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99-23267 RESO RESOLUTION NO. 99-23267 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH (CMB) AND MIAMI CITY BALLET, INC. (MCB) FOR THE PROPOSED MCB FACILITY LOCATED AT 2200 LIBERTY AVENUE, MIAMI BEACH, FLORIDA; AND FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE ANY NECESSARY RELATED DOCUMENTS; SUBJECT TO REVIEW OF SAME BY THE ADMINISTRATION AND CITY ATTORNEY'S OFFICE. WHEREAS, the proposed Miami City Ballet facility is located on a property governed by a Ground Lease Agreement between the CMB and MCB; and WHEREAS, Section 27.02 of the Ground Lease addresses the City's parking obligations to MCB, relative to the provision of one hundred (100) parking spaces for utilization by the officers, directors, and employees ofMCB; to be provided at less than fair market value within one thousand (1000) feet of the facility; and WHEREAS, the City developed a plan for a Cultural Campus and incorporated the MCB building into these plans; and WHEREAS, the City is embarking on construction of other facilities within the Cultural Campus, which include the expansion of the Bass Museum and a new regional library; and WHEREAS, the City is in the process of evaluating several alternative measures to address the parking needs of the various cultural and institutional uses within the Cultural Campus; and WHEREAS, the MCB building is governed under the provisions of the former Zoning Code, as a result of the building permit being issued in September 1998; and WHEREAS, MCB provided a letter to the City, dated September 4,1998, wherein MCB acknowledged that it is obligated to meet its legal parking requirements; and WHEREAS, notwithstanding the above, MCB currently estimates that the proposed facility is scheduled for completion on or about September I, 1999, but that it will not be able to satisfy its parking requirement for same prior to that date, in a manner that is mutually agreeable to the City and MCB; and WHEREAS, accordingly, the City and MCB have negotiated the attached Agreement, in settlement of the short term parking needs of the facility; said Agreement, in essence, allowing MCB to obtain a Certificate of Use and/or Occupancy as may be necessary to occupy and operate the facility, while allowing both the City and MCB additional time within which to continue to address and satisfy their respective parking obligations. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein approve and authorize the Mayor and City Clerk to execute the attached Agreement between the City of Miami Beach (CMB) and Miami City Ballet, Inc. (MCB) regarding the proposed MCB facility, located at 2200 Liberty Avenue, Miami Beach, Florida; further authorizing the City Manager to execute any necessary related documents, subject to review of same by the Administration and the City Attorney's Office. PASSED AND ADOPTED THIS 21st day of July ,1999. MAYOR ~,~ ATTEST: _~rfcu~ CITY CLERK APPROVED N3 TO FORM & LANGUAGE & FOR EXECUTION F:\DDHP\SALL\ANGELA\MCB512A.WPD 411cM 7;;6/~j Date CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 hllp:\\ci.miami-beach.fl.us COMMISSION MEMORANDUM NO. S50-GJ9 TO: Mayor Neisen O. Kasdin and Members of the City C mmission DATE: July 21, 1999 FROM: Sergio Rodriguez City Manager SUBJECf: A RESOL I OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECU'l'E AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH (CMB) AND THE MIAMI CITY BALLET (MCB) FOR THE PROPOSED MCB FACILITY, LOCATED AT 2200 LIBERTY AVENUE, MIAMI BEACH, FLORIDA; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE ANY NECESSARY RELATED DOCUMENTS; SUBJECT TO REVIEW OF SAME BY THE ADMINISTRATION AND THE CITY ATTORNEY'S OFFICE. RECOMMENDATION: Adopt the Resolution. BACKGROUND: At the June 23, 1999 City Commission meeting, the City Attorney advised that the proposed agreement with MCB is not required to be a Development Agreement, and that the outstanding parking issues can be addressed in a standard agreement. The attached agreement addresses the outstanding parking issues that have not been mutually resolved between the CMB and the MCB. More specifically, this action is necessary to avert potential litigation between the parties with regard to the parking requirements that must be met by the MCB pursuant to the City's Zoning ordinance and the parking obligations of the CMB pursuant to the Ground Lease, as amended. A status report on parking for the Cultural Campus, and specifically the Miami City Ballet, was presented to the Commission at its February 17, 1999 meeting. At that time, the Administration was again directed to explore all possible solutions to resolve the parking issues and to bring forward a solution. On March 17,1999, the Commission was advised of the alternatives available and it was recommended to enter into an agreement between the CMB and MCB to address the outstanding, parking issues. 421 AGENDAITEM~ DATE r-?_\-q,\ The Ground Lease between the CMB and the MCB was originally approved on April 13, 1994. On June 18, 1997, the City Commission approved the First Amendment to the Ground Lease between the CMB and the MCB changing the designated site to a portion of the property intended for the Cultural Campus adjacent to Collins Park. The original ground lease provides, through Section 27.02, for the City to "provide, at a discounted rate that is less than fair market rental rate, one hundred (100) parking spaces for utilization by the officers, directors and employees of Tenant (MCB). 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." This clause was applicable under the original ground lease as the MCB was to construct their building adjacent to the Jackie Gleason Theater and would have utilized the 17th Street Parking Garage to meet their parking requirements. Furthermore, it had been determined that discounted parking was permissible at the 17th Street Parking Garage. At the October 21, 1997, City Commission meeting, a Second Amendment to the Ground Lease between the CMB and the MCB was approved. This amendment waived permit fees and addressed the construction agreement and recognized the need, at a later date, to revise the parking agreement established in the original Ground Lease. As a result of the change in the designated site, the City Commission memorandum dated October 21, 1997, recognized that the original Ground Lease discounted parking provisions in the original Ground Lease would need to be addressed. Since the proposed Cultural Campus garage would be built utilizing tax exempt parking bonds, the City's Bond Counsel advised that the lease would need to be amended to reflect that parking rates would be based on fair market value, so as to not jeopardize the tax exempt status of the bonds. The memorandum went on to state that a future amendment to the Ground Lease would be required to address parking. On January 6,1999, the City Commission authorized execution of the Third Amendment to the Ground Lease between the CMB and the MCB. At that meeting, the Commission directed the Administration to work with the MCB to address their parking requirements and to report back in 30 days; said reports were delivered on February 17, 1999 and March 17,1999. ANALYSIS: The City is implementing a plan to develop surface parking lots to meet the library's legal parking requirements and the public's parking needs. Preliminarily, the surface lots, as indicated by the City's architects, Robert A. M. Stem, will consist of 79 spaces that will be utilized to meet the library's legal parking requirements. 422 Therefore, MCB is unable to utilize any of the proposed surface parking spaces to meet its legal parking requirements. The planning and zoning analysis of the MCB facility indicates that 76 spaces are required to be in compliance with the zoning ordinance. For MCB to meet its legal parking requirements, the MCB would have to obtain 76 new off-street parking spaces or pay a parking impact fee of $5,000 per space, or combination thereof. MCB acknowledged that they are obligated to meet their legal parking requirements in a letter provided to the City, dated September 4, 1998, that accompanied the issuance of MCB's building permit. While the City can technically comply with the existing parking clause in the original lease by providing 100 spaces at the Collins Avenue and 21st Street parking facility, which is within 1,000 feet of the MCB building, these spaces will not meet MCB's legal parking requirements pursuant to the zoning ordinance nor will they resolve the concerns expressed by Bond Counsel. Therefore, it was determmed that an agreement would be the most prudel!t approach to resolving these outstanding parking issues. As presented the agreement addresses the following issues: . timelines to meet the MCB's legal parking requirements; . timelines to meet the CMB's parking obligations; . clarifies that the MCB is governed under the provisions of the former zoning code, as their building permit was issued in September, 1998; . addresses coordination of use of the surface parking lots on the King and Fruit stand parcel . provides a provision for no waiver of rights by either the CMB and/or the MCB CONCLUSION: The Administration recommends adoption of the resolution approving the Agreement between the City of Miami Beach and the Miami City Ballet. !~ SR:C~MSD/add Attachment F:\DDHP\SALL\ANGELA\MCBSI2A.WPD 423 CITY OF MIAMI BEACH MEMORANDUM TO : Raul Aguila FROM: Maria E. Martinez DATE: August 31, 2000 SUBJECT: Agreements for Resolution No 7/21/99 - Item R-7I. This is a follow up to Mr. Parcher's memo dated July 22, 2000. Three agreements with the Miami City Ballet, Inc. were forwarded to you for the signatures of the appropriate officials and two witnesses. Please return the documents to the City Clerk's Office to the attention of Mercy Williams. A fully executed copy will be forwarded to you for your files with a copy of the resolution. We appreciate you help in processing thes s. CC: Mercy Williams ~/ _ \ ~~VJ '"1-\ ~ ~d~,,~J~ ft"-~ V f1r r . . -1~?,~'~~~=~:;~~~;i.>~' :;~'.;;i'~::-'t,::~:-~. -..- .'~~". " c.....:at~: t~ ~ ~ ?fi<_,,~ 1 _ ...._:.t;,_.__~ ,-' - " . ~'~';U ~:_:,;j.~~ _.~: -~~~-:;,>',:::.;r;-~--:__=- ___. '~: .2~"~_:.:>l':::_~~.,~>~: .:,,-:~.,-, ~___~~ ~<'_~_ "_~ ___" ~ ~_. _ ~~1l!~~ .' 91- U~{,7 Prepared by and Return to: Raul J. Aguila, Esq. City of Miami Beach City Attorney's Office 1700 Convention Center Drive Miami Beach, Florida 33139 AGREEMENT THIS AGREEMENT is made and entered into as of the _ day of January, 2000, between: the CITY OF MIAMI BEACH, a Florida municipal corporation (the City), and MIAMI CITY BALLET, INC., a Florida corporation (the Ballet): Introduction and Background A. The property that is the subject of this Agreement lies in Miami Beach, Miami-Dade County, Florida. B. The Ballet is the lessee of the property that is the subject of this Agreement pursuant to that certain Ground Lease Agreement by and between the City and the Ballet, dated April 13, 1994, a copy of which is attached hereto and incorporated herein as Exhibit "A" (the Property). C. Section 27.02 of the Ground Lease provides as follows: 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 Ten ant. 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. Under the terms of the Ground Lease, the term "Landlord" refers to the City, and the term "Tenant" refers to the Ballet. D. Section 27.16 of the Ground Lease provides as follows: 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, directives, 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 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 imposing any financial liability on Tenant prior to the Commencement Date not specifically imposed by this Lease. The City and the Ballet herein agree and stipulate that, under the terms of the Ground Lease, the "Commencement Date" is defined as April 13, 1996. E. The Property and the proposed Ballet facility is situated within an area of the City of Miami Beach that serves as the location of several important cultural, institutional, and other eleemosynary uses known generally as the Cultural Campus. The continued viability and orderly development of these cultural uses is of great importance to the residents of the City of Miami Beach. F. The City is in the process of evaluating several alternative measures to address the parking needs of the various cultural and institutional uses within the Cultural Campus, including the Property. The measures include various short- and long- term means of providing parking. It is in the best interests of the public that the City address those parking needs in a comprehensive and orderly manner, based on further study, analysis, and evaluation of alternatives. G. The City is a Florida municipal corporation with powers and authority conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the Miami Beach City Charter and Code of ordinances. The City has all governmental, corporate and proprietary powers to enable it to conduct municipal government, perform municipal and governmental functions and render municipal services, including the authority to adopt, implement and enforce (together with any other required governmental approvals) comprehensive plans, zoning ordinances, redevelopment plans and other police power and legislative measures necessary to assure the health, safety and general welfare of the City and its inhabitants. H. Ail capitalized terms used in this Introduction and Background are defined in Section 3 or elsewhere in this Agreement. NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows; 1. Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Authority. This Agreement is entered into pursuant to the authority and procedures provided by Section 1.03 of the Charter of the City of Miami Beach. 3. Definitions. All capitalized terms in this Agreement shall have the definitions set forth in this Section unless such terms are defined elsewhere in the body of this Agreement. 3.1 "Certificate of Occupancy" shall have the same meaning as that term is defined in Section 114-1 of the City's Code, including, but not limited to, temporary certificates of occupancy. 3.2 "Certificate of Use" shall have the same meaning as that term is defined in Section 114-1 of the City's Code, including, but not limited to, temporary certificates of use. 2 3.3 "Ground Lease" shall mean that certain Ground Lease Agreement between the City and the Ballet attached hereto as Exhibit "A". 3.4 "Parkin~ Obli~ation" shall mean the City's obligations as Landlord pursuant to Section 27.02 of the Ground Lease. 3.5 "Parkin~ Requirement" shall mean all applicable parking requirements as defined in those duly adopted regulations or ordinances of the City applicable to the Property, including any regulations or ordinances applicable through principles of grandfathering (specifically including, but not limited to, the Zoning Ordinance of the City of Miami Beach in effect on April 13, 1994), governing the provisionofparking. 3.6 Ground Lease. "Propertv" shall have the same meaning as defined in Section 1.06 of the 4. Issuance of Certificate of Use and/or Occupancv. Subject to the terms and conditions of this Agreement, the City agrees that it will issue to the Ballet such Certificates of Use and/or Occupancy as may be necessary to permit the Property to be utilized for the purposes set forth in Section 9.01 of the Ground Lease, and the City further agrees that it shall not withhold any such Certificates of Use and/or Occupancy based upon the application of the Parking Requirement, provided that all other conditions precedent to the issuance of such Certificates of Use and/or Occupancy have been satisfied at the time of issuance. Notwithstanding the foregoing, the City's issuance of such Certificates of Use and/or Occupancy shall in no way be deemed as a waiver or release of the Ballet's Parking Requirement. 5. Stay of Enforcement ofParkin~ Oblil1ation. Subject to the City being in compliance with the terms and conditions of this Agreement, the Ballet shall neither initiate nor maintain any legal action against the City for the purposes of enforcing the Parking Obligation. 6. Defense of Certificates of Use and/or Occqpancy. In the event that any person institutes any action, including any judicial or administrative action, to challenge the issuance and/or continued validity of any Certificates of Use and/or Occupancy issued, based in whole or in part upon any alleged deficiency in the number of off-street parking spaces provided, or such other challenge to the Parking Requirement, the City shall diligently defend such issuance and/or continued validity of same, including appeals. In any such action, the Ballet shall petition to intervene, and ifleave to intervene is granted by the appropriate tribunal or body, the Ballet shall diligently assist in the defense of such issuance and/or continued validity of same. Each party shall be responsible for its respective attorney's fees and costs. Notwithstanding the foregoing, the Ballet's obligations to assist in the defense shall not extend for more than one year from the initiation of any such action, although the Ballet may choose to continue such assistance as it deems appropriate. Provided, however, if the pendency of such action interferes with the normal operations of the Ballet, the Ballet's obligation to assist in the defense shall not extend for more than one hundred and twenty (120) days from the initiation of the action. 3 7. Reinstatement ofParkin~ Obli~ation and Application of Parking Requirement. In the event that any body, tribunal, official, or any other person or entity having jurisdiction over the Property determines that the issuance of any Certificates of Use and/or Occupancy to the Ballet was invalid based upon any alleged deficiency in the number of off-street parking spaces provided therefore, or based upon any other challenge to the Parking Requirement (a "Determination"), the City agrees that within sixty (60) days from receipt of notice of the Determination the City shall comply with the Parking Obligation. The Ballet also agrees that within sixty (60) days from receipt of notice of the Determination it shall comply with the Parking Requirement. Notwithstanding the previous sentences, in the event that the City and the Ballet obtain a stay of enforcement of the Determination from the entity issuing the Determination, or from such other entity having jurisdiction to issue a stay of enforcement, then the sixty day period described above shall be tolled during the pendency of such stay of enforcement. Upon the occurrence of a Determination and the expiration of the sixty day period, or the expiration of such tolling period that may result from a stay of enforcement, whichever is longer, the Ballet shall be released from the obligations set forth in Paragraph 5 herein, and may seek enforcement of the Parking Obligation by any lawful means, if the City has failed to satisfY that obligation. Additionally, in the event that an action as described in Paragraph 6 above is initiated, and such action is not formally concluded (either through withdrawal, dismissal, settlement, or final determination form the relevant tribunal) within one year from the initiation of such action then the Ballet shall also be released from the obligations set forth in Paragraph 5 herein, and may seek enforcement of the Parking Obligation by any lawful means, if the City has failed to satisfY that obligation. Provided, however, if the pendency of such action interferes with the normal operations of the Ballet, the Ballet shall also be released from the obligations set forth in Paragraph 5 herein after one hundred and twenty (120) days from the initiation of the action, and then may seek enforcement of the Parking Obligation by any lawful means, if the City has failed to satisfY that obligation. 8. Hold Hannless. The Ballet agrees to waive and hold the City harmless from any and all claims, losses or damages that the Ballet, its tenants or assigns may suffer during the time period running from the issuance of any Certificates of Use and/or Occupancy through the date of the Determination, the expiration of the sixty (60) day tolling period, or the expiration of any applicable stay of enforcement, whichever is latest. 9. Laws Governin~ this Agreement. The City's laws and policies governing the development of the Property at the time of the execution of this Agreement by both parties hereto, as modified by such laws and policies as may be presently applicable to the Property through principles of grandfathering and the application of vested rights and/or equitable estoppel (specifically including, but not limited to, the Zoning Ordinance of the City of Miami Beach in effect on April 13, 1994), shall govern the development of the Property for the duration of this Agreement. The City may apply subsequently adopted laws and policies to the Property only as otherwise permitted or required by the Act. 10. Amendment of Ground Lea~e. This Agreement shall not affect the ability of the parties to amend the provisions of the Ground Lease. 4 11. Reservation ofRi~hts-No Waiver. This Agreement shall not affect any rights which may have accrued to any party to this Agreement under all applicable law and each party hereto reserves any and all such rights, including but not limited to, any rights of any party under the Ground Lease. Nothing herein shall be deemed or construed to independently create any additional obligation on the part of the City to undertake any action which may impair or jeopardize any outstanding bond obligations that the City currently has as of the date of this Agreement. Furthermore, nothing herein shall be construed as a release or waiver on behalf of any party or any rights that may exist under the Ground Lease. 12. No Permit. This Agreement is not and shall not be construed as a Development Permit, Development Approval or authorization to commence development. 13. Good Faith: Further Assurances: No Cost. The parties to this Agreement have negotiated in good faith. It is the intent and agreement of the parties that they shall cooperate with each other in good faith to effectuate the purposes and intent of, and to satisfy their obligations under this Agreement in order to secure to themselves the mutual benefits created under this Agreement; and, in that regard, the parties shall execute such further documents as may be reasonably necessary to effectuate the provisions of this Agreement; provided, that the foregoing shall in no way be deemed to inhibit, restrict or require the exercise of the City's police power or actions of the City when acting in a quasi-judicial capacity. Wherever in this Agreement a provision requires cooperation, good faith or similar effort to be undertaken at no cost to a party, the concept of no cost shall not be deemed to include any cost of review (whether legal or otherwise), attendance at meetings, hearings or proceedings and comment and/or execution of documents, all such costs to be borne by the party receiving a request to so cooperate, act in good faith or so forth. 14. Term of this A~reement. If this Agreement is formally approved by the City, then the City shall promptly take all appropriate actions and the City and the Ballet shall execute and deliver this Agreement thereafter in accordance with all requirements of law. Subject to the extension provisions below in this Section, this Agreement shall terminate on the date which is two (2) years from the effective date hereof, or by mutual written consent of the parties. However, this Agreement may be extended by mutual consent of the City and the Ballet (at each party's sole discretion). No notice of termination shall be required by either party upon the expiration of this Agreement and the parties hereto shall have no further obligations under this Agreement. All rights to extension of time periods herein shall be cumulative. 15. Omissions. The parties hereto recognize and agree that the failure of this Agreement to address a particular permit, condition, term, or restriction shall not relive the Ballet of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction notwithstanding any such omission. 16. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt 5 requested, in a postage prepaid envelope, and addressed as follows: If to the City: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With copies to: City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 If to Ballet: Barbara Singer Director of Administration Miami City Ballet 2200 Liberty Avenue Miami Beach, Florida 33139 With copies to: Juan Loumiet, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Notice personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this Section 15 shall survive the termination of this Agreement. 17. Radon Ga~. Radon is a naturally occurring radioactive 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 information purposes pursuant to Section 404.056(7), Florida Statutes, (1993).) 18. Construction. (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami- Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; 6 and, accordingly, this Agreement shall not be more strictly construed against anyone of the parties hereto. (b) In construing this Agreement, the use of any gender shall include every other and all genders, and captions and section and paragraph headings shall be disregarded. (c) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 19. Severability. In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 20. Litil:ation. Except as provided in Paragraph 6 herein, in the event of any litigation between the parties under this Agreement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The terms of this Section 20 shall survive the termination of this Agreement. 21. Time of Essence. Time shall be of the essence for each and every provisions hereof. 22. Entire A~ment. This Agreement, together with the documents referenced herein, constitute the entire agreement and understanding among the parties with respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 23. Force Maieure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefore, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform, excluding the financial inability of such party to perform and excluding delays resulting from appeals or rehearings commenced by the Owner (any such causes or events to be referred to herein as a "Force Majeure"), shall excuse the performance by such party for a period equal to any such period of prevention, delay or stoppage. 7 EXECUTED as of the date first above written in several counterparts, each of which shall be deemed and original, but all constituting only one agreement. ATTEST: CITY OF MIAMI BEACH, a Florida municipal corporation Robert Parcher, City Clerk Neisen Kasdin, Mayor MIAMI CITY BALLET Witnessed: By: Print Name Print Name STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of , 2000 by , as Mayor of the City of Miami Beach, a municipal corporation by and on behalf of said corporation. He is personally known to me/or has produced as identification. Notary Public My Commission expires: Print Name 8 STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) by produced The foregoing instrument was acknowledged before me this _ day of , 2000 , on behalf of Miami City Ballet. He/She is personally known to me/or has as identification. Notary Public My Commission expires: Print Name RJAIkw F:\A1TO\A0UR\AGREEMNnMCBPARK.AGR 9