HomeMy WebLinkAboutAttachment 1ATTACHMENT 1
5/21/09
FIRST AMENDMENT TO LEASE AGREEMENT
(NII_ NII ART MUSEUM PROJECT)
THIS FIRST AMENDMENT TO LEASE AGREEMENT (MIAMI ART MUSEUM
PROJECT) ("First Amendment") is made and entered into this day of
2009, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (the
"City"), and MIAMI ART MUSEUM OF DADE COUNTY ASSOCIATION, DTC., a Florida
not-for-profit corporation (the "Museum").
WITNESSETH:
WHEREAS, on December 11, 2008, the City Commission of the City passed and adopted
Resolution No. R08-0707, approving the terms of and authorizing the City Manager to execute,
a Lease Agreement between the City and the Museum to lease to the Museum approximately
four (4) acres of land located in Bicentennial Park (a/k/a "Museum Park"), more particularly
described in Exhibit A attached hereto and incorporated herein (the "MAM Site"), for the
development, construction, management and operation of a first class accredited art museum;
and
WHEREAS, the City and the Museum entered into that certain Lease Agreement (Miami
Art Museum Project) dated as of April 6, 2009 (the "Lease"), pursuant to which the Museum
leases the MAM Site from the City, for an initial term of thirty (30) years, with automatic
renewal terms and on the other terms and conditions set forth therein; and
WHEREAS, pursuant to Article III of the Lease, the City agreed to use commercially
reasonable efforts to negotiate and obtain (a) fee simple title or a long-term lease of the FDOT
Triangular Area (as defined in the Lease), and (b) the FDOT Area Lease (as defined in the
Lease), each on terms acceptable to the Museum; and
WHEREAS, the City and the Museum desire to modify certain provisions of the Lease,
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the
Museum hereby agree that the foregoing recitals are true and correct, and further agree as
follows:
1. Definitions. All capitalized terms used in this First Amendment shall have the
definitions ascribed to such terms in the Lease, unless defined or amended in this First
Amendment. The term "Lease", as used in the Lease, shall be and is hereby amended to refer to
the Lease, as amended hereby.
2. Improvements. The City and the Museum hereby agree to modify the maximum
height limitation imposed on the Improvements under the Lease. Accordingly, the last sentence
of the definition of "Improvements" in Section 1.1(11) of the Lease is hereby deleted in its
entirety and replaced with the following: "The Improvements shall not exceed a height of
seventy (70) feet measured from the finished level of the plaza, with vertical penetration of the
v3 MIA 180, 509, 809
height limit above the 70' envelope for (a) a floating roof of approximately ten (10) feet of
additional height covering not more than 30% of the roof area. and (b) other penetrations not
exceeding forty (40) feet of additional height and not exceeding 10% of the roof area pursuant to
the Museum Park Miami Museum Area DesiQn Guidelines dated December 2006 and provided
by Cooper Robertson."
3. MAM Site. The City is currently negotiating a deed of conveyance of the FDOT
Triangular Area from FDOT to the City (the "FDOT Deed"). Upon acceptance of the FDOT
Deed on terms and conditions acceptable to the Parties, (i) all references in the Lease to the
FDOT Triangular Area (and the legal description of the FDOT Triangular Area set forth in the
Lease) shall be deemed modified to refer to the property conveyed to the City in the FDOT
Deed, (ii) the City shall be deemed to lease the FDOT Triangular Area to the Museum, (iii) all
references in the Lease to the MAM Site and the Leased Premises (and the legal description of
the MAM Site set forth in the Lease) shall be deemed modified to include the FDOT Triangular
Area, and (iv) the FDOT Area shall be deemed modified to exclude the FDOT Triangular Area.
The foregoing lease of the FDOT Triangular Area by the City to the Museum shall be self -
operative without the execution of any further instrument upon the acceptance of the FDOT
Deed by the City as hereinabove provided; however, at the request of the Museum, the Parties
shall enter into an amendment to this Lease to further evidence the above modification, which
amendment may be executed and delivered by the City Manager on behalf of the City. Nothing
contained herein shall be deemed or construed to modify the provisions of Section 3.7 of the
Lease in the event the City is unable to secure the FDOT Deed, all of which remain fully
effective.
4. FDOT Area. Pursuant to the terms of Section 3.6 of the Lease, the City, the
Museum and MSM presently intend to locate the access road and vehicular turnaround for the
Improvements within the MAM Site and the MSM Site. Nevertheless, the City agrees to (i) use
reasonable efforts (but shall not be required to expend any funds) to negotiate and obtain a lease,
license, use or other similar agreement for the FDOT Area on terms and conditions mutually
acceptable to the Parties, which shall, inter alia, allow the City (for the benefit of, or through a
separate agreement with, the Museum) to use the FDOT Area for certain limited purposes, if
acceptable to FDOT, including landscaping, sculpture garden, access to the bay, artwork and
other non -permanent improvements, and (b) grant to the Museum the right to use the FDOT Area
for the purposes set forth in and permitted under such lease, license, use or other agreement.
5. Common Areas and Parking. The City and the Museum hereby agree as follows:
(a) The minimum number of parking spaces in the Parking Facility shall be
reduced from 480 parking spaces to 440 parking spaces. All references in Sections 3.5, 3.6(b)
and 3.7 of the Lease to the minimum number of parking spaces in the Parking Facility are
hereby modified accordingly.
(b) Section 3.5 of the Lease requires the Museum to provide 300 parking
spaces in the event the MSM Lease is terminated prior to the completion of construction of the
MSM Museum. The Parties agree that the 300 parking spaces will be provided in accordance
with Section 3.3 of the Development Agreement.
(c) If the City leases the additional land to the Museum from the MSM Site
pursuant to paragraph 4(b) above and Section 3.3 of the Development Agreement, any such
0 MIA 180, 509, 809
additional land shall be (i) excluded from the obligation of the Cite under Article X.XV of the
Lease to maintain and operate the entire MSM Site (subject to appropriate access easements to
be provided to the MAM Site) as open green park space as part of the Park Component, and (ii)
leased on the same terms and conditions applicable to the Leased Premises under the Lease.
6. Construction StaginQ and Parking Easement. The Citi° and Museum hereby agree
that Exhibit D-2 to the Leases (depicting the location of the Construction Staging and Parking
Easement) is hereby deleted in its entirety and replaced with revised Exhibit D-2 attached hereto
showing the current agreed upon location of the Construction Staging and Parking Easement.
All references in the Lease to Exhibit D-2 shall be modified to mean and refer to revised Exhibit
D-2 attached to this First Amendment. Since Museum Drive access may not always be available
during construction, the City further agrees to provide access to the Museum's construction sites
through other areas of the Park, in the event such access is needed by the Museum and to the
extent possible, provided such access does not interfere with the construction of the City parking
garage.
7. Bond Covenants.
(a) A new definition is hereby added to Section 1. 1, as follows:
Ojjj) Homeland Defense/Neighborhood Capital Improvement Projects
Bond Program" shall mean the City's "Homeland Defense/ Teighborhood
Capital Improvement Projects Bond Program" approved by a referendum
of City voters on November 13, 2001 for the City's issuance of $255
million in limited ad valorem tax bonds for homeland security,
neighborhood improvements, capital projects and infrastructure
improvements, of which the City allocated a total of $3,500,000 to the
Museum for its portion of the Museum Park Project.
(b) Article IV is amended to add a new Section 4.5 as follows:
Section 4.5 Continuous Duty to Comply with Homeland
Defense/Neighborhood Capital Improvement Projects Bond Program and
Building Better Communities General Obligation Bond Program. The
Parties acknowledge that the Museum has entered into certain grant and
funding agreements with the City regarding the Homeland
Defense/Neighborhood Capital Improvement Projects Bond Program and
with the County regarding the Building Better Communities GOB
Agreements that require continuous compliance with U.S. Internal
Revenue Code requirements, as amended from time to time, for uses of
proceeds of tax-exempt limited ad valorem and general obligation bond
financings. If for any reason the Museum, any Leasehold Mortgagee, or
any new entity for transfer of the Museum Leased Premises experience(s)
any difficulty beyond the reasonable control of the Museum in fulfilling
such continuing compliance requirements, the Parties shall meet to address
the problems and use good faith diligent efforts to resolve any issues and
make appropriate adjustments in order to maintain the tax-exempt status of
the respective City Homeland Defense/Neighborhood Capital
v3 MIA 980, 509, 809
Improvement Projects Bond Program and County Building Better
Communities General Obligation Bond Program. "The Museum
acknovdedges, agrees.. and covenants that no tax-exempt bond proceeds
shall be used for the planning, design. construction; operation, or
management of any of the commercial use areas, including but not limited
to any areas to be used for the commercial components of the Ancillary
Uses. The Museum further acknowledges, agrees, and covenants that the
future Management Agreement shall contain continuing tax-exempt bond
compliance covenants."
(c) Section 16. 1., Assignment and Subletting of Leased Premises, is hereby
amended as follows:
The last sentence of the first paragraph is amended to read as follows:
"For purposes of this Section, any change (a) in the status of the Museum
so that it shall cease to be a not-for-profit entity under Section 501(c)(3) of
the Internal Revenue Code, and/or (b) in the uses of the Leased Premises
so that such use(s) will no longer comply with the City's Homeland
Defense/Neighborhood Capital Improvement Projects Bond Program
and/or the County's Building Better Communities General Obligation
Bond Program compliance requirements, shall constitute an unauthorized
Transfer."
The last provision of last sentence of the second paragraph is amended to
read as follows: "(d) the Museum has provided to the City, for its review
and approval, not less than fifteen (15) days in advance of the actual
transfer, such documents relating to the Transfer as the City may
reasonably request including, but not limited to, the relevant experience of
the new entity, makeup of the new entity, evidence of not-for-profit status
under Section 501(c)(3) of the Internal Revenue Code of the new entity,
and evidence that the uses of the Leased Premises by the new entity will
be in compliance with the City's Homeland Defense/Neighborhood
Capital Improvement Projects Bond Program and/or the County's
Building Better Communities General Obligation Bond Program
compliance requirements.
(d) Section 17.3, Rights of Leasehold Mortgagees. A new provision (v) is
hereby added to subsection (e) to read as follows:
(iv) Notwithstanding provision (iii) above regarding designation as a
Section 501(c)(3) not-for-profit corporation under the Internal Revenue
Code, as amended, and Section 17.3(d) above, any such lessee under such
new lease shall become automatically responsible for complying with the
City's Homeland Defense/Neighborhood Capital Improvement Projects
Bond Program and/or the County's Building Better Communities General
Obligation Bond Program compliance requirements.
(e) Section 20.1 Events of Default — Museum. A new provision (v) is
hereby added to subsection (a) to read as follows:
v3 MIA 180, 509, 809
(v) The failure of the Museum, a Leasehold Mortgagee or its designee, or
any new lessee to comply with the use requirements for the Leased
Premises under the City's Homeland Defense/i eighborhood Capital
Improvement Projects Bond Program and/or the County's Building Better
Communities General Obligation Bond Program compliance
requirements.
8. Green Initiatives. The last sentence of Section 5.7 of the Lease is hereby deleted
in its entirety and replaced with the following: "The Museum shall achieve LEED Silver
certification for the MAM Museum."
9. Miscellaneous.
(a) This First Amendment shall be construed and governed in accordance with
the laws of the State of Florida.
(b) This First Amendment may be executed in any number of counterparts
and by the separate parties hereto in separate counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
(c) Each party hereby represents and warrants to the other party that (i) it has
the full right and authority to enter into this First Amendment, and (ii) this First Amendment is
a binding and valid document enforceable in accordance with its terms.
(d) This First Amendment shall be deemed a part of, but shall take precedence
over and supersede any provisions to the contrary contained in the Lease. Except as modified
hereby, all of the provisions of the Lease, which are not in conflict with the terms of this First
Amendment shall remain in full force and effect, and, as modified hereby, the Lease is hereby
ratified and confirmed in all respects.
(e) This First Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns.
[Remainder of Page Left Blank Intentionally]
0 MIA 180, 509, 809
IN WITNESS W -HEREOF, the parties have executed this First Amendment as of the
day and year first above «Titten.
ATTEST:
By:
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS:
By:
Julie 0. Bru
City Attorney
WITNESSES:
Print Name:
Title:
Print Name:
Title:
v3 MIA 180, 509,809
THE CITY OF MI_aMI, a municipal
corporation of the State of Florida
Pedro G. Hernandez
City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS
LeeAnn Brehm; Risk Management
Administrator
MIAMI ART MUSEUM OF DADE
COUNTY ASSOCIATION, INC., a Florida
not-for-profit corporation
By:
Print Name:
Title:
Exhibit A
MAM Site
-EXHIBIT A
SHEET i OF 2
LEGAL DESCRIPTION
COMMENCE ,AT'•THE' NORTHEAST CORNER OF "TRACT A,"
""BICENTENNIAL PARR, AS RECORDED IN THE PU6LIC
RECORDS 'OF' MIAMI-QADE COUNTY, FLORIDA, IN PLAT
"BOOK 1•x•0 .A`f 0AGE•-50;;"TgYXE ALONG "THE• NORTHERLY':"'
LINE OF ,SAID "TRA -CT' A" S8742"09"W 219.42 FEET TO .
THE POINT OF BEGINNING..OF •A• PARCEL OF LAND
HEREINAFTER DESCRIBED:
_...._.__._. _,.:...._..�_' THENCE 564'34215"W -391:^D1 'FEET, THENCE 1425'25'4. 5"W
. ..............._.._.
60.00 FEET T0' A POINT ON THE NORTHERLY LINE .OF SAID
"TRACT A"; THENCE A4ONG ;THE 'NORTHERLY ,LINE OF SAID '
"TRAC1 A". N64',34'1 5"E 250,5.6 FEET: ' THENCE CONTINUING
ALONG THS NORTHERLY 'LINE. OF SAID "TRACT'A"
NB7'ti2 n9 E 152..73 FEET 'T0 THE POINT OF BEGINNING.
SAID LANDS?'BEING'-SIT, AT
`ED. THE 'CITY OF'.M1AMI,' `
MIAMI- DAQE COUNTY','FtORIOA, AND :CONTAININ.G .0.44 .
ACRES, '19247 SQUARE FEET, MORE OR LESS. .
SURVEYORS NOTES:
•d
�
1
PROFESSIONAL. SURVEYOR. AND MAPPER.
2) DATE PREPARED: il, NOVEMBER 2008,
SHEET i OF 2
LEGAL DESCRIPTION
COMMENCE ,AT'•THE' NORTHEAST CORNER OF "TRACT A,"
""BICENTENNIAL PARR, AS RECORDED IN THE PU6LIC
RECORDS 'OF' MIAMI-QADE COUNTY, FLORIDA, IN PLAT
"BOOK 1•x•0 .A`f 0AGE•-50;;"TgYXE ALONG "THE• NORTHERLY':"'
LINE OF ,SAID "TRA -CT' A" S8742"09"W 219.42 FEET TO .
THE POINT OF BEGINNING..OF •A• PARCEL OF LAND
HEREINAFTER DESCRIBED:
_...._.__._. _,.:...._..�_' THENCE 564'34215"W -391:^D1 'FEET, THENCE 1425'25'4. 5"W
. ..............._.._.
60.00 FEET T0' A POINT ON THE NORTHERLY LINE .OF SAID
"TRACT A"; THENCE A4ONG ;THE 'NORTHERLY ,LINE OF SAID '
"TRAC1 A". N64',34'1 5"E 250,5.6 FEET: ' THENCE CONTINUING
ALONG THS NORTHERLY 'LINE. OF SAID "TRACT'A"
NB7'ti2 n9 E 152..73 FEET 'T0 THE POINT OF BEGINNING.
SAID LANDS?'BEING'-SIT, AT
`ED. THE 'CITY OF'.M1AMI,' `
MIAMI- DAQE COUNTY','FtORIOA, AND :CONTAININ.G .0.44 .
ACRES, '19247 SQUARE FEET, MORE OR LESS. .
SURVEYORS NOTES:
1) NOT VALID -WITHOUT THE SIGNATURE AND
ORIGINAL RAISEO.SEAL•OF A,FLORIDA ,' '
PROFESSIONAL. SURVEYOR. AND MAPPER.
2) DATE PREPARED: il, NOVEMBER 2008,
3) TMIS SKETCH TO ACCOMPANY LEGAL
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2, AND NO POR110N VALID WITHOUT THE
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E%HIBIT A
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P.B.�140T, PG.50 ��y o a� �O , , *-
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P,O.C. POINT OF COMMENCEMENT
P.B. PLAT BOOK
PG. PAGE
SEE PAGE 1 FOR SURVEYORS NOTES,
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
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ExHIBIT A
3 of 3
NORTHERLY UNE OF
"TRACT A"
"BICENTENNIAL PARK"
P.B. 140 PG 50.
P.O.C.
NE CORNER "TRACT A"
P.B. 140 PG. 50
THIS SKETCH DOES NOT
REPRESENT A BOUNDARY SURVEY
EXHIBIT D-2