Joinder to 3rd Amend, to Lease
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Robert Parcher
City Clerk
FROM: Raul J. AgUil$(j^--
First Assistant 'City fttomey
SUBJECT: Miami City Ballet
DATE: October 27, 1999
For your files, attached please find an original, executed version of the Joinder to Third
Amendment to Ground Lease regarding the above-referenced matter. The Corrective Notice and
Memorandum of Ground Lease is currently being executed by the Ballet and recorded in the Public
Records, Upon receipt of the recorded document, I will forward same to your attention.
Should you have any questions regarding the foregoing, please let me know.
RJA\kw
FIA TTOIAGURIMEMOSIMCBDOCS,RP
Attachment
ACKNOWLEDGED and RECEIVED by:
to--l / - c; CI
Date
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JOINDER TO THIRD AMENDMENT TO GROUND LEASE
The City of Miami Beach Redevelopment Agency (the "CMBRA") hereby joins, as
lessor as to the CMBRA Property (as hereinafter defined), in that certain Ground
Lease Agreement dated April 13, 1994 by and between the City of Miami Beach, a
Florida municipal corporation, as lessor, and Miami City Ballet, Inc" a Florida not-
for-profit corporation, as lessee (the "Original Lease"), as modified by that certain
Amendment to Ground Lease dated June 18, 1997 (the "First Amendment"), by that
certain Second Amendment to Ground Lease and Construction Agreement dated
October 21, 1997 (the "Second Amendment"), and by that certain Third Amendment
to Ground Lease dated June 6, 1999 (the "Third Amendment") (the Original Lease,
as modified by the First Amendment, the Second Amendment and the Third
Amendment being hereinafter collectively referred to as the "Lease"), a copy of
which Lease is appended hereto as Schedule "1" and made a part hereof, for the
following purposes:
(i) to acknowledge that the CMBRA is the lessor under the Lease with
respect to that certain portion of the Premises (as defined in the Lease),
more particularly described in Schedule "2" attached hereto and made a part
hereof (the "CMBRA Property"); and
(ii) to ratify the terms and conditions of the Lease in all respects, fully as if
the CMBRA had originally executed the Lease as lessor thereunder with
respect to the CMBRA Property.
IN WITNESS WHEREOF, the CMBRA has executed this joinder effective as
of April 13, 1994,
WITNESSES:
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CMBRA:
CITY OF MIAMI BEACH
REDEVEL MENTAGENCY
gio Rodriguez
ecutive Director
a.~
Print Name: . ~~
APPROVED p.s TO
FORM & LANGUAGE
& FOR EXECUTION
MIA1 #859160 v2
1!J1t:fl!cy Lr(;:I't
General Counsel
SCHEDULE "2"
CMBRA Property
Lots 2 and 4, Block 1, OCEAN FRONT PROPERTY OF THE MAIMI BEACH
IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book
5, page 7 and 8, of the Public Records of Miami-Dade County, Florida.
MIAl #859955 vI
SCHEDULE "1"
GROUND LEASE AGREEMENT
BETWEEN
CITY OF MIAMI BEACH,
a Florida munldpaI corporation
and
MIAMI CITY BALLET, INC.,
A FLoRIDA NOT-FOR-PROFIT CORPORATION
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TABLE OF CONTEN'l'S
lOR
GROUND LEASE BETWEEN
CITY OF MIAMI BEACH, AS LANDLORD,
AND MIAMI CITY BALLET, INe., AS TENANT
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ARTICLE 2.
INTENTIONALLY OMITTED . ·
. . . . .
.......
1
1
1
1
2
2
ARTICLE 1. TERM
Section 1.01.
Section 1.02.
Section 1. 03.
Section 1.04.
...............
Term . . . . . · · · · · ·
Commencement Date Defined .
Expiration Date Defined · ·
Memorandum . . · · .
.......
.......
.......
.......
.......
ARTICLE 3. CONSTRUCTION OF THE BUILDING . . . . . . · . .. 2
Section 3.01. Building Defined . . . . . . . . · . .. 2
Section 3.02. Responsibility for Construction of
Building .... . . . . . . . . · . .. 3
section'3.03. Zoning . . . . . . . · · · .. 3
Section 3.04. Easements. . '. . . . . . . . . . · . .. 3
Section 3.05. Building Permit. . . . . . . . . · . .. 4
Section 3.06 Delivery of possession of Land to
Tenant . . . . . . . . . . . . . . . .. 4
section 3.07. commencement of Construction . . . · 4
section 3.08. Construction schedule. . . . . .. 4
Section 3.09. Tenant's Obligations at Substantial
Completion . . . . . . . . . . . . . .. 5
Section 3.10. Obligation to Negotiate Construction
Agreement in Good Faith . . . . . . · .. 5
Rent . . . . . . .
Adjustments to Rent . .
. '.
. . . . .
5
5
5
ARTICLE 4. RENT
Section 4.01.
Section 4.02
. . . . . .
~ . . .
. . .
. .
. . . . . . .
.......
ARTICLE 5. TAXES AND,iASSESSMENTS . . . . . . . . . . .. 6
Section 5.01. Payment by Tenant. . . . . . . · . · .. 6
Section 5.02. Receipts ...... . . . . . . .. 7
Section 5.03. Taxes Defined . . . . . . . . · · · · .. 7
section ~.04. Apportionment. . . . . . . . · · · · ., 8
Section 5.05. contest by Tenant . . . . . . · · · · .. 8
Section 5.06. Joinder in contest by Landlord . . · ., S
ARTICLE 6. TENANT RESPONSIBLE FOR U'l'ILITIES . . · · · · .. 9
Section 6.01. Tenant Responsible for Utilities .' .. 9
ARTICLE 7. TITLE TO THE LAND . . . . . . . . . · . · · · ., 9
Section 7.01. Title to the Land. . . . . . . . · . .. 9
Section 7.02. Title Opinion and Permitted Exceptions · 9
Section 7.03. Objections to Title. . . . . . . · .'.. 9
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ARTICLE 8. TITLE TO THE BUILDING. . . . . . .
Section 8.01. Title to the Improvements.
ARTICLE 9. USE OF PROPERTY ... . . . . . . . .
Section 9.01. Use of Property. . . . . .
. . . .
. . . . . .
.......
.......
ARTICLE 10. INSTALLATIONS BY TENANT . . . . . .
Section 10.01. Installations by Tenant. . .
. . . .
. . . . . .
ARTICLE 11. BOND REQUIREMENTS; RESPONSIBILITY TO DISCHARGE
LIENS . . . . . . . . . . . . . . . . . . . .. 11
section 11.01. Bond . . . . . . . . . . . . . · . · .. 11
Section 11.02. Construction Liens . . . . . . . . · .. 11
Section 11.03. Discharge of Liens .... . . . . · .. 11
ARTICLE 12. ASSIGNMENT OR SUBLEASING. . . . . . . . · · .. 11
Section 12.01. Conditions of Assignment . . . . . · .. 11
Section 12.02. Transfers to Leasehold Mortgagees. . .. 12
Section 12.03. Release of Tenant's Liability. . . . .. 12
Section 12.04. Sublease Requirements. . . . . . . . .. 13
ARTICLE 13. LANDLORD'S AND TENANT'S MORTGAGES . ... · · .. 13
Section 13.01. Landlord's Mortgage. . . . . . . · · .. 13
Section 13.02. Tenant's Mortgage. . . . . . . . · · .. 14
ARTICLE'14.
Section
Section
Section
CONDEMNATION . . . . . · . . . . . · · · · · . .
14.01. Apportionment of Award · · · · · · · · ·
14.02. Lease to Terminate if Total Taking · · .
14.03. Lease to Remain in Effect if Partial
Taking ..... . . . · · · · ... · · · · .
14.04. Disputes . . . · · . · . . · · · · · · ·
14.05. Temporary Taking . . · · . · · · · .
Section
Section
ARTICLE 15. INSURANCE AND INDEMNITY . . . . . . . · · · .. 18
Section 15.01. Construction of Building . . . . · · .. 18
section 15.02. Insurance After Substantial completion of
Building . . . . . . . . . . . . . · .. 19
Section 15.03. Indemnification of Landlord. . . · · .. 20
Section 15.04. Indemnification of Tenant. . . . . · .. 20
ARTICLE 16.
Section
Section
Section
Section
Section
Section
DAMAGES TO BUILDING · . . · · · . · · . · · · .
16.01. Building Usable · . · · · · · · · · · · ·
16.02. Building Unusable · · · · · · · . · · · ·
16.03. Expenditures by Tenant · · · · · · · · ·
16.04. Failure of Tenant to Repair or R..tor. ·
16.05. Disputes ......... · . · · · · .
16.06. Governmental Prohibitions · . · . · . . ·
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10
10
10
10
10
15
15
16
16
17
18
21
21
21
21
22
22
22
ARTICLE 17. MAINTENANCE . . . . · . . . . . . . . · .
section 17.01. Maintenance by Tenant. . .
Section 17.02. Maintenance by Landlord. . .
. . . . .
. . . .
ARTICLE 18. ALTERATIONS ...... · · · · . · · . · . . .
Section 18.01. Right of Tenant · . . . . . . · · . . . .
Sectio~ 18.02. Substantial Defined. . . · . . · · · · ·
ARTICLE 19. DEVELOPMENT OF CITY PLAZA AND REALIGNMEN'l'
OF CONVENTION CENTER DRIVE . . · . . . .
section 19.01. Development of city plaza · . · ·
ARTICLE 20. SURRENDER OF PROPERTY · · ·
Section 20.01. Surrender of Property
. . . .
. . . .
. . .
.......
. . .
.......
ARTICLE 21. , EVENT OF DEFAULT BY TENANT · . . ·
Section 21.01. Monetary . · . . . . · . ·
Section 21.02. Abandonment. . . . . . . .
Section 21.03. Non-Monetary . . . . . . .
Section 21.04. Bankruptcy . . . . . .
.......
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. . . ..
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23
23
23
23
23
23
24
24
24
24
25
25
25
ARTICLE 22. LANDLORD'S REMEDIES . . . . . . . . . . . . .. 25
section 22.01. Remedies for Tenant's Default. . . . .. 25
Section 22.02. Limitation on Landlord's Remedies. · .. 26
Section 23.01. Events of Default. .'. . . . . . . . . .. 26
ARTICLE 24. LANDLORD'S AND TENANT'S AGREEMENT TO RECOUP COST
OF IMPROVEMENTS IN THE EVENT OF DEFAULT . · .. 27
Section 24.01. Landlord's.and Tenant's Agre~ment · . .. 27
Section 24.02. Landlord to Proceed to Exercise
Remedies. . . . . . . . . . . . . · . .. 27
section 24.03 The Qualified Replacement Tenent. . · .. 27
Section 24.04 D~spute. . . . . . . . . . . . . · · .. 28
ARTICLE 25. QtnE'l' ENJOYMEN'l' . . . . . . . . .
Section ~5.0l. Quiet Enjoyment . · . · · ·
. . .
. . . . .
ARTICLE 26. ARBITRATION . . . · . · . . · . . . . · ·
Section 26.01. Arbitration. . . . . . · · . . . .
. . .
. . .
28
28
28
28
ARTICLE 27. MISCELLANEOUS ..... . . . . . · · · · . .. 28
Section 27.01. city Funding . . . . . . · .. ... 28
Section 27.02. parking. . . . . . . . . . · . · · · .. 29
Section 27.03. Hazardous Waste. . . . . . · · · · · .. 29
Section 27.04. Environmental Report. . . . · · · · · · · 29
Section 27.05. Peformance at the Theatre of the
Peforming Arts . . . . . . . . . . . .. 30
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Section 27.06. City Participation . . . . . . . . . . . 30
Section 27.07. Brokers . . . . . . . . . . . . . . . . . 30
Section 27.08. Notices . . . . . . . . . . . . . . . . . . 31
Section 27.09. No Waiver . . . . . . . . . . . . . . . . 31
Section 27.10. Memorandum of Lease . . . . . . . . . . 31
Section 27.11. Landlord's Right of Entry . . . . . . . . 31
Section 27.12. Estoppel Certificate . . . . . . . . . . 32
Section 27.13. Covenants Run with Land . . . . . . . . . 32
Section 27.14. Attorney'a Fees . . . . . . . . . 32
Section 27.15. Plural . . . . . . . . . . . . . . . . . 32
Section 27.16. Compliance with Laws . . . . . . . . . . 32
Section 27.17. Divisibility . . . . . . . . . . . . . . 32
Section 27.18. Landlord and Tenant Not in Business
Together . . . . . . . . . . . . . . . . 33
Section 27.19. Radon Disclosure. . . . . . . . . . . . . 33
Section 27 . 20' . Governing Law . . . . . . . . . . . . . . 33
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GROUND LEASE
THIS LEASE, is made as of the _ day of , 1994 by and
between the CITY OF MIAMI BEACH, a Florida municipal corporation
("Landlord") and MIAMI CITY BALLET, INC., a Florida not-for-profit
corporation ("Tenant").
WIT N E SSE T H:
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 demise, lease and let
unto Tenant for the term and upon the conditions hereinafter
.tated, that certain real property descr.ibed on Exhibit "A"
attached hereto and made ,a part hereof which consists of
approximately,20,000 square feet of land, currently improved with
a surface parking lot, located in the city of Miami Beach, Dade
county, Florida, together with all appurtenances to such land,
including, without limitation, all vegetation, air rights,
easements, rights-of-way or appurtenances owned by Landlord and
held in connection with such land, and all rights of Landlord 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 .et
forth, to each and all of which Landlord and Tenant mutually agree.
ARTICLt,l. TERM.
Section 1.01. Term. The term (the "Term") of this Lease
shall be for fifty-one-(51) Lease Years (as defined in Section
4.01) plus any partia:l month if the. Commencement Date does not
occur on the first day of a calendar month, beginning on the
Commencement Date and expiring on the Expiration Date, or until
sooner terminated or extended as hereinafter provided.
section 1.02. Commencement Date Defined. "Commencement Date"
.hall mean the earlier of: (a) the date which is fifteen (15) days
after the Building (as defined in Section 3.01) shall be
Substantially completed (as such term is defined in the
Construction Agreement), or (b) the date Tenant, or anyone claiming
under or through Tenant, first opens ~he conduct of any business in
the Building, or (c) the date which is twenty four (24) months
after the Lease Execution Date.
Sectionh 03. Expiration ~ate Defined. ,"Expiration Date"
shall mean the date which is the last day of the Fifty-first Lease
Year.
.
Section 1.04. Memorandum. Upon the request of either party,
Landlord and Tenant shall join in the execution of an agreement
Itipulating the Commencement Date, the Expiration Date and the
pOllession Date (as defined in Section 3.06), once such dates are
ascertained.
Section 1.05. Lease Execution Date Defined. "Lease Execution
Date" Ihall mean the date that this Lease is approved by the Kayor
and the City Commilsion of the City of Miami Beach. The terms of
this Lease Ihall be effective commencing on the Lease Execution
Date except for those terms that this Lease expressly Itate. shall
commence on another date.
section 1.06. Property Defined. "property" shall
collectively mean the Land and the Building (as defined in Section
3.01).
ARTICLE 2. IN'1'!NTIONALLY OMI'l'TED.
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ARTICLE 3'. CONSTRUCTION OF THE BUILDING.
Section 3.01. Buildinq Defined. "Building" lhall lIean an
approx1mately Eighty Thousand (80,000) lquare foot building,
complete with utility equipment for Ipace and water heating,
plumbing and electrical systems, air conditioning, interior and
exterior lighting fixtures, finished carpentry and mill work, yard
work, entrances and exit., lewage disposal, water lines,
electrical, power and gas lines and connection., soil compaction,
grading, lite improvements, curbing, paving for parking areal and
wallcway., landlcaping, exterior lighting for the Building, exterior
and interior finishes and such other items relating to such
,building al shall be specified in the Working Drawings. "Working
Drawings" shall mean detailed architectural working drawings and
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material 8pecification8 for the construction of the Building
prepared by Tenant' 8 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 of
the Miami City Ballet as a Dance Pavilion, Museum and School (the
"Facility") pursuant to the terms of this Lease and the
Construction Agreement to be entered into between the parties
within five (5) months of the Lease Execution Date (the
"construction Agreement").
Section 3.02. Responsibility for Construction of Building.
Tenant shall, at Tenant' IS sole cost- and expense, construct the
Building substantially in accordance with the Working Drawings and
the Construction Agreement. Tenant shall be responsible for all
license and permit fees, impact fees and all other fees, costs and
charge IS associated with, connected with or related to the construc-
tion of the Building, including, without limitation, utility costs
incurred during construction, except Impositions (as defined in
Section 5.01) which shall be apportioned between Landlord and
Tenant in aC:c'ordance with Section 5.04. Landlord shall not be
liable for any claims, losses or damages suffered by third parties
arising from Tenant's construction of the Building, unless such'
claims, losses or damages are caused by the intentional acts or
negligence of Landlord, its employees, agents, invitees or
licensees.
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 approvalQ 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 ARQUIT~CTONlCA, dated March IS, 1994 and
dated last revised April 12, 1994 (the "Site Plan"), and (b) to
utilize the Facility for its intended purpose. If such zoning
approvals and actions are appealed, then Tenant shall be
responsible for the payment of both parties' attorneys' fees and
costs. ' ,'.
Section 3.04. Easements. The parties acknowledge that, in
order to construct the Building in accordance with the Site Plan
and the Working Drawings, certain easements and rights-of-way may
be required by Tenant, on behalf of itself or third parties (which
third parties specifically include all utility companies).
Landlord agrees to use its best efforts to provide such easements
or right-of-way documents as may reasonably be required to
facilitate construction of the Building, but any final decisions to
grant such easements or right-Of-way documents shall be that of
Landlord.
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Section 3.05. Buildinq Permit. Tenant agrees to use its good
faith efforts to obtain, at its sole cost and expense (including,
without limitation, the payment by Tenant of any impact fees) a
building permit and any other authorization required by applicable
governmental authorities (other than the zoning approvals and any
parking studies required by governmental authorities, the cost of
which ahall be paid by Landlord), required to commence construction
of the Building (the "Building Permit") no later than that date
defined in the Construction Agreement as the "Building Permit
Date." Notwithstanding any contrary provision contained herein,
Tenant makes no representations or warranties whatsoever regarding
Tenant's ability to obtain the Building Permit. In the event
Tenant fails to obtain the Building Permit by the Building Permit
Date after good faith effort, Tenant may terminate this Lease upon
written notice to Landlord within the ten (10) business day period
following the Building Permit Date. Tenant's failure to obtain the
Building Permit by the Building Permit Date, after good faith
effort, shall not be deemed an Event 'of Default and Tenant shall
have the right to continue to attempt to secure the Building Permit
until that date specified in the Construction Agreement as the
"Building Permit Termination Date", unless Tenant shall have
exercised the aforementioned termination right. Failure to give
such written notice within the aforesaid ten (10) business day
period shall constitute a waiver of such termination right, in
which event this Lease shall remain in full force and effect.
Tenant shall give notice to Landlord of Tenant's receipt of the
Building Permit no later than five (5) days following issuance of
same ("Tenant's Building Permit Notice").
Section 3.06. Delivery of possession of Land to Tenant. No
later than five (5) days after Tenant's Building Permit Notice,
Landlord shall deliver possession of the Land to Tenant in writing
(the "possession Date"). On or ):)efore 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 park their vehicles
on the Land, provide~ that, Landlord shall insure this use of the
Land at Landlord's expense.
Section 3.07. commencement of Construction. Within .ix (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 Construction Agreement by both
Landlord and Tenant. Thereafter, Tenant shall diligently prosecute
and complete construction of the Building no later than eighteen
(18) months after commencement of such construction subject to
Unavoidable Delays, as such term is defined in the construction
Agreement.
Section 3.08. Construction Schedule. Construction of the
Building shall proceed in accordance with the cot:lstruction schedule
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approved by the parties pursuant to the Construction Agreement.
Section 3.09. Tenant's Obliqations at Substantial Completion.
Upon the Substantial Completion of the Building, as defined in the
Construction Agre"ement, Tenant, at its sole cost and expense, shall
furnish to Landlord: (a) a certificate from Tenants' architect
certifying that the Building, has been completed substantially in
accordance with the Working Drawing8, (b) a true copy of the
permanent certificate of occupancy i8sued 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
"a8 built" plans for the Building.
Section 3 .10. Obliqation to Negotiate Construction Agreement
in Good Faith. Landlord and Tenant shall each use their good faith
efforts to negotiate and execute the Construction Agreement within
the required five (5) month period. . If for any reason, notwith-
standing the good faith efforts of both parties, Landlord and
Tenant are unable to agree upon the terms of the Construction
Agreement during such five (5) month period, all open and disputed
issues shall be submitted to arbitration in accordance with the
provisions of Section 26.01. The decision reached in the arbitra-
tion shall be final and the parties will execute the Construction
Agreement recommended by the arbitrator. .
ARTICLE 4. RENT.
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Section 4.01. Rent. For the Term of the Lease, Tenant shall
pay Landlord a nominal annual rent for the Land of One Hundred
Dollars ($100.00) (the "Base Rent") which shall be payable in
advance without demand, commencing on the Commencement Date and
there after on the fir8t day .of each Lease Year. "Lease Year"
shall mean each consecutive twelve (12) calendar month period of
the Term, commencing on the Commencement Date. If the Commencement
Dat~ occurs on a day other than the first day of a calendar month,
the first Lease Year"l,hall include the partial month on which the
Commencement Date occurs and the following twelve (12) calendar
months; and the Base Rent for the portion of the month from the
Commencement Date to the first day of the first Lease Year shall be
prorated and paid with the payment of Base Rent due. The Base Rent
shall be paid to Landlord in legal tender of the United States of
America at the office of Landlord designated in Section 27.06, or
at such other place that Landlord shall from time to time designate
by notice in writing. In addition, Tenant shall pay all applicable
sales and/or use taxes on the Base Rent.
. Section 4.02. Ad1ustments to Rent. In the event that Tenant
loses its tax exempt status, Landlord and Tenant shall renegotiate
the amount of Base Rent to be paid by Tenant under this Lea8e to be
equal to the ~air market rental for the Land. If Landlord and
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Tenant cannot agree on the new amount of Base Rent within sixty
(60) days after Tenant's loss of its tax exempt status, then Tenant
may (a) terminate this Lease by written notice of termination
delivered to Landlord, or (b) request that the issue of fair market
rental be submitted to arbitration in accordance with the proce-
dures outlined in Article 26."
ARTICLE 5. TAXES AND ASSESSMENTS.
Section 5.01. Payment by Tenant. Commencing on the
possession Date, Tenant covenants and agrees to pay all of the
following items applicable to the Land and Building (the
"Imposi~ions"):
(a) Occupancy, Base Rent all sales and use taxes or
excise taxes,
(b) Water, water meter, and sewer rents, rates and
charges,
(c) Excises,
(d) Levies,
(e) License and permit fees,
(f) service charges or assessments, including, but not
limited to, police protection, fire protection, street and highway
construction, maintenance, lighting andlor landscaping, sanitation
and water supply, if any,
, (g) Fines, penalties'; late charges and other similar
governmental charges applicable to the foregoing and any interest
or costs with respect, thereto,
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(h) Certified special assessment liens, and
(i) Any and all other governmental levies, fees, rents
and charges, and any interest or costs with respect thereto, which,
at any time after the Possession Date and during the Term, are:
1. Levied, confirmed, imposed upon, or become due
and payable out of or in respect of, or would be charged with
respect to:
(i)
The Land,
the Building,
or
any part
thereof, or
(ii) The use and occupancy of the Land, the
Building, or any part thereof by Tenant, or
(iii) This Lease, and
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2. Would be encumbrances or liens on:
(i) The Land, or any part thereof, or
(ii) The sidewalks, streets or roadways in
front of or adjoining the Land, or
(iii) Any personal property, equipment or other
facility used in the operation of the Facility, or
(iv) The Base Rent (or any portion thereof)
payable by Tenant hereunder.
Each such Imposition, or installment thereof, after the Possession
Date and during the Term, will be paid by Tenant not later than the
date on which any fine, penalty, interest or cost may be added
thereto or imposed by law for the non-payment thereof; provided,
however, that if, by law, any Imposition may at the option of the
taxpayer be paid in installments (whether or not interest will
accrue on the'unpaid balance of such Imposition), Tenant may, with
Landlord I s prior written consent, which consent shall not be
unreasonably withheld, exercise the option to pay the same in such
installments, provided that all such installment payments relating
to periods prior to the Expiration Date are required to be made
prior to the Expiration Date. Notwi thstanding the foregoing
provisions of this Section 5.01 or any contrary provision of this
Lease, Tenant shall not be ~esponsible for the payment of the Taxes
(as defined in section 5.03) assessed against the Property prior to
the Commencement Date of this Lease; it is the intent of the
parties that Landlord shall pay the Taxes against the property
prior to the Commencement Date because prior to Substantial
Completion, the Building will not be subject to taxation. In the
event Taxes are imposed upon ,t.he Property for any part of the
period between the possession .Date and the Commencement Date,
Tenant shall immediately reimburse Landlord for one-half (1/2) of
all. Taxes on the pro~~rty actually paid by Landlord for the period
between the possession Date and the Commencement Date. After the
Commencement Date and during the Term, Tenant shall be responsible
for the payment of all Taxes against the Property.
Section 5.02. Receipts. Tenant, from time to time upon the
request of Landlord, will furnish to Landlord, within thirty (30)
days after the date when an Imposition is due and payable under
this Lease, official receipts of the appropriate authority or other
evidence reasonably satisfactory to Landlord, evidencing the
payment thereof.
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
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imposed upon Landlord. I t is understood that the Land is not
presently subject to the payment of real property Taxes. 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 with Tenant in any appeal of a denial of Tax
exempt status for the Property, within the context of an appropri-
ate administrative proceeding or in a court of competent jurisdic-
tion.. Tenant shall pay any and all costs and expenses in
connection with any efforts to obtain or maintain Tax exempt status
for the Property.
Section 5.04. Apportionment. Any Imposition relating to the
fiscal period of the governmental agency imposing the same, a part
of which period is included within the Term and a part of which is
included in a period of time either before the Possession Date or
after the Expiration Date (whether or not such Imposition is
levied, confirmed, imposed upon or becomes a lien upon the Land, or
becomes payable, during the Term) shall be apportioned between
Landlord an4 Tenant as of the Possession Date and as of the
Expiration Date, respectively, so that Tenant will pay that portion
of such Imposition which that part of the fiscal period included in
the period of time after the Possession Date and before the
Expiration Date, respectively, bears to the entire fiscal period
for such Imposition, and Landlord shall pay the remainder thereof;
except that those Impositions which are exclusively attributable
to, and arise directly from, construction of the Building shall not
be apportioned between Landlord and Tenant, but rather, Tenant
shall pay the total of such Impositions. Notwithstanding the
foregoing provisions of this Section 5.04, Taxes shall be
apportioned between Landlord and Tenant in accordance with Section
5.01.
Section 5.05. contest by Tenant. Tenant wiil have the right
at its own expense to contest the amount or validity, in whole or
in part, of any Impo~ition by appropriate proceedings diligently
conducted in good faith; however, Tenant shall not be obligated to
do so. ."
Section 5.06. Joinder in contest by Landlord. with the
exception of Landlord's obligations under Section 5.03, Landlord
will not be required to join in any proceedings referred to in this
Article 5 hereof unless the provisions of any law, rule or
regulation at the time in effect requires that such proceedings be
brought by and/or in the name of Landlord, in which event, Landlord
will join and cooperate in such proceedings or permit the same to
be brought in Landlord'S name, but Landlord will not be liable for
the payment of any costs or expenses in connection with any such
proceedings and Tenant will reimburse Landlord for any and all
costs or expenses, including Landlord's attorneys' fees and
disbursements at the trial level and on appeal, which Landlord may
sustain or incur in connection therewith.
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ARTICLE 6. TENANT RESPONSIBLE FOR UTILITIES.
Section 6.01. Tenant Responsible for Utilities. Tenant is
solely responsible for any and all charges tor water, gas,
electricity, or any other utility used or consumed on the Property,
including, without limitation, all hook-up tees or impact fees, and
Tenant will promptly pay all sewer service charges, electric
servicing and electric currents, and other services, utilities or
commodities, including water, gas and telephone in or about the
Property when due. In addition to other rights and remedies
hereinafter reserved to the Landlord, upon the failure of the
Tenant to pay for such services or commodities, the Landlord may
pay the same, and the Tenant agrees to reimburse the Landlord
therefor or the Landlord may treat such action by Tenant as a
default under the terms of this Lease and take action in accordance
with the default provisions set forth in this Lease. In no event
shall Landlord be liable tor an interruption or failure in the
supply of any such utilities to the Property, unless interruption
or failure shall be the result of the intentional act or gross
negligence of, Landlord or its employees, contractors or other
persons acting at the request or ~irection of Landlord.
ARTICLE 7. TITLE TO THE LAND.
section 7.01. Title to the Land. Landlord represents that
Landlord. is ,the fee owner of the Land, which ownership is
unencumbered by any lien or security interest and also represents
that there are no covenants, conditions, restrictions, rights-of-
way 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.
'section 7.02. Ti tle Opinion and Permitted .Exceptions.
Landlord shall deliver to Tenant, within thirty (30) days of the
Lease Execution Date--;' 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 Land10rd
is the fee o~er of the Land and sh~ll further confirm that the
Land is subject only to those exceptions enumerated in the Title
Opinion (the "permitted Exceptions").
Section 7.03. Ob1ections to Title. In the event the Title
Opinion discloses a defect(s) in the title to the Land which
renders it unsuitable for the purposes herein provided, Tenant
shall notify Landlord of the defect wi thin thirty (30) days of
receipt of the Title Opinion. Landlord shall use its best efforts
to cure the defect. In the event Landlord is unable to cure the
defect within one hundred twenty (120) days of Tenant's notice,
Tenant shall ,have the option of accepting ti~le in its present
condition, or terminating this Lease, whereby both parties shall be
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released from any and all further ob~lgatlon8 hereunder.
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ARTICLE B. TITLE TO THE BUILDING.
Section 8.01. Title to the Improvements. Title to the
Building constructed by Tenant on the Land shall vest in Tenant as
of the possession Date and shall remain in Tenant until the
expiration of the Term, unless this Lease shall be sooner
terminated as herein provided; provided, however, that upon the
expiration or earlier termination of this Lease, title to the
Building shall automatically pass to, vest in and belong to
Landlord without further action on the part of either party and
without cost or charge to the Landlord, free and clear of all
encumbrances, except the lien of any taxes assessed but not yet due
and payable, applicable building and zoning ordinances, the
permitted Exceptions, and any easement or encumbrance of record to
which Landlord may have specifically consented to.
ARTICLE 9. USE OF PROPERTY.
section 9.01. Use of property. '1,'enant agrees to ~se the
Property for the operation of a Dance pavilion, Museum and school,
which may include, at Tenant's option, a restaurant, gift shop,
dormitories, cafeteria, practice rooms, performance halls, museum,
administrative offices and any other use which Tenant, in its
reasonable discretion and subject to compliance with all applicable
use and' development regulations pertaining to the property as
required by the Zoning Code of the City of Miami Beach.
ARTICLE 10. INSTALLATIONS BY TENANT.
section 10.01. Installations by Tenant. All alterations,
decorations, additions and improvements made by Tenant to the Land,
including, but not limited to the Building, and any carpeting, wall
covering, paneling, built-in cabinet work, movable furniture and
trade fixtures located in the Building, shall be and shall remain
the property of Tenant for the Term. Upon the expiration or
termination of this Lease, the Building and all such alterations,
additions and improvements shall become the property of Landlord,
except any of "Tenant's personal property which is not permanently
affixed to the Building or is otherwise removable without
substantial damage to the Building, including, but not limited to,
furniture, trade fixtures, art work, signs and "inside" plants. If
Tenant's removal of its personal property damages the Building,
then Tenant shall repair such damage. If Tenant fails to remove
such personal property wi thin ten (10) days after the expiration of
this Lease, all such personal property shall become the property of
Landlord.
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ARTICLE 11. BOND REQUIREMENTS i RESPONSIBILITY TO DISCHARGE
LIENS.
section 11.01. Bond. Tenant shall furnish to Landlord, prior
to commencement of construction of the Building, an unconditional
payment and performance bond (the "Performance Bond") issued by a
licensed surety transacting business in Florida reasonably
acceptable to Landlord assuring performance of the completion of
the Building pursuant to the Working Drawings and payment of all
bills for labor and materials related thereto, naming Landlord and
Tenant as co-obligees. Such bond shall be approved by Landlord and
.hall be in, an amount equal to the cost of completion of the
Building as estimated by Tenant's contractor.
Section 11.02. Construction Liens. Notwithstanding anything
contained in this Lease to the contrary, nor the right of Tenant to
construct improvements on the Land, the interest of the Landlord in
the Land, or otherwise, shall not be subject to liens for improve-
ments made by or for the Tenant, whether or not same shall be made
or done in accordance with any agreement between Landlord and
Tenant, and ~t is specifically understood and agreed that in no
event shall Landlord, or the interest of Landlord in the Land, or
otherwise, be liable for or eubject to';any construction" mechan-
ic's, materialmen'sJ or laborers' liens for improvements made by
Tenant, or for which Tenant is responsible for payment under the
terms of this Lease. Tenant ehall notify its contractors of the
provisions of this section 11.02.
Section 11.03. Discharqe of Liens. In the event any nq,tice or
claim of lien ehall be asserted against the interest of Landlord in
the Land, or on account of or arising from any improvement or work
done by or for Tenant, or any person claiming, by, through or under
Tenant or for improvements or work, the cost of which is the
responsibility of Tenant, Ten~nt ag+ees to have such notice or
claim of lien canceled and discharged (either by payment or bond as
permitted by law) within thirty (30) days after notice to Tenant by
Landlord and, in the event Tenant shall fail to do so, then it may
be declared by Landlord to be an Event of Default under this Lease.
Tenant .hall have the right to contest, in good faith, any lien so
long as Tenant posts a bond as required under the construction lien
laws of the st~te of Florida (Chapter 713, Florida statutes).
ARTICLE 12. ASSIGNMENT OR SUBLEASING.
Section 12.01. conditions of Assiqnment. At any time atter
the Building. has been erected free and clear of all mechanics's or
materialmen'. liens and claims and the Facility has been operating
tor a period of at least five (5) years, Tenant may assign its
interest in the property with the prior, written consent ot
Landlord, provided that:
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(a) As it is of critical importance to Landlord, and of
vital consideration for the execution of this Lease under the
covenants, terms and conditions set forth herein, that the Property
and the Facility be utilized by the Miami City Ballet for their
intended pUrp08e herein as a Dance Pavilion, Museum and School, any
aS8ignment of Tenant's interest in the property shall be evaluated
on a ca8e by case basis and 8uch assignee 8hall be considered at
the sole judgment and discretion of Landlord;
(b) There i8 not then existing an Event of Default or an
event which, with the pa8sage of time or giving of notice or both
would constitute an Event of Default;
(c) The assignment shall be evidenced by an instrument,
approved by Landlord, in writing, duly executed and acknowledged by
Tenant and the assignee and recorded in the Public Records of Dade
County, Florida, wherein and whereby the a88ignee shall expressly
accept and assume all the terms and covenants in this Lease to be
kept and perf.ormed by Tenant and shall expressly covenant and agree
to comply with and be bound by them; and
(d) A true and complete copy of the recorded documents
evidencing such assignment shall be delivered to Landlord within
ten (10) days after such recording, together with the business
address of such assignee.
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(e) If Tenant assigns to an entity that is not a non-
profit organization, then any rental received by Tenant from such
assignee that exceeds the Base Rent provided for in this Lease
shall be split equally between Tenant and Landlord. Tenant shall
remi t Landlord's portion of such payments to Landlord wi thin
fifteen (15) days of Tenant's ~~ceipt thereof.
Section 12.02. Transfers to Leasehold Mortqaqees. The
provisions of Section 12.01 shall not prohibit the transfer to the
holder of the Leasehold Mortgage (as defined in Section 13.02), in
lieu of foreclosure or pursuant to enforcement of the remedies
under the Leasehold Mortgage, provided that the holder of the
Leasehold Mortgage (the "Leasehold Mortgagee") and Tenant have
first complied with the provi8ions of Section 13.02. A Leasehold
Mortgagee having acquired title to the leasehold estate of Tenant
by foreclosure of the Leasehold Mortgage or transfer in lieu of
foreclosure shall have the right, for a one (1) year period after
its acquisition of the leasehold estate, to a8sign Tenant's
interest under this Lease to an assignee experienced in management
and operations of first-class facilitie8 of this type, provided
that the Leasehold Mortgagee obtains Landlord's prior, written
consent to such assignment, such consent to be predicated upon the
same criteria and procedures as set forth in Section 12.01 (a)
through (d). In t~~_ e~'!.~_, th~~_.~he, L~asehold M~rtgagee assiQn.!
this Lease to an--entIty that is not anon-prof! t organization,
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Landlord reserves the right to re~egotiate the amount of Base Rent
to be paid by euch assignee under thie Ledee.
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Section 12.03. Release of Tenant's Liability. If an
assignment ehall be made, after complying with the conditions and
in the manner eet forth in Section 12.01, the aesignee shall be
.ubject to the same te~ and conditions as to future assignments,
and to all the covenants, agreements, provieions and conditions
contained in this Lease, and Tenant herein so assigning shall
thereafter be forever released and discharged from the agreements,
covenants, obligations and liabilities in this Lease contained
accruing after the date of the assignment; provided that said
assignment shall have been made to carry into effect an absolute
and bona fide sale of Tenant's interest in this Lease; and provided
further that Tenant shall indemnify and hold Landlord harmless
against any claims asserted by third parties which arise from
Tenant's occupancy of the Property under this Lease.
Section 12.04. Sublease Requirements. Tenant shall have the
right to make, individual subleaees, for a portion of the Facility,
having a term of six (6) months or ,less, without Landlord's
coneent; provided that each sublease sh~ll be for the utilization Sc
of the Property, or the provision of those services enumerated in
Article 9, and further provided that each sublease shall specify uu
(a) that such sublease is subject and subordinate to this Lease,
and (b) that in the event of cancellation or termination of this
Leaee in accordance with ite terms or by the surrender thereof,
whether. voluntary, involuntary or by operation of law, such
sublease shall thereby be automatically terminated. If Tenant
desires to enter into a sublease that has a term of greater than
one (1) year, Tenant must first obtaIn Landlord's prior, written
consent, which consent shall not be unreasonably withheld or
delayed.
ARTICLE 13. LANDLORD'S AND TENANT'S MORTGAGES.
Section 13.01. Landlord's Mortqaqe. This Lease shall, without
the necessity of execution of any further instrument, be deemed to
be subordinate to all mortgagee and liens placed now or in the C
future by Landlord on the Land (any "such mortgage or lien being
hereinafter referred to as the "Permanent Mortgage"), and to all
renewals, modifications, consolidations, replacements and
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extens ions thereof, and Tenant agrees to promptly, at Tenant 8 ""-
cost, execute and deliver to the holder of the Permanent Mortgage
(te "Permanent Mortgagee") any instrument of subordination ",
reasonably requested by such mortgagee; provided, however, that the {'
.ubordination of this Lease to the Permanent Mortgage is
conditioned upon the following provisions against the disturbance
of the possession by Tenant of the Property:
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(a) So long a8 Tenant continues to pay the rent required
under the terms of this Lease and otherwise complies with the terms
and conditions ot this Lease, the right of possession by Tenant of
the Property shall not be affected or disturbed by the Permanent
Mortgagee in the exerci8e of any of its rights under the Permanent
Mortgage, or as otherwi.e provided by law;
(b) In the event that the Permanent Mortgagee comes in
possession of or ownership of title to the Land by foreclosure of
the Permanent Mortgage, or deed in lieu thereof, or otherwise, this
Lease shall not be terminated by such acquisition of title, and the
Permanent Mortgagee shall not have the right to terminate this
Lease unless there shall then exist an uncured Event of Default
hereunder;
(c) In the event that the Land is sold or otherwise
disposed of pursuant to any right or any power contained in the
Permanent Mortgage, or as a result of proceedings thereon, or as
otherwise authorized by law, the purchaser of the Land at such
sale, or any other person acquiring tit+e through or by virtue of
said sale, shall take title subject to this Lease; and
(d) The above provisions shall be binding upon and inure
to the benefit of the Permanent Mortgagee, Landlord and Tenant, and
their respective successors and assigns.
Section 13.02. Tenant' s Mortqaqe. Landlord agrees to execute,
and shall cause the Permanent Mortgagee to execute, a non-
disturbance agreement (containing language reasonably acceptable to
Landlord) for the benefit of Tenant and the holder of any leasehold
mortgage (the "Leasehold Mortgage") and to cooperate with Tenant's
efforts to obtain financing" including the execution of any
necessary documents, so long a8"such documents are subject to the
reasonable approval of counsel for Landlord. Such nondisturbance
agreement shall contain those provisions set forth in Section 13.01
above. No Leasehold Mortgage shall be valid or of any force or
effect unless and until Landlord has consented thereto in writing"
(which consent shall be conditioned upon Tenant's compliance with
this Section 13.02) and a true copy of the original of each
instrument creating and effecting such mortgage, certified by
Tenant to be a true copy of such instrument, together with written
notice containing the name and post office address of the Leasehold
Mortgagee, has been delivered to Landlord. Further, the Leasehold
Mortgage shall specifically provide:
(a) That the Leasehold Mortgage is subject to all of the
terms, covenants and conditions of this Lease;
(b) That the Leasehold Mortgage encumbers only the
Tenant's interest created by this Lease in the Land and the
Building;
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(c) That the rights of Landlord pursuant to this Lease
will not be affected by the terms of the Leasehold Mortgage; ~
(d) That the holder of the Leasehold Mortgage shall ~
waive all right and option to obtain and apply proceeds of any vr-
insurance or the proceeds of any condemnation award toward payment
of the sums secured by the Leasehold Mortgage to the extent such
proceeds are required by the terms of this Lease for the demoli-
tion, repair or restoration of the Property; .
(e) That the holder of the Leasehold Mortgage shall tI-
agree to send to Landlord copies of all notices to Tenant in which
such mortgagee claims that there exists one (1) or more uncured
defaults under the terms and provisions of the Leasehold Mortgage,
such notices to be sent simultaneously to Landlord and Tenant;
(f) That the Leasehold Mortgage is a leasehold mortgage
only and that such mortgagee has obtained no interest whatsoever in
the underlying fee of the Land as a result of the execution of the
Leasehold Mortgage by Tenant;
(g) , That any person or entity who by purchase at a
foreclosure sale and/or by transfer in l~~u of foreclosure acquires
any right, title or interest in or to this Lease, by acceptance of
a deed or other inetrument of conveyance thereof, will conclusively
be deemed to have accepted such right, title or interest subject to
all of the terms, covenants and conditions of this Lease; it being
the specific intent of Tenant and the Leasehold Mortgagee that the
Leaseho~d, Mortgage encumber only Tenant's leasehold interest
created'by this Lease in the Property, and that except as specifi-
cally set forth in this Lease, the rights of Landlord shall not be
affected by the terms of the Leasehold Mortgage; and
(h) That the Leasehold Mortgage and all rights thereun-
der shall be subject and subordinate to the lien of any Permanent
Mortgage (subject to nondisturbance to be granted pursuant to this
Section 13.02). The Leasehold Mortgagee shall upon demand, at any
time, execute, acknowledge and deliver to Landlord, without expense
to Landlord, any instrument that may be necessary or proper to
confirm the subordination of the Leasehold Mortgage to "the
Permanent Mortgage and any renewal, modification, consolidatio~,
replacement or_ extension of the Permanent Mortgage. ::;:S
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ARTICLE 14. CONDEMNATION.
Section 14.01. APportionment of'Award. In the event of the
taking or condemnation by a competent authority for any public or
quasi-public use or purpose of the whole or materially all of the
Property at any time during the Term, the rights of Landlord and
Tenant to share in the net proceeds of any award for land,
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buildings, improvements and damage~ upon any such taking, shall be
as follows and in the following order of priority:
(a) Landlord, at all times, regardless of when., the
taking occurs, shall be entitled to receive, with interest thereon,
that portion of the award that represents compensation for the
value of the Land, considered as vacant and unimproved land, such
value being hereinafter referred to as the "Land Value". Landlord
shall also be entitled to costs awarded in the condemnation
proceeding proportionately attributable to such Land Value;
(b) During the Term:, Tenant shall be entitled to the
difference between the entire amount of such condemnation award for
the Property and the Land Value, which remaining balance ,is
hereinafter referred to as the "Awa+d Balance", together with a
proportionate share of costs attributable to the Award Balance that
is awarded . Notwithstanding anything to the contrary contained ',in
this Article 14, in the event of a taking of the whole or
materially all of the Property, Tenant shall, from the proceeds of
the Award Balance, reimburse Landlord for the total amount of the
Grant (as de~~ned in Section 27.01 below);
(c) I f the values of the i:especti ve interests of
Landlord and Tenant shall be determined according to the provisions
of subparagraphs 14.01 (a) and (b) of this Section pursuant to which
the Property shall have been taken or condemned, the values so
determined shall be conclusive upon Landlord and Tenant. If such
values shall not have been thus separately determined, such values
shall be fixed by agreement between Landlord and Tenant or if they
are unable to agree, then the controversy shall be resolved by
arbitration under the procedure as Bet forth in Article 26 hereof;
and
(d) In the event of the taking in condemnation of less
than the whole of the Property but materially all thereof and the
part of the Property that remains includes a part of the Building
that was taken, then as to the untaken remainder of the Building
only, but not any remaining Land, the parties shall endeavor to
agree on the then fair market value of such remainder of the
Building, and if they fail to agree then the controversy shall be
resolved in accordance with Article 26. The value so agreed upon
as the then fair market value of such remainder. of the Building as
determined in accordance with subparagraph (c) of this Section, but
diminished by the Award Balance, shall be paid by Landlord to
Tenant, and until paid shall be a charge on the share of the award
for Land Value to which Landlord. shall be entitled ,in the
condemnation proceeding.
Section 14.02. Lease to Terminate if Total Takinq. If title
to the whole or materially all of the Property shall be taken or
condemned, this Lease shall cease and terminate and all rental,
additional rent and other charges hereunder shall be apportioned as
of the date of vesting of title in such taking or condemnation
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proceedings. For the purposes of this Article 14, a taking or
condemnation of materially all of the Property, as distinguished
from a taking or condemnation of the whole of the Property, means
a taking of such scope that the untaken portion of the Property is
insufficient to: (i) permit the restoration of the then existing
improvements to substantially the same interior and exterior design
and permit th~ maintenance of a building area of at least
ninety-five percent (95\) as existed prior to such taking.
Section 14.03. Lease to Remain in Effect if Partial Taking.
In the event of a partial taking or condemnation, i.e., a taking or
condemnation of less than materially all of the Property, this
Lease (except as hereinafter provided) shall, nevertheless
continue, but the annual net rental to be paid by Tenant shall
thereafter be reduced in the ratio that the rental value of the
portion of the Property taken or condemned bears to the rental
value of the entire Property at the time of the taking or
condemnation, and Tenant shall promptly restore the Building, as
provided below and subject to the conditions detailed below. The
award for the said taking or condemnation in respect to the Land
shall belon~ to Landlord, and the Award Balance shall be used and
paid as follows and in the following,prio~ity:.
(a) So much of the Award Balance as shall be necessary
to repair and restore the Building to make the same a complete
architectural unit as nearly as reasonably possible to the
condition existing prior to the taking or condemnation shall be
deposited with Landlord, to be used by Tenant for such purpose.
Tenant shall undertake its work of repair and restoration as soon
as reasonably practicable. In the event the Award Balance is less
than the full amount required to restore the Building as provided
herein, but is equal to or exceeds ninety five percent (95'> of the
full amount required to restore the' Building, Tenant shall make
such repairs and restoration. . .If the Award Balance is less than
the ninety five percent (95') required to restore the Building,
Landlord shall have the option of contributing a portion of the
proceeds of the Land Value to the restoration of the Building in
order to reach the ninety five percent (95\) requirement. In the
event Landlord does not exercise its option to make the contribu~
tion, Tenant may restore the Building at its own additional cost or
terminate this Lease. If Tenant elects to terminate this Lease
pursuant to the foregoing sentence, then Tenant must give Landlord
written notice of termination within one hundred eighty (180) days
after the vesting of title in the condemning authority. In the
event of a termination of this Lease pursuant to this provision,
Tenant shall retain the Award Balance (together with a proportion-
ate ahare of costs awarded, but less those costs incurred by
Landlord to secure the Building), Landlord shall retain the Land
Value (together with a proportionate share of costs awarded),
together with reimbursement for the full amount of the Grant, and
both parties shall be released from any and all further liability
hereunder.
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(b) Should such partial taking or condemnation result in
rendering the part of the Property remaining unsuitable tor the
purposes for which the Facility was designed, then Tenant upon
thirty (30) days prior written notice to Landlord, given at any
time within sixty (60) days after the vesting of title in the
condemnor, may cancel and terminate this Lease. T,he net rental and
other charges hereunder shall then be apportioned as of the date of
termination, and Tenant shall be discharged from responsibility to
restore the Property. In the circ~tance of such termination, the
entire Award Balance (together with a.proportionate share of costs
awarded) shall be retained by Tenant as set forth in Section
14.03(a) above.
Section 14.04. Disputes. In the event that there shall be any
controversy as to whether the remainder of the Property is sui table
tor the purposes for which the Facility was designed or if there
shall be any controversy under this Article as to whether there has
been a taking of materially all of the Property, the controversy
shall be resolved by arbitration as provided in Article 26.
Section 14.05. Temporary Taking ~ I f'L,~he whole or any part of
the Property or of Tenant's interest under this Lease be taken or
condemned by any competent authority for its or their temporary use
or occupancy, this Lease shall not terminate by reason thereof and
Tenant shall continue to pay, in the manner and at the times herein
specified, the full amounts of the annual rent and all additional
rent an4 ,other charges payable by Tenant hereunder, and, except
only to: the extent that Tenant may be prevented from so doing
pursuant to the termB of the order of the condemning authority, to
perform and observe all of the other terms, covenants, conditions
and obligations hereof upon the part of Tenant to be performed and
observed, as though such taking or condemnation had not occurred.
In the event of any such temporary taking or condemnation, Tenant
shall be entitled to receive the entire amount of any award made
for such taking, whether paid by way of damages, rent or otherwise.
Tenant covenants that, upon the termination of any such period of
temporary use or occupancy, it will, at its sole cost and expense,
restore the Property, as nearly as may be reasonably possible, to
the condition in which the same was immediately prior to such
temporary tak~ng.
ARTICLE 15. INSURANCE AND INDEMNITY.
Section 15.01. Construction of Bui1dinq.
(a) Tenant, on or prior to the possession Date, shall
provide or cause to be provided, and thereafter will keep in full
force and effect, or cause to be kept in full force and effect,
until Substantial completion of the Building, the following
insurance at no cost to Landlord:
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(i) Comprehensive genaral liability insurance,
naming Tenant as insured, and Landlord and Landlord's mortgagee, if
any, as additional insureds, such insurance to insure against
liabili ty for bodily injury and death and for property damage in an
amount not less than One Million Dollars ($1,000,000.00), combined
single limit, .such insurance to include broad. form contractual
liability (designating the indemnity provisions of the construction
agreements), such policy to have a maximum deductible of Fifty
Thousand Dollars ($50,000.00); .
(ii) Builder'. all-risk insurance written on a
completed value (non-reporting) basis with limits as provided in
Section 15.02 below, naming Tenant as named insured, and naming as
additional insureds Landlord and any general contractor engaged by
Tenant. In addition, such insurance will contain an acknowledgment
by the insurance company that its rights of subrogation have been
waived with respect to all of the insureds named in the policy and
an endorsement stating that "permission is granted to complete and
occupy, tl and if any off-site storage location i8 used, will cover,
for full insurable value, all materials ~nd equipment on or about
any such off-site storage location intended for use with respect to
the Building, such policy to have a maximum deductible of Fifty
Thousand Dollars ($50,000.00);
(iii) Tenant shall require its general contractor to
carry worker's compensation insurance in at least the minimum
amounts.required by law and shall provide to Landlord a certificate
evidencing such coverage.
(b) No construction of the Building shall be commenced
until Tenant has delivered to Landlord the original policies,
memoranda, or certificates t~ereof evidencing the insurance
required by this Article 15.
(c) Any proceeds recei ved pursuant to the insurance
coverage required hereunder will be distributed in accordance with
Article 16 hereof.
Section 15.02. Insurance After Substantial Completion of
Buildinq.
(a) Tenant, at its sole cost and expense, covenants and
agrees at all times during the Term, to carry or cause to be
carried, in addition to the insurance required during construction
as provided in Section 15.01 above, insurance coverage of the type
and in the minimum limits as follows:
(i) Insurance on the Property will be carried under
a special form, including contingent exp08ure from building
ordinances, damage by water, flood, subsidence, tornado, hurricane
and earthquake. Such insurance will be carried in an amount equal
to the full replacement value of the Building, less foundations and
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excavations. The insurance will be reviewed annually and modified,
if necessary, as reasonably requested by Landlord.
(ii) Comprehensive public liability insurance will
be carried on the Property and the operation of the Facility
against any liability tor bodily injury, death an~ property damage.
Such comprehensive liability insurance will be on an occurrence
basis, and will have combined single limit liability coverage of
not 18ss than One Million Dollars ($1,000,000.00).
(iii) Excess liability coverage with limits of not
less than Two Million Dollars ($2,000,000.00). .
(b)
will also
mortgagee,
"Additional
All insurance provided by or on behalt ot Tenant
be carried in. the names of Landlord and Landlord's
if any, as their respective interests may appear, as
Insureds."
(c) All insurance required pursuant to the terms of this
Lease shall be carried with responsible insurance carriers legally
doing business in Florida and reasonably ~~cePtable to Land~ord.
(d) Landlord shall not have the right to require Tenant
to carry or cause to be carried business interruption insurance or
rent loss insurance. Such insurance coverage, if desired by
Landlord, shall be secured by Landlord at Landlord's sole cost and
expense.
(e) In the event that Tenant's insurance coverage is
cancelled, Landlord may elect to obtain such insurance and Tenant
shall be responsible tor the payment of premiums therefor.
Section 15.03. Indemnification of Landlord. Tenant shall
indemnify and save Landlord harmless against all liabilities,
expenses and losses ,incurred by Landlord as a result of (a) failure
by Tenant to perform any covenant required to be performed by
Tenant hereunder; or (b) any accident, injury or damage which shall
happen in or about the Property or appurtenances, or resulting from
the condition, maintenance or operation of the Property; or (e)
failure of Tenant to comply with any requirements of any
governmental authority.
If any claim, action or proceeding is made or brought
against ~ndlord by reason of any event hereunder, then, upon
demand by Landlord, Tenant, at its sole cost and expense, will
resist or defend such claim, action'or proceeding in Landlord's
name, it necessary, by the attorney. for Tenant's insurance carrier
(it auch claim, action or proceeding is covered by insurance), and
otherwise by such attorneys as Landlord shall approve, which
approval shall not be unreasonably withheld.
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The provisions of this Section 15.03 shall not extend to
or include any acts, thing, injury, loss, damage, violation,
liability or suit to the extent the same results from or arises out
of the negligence or willful or wanton misconduct of Landlord, its
agents, servants or employees.
Section 15'.04. Indemnification of Tenant. Landlord shall, to
the fullest extent allowed by law, indemnify and save Tenant
harmless against all liabilities, expenses and losses incurred by
Tenant as a result of (a) failure by Landlord to perform any
covenant required to be performed by Landlord hereunder; or (b) any
accident, injury or damage which shall happen in or about the
Property or appurtenances caused by or resulting from any
condition, maintenance or operation for which Landlord was
responsible on the Property.
If any claim, ~ction or proceeding is made or brought
against Tenant by reason of any event hereunder, then, upon demand
by Tenant, Landlord, at its sole cost and expense, will resist or
defend such claim, action or proceeding in Tenant' s name, if
necessary, bY' the attorneys for Landlord's insurance carrier (if
such claim, action or proceeding is cov~-red by insurance), and-
otherwise by such attorneys as Tenant shall approve, which approval
shall not be unreasonably withheld.
ARTICLE 16. DAMAGES TO BUILDING.
Section 16.01. Buildinq Usable. In the event the Building
should be damaged by fire, explosion or any other casualty or
occurrence, and such damage does not render the Building
untenantable, there shall be no abatement of rent, and Tenant shall
repair such damage with due diligence. Landlord hereby assigns to
Tenant any right, title or interest' in and to -any proceeds of
casualty insurance to which Landlord may be entitled with respect
to such casualty. Such insurance proceeds shall be paid directly
to Tenant by the insurance carrier as long as (a) Tenant utilizes
the insurance proceeds to restore the Building, and (b) there are
no outstanding, uncured, material Events of Default under this
Lease.
Section 16.02. Buildinq Unusable. In the event the Building
.hould be damaged by fire, explosion or any other casualty or
occurrence, and such damage renders the Building untenantable, the
rent hereunder shall be abated from the date of such casualty until
.uch time as Tenant may reopen for business after restoration or
repair of such casualty. Tenant shall be obligated to restore the
Building, provided the proceeds of the insurance policy are
sufficient to pay- no less than ninety-five percent (95t) of the
total cost of such repair or restoration. If the proceeds of the
insurance policy are less than ninety five percent (95t) of the
amount required to restore the Building, Landlord shall have the
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option ot contributing a portion ot the cost ot the restoration of
the Building in order to reach the ninety five percent (95'>
requirement. In the event Landlord does not exercise its option to
make the contribution, Tenant may restore the Building at its own
additional cost or terminate this Lease.~f Tenant terminates this
Lease pursuant to the foregoing sentence, then Landlord shall be A\~
enti tled to receive the insurance proceeds from the insurance (V
carrier, or if Tenant has already received .uch proceeds from the
insurance carrier, then Tenant shall assign such proceeds over to
Landlord.?
Section 16.03. Expenditures by Tenant. With respect to Section
16.02, when Tenant repairs and/or rebuilds the Building as therein
provided, Tenant shall be obligated, with reasonable promptness, to
repair or restore the Building to substantially its same condition
as it existed immediately prior to such occurrence, meaning the
same interior and exterior design, and containing a building area
of at least ninety-five percent (95\> of its original size, and
shall do so even though the proceeds of any insurance policies
covering the loss shall be insufficient to pay such costs in full,
subject to the ninety five percent (95'); requirement detailed iJ:'l
Section 16.02. However, if such proceed~:of insurance exceed the
cost of such rebuilding, Tenant shall be entitled to retain such
surplus, and Landlord shall not be entitled to any portion of such
insurance proceeds.
Section 16.04. Failure of Tenant to Repair or Restore. If
Tenant fails or neglects to repair or restore the Building or the
portion thereof so damaged with reasonable diligence pursuant to
the terms of this Article 16, Landlord may complete such repairs
and restoration with the insurance proceeds paid to Tenant by the
insurance carrier, and Tenant shall .assign such proceeds over to
Landlord for such purpose.
Section 16.05. Disputes. In the event that there is any
controversy as to whether the Building is rendered untenantable or
if there be any controversy- under this Article 16 in connection
with ascertaining the cost of repair or restoration, the
controversy shall be resolved by arbitration as provided in Article
26.
Section 16.06. Governmental Prohibitions. If Tenant is
prohibited from repairing or restoring the Building in accordance
with Section 16.02 due to statutes, laws, ordinances, rules or
regulations of the appropriate governmental authorities which
prohibit same, Tenant shall have the right, to be exerci.ed by
written notice to Landlord within sixty (60) days of the date
Tenant receives notice from such governmental authorities that
Tenant's proposed repairs or restoration are prohibited, to
terminate this Lease. Such notice from Tenant to Landlord shall
operate to terminate all obligations and liabilities of Tenant
under this Lease from and after- the 'date of such notice, except
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those obligations and liabilities which specifically survive
termination of this Lease and except as set forth in this Section
16.06. In the event of termination of this Lease pursuant to this
provision, all proceeds of casualty insurance shall be retained by
Tenantj except, that Tenant shall remove from the Land those
improvements to the Land constructed by Tenant and restore the Land
to a level grade but the foregoing shall not' be construed to
obligate Tenant to remove any underground improvements such as
utility lines or to add any fill to the Propertyj and further
provided that Landlord shall be entitled to a portion of the
proceeds equal to the amount of the Grant, in the event that the
governmental prohibition is not a prohibition by the City of Miami
Beach, but rather a prohibition instituted by another governmental
entity.
ARTICLE 17. MAINTENANCE.
Section 17.01. Maintenance by Tenant. Tenant shall at all
times keep the Property, inclqding exterior walls and entrances,
root, all ql~ss and all glass and showiwindows, moldings, all
partitions, doors, fixtures, equipment ana appurtenances thereof,
including exterior or interior lighting, heating and plwiming
fixtures, electrical equipment and air conditioning system, and
the parking areas in good order, condition and repair (including
reasonable periodic painting), damage by unavoidable casualty and
reasonable wear and tear excepted.
Section 17.02. Maintenance by Landlord. Landlord shall, at
its own cost and expense, maintain the landscaping on the Property.
In addition, as an inducement to Tenant to enter into this Lease,
Landlord shall maintain the City Plaza (as defined in Article 19)
in good condition and repair, .,including the maintenance of all
landscaping and other amenities (including the Plaza Amenities) in
the City Plaza.
ARTICLE 18. ALTERATIONS.
Section 18.01. Right of Tenant. . After Substantial Completion
of the Building, Tenant shall not make or cause to be made any
substantial alterations or additions to the Property without the
prior express written consent of Landlord, which consent shall not
be unreasonably withheld or delayed. Tenant shall furnish to
Landlord the plans and .pecifications for all substantial
alterations or additions which Tenant desires to make, not less
than thirty (30) days prior to commencement of any work upon the
Property. Tenant shall be responsible to obtain all governmental
approvals and permits prior to constructing any approved
alterations or additions and shall provide a bond tor all
substantial alterations or additions in accordance with Article 11.
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Section 18.02. Substantial Defined. For purpoeee of Section
18.01, any alteration or addition which Tenant proposes to make to
the Property coeting in excess of $100,000.00 ehall constitute a
"substantial" alteration or addition.
ARTICLE 19. DEVELOPMENT 0" CITY PLAZA AND 'REALIGNMENT
OF CONVENTION CENTER DRIVE.
Section 19.01. Development of City Plaza. As an inducement
to Tenant to conetruct the Building on the Land and develop and
operate the Facility, Landlord shall use its best efforts to
develop and maintain certain improvements on that certain parcel of
land contiguous to the Property and legally described in Exhibit
"BII attached hereto and incorporated herein by reference (the IICity
Plazall) . The City Plaza shall contain those improvements and
amenities, including landscaping, depicted on the Site Plan
attachQd hereto as Exhibit IIC" (the "Plaza Amenities"). Landlord
shall construct and continuously maintain the City Plaza and the
Plaza Amenities for the Term of this Lease. In addition to the
development of the City Plaza, Landlord shall use its best efforts
to provide additional access to the propsrty, at Landlord's sole
cost and expense, by the realignment of Convention Cente~ Drive in
accordance with the Realignment Plan attached hereto as Exhibit
"Oil'. Landlord shall complete the City Plaza and the realignment of
Convention Center Drive wi thin three (3) years after the Possession
Date.
ARTICLE 20. SURRENDER OF PROPERTY.
Section 20.01. Surrender of Property. At the expiratio~ of
this Lease, or earlier terminat10n in accordance with the terms of
this Lease, Tenant shall surrender the Property in the lIame
condition as the Property was in upon Substantial Completion of the
Building, in "broom clean" condition, reasonable wear and tear
excepted and damage by casualty excepted where specifically
provided in this Lease, and shall. surrender all keys for the
Property to Landlord at the place then fixed for the payment of
rent. Tenant shall remove all its personal property which is not
permanently affixed to the Building or which is otherwise removable
wi thout substantial damage to the Building, including, but not
limited to trade fixtures, furniture, art work, signs and lIinside"
plants, before surrendering the Property, and shall repair any
damage to the Property caused thereby. Tenant's obligation to
observe or perform this covenant shall survive the expiration or
other termination of this Lease. Tenant shall not remove any
ducts, air conditioning compressorsJ pumps, electrical wiring, or
plumbing pipes or fixtures. Upon surrender of the Property, or
upon expiration of this Lease or earlier termination in accordance
with the terms of this Lease, whichever first occurs, title to the
Building shall thereupon, and without further act of either party,
24
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vest in Landlord, provided, 'that upon request of Landlord, Tenant
will promptly execute and deliver to Landlord such deed thereto as
Landlord may reasonably request.
ARTICLE 21. EVENT OF DEFAULT BY 'l'ENANT.
.
Each of the following events shall constitute an "Event of
-Default" by Tenant under this Lease, and shall entitle Landlord to
exercise any and all remedies set forth in Article 22:
Section 21.01. Monetary. Any failure of Tenant to pay any
rental, additional payments or other s~ payable hereunder atter
the same shall be due, provided, that such failure ahall have
continued for a period of thirty (30) days ~tter: (i) written
notice is given by Landlord to Tenant of Tenant's failure to make
any such payment on its due date as to the first such default in
any Lease Year or (ii) the due date of any such payment as to the
aecond and subsequent such defaults in any Lease Year.
Section' 21.02. Abandonment. If Tenant shall abandon the
Property or suffer this Lease to be taKen under any writ of
execution.
Section 21.03. Non-Monetary. Any failure of Tenant to perform
any other terms, conditions, or covenants of this Lease to be
observed or performed by Tenant for more than sixty (60) days after
written:notice of such default shall have been given to Tenant by
Landlord; provided, that if such default is not susceptible of cure
within such sixty (60) day period, such period shall be extended
for a reasonable time provided that Tenant has commenced a cure
within such sixty (60) day period and is diligently prosecuting
a ame .
Section 21.04. Bankruptcy. Any failure of Tenant to cure,
within sixty (60) days of the occurrence of any of the following,
(a) Tenant shall become bankrupt, or shall file any debtor
proceedings, (b) Tenant shall take or have taken against it in any
court pursuant to any statute either of the United States or of any
state, a petition in bankruptcy or for the appointment o~ a
receiver for all or a portion of Tenant's property, or ec) Tenant
makes an assignment for the benefit of creditors.
ARTICLE 22. LANDLORD'S REMEDIES.
Section 22.01. Remedies for Tenant's Default. If any ot the
Events of Default shall occur, the Landlord may, at its option,
institute such proceedings as in its opinion are necessary to cure
such defaults and to compensate Landlord for damages r..ul ting from
such defaults, including but not limited to the right to give to
Tenant a notice of termination of this Lease. Subject to Article
24 below, if such notice is given, the term of this Lease shall
terminate upon the date specified in such notice from Landlord to
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Tenant, as fully and completely as if that date were the date
herein originally fixed for the expiration of the Term of this
Lease. On the date so specified, Tenant shall then quit and
surrender the Property to the Landlo~d pursuant to the provisions
of Article 20. Upon the termination of this Lease, subject to
Article 24 below, all rights and interest of Tenant in and to the
Property and every part thereof shall cease and terminate and
Landlord may, in addition to any other rights and remedies it.may
have, retain all s~ paid to it by Tenant under this Lease. In
addition to the rights set forth above, Landlord shall have the
right to p~rsue any or all of the following:
(a) the right to injunction or other similar relief
available to it under Florida law ag~inst Tenant; and/or
(b) the right to maintain any and all actions at law or
sui ts in equity or other proper proceedings to obtain damages
resulting from Tenant's default.
Section 22.02. Limitation on Landlord's Remedies.
Notwithstanding any contrary provision of this Lease, upon the
occurrence of an Event of Defaul t pr~or to the Substantial
Completion of the Building by Tenant, and so long as Tenant has not
allowed the continuance of any lien on the Land contrary to the
provisions of this Lease, Landlord's sole remedies for an Event of
Default hereunder shall be (a) the right to enforce the Performance
Bond, and (b) the granting by Tenant of title to any improvements
on the .Land to Landlord, as agreed upon and liquidated damages.
The parties agree that damages suffered by Landlord as the result
of an Event of Default prior to the Substantial Completion of the
Building cannot be estimated with any degree of certainty and that
the right to enforce the Performance Bond and the granting by
Tenant of title to any improve~ent8 to Landlord is a reasonable
estimate by the parties of compensation for damages suffered by
Landlord in the foregoing circumstances.
ARTICLE 23. EVENTS OF DEFAULT BY LANDLORD
AND TENANT'S REMEDIES
Section 23.01. Events of Default. The failure of Landlord to
perform any of the covenants, conditions and agreements of this
Lease which are to be performed by Landlord and the continuance of
such failure for a period of sixty (60) days after notice thereof
in writing from Tenant to Landlord (wpich notice shall specify the
respects in which Tenant contends that Landlord failed to perform
any 8uch covenant, conditions and agreements) shall constitute and
"Event of. Landlord's Default," unless such default is one which
cannot be cured within sixty (60) days and Landlord within such
sixty (60) day period shall have commenced and thereafter shall
continue diligently to prosecute all actions necessary to cure such
.defaults.
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Section 23.02. Remedies for Landlord's Default. If an Event
ot Landlord's Default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right to pursue any or all of the
following remedies:
(a) the right and option to terminate this Lease
and allot its obligations hereunder by giving notice of such
election to Landlord, whereupon this Lease shall terminate as of
the date of such noticej and/or
(b) the right to a writ of mandamus, injunction or
other similar relief, available to it under Florida law against
Landlord; and/or
(c) the right to maintain any and all actions at law
or suits in equity or other proper proceedings to obtain damages
resulting from Landlord's default.
ARTICLE 24. LANDLORD'S AND TENANT'S AGREEMENT TO RECOUP COST
. OF IMPROVEMENTS IN THE EVENT OF DEFAULT.
Section 24.01. Landlord's and Tenant's Aqreement. Both
parties recognize that each of the parties has entered into this
Lease in order to provide an educational and cultural benefit to
the community. Tenant recognizes Landlord's desire that the Land
continue to be utilized for the public purpose for which this Lease
was granted and Tenant shall use its best efforts to continue to
utilize the Property in accordance with the intent of this Lease.
Landlord recognizes Tenant's commitment to developing the Facility
and further recognizes the financial cost to Tenant in constructing
the Building on Landlord's Land. However, both parties recognize
that, notwithstanding the best efforts of Tenant, there is a
possibility that an Event of Default could occur under this Lease.
Section 24.02. Landlord to Proceed to Exercise Remedies. If
an Event of Default should occur by reason of Tenant's failure to
continue utilizing the Property for the conduct of its business,
the parties agree to use their best faith efforts to recoup the
cost of the Building by complying with the provisions of section
24.03 below. - Upon the happening of an Event of Default under
Sections 21.02 or 21.04, and the expiration .of the applicable cure
period, Landlord shall be permitted to proceed with any and all of
the remedies provided for under this Lease.
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Section 24.03. The Qualified Replacement Tenant. Notwi th-
.tanding anything to the contrary contained in this Lease, in
exercising its remedies upon an Event of Default under Sections
21.02 and 21.04, Landlord may begin searching for an appropriate
entity to lease and utilize the Property (the "Qualified Replace-
ment Tenant" ) . Landlord shall, however, not enter into any
agreement with a Qualified Replacem.ent Tenant or in any other
manner encumber the improvements, the leasehold estate or enter
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into a substitute lease agreement for a period of nine (9) months
After the occurrence of the Event of Default (the "Search period") ·
During the Search Period, Tenant shall be permitted 'to solicit
offers from Qualified Replacement Tenants. Each of Landlord And
Tenant shall negotiate with prospective Qualified Replacement
Tenants during the Search Period in order to produce the best offer
for a new lease with Landlord (the "Best Offer"). Any and all
offers shall consist of a list of the qualifications of the
Qualified Replacement Tenant to utilize the Property in a manner
that would benefit the public and otherwise meet the qualifications
of Landlord. In addition, the offer shall include the amount such
Qualified Replacement Tenant would agree to pay for the Building.
It is understood and agreed that, in the event any offer made by a
Qualified Replacement Tenant to purchase the Building is accepted
by both Landlord and Tenant as being the Best Offer, the first Two
Million Five Hundred Thousand Dollars ($2,500,000.00) of any
payment made by such Qualified Replacement Tenant for the Building
will be payable to Landlord as a reimbursement for the Grant (as
defined in Section 27.01 below). Thereafter, Tenant shall be
compensated up to the total cost and expense to Tenant of the
Building. T~Qreafter, the remaining balance of all payments made
by the Qualified Replacement Tenant to purchase the Building shall
be payable to Landlord. ~'~ .
Section 24.04. Dispute. In the event Landlord and Tenant are
unable to agree upon which offer i~ the Best Offer, such dispute
shall be handled by arbitration in the manner provided in Section
26.01 below.
ARTICLE 25. QUIET ENJOYMENT.
Section 25.01. Quiet En10yment. Tenant, on paying the rent
and performing the covenants and conditions hereof, shall and may
peaceably and quietly have, h91d and enjoy the Property for the
Term hereof, and Landlord agrees to defend Tenant's rights
hereunder against all adverse claims except those persons claiming
by, under or through Tenant. Notwi thstanding the foregoing,
Landlord shall be permitted to enter the Building in the event of
an emergency.
ARTICLE 26. ARBITRATION.
Section 26.01. Arbitration. Whenever any provision of this
Lease provides that a matter shall or may be determined by
arbitration in accordance with this Section 26.01 and either party
requests in writing from the other that such matter be so
determined, then it shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
~sociation, and the arbitration decision or award shall be final
and binding upon the parties hereto and subject to no appeal, and
.hall deal with the question of the cost of arbitration in all
matters related thereto. In that regard, the parties shall
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mutually select one arbitrator, but in the event that the parties
cannot agree upon the arbitrator, then the American Arbitration
Msociation shall appoint one. Judgment upon the award or decision
rendered may be entered into any'court having jurisdiction, or
application may be made to such court for an order of enforcement.
ARTICLE 27. MISCELLANEOUS.
Section 27.01. City Fundinq. Landlord agrees to provide
funds in the amount ot up to TWO MILLION FIVE HUNDRED THOUSAND AND
NO/lOO DOLLARS AND NO/lOO (U.S.$2,SOO,OOO.00) in the form of a
grant from the Tourist and Convention Center Expansion Authority
("TCCEA") to pay the cost ot developing the Land and constructing
the Building (the "Grant "). The entire Grant shall be available on
or before the Possession Date and shall be disbursed in accordance
with the terms of the Construction Agreement. The Construction
Agreement shall provide for the payment of the actual cost of
construction on a pari passu basis one-half from Tenant's funds and
one-half from the Grant, until the total amount of the Grant has
been expended. Prior to disbursement of the Grant, Tenant must
provide Landl:ord with evidence that T.;tnant has $2,500,000.00
available to it for funding of Tenant' s po~ion of the const%11ction
costs.
Section 27.02. Parking. Landlord shall provide, at a
discounted rate that is less than the fair market rental rate, one
hundred (100) parking spaces for utilization by the officers,
directors and employees of Tenant. 'The parking spaces shall be
made available through the issuance of a monthly parking pass and
shall be located on property owned by the City of Miami Beach in
any garage or other parking facility located within one thousand
(1,000) feet from the perimeter of the Land.
Section 27.03. Hazardous Waste. Notwithstanding any contrary
provisions of this Lease: (a) Landlord shall be liable to all
third parties and to Tenant for, and shall indemnify and hold
Tenant harmless from, any loss, damage, cost, or expense, including
without limitation, reasonable attorneys' fees at trial and
appellate levels, incurred, arising from, or connected with the
existence, as of the Possession Date, on, under, in or upon the
Land of any "hazardous substance" or "petroleum products II , as those
terms are defined by applicable federal or state statute or by
rules or regulations promulgated pursuant thereto, as amended from
time to time, and (b) Tenant, after the Possession Date, shall be
liable to all third parties and to Landlord, and shall indemnity
and hold Landlord harmless from, any loss, damage, cost, or
expense, including, without limitation, reasonable attorneys' fees
at trial and appellate levels, incurred, arising from, or connected
with the placement by Tenant, after' the Possession Date, of any
"hazardous substance" or "petroleum products" on, under, in or upon
the Land, as those terms are defined by applicable federal or .tate
statute or any rules or regulations promulgated pursuant thereto,
29
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as amended trom time to time. The provisions ot this Section 27.03
shall survive the indemnity and termination or earlier expiration
ot this Lease.
Section 27.04. Environmental Report. Within sixty (60) days
of the Lease Execution Date, Tenant shall order a Phase I
Env ironmental Report, to be prepared in accordance with the
industry .tandard of practice, known as ASTM E 1527-93, Standard
Practice for Environmental Site Assessments; Phase I Site
Assessment Process (the "Environmental Report"). The Environmental
Report of the Land shall be prepared by an environmental
engineering firm acceptable to Landlord. The environmental
engineer will be required to complete the Environmental Report
within ninety (90) days of the Lease Execution Date, and the cost
of the Environmental Report shall be shared equally by the parties.
In the event the Environmental Report discloses the existence of
"hazardous substance" or "petroleum products" on the land, the
parties shall instruct the environmental engineer to estimate the
cost of remediation. Within thirty (30) days of the Tenant's
receipt ot the Environmental Report (together with the estimated
cost of remediation), Tenant shall have >,the option to terminate
this Lease by providing notice to Landlord~pursuant to the terms of
this Lease. In the event Tenant does not exercise its option to
terminate the Lease, Landlord shall have an additional twenty (20)
days, after the expiration of Tenant I s thirty (30) day option
period, to further review the Environmental Report and estimated
cost.
Landlord agrees to fund the cost of remediation up to the
amount of the TWO MILLION FIVE HUNDRED THOUSAND AND NO/lOO DOLLARS
($2,500,000.00) Grant from TCCEA that is provided by Landlord
pursuant to this Lease to pay for the cost of developing the land
and constructing the building. Any such monies applied by Landlord
toward remediation shall accordingly be deducted'from the Grant,
and Landlord shall not be obligated to provide any additional funds
for any reason. In the event the estimated cost of remediation
exceeds TWO MILLION FIVE HUNDRED THOUSAND AND NO/IOO DOLLARS
($2,500,000.00), Landlord may terminate this Lease by providing
notice to Tenant in accordance with the provisions of the Lease, or
Tenant may have the option of paying for all remediation costs in
excess of 2.5 .million dollars. This Lease shall automatically
terminate unless Tenant tenders the cost of remediation in excess
of 2.5 million dollars within ninety (90) days from Landlord's
written notice of same.
Section 27.05. Performances at the Theatre of the Performinq
Arts. Landlord and Tenant shall each use their good faith
efforts to negotiate and execute a performance agreement (the
"Performance Agreement") which will recognize Tenant'. obligation
to cause its Ballet Company to perform a certain number of its Dade
County performances at the Theatre ot the Performing Arts ("TOPA")
located in the City of Miami Beach. While providing for Tenant's
30
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utilization of TePA, 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 shall also contain all
conditions of Tenant's utilization of TOPA, including any
modifications to the theatre required in order to accommodate the
Tenant's productions. In the event, for any reason, despite
Landlord and Tenant's good faith efforts, the parties are unable to
execute the Performance Agreement within thirty (30) days of the
Lease Execution Date, this Lease shall be null and void and both
parties shall be released from all obligations hereunder.
Section 27.06. City Participation. Tenant agrees that it
.hall appoint a designated representative of the City of Miami
Beach to its Bo~rd of Trustees for each and every year of the Term
of this Lease. At the present time, the standard term for a Ilember
of the Miami City Ballet Board of Trustees is for a period of three
(3) years. The City Commission of the City of Miami Beach shall
upon recommendation of the City Manager, at least three (3) months
prior to the' beginning of each new three-year term, select a
representative to sit on the Board of Trus~ees and shall so notify
Tenant in'accordance with the notice provisions of this Lease.
Section 27.07. Brokers. Landlord and Tenant represent to each
other that no broker or real estate salesman haa been involved in
the procuring of this Lease or the negotiation of this Lease. If
any claim for brokerage commission is made as a result of this
transaction, Landlord and Tenant shall each indemnity and hold
harmless the other party for any loss, damage, cost or expense,
including reasonable attorneys' fees at trial and appellate levels,
which shall be sustained by the other party, as a result of a claim
tor brokerage commission made through Landlord or Tenant, as the
case may be. The provisions of this Section 27.05 shall survive
termination or earlier expiration of this Lease.
Section 27.08. Notices. All notices required or options
exercised under this Lease shall be given in writing and shall be
deemed to be properly served if sent by registered or certified
mail with return receipt requested to Landlord or to Tenant where
required under-this Lease, at the addresses set forth below or to
.uch other addres.es as a party may request in writing. The date
.uch written notice or option shall .be deemed to have been given
shall be three (3) days after the date upon which the same is
deposited in the United States mail.
To Landlord:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
31
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With ,a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
'1'0 Tenant:
Miami City Ballet, Inc.
905 Lincoln Road
Miami Beach, Florida 33139-2601
Attention: Director of Administration
With a copy to:
"
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Shutts , BdWen
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131
Attn.: Judith A. Burke, Esq.
Section 27.09. No Waiver. No waiver of any covenant or
condition of this Lease by either party shall be' deemed to imply or
-:
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"
constitute a waiver in the future of the same covenant or condition
or of any other covenant or condition of this Lease.
Section 27.10. Memorandum of Lease. Landlord and Tenant
agree that neither will record this Lease and agree that each party
will execute and record a memorandum of this Lease at any time if
the other party so requests.
Section 27.11. Landlord's Riqht of Entry. At any time upon
reasonable prior notice to Tenant, Landlord may have reasonable
access to inspect the Property, and for ninety (90) days prior to
the Expiration Date, Landlord shall have reasonable access to the
Property for exhibiting the same to prospective tenants.
Section 27.12. Estoppel Certificate. Within ten (10) days
after request by Landlord or Tenant, or in the event that upon any
sale, assignment or hypothecation of the Property by Landlord, an
estoppel certificate shall be required from the non-requesting
party. Tenant and Landlord agree to deliver in recordable form a
certificate to any proposed mortgagee or purchaser, or to Landlord
or Tenant, certifying (if such be the cas~) that this Lease is in
full force and effect and that there are' no defenses or o~fsets
thereto, or stating those claimed by Tenant or Landlord.
Section 27.13. Covenants Run with Land. All rights and
liabilities herein given or imposed on either of the parties
hereto, shall inure to the benefit of and be binding upon the
heirs, executors, administrators, successors and assigns of the
parties hereto, except as otherwise expressly set forth in this
Lease.
Section 27.14. Attorney's Fees. If it becomes necessary for
Landlord or Tenant to enforce ~heir respective rights under this
Lease or any part hereof through litigation or arbitration, Tenant
and Landlord agree that the prevailing party shall be entitled to
recover from the other party all costs and expenses of such
litigation or arbitration, including a reasonable attorney's fee
and costs, for all trial and appellate proceedings.
Section 27.15. Plural. The words Landlord and Tenant when
used herein shall respectively refer to and 'include the singular,
plural, feminine, masculine, or neuter, as the case may be.
Section 27.16. Compliance with Laws. Tenant shall, at its
own cost and expense, promptly observe and comply with all present
and future laws, ordinances, requirements, orders, directi ves,
rules and regulations of all governmental authorities affecting the
Property or any part thereof whether the same are in force on the
Lease Execution Date or may be in the future passed, enacted or
directed, and Tenant shall pay all costs, expenses, liabilities,
losses, damages, fines, penalties, claims and demands, including
reasonable attorney's fees, that may in any manner arise out of or
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be imposed because of the failure of Tenant to comply with this
Section 27.16. Nothing in this Section 27.16, however, shall be
construed as imp0sing any financial liability on Tenant prior to
the Commencement Date not otherwise specifically imposed by this
Lease.
Section 27.17. Div~sibility. If any onel, or more; of the
terms, covenants and agraements contained in this Lease shall be
set aside or found to be unenforceable by a court of competent
jurisdiction, then nevertheless and notwithstanding, all remaining
terms, covenants and agreements herein shall remain in full force
and effect.
Section 27.18. Landlord and Tenant Not in Business Toqether.
It is understood and agreed that neither Landlord nor Tenant shall
in any event be construed or held to be a partner or associate of
the other party in the conduct of their respective businesses, nor
shall either party be liable for any debts incurred by the other
party in the conduct of their respective businesses, but it is
understood and agreed that the relationship is and at all times
shall remain that of Landlord and Tenant. '.
l.
Section 27.19. Radon Disclosure. Radon Gas: Radon is a
naturally occurring radio active gas, that, when it has accumulated
in a building in sufficient quantities may present health risks to
persons who are exposed to it over time. Levels of radon that
exceed Federal and State Guidelines have been found in buildings in
Florida. .. Additional information regarding radon and radon testing
may be obtained from your County public health unit. [Note: This
paragraph is provided for informational purposes pursuant to
Section 404.056 Subsection 8, Florida Statutes, 1988.]
Section 27.20. Governinq Law. This Lease shall be construed
and enforced in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, Landlord and Tenant have caused these
presents to be executed the day and year first above written.
WITNESSES:
LANDLORD:
CITY -9F MIAMI BEACH, a Florida
muni ipal corpor tion
ATTEST~~ ~Z~~
City Clerk
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WITNESSES:
/:iQ~ ~ :.
Name:
Name~~':~
MIAMI 257708.3 - L 1 M
FORM APPROVED
LEGAL DEPT.
By -:J V9
Date ,p.. s-. q L{
'"::
TENANT:
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34
EXHIBIT "A"
LEGAL DESCRlmONOF PARCEL A
A part of Section 34, Township 53 South. Ranle 42 East, beina more panicuwly described
as follows:
Commena: ai the intersection of the center lines of M~ridian Avenue and" 17th Street, as
shown in the Amended Plat of Golf Course Subdivision of the Alton Beach Realty
Company, recorded in Plat Book 6 at Pile 26. Public Records of Dade County, Florida;
thence run South 89' 59' os- East. alonl the center line of 17th Street for a distance of
768.52 fut to I point; thence run North O' 00' 58" Welt for I distance of 173.38 (eet to the
POINT OF BEGINNING; thence continue alonl the lat described bearina for a distance
of 33.12 feet to a point; thence run NOM 89' 59' 5r East for a distance of 99.34 feet to
a point: thence run NOM O' 06' 53' West. for I distance of 1<<.02 feet to a point; thence
run North 89' 56' 3T West. (or a distance of 195.00 feet &0 a point o( tan&eocy: thence run
al01\l the arc: of I dn:ular curve c::oncave to the Southeast havinla central aaaJe of SO, 06'
23- and a radius of 40.00 feet (or a distance of 34.98 (eet to a point of interSeCtion with a
circular curve which radius bears North .70' 28' ....- East from said point of intersection;
thence run alonl the arc of said curve, which is concave &0 the Nonheast. havina a central
anile of 30' 40' 19" and I radius of 155.00 feet for a distance of 82.98 feet to a point;
thence run South .... 26' 55' East for a distance of 51.26 feet to a point located on a
circular curve which radius bean South 4S' 33' OS' West from said point: thence run along
the arc of a circular curve. concave to the Southwest havinl a cenual anile of 16' 12' 58"
and a radius of 260.29 feet for . distance of 73.67 (eet to the POINT OF BEGINNING.
~OTE: This legal description is subject to future modification
by mutual agreement of the parties.
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AMENDMENT TO GROUND LEASE
TIllS Nv(ENDMENT TO GROUND LEASE, is made as of the _ day of ,1997,
by and between the CITY OF MIAMI BEACH. a Florida municipal corporation (Landlord or City)
and MIAMI CITY BALLET, [Nc.. a Florida not-for-protit corporation (Tenant or Ballet).
WITNESSETH:
WHEREAS, on April 13, 1994, the City of Miami Beach and Miami City Ballet 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, the City and the Ballet now desire to change the Designated Site for the Ballet's
pennanent facility to one located in the Collins Park District of Miami Beach (New Site),
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 airee to use its best efforts to acquire the fee ownership ofdcmisc, lease and let unto
Tenant for the tcrm and upon thc conditions hereinafter statcd,that certain real property described
in Exhibit "A" attached hereto and made a part hereof which consists of approximately
20,0001 13.800square feet of land, more or less. currently improvcd -.vith a surface parking lot;-
located in the City of Miami Beach, Dade County, Florida, and. subiect to such acquisition. Landlord
:~s ::,e~ise. lease lUld let u~to Tenant for the teI1T1s and upon the eOnditions heTl<inafter stated.
i I te ~thin the said real :property. to be mutually agreed on by Landlord and Tenant that
includes a minimum of30.000 sql.iare feet. together with all appurtenances to such land, including,
without limitation, all vegetation air rights, easements, rights-of-way or appurtenances o\.Vi"lcd bytQ.
be acquired by Landlord and held in connection with such land, and all rights efLandlord ~
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 Tenn (as defined in Section 2.01)
subject to the covenants, agreements, terms and conditions hereinafter met forth, to each and all of
which Landlord and Tenant mutually agree,
2, The first sentence of Section 3.0 I shall be amended to read as follows:
Section 3.01 Buildin~ Defined. "Building" shall mean an approximately Eight)'Sim
Thousand (820,000) 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, paving for parking areas and walkways, 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,
3, All terms of the Ground Lease Agreement, dated April 13, 1994, that are not specifically
amended by this Amendment to Ground Lease shall remain binding on Landlord and Tenant.
However, notwithstanding this provision, Landlord and Tenant shall each use their good faith efforts
to negotiate a Second Amendment to Ground Lease upon Landlord's identification and designation
of a specific site for the proposed Miami City Ballet permanent facility, said site to be located within
that certain real property described in Exhibit "A", and comprising the Land and the Building, as
same are defined herein, Such Second Amendment shall be subject to the approval of the Mayor and
City Commission of the City of Miami Beach. In the event, for any rea~on, despite Landlord and
Tenant's good faith efforts, the parties are unable to negotiate said Second Amendment within six
(6) months following execution of this Amendment to Ground Lease, this Amendment and the
underlying Ground Lease Agreement, dated April 13, 1994, shall be null and void and both parties
shall be released from all obligations hereunder.
IN WI1NESS WHEREOF, Landlord and Tenant have caused these presents to be executed
the day and year first above written,
WITNESSES:
Name:
Name:
A TIEST:
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City Clerk
w#~
Name:
LANDLORD:
MIAMI BEACH, a Florida
al corporation
j'
TENANT:
MIAMI CITY BALLET, INC., a Florida
non-fo -profit corporation
, APPROVED /4S TO
FORM & LANGUAGE
& FOR execunON
2
/k1I~ 6//2/0'1
CitY Mtorney ~
EXHIBIT "A"
AMENDMENT TO GROUND LEASE
City of Miami Beach and Miami City Ballet
Exhibit A to the Amendment to Ground Lease, dated the day of
LEGAL DESCRIPTION of land (note underline is NOT part of legal description):
, 1997.
211 22nd Street (12.500 sq Ft):
MIAMI BEACH IMP CO SUB PB 5-7
LOTS 4 & 6 BLK2
LOT SIZE 100 X 125
227 22nd Street (8.775 Sq Ft):
MIAMI BEACH IMP CO SUB PB 5-7
LOT 8 & E20FT OF S100FTLOT 10 &
E15 FT OF N35FT OF W80 FT OF S100FT
LOTS 10 & 12 BLK 2
LOT SIZE IRREGULAR
245 22nd Street (7.475 Sq Ft):
MIAMI BEACH IMP CO SUB PB 5-7
W80FT OF SIQOFT OF LOTS 10 & 12
LESS E15FT OF N35FT OF W80FT OF
S100FT OF LOTS 10 & 12 BLK 2
LOT SIZE IRREGULAR
313 22nd Street (12.500 Sq Ft):
23-26-27 34 53 42
MIAMI BEACH IMP CO SUB Pa,5-7
h S100FT LOTS 2 & 4 BLK 1
LOT SIZE 125.000 X 100
OR 15608-035002924
321 22nd Street (18.750 Sq Ft):
MIAMI BEACH IMP CO SUB PB 5-7
LOTS 6-8 & 10 BLK 1
LOT SIZE 150 X 125
220 23rd Street (5.750 Sq Ft):
MIAMI BEACH IMP SO SUB PB 5-7
LOT 5 BLK2
LOT SIZE 50 X 115
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~XHIB[T A. Amendment to Ground Lease. City of Miami Beach/Miami City Ballet
224 23rd Street (19.750 SQ Ft):
23 26 27 34 53 42
MIAMI BEACH IMP CO SUB PB 5-7
LOTS 7-9-11 LESS NI0FT FOR RfW &
N25FT OF LOTS 10 & 12 BLK 2
LOT SIZE 19750 SQ FT
;300 23rd Street (16.800 SQ Ft):
MIAMI BEACH IMP CO SUB PB 5-7
LOTS 1 & 3 & N25FT LOTS 2 & 4
LESS Nl OFT OF LOTS 1 & 3 BLK 1
LOT SIZE 16800 SQ FT
340 23rd Street (17.250 SQ Ft):
:MIAMI BEACH IMP CO SUB PB 5-7
LOTS 5 & 7 & 9 BLK 1
LOT SIZE 17250 SQ FT
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SECOND AMENDMENT TO GROUND LEASE
AND CONSTRUCTION AGREEMENT
THIS SECOND AMENDMENT TO GROUND LEASE AND C01'-!STRUCTION
AGREEMENT, is made as.ofthe 1.!-day of oc 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 .~e location of the Designated Site
for the proposed permanent facility for the Ballet to one located ir\ the Collins Park District of Miami
Beach (New Si!e); 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 which consists of approximately
113,800 square feet ofland, more or less, 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 includes a minimwn of 40,000 square 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 0 f Section 3.0 I 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:ting
for pflfking flfCfl:3 and walk,yaY3, 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 of the Miami City Ballet as a Dance Pavilion, Museum aDd School (the "Facility") .pursuant
to the terms of ~his Lease and the Construction Agreement. to be entered into between the parties
within five (5) months of the Lease Execution Date (the "Construction Agreement"),
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 1&31 revised 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 park their \'chiclc3 on the use any portion of the
Land that is presently u3ed &3 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 of the
Building no later than eighteen (I 8) months after commencement of such construction subject to
Unavoidable Delays, as such term is defined in thc Construction Agrccmcnt. below.
"Unavoidable Delav" 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 s'usceptible to control by such party.
shall be bevon~ 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 notif:y 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 0) 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, a:s defined in the Construction Agreement, 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
oyeration 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 (n 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 Adiustments 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) rcqucst that thc issuc of fair market rcntal be submittcd to arbitration
in accordance with the proccdurcs outlined in Articlc 26, o'
l.
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 is undcr3tood that, thc Land is not
prcscntly sub-jeet to the payment of real property Taxcs, To the best of their knowledge. it is
understood by the parties that..on acquisition by the Landlord, the Land may not be subiect 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 subiect 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 7,0 I Title to the Land. Landlord rcprcscnts acknowledges that Landlord is nQ1
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 of the said Land within six (6) months of execution of this Second Amendment
to Ground Lease and Construction Agreement, which ownership is shall be unencumbered by any
4
lien or security interest. Landlord end also represents that there ftf'e 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 Lca3c Execution Datc 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:bf 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 Ten ant'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
shaH have each useg their good faith efforts to negotiate and execute a performance agreement (the
"Performance Agreement"), originally dated August IS. 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 TOP A, 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 Cente~ is constructed
and is in operation. The Performance Agreement ~ 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 cvcnt, for an)' rcason, dcspitc Landlord and TcnMt's 'good faith
cffOrt3, the partics arc unable to execute thc Perfomutficc Agrcemcnt '"vithin thirty (30) clap of the
Lca:.sc Exccution Date, this Leasc shall bc null and void and both partics shall be released from all
obligations hereundcr, ,
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~
Jenant 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
ofthis 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 ofthis 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 0 f 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 WI1NESS WHEREOF, Landlord and Tenant have caused these presents to be executed
the day and year first above written.
~SSES: .
Name:t~Y:~
LANDLORD:
~ ---'~
Nam~Jn;~WIL-~~
By:
ACH, a Florida
ATTEST:
~>r f~~
.City Clerk
TENANT:
WITNESSES:
MIAMI CITY BALLET, INC., a Florida
non- for-profit corporation
~\
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APPROVED J.S TO
FORM & lANGUAGE
& FOR EXECUTION
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CITY OF
MIAMI
BEACH
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CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
, COMMISSION MEMORANDUM NO. 70G,-'17
TO:
M2yor ~ymour Gelber 2nd
Membel'3 or the City Commi33ion
DATE: October 21, 1997
FROM:
,
J03C Guci2-Pedrou J'''to.,/
I b~;
City M2n2ger ' 1/:
, I,
RESOLUTION ori 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'iTHE PROPOSED PE~
FACILITY FOR THE MIAMI CITY BALLET TO BE LOCATED IN THE
GOLLINS PARK DISTRICT OF MIAMI BEACH.
SUBJEcr:
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 sou.thern 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 the process by
relieving them of this financial obligation.
AGENDA ITEM
R'7i-L
DATE
f(J-"2I-G,
..
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 vaiue.
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:
"
t-
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 : j m
Attachment
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THIRD AMENDMENT TO GROUND LEASE
THIS THIRD AMENDMENT TO GROtJND LEASE. is made as of the _ day of
, 1998. by and betwe~n the CrTY Of MIAMI BEACH. a Florida municipal
corporation (Landlord or City) and MIAMI CITY BALLET, INC.. a Florida not~for-prot1t
corporation (Tenant or Ballet),
\\1TNESSETH:
WHEREAS. on April 1 J. 1994, the City of Miami Beach and Miami City Ballet. [ne,
ex~cuted a Ground Lease Agreement for a proposed permanent facility for the Ballet: and
WHEREAS. the City and the Baltet have herein negotiated the foregoing Third Amendment
to Ground Lease. specifically identifying and designating the site for the proposed Miami City Ballet
permanent facility_ and funher clarifying certain terms and conditions of the Ground Lease
Agreement. ,
l-
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 publ ic 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 1:l3e it3 best eff01"l:3 to acquire the fa OYlf\cr3hip ef that certain felll property
dC3cribcd in Exhibit" A" attached hcn:ta and made a pm hereof. located ifl the City of Miami Beuch,
Mill()l~~DB.de C<>wny, rIerida, Ma, 3ttbject to 3t:lch acquisition, Le:ndlord tigre's t6 demise, lease and
let unto Tenant for the terms and upon the conditions hereinafter stated, tr3kc located .....,itltin the Jatd
that cert~iD real property, described in Exhibit "AU attached hereto and made a part hereof. ~
mutuall)' agreed on by La:rtdlord ftl.d TcnaM, 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 ofwlUch Landlord
and Tenant mutually agree.
2. Pursuant to Section 1.05 of the Ground Lease Agreement, the City and the Ballet herein agree
that the "Lease Execution Date," as defined therein, ,shall be April 13, 1994.
3. Construction Schedule. Paragraph 19(c) of the Second Amendment to Ground Lease and
Construction Agreement, dated October 21, 1997, shall be deleted in its entirety and replaced with
the Construction Schedule. attached hereto and made a part hereof as Exhibit "A-I, II
c-n:=1C"\H-1
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q;:JJ;:J-;:>c-c:-c:nc- -I=1"HR liT'" T1,II-HI,I",tn'., I rn'TT rrrT rn rr:1 J
4. All terms of the Ground Lease Agreement. dated April 13, 1994. as amended. that are not
specifically amended by this Third Amendment to Ground Lease shall remain binding 011 landlord
and Tenant.
rN WITNESS WHEREOF, Landlord and Tenant have caused these presems to be executed
the day and year first above wrinen.
WITNESSES:
LANDLORD:
Name:
CITY OF MIAMI BEACH. a Florida
municipal corporation
Name:
By:
N~,isen Kasdin, Mayor
t.
ATTEST:
City Clerk
TENANT:
\VITNESSES:
MIAMI CITY BALLET, fNC" a Florida
oon-fo profit corporation
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By:
ATTEST: t j 1~ ~ lA t!'>' (2 (? ~a.....~~
Secretary
.....-
,"""nv~.IDIWT..~NC
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LETI:'ER OF lmnEgSTA~J)J1SG
THIS LETTER represents the understand between the CITY OF MIAMI BEACH
("eMS'"), the CITY OF MIAMI BEACH REDEVELOPMENT AGENCY ("CMB/RDAn),
MIAMI CITY BALLET, INC, ("MCB"), and MCB's general contractor STaBS BROTHERS
CONSTRUCTION ("STOBS") for the following purpose.
WHEREAS MCB and STOBS desire to secure the use of the Fruit Srand and King sires
(respectively the SW and SE parcels at the intersection of Liberty Avenue and 23rd Street on
Miami Beach) for use as additional construction staging area and crew parking respectively, for
construction of MCB 's new facility, the follOWing terms and conditions are agreed to:
l. .
1, MCB and STOBS will use the Fruit Stand site as an 'additional staging area for the
construction of its new facility at 2200 Liberty Avenue. (See attacbed map.)
2. STOBS will secure the site with a fence and MCB will pay for the fence.
3. STOBS can use the Fruit SWld site building for storage, bur must secure rhe building and
be solely liable for any Contents placed therein.
4. In order to protect the environment and DOt add to existing contamination. STOBS wiH not
break the concrete or asphalt nor allow the same to be broken.
5. The King site will be used for parking by STOBS, except for 10 spaces which will be
allotted to the Bass construction project, (See attached map,)
6, CMB, MCa and STOBS will not be liable for any damage co any vehicle parked on either
site.
7. M~B will expand its Builders Risk insurance policy [Q cover these two sites,
8, The commencement date for use of both parcels will be January 7, 1999.'
9, With 30 day written notice by CMB to MCB, MCB and STaBS must temporarily
abandon either sire in order for the eMB to demolish the structure on either property.
10. Both sites will be surrendered by MCa and STDBS at the substantial completion of MCB's
new facility, but in no case larer than September 15, 1999, or at the request of CMB/RDA.
. Page 1 of 3 -
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I JoJs SJ2..1~30 CA,' .: )'JS S ~1~ 7~~ :'\.....'. ,",".,.,'." ,:.",.._" " ...,".-. ,~ .' ;.;-, I
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LFrrF'Jl n~ Ar.I)~FMFNT' rMR. rYR/JHU. MrR'llnrlI\TnR.1\ rn"ri""..tf
P~8" ., nf 1
11, The CMB represents that the CMB/RDA owns boch parcels and can grant this temporary
use.
The above items consticute the full and complete understand between these parries for the
temporary use of these two properties.
AGREED TO and ACCEPTED:
For the City of Miami Beach
and Redevelopment Agency
nne:
For Scobs Bros. Construction
~~~
~rt Srobs
n.e:~~
For Miami City Bailee
~b.-.r--... s . I r-
Barbara Singer T
Date:g ~ U bJ- Pf:3 .
c: Kahn-Carlin & Company, me,
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