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FIFTH AMENDMENT TO AMENDED AND RESTATED/CONSOLIDATED LEASE
This Fifth Amendment to the Amended and Restated/Consolidated Lease
Agreement, dated July 12, 2000, (the "Lease"), made and entered into at Miami Beach,
Miami-Dade County, Florida, this 17t" day of October, 2007 by and between:
CITY OF MIAMI BEACH,
a Florida municipal corporation
(hereinafter referred to as "Lessor")
and
MIAMI BEACH JEWISH COMMUNITY CENTER, INC.,
a Florida not-for-profit corporation
(hereinafter referred to as "Lessee")
WITNESSETH:
WHEREAS, on June 3, 1981 the City first leased to the Jewish Community
Centers of South Florida, Inc. ("JCCSF"), the City-owned property located at 4221 Pine
Tree Drive, also known as lots 5, 6 and 7 of Flamingo Bay Subdivision, as recorded in
Plat Book 6 at Page 101 of the public records of Miami-Dade County, Florida
("Property") (Resolution 81-16678); and
WHEREAS, JCCSF's lease was amended and extended on three occasions,
such that the lease term extended through October 31, 2015, with two additional ten-
year options, and was assigned to Miami Beach Jewish Community Center, Inc.
("JCC"), anot-for-profit corporation (Resolutions 84-17863, 85-18280, and 88-19226);
and
WHEREAS, on July 12, 2000, the Mayor and City Commission adopted
Resolution No. 2000-23994 approving an Amended and Restated/Consolidated Lease
Agreement ("Lease") with the JCC for the Property, subject to referendum, which was
duly held and approved, which included provisions in Lease Paragraphs 15.8 and 15.11
that set time limits for the obtaining of a final building permit and the commencement of
construction; and
WHEREAS, the City and JCC entered into a First Amendment to the Amended
and Restated/Consolidated Lease on October 15, 2003, extending certain dates as
provided for therein; and
WHEREAS, the City and JCC entered into a Second Amendment to the
Amended and Restated/Consolidated Lease on October 13, 2004, extending the
deadline for submitting the design drawings for the proposed buildings to the Design
Review Board for review and approval; and
WHEREAS, the City and JCC entered into a Third Amendment to the Amended
and Restated/Consolidated Lease on June 7, 2006, extending deadlines related to the
provision of building permit plans to the City Manager and for the approval of the
required building permit; and
WHEREAS, the City and JCC entered into a Fourth Amendment to the Amended
and Restated/Consolidated Lease on March 8, 2007, extending deadlines related to the
provision of a final building permit and the commencement of construction; and
WHEREAS, permitting and funding delays have made it impossible for the JCC
to comply with the Lease's deadlines related to the issuance of a final building permit for
the development plan and the commencement of construction; and
NOW THEREFORE, the Lessor and the Lessee, for and in consideration of the
mutual covenants, agreements and undertakings herein contained, and in further
consideration of the improvements herein mentioned, and to be made; do by these
presents mutually covenant and agree as follows:
Paragraph 15.8 is amended as follows:
15.8 Conditions Precedent to Lessee's Commencement of Construction of the
Proposed Improvements. Lessee shall obtain a final Building Permit in accordance with
the DRB approval, for the Proposed Improvements--f3~ ^^+ mnro +-,,,, ~o.,on âo~r~ ~n~
c~~~âtâ~ to be concurrent with the DRB Order, or June 21, 2009, whichever occurs
earlier-fry,-t~x1--~~~c~~~e and failure to do so shall constitute a Default
under this Lease. Lessee shall pursue issuance of a building permit by the City diligently
and in good faith. Lessor's remedy for this Default, and for all defaults under this Article
15 for failure to follow the time schedule under this Article related to the Proposed
Improvements, shall be limited to a reversion of the duration of the Lease term to that
last provided in the Prior Agreements, to a termination date of October 31, 2015, with
two ten-year lease options by Lessee. In such event, all other remaining provisions of
this Lease shall remain in full force and effect. Lessee shall not commence construction
of the Proposed Improvements unless and until (a) Lessee shall have obtained and
delivered to Lessor copies of all final Permits and Approvals required to commence
construction, (b) Lessee shall have delivered to Lessor original certificates of the
policies of insurance required to be carried pursuant to this Lease, and (c) Lessee shall
have submitted to Lessor evidence satisfactory to the City Manager that Lessee has
sufficient funds and/or construction financing commitments to timely commence and
complete construction as provided herein.
2. Paragraph 15.11 is amended as follows:
15.11 Commencement and Completion of Construction of the Proposed
Improvements. Lessee shall at its expense (a) commence construction on or before
~ one hundred twenty (120) days after all permits and approvals necessary
for the commencement of construction are issued (the "Construction Commencement
Date") and (b) thereafter continue to prosecute construction of the Proposed
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Improvements with diligence and continuity to completion. "Commence Construction" or
"Commencement of Construction" means the commencement of major work (such as
pilings or foundations) for construction of the Proposed Improvements. Promptly after
Commencement of Construction, Lessee shall notify Lessor in writing of the date of
such commencement. Any and all preliminary site work (including, without limitation,
any environmental remediation and ancillary demolition) shall not be deemed to be
Commencement of Construction. If, after Lessee has commenced construction, Lessee
fails to diligently prosecute construction of the Proposed Improvements (subject to
unavoidable delays), and such failure continues (subject to unavoidable delays) for
thirty (30) consecutive days after Lessee's receipt of notice of such failure, Lessor shall,
in addition to all of its other remedies under this Lease, have the right to seek such
equitable relief (either mandatory or injunctive in nature) as may be necessary to cause
diligent and continuous prosecution of construction of the Proposed Improvements
(subject to unavoidable delays) by Lessee, it being understood that construction of the
Proposed Improvements is a material inducement to Lessor to enter into the Lease and
monetary damages shall be inadequate to compensate Lessor for harm resulting from
such failure. Notwithstanding anything to the contrary contained herein, if Lessee fails to
substantially complete construction of the Proposed Improvements by the date provided
for in this Lease, then the same shall constitute a default under this Lease.
3. Except as otherwise specifically amended herein, all other terms and conditions
of the Amended and Restated/Consolidated Lease Agreement, together with the First
Amendment to the Restated/Consolidated Lease Agreement, the Second Amendment
to the Restated/Consolidated Lease Agreement, the Third Amendment to the
Restated/Consolidated Lease Agreement, and the Fourth Amendment to the
Restated/Consolidated Lease Agreement by and between the Lessor and Lessee shall
remain in full force and effect. In the event there is a conflict between the provisions
provided herein and the Amended and Restated/Consolidated Lease Agreement and
the First Amendment to the Consolidated Lease Agreement, the Second Amendment to
the Restated/Consolidated Lease Agreement, the Third Amendment to the
Restated/Consolidated Lease Agreement, or the Fourth Amendment to the
Restated/Consolidated Lease Agreement the provisions of this Fifth Amendment shall
govern.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed
by the respective duly authorized officers and the respective corporate seals to be
affixed this 17th day of October, 2007.
ATTEST:
Robert Parcher, City Clerk
ATTEST:
~L~~ ~t-z.°` ~~ --~.__
Elise Lipoff M er, o-Preside t
APPROVED AS TO FORM
AND LANGUAGE
AND FOR EXECUTION:
"Jose Smith, City Attorney
Dated: !~ 2~ I~ 1 2007
F:\ECON\$ALLWSSEIIJCC\JCC5thAmendment.doc
CITY OF MIAMI BEACH, FLORIDA
Matti H. Bower, Mayor
MIAMI BEACH JEWISH
COMMUNITY CENTER, INC.
All s Sokol, Co-President
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