Architect. and (ii) it shall have been issued a certificate of occupancy. 3 8. Section 3.10 shall be deleted in its entirety; the parties have agreed to incorporate the terms of the Construction Agreement into this Second Amendment to Ground Lease and Construction Agreement. Any reference to the Construction Agreement in the Lease shall pertain to those certain terms and conditions as set forth under Paragraph 19 of this Second Amendment to Ground Lease and Construction Agreement. 9. Section 4.02 shall be amended to read as follows: Section 4.02 Adjustments to Rent. In the event that Tenant loses its tax exempt status, or the Building converts to a private use. Landlord and Tenant shall re-negotiate the amount of base rent to be paid by Tenant under this Lease to be equal to the Fair Market Rental for the Land. If Landlord and Tenant cannot agree on the new amount of base rent within sixty (60) days after Tenant's loss of its tax exempt status. or of Tenant's notice to Landlord of its intent to convert the Building to a private use, then Tenant may W terminate this Lease by written notice of termination delivered to Landlord. or (b) request thttt the issue of ffiir mtlfket rentfil be subfi1itted to tlfbitrfitiofi in fieeordtmee \vith the proeedures outlined in Article 26. 10. Section 5.03 shall be amended to read as follows: Section 5.03 Taxes Defined. "Taxes" means all real or personal property taxes levied against the Land or the Building. Nothing herein, however, shall require Tenant to pay municipal, state or federal income, inheritance, estate, succession, transfer or gift taxes imposed upon Landlord, or any corporate franchise tax imposed upon Landlord. It i3 under3tood thfit, the Ltmd is not pre3ently subject to the pfiyment of refil property Tfixe3. To the best of their knowledge. it is understood by the parties that. on acquisition by the Landlord. the Land may not be subject to the payment of real property Taxes: however Landlord makes no representations or warranties. either express or implied. as to that understanding. Landlord shall join with Tenant in submitting and pursuing any application, petition or request required or permissible in order to preserve the Tax exempt status for the Property. Landlord's cooperation shall include joinder in Tenant in any appeal of a denial of Tax exempt status for the Property, within the context of an appropriate administrative proceeding or in a court of competent jurisdiction. Tenant shall pay any and all costs and expenses in connection with any efforts to obtain or maintain Tax exempt status for the Property. Notwithstanding the foregoing. however. in the event at any time during the Term of this Lease. the Land or the Property become subject to the payment of Taxes. Tenant shall be exclusively responsible for all payments of same. 11. Section 7.01 shall be amended to read as follows: Section 7.01 Title to the Land. Landlord represents acknowledges that Landlord is not the fee owner of the Land described in Exhibit "A" as of the execution date of this Second Amendment to Ground Lease and Construction Agreement. Landlord shall use its best efforts to obtain fee ownership ofthe said Land within six (6) months of execution ofthis Second Amendment to Ground Lease and Construction Agreement, which ownership is shall be unencumbered by any 4 lien or security interest. Landlord ftftd also represents that there ftfe will be no covenants, conditions, restrictions, rights-of-ways and/or easements or other matters relating to or encumbering the Land which would interfere with the construction obligations of Tenant under Section 3.02 or the utilization of the Facility by Tenant as contemplated in this Lease. Landlord and Tenant agree that the acquisition of the fee ownership of the Land by Landlord is a condition precedent to the effectiveness of this Lease. 12. Section 7.02 shall be amended to read as follows: Section 7.02 Title Opinion and Permitted Exceptions. Landlord shall deliver to Tenant, within thirty (30) days of the Lefl:3e Exeeution Date date on which it acquires the fee ownership of the said Land, an opinion of title, (the "Title Opinion") prepared by counsel for Landlord, together with copies of all exceptions to title. The Title Opinion shall confirm that Landlord is the fee owner of the Land and shall further confirm that the Land in subject only to those exceptions enumerated in the Title Opinion (the "Permitted Exceptions"). 13. Section 9.01 shall be amended to include minimum hours of operation for the Property, from 9:00 A.M. to 5:00 P.M., Monday through Friday. 14. Section 17.02, entitled Maintenance by Landlord, shall be deleted in its entirety. 15. Article 19, entitled Development of City Plaza, shall be deleted in its entirety. 16. Section 26, entitled Arbitration, shall be deleted in its entirety and replaced with the following: Section 26. Venue. This Lease shall be governed by and construed in accordance with the laws of the State of Florida. This Lease shall be enforceable in Dade County, Florida, and if legal action is necessary by either party with respect to any enforcement of any or all of the terms or conditions contained herein, exclusive venue for the enforcement of same shall lie in Dade County, Florida. 17. The last sentence of Section 27.01 shall be amended to read as follows: Section 27.01. City Funding. Prior to disbursement of the Grant, Tenant must provide Landlord with evidence that Tenant has $2,500,000.00. in cash and pledges. available to it for funding of Tenant's portion of the construction costs. 18. Section 27.05 shall be amended to read as follows: Section 27.05. Performances at the Theater of the Performing Arts. Landlord and Tenant sftttH: have each useg their good faith efforts to negotiate and execute a performance agreement (the "Performance Agreement"), originally dated August 15. 1994. and amended on May 21. 1997. which will recognize~ Tenant's obligation to cause its Ballet Company to perform a certain number of its 5 Dade County performances at the Theater of the Performing Arts ("TOPA") located in the City of Miami Beach. While providing for Tenant's utilization of TOPA, the Performance Agreement will recognize~ certain written commitments made by Tenant for the Ballet Company to perform at the Dade County Performing Arts Center (the "Center") from and after the date the Center is constructed and is in operation. The Performance Agreement -gftttH also contain~ all conditions of Tenant's utilization of TOP A, including any modifications to the theater required in order to accommodate the Tenant's productions. In the eveft1:, for any rcason, desl'ite Landlord and Tenfiftt's good faith efforts, the parties Me unable to exeetlte the Performtlftee Agreement vvithin thirty (30) days of the Lea3e Execution Date, this Lease shall be null ttficl void and both parties shall be rcleased from all obligtttions hercunder. 19. Construction Agreement As stipulated in the Lease, the following definitions and terms are mutually agreed upon by Landlord and Tenant. (a) "Building Permit Date" - as required pursuant to Section 3.05 of this Lease, Tenant agrees to make good faith effort to obtain the Building Permit on or before April 1, 1998. (b) "Building Permit Termination Date" - as required pursuant to Section 3.05 of this Lease, if Tenant fails to obtain the Building Permit by August 1, 1998, then such failure shall be considered an Event of Default pursuant to Article 23 of this Lease. (c) "Construction Schedule" - as required pursuant to Section 3.08 of this Lease, the parties agree to the following construction schedule. 1997 September November 29 4 Plans submitted to City of Miami Beach DRB DRB Hearing 1998 April June 1 1 (all dates hereafter, "or earlier") Application for Building Permit COMMENCE CONSTRUCTION (foundation) 1999 May 1 Building complete, Tenant occupy 20. Section 27.08, entitled Notice, is amended, replacing Tenant's counsel as follows: Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 Attn.: Lucia Dougherty, Esq. 6 21. All terms of the Ground Lease dated April 13, 1994, as amended, that are not specifically amended by this Second Amendment to Ground Lease shall remain binding on Landlord and Tenant. IN WITNESS WHEREOF, Landlord and Tenant have caused these presents to be executed the day and year first above written. WITNESSES: ~~d- ..... ' {) Name:) .' ~ \-: r;;J, 71"'/(:~ tf-Srt LANDLORD: ATTEST: ~~ f(M,~ City Clerk ~Oh~ ~- .~ Name: 5Af'MJ(LA~V)\ L-LO TENANT: WITNESSES: MIAMI CITY BALLET, INC., a Florida non- for-profit corporation .~ '.~ \:.':;', '" . ~"" '. . Name: fi., . I ;. ".. ,1, '.', :,' ,; ~~- Name: -B-, ~L(l~ By: ,///~ RJA\kw F:\AlTOIAGlIR\AGREEMN'i'lMIABALGL.2AM i I { I ! / \,----// APPROVED ~ TO FORM & LANGUAGE & FOR EXECunON ~'Ii...,J4 I c)~tn 7