Boca Raton will vote on the lease on Sept. 28, following further negotiations between lawyers representing both parties.
BOCA RATON — After five years and multiple unanimous votes, it seemed as if the Boca Raton city council had at last paved the way for the revitalization of the city’s cultural center, greenlighting a plan to transform the Mizner Park Amphitheater into a multistage performing arts and events center.
The idea, spearheaded by the Boca Raton Center for Arts and Innovation, was expected to gain final approval at Monday’s special meeting where council members were poised to vote on the authorization of a land lease between the city, which currently owns the amphitheater, and the center.
But instead of a celebration, council members and center representatives struggled to traverse an expansive impasse, and the meeting ended with no vote after three hours of discussion.
The key sticking point is the wording of a liability or damages clause in the contract.
The council will vote on the lease on Sept. 28, following further negotiations between lawyers representing both parties.
“I think we are all trying to ensure that we don’t repeat the past, with the center that was contemplated here 30 years ago that never came to fruition,” council member Monica Mayotte said, referencing previous fruitless plans to create a performing arts center in Mizner Park.
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“I really want this to be successful, so that’s why I think this additional 37 days is important to get this right. We need to get this right for both of us.”
The project will be entirely funded by private philanthropists, and the Boca Raton Center for Arts and Innovation has already amassed $13 million in donations. Upon approval of the lease, they expect to receive an additional $25 million in donations.
Plans for the space include a revamped amphitheater interior, the addition of five venues for events and performances, improvements to the outside plaza, and updated food and beverage amenities.
The amphitheater, which currently only supports outdoor events, would be able to host music, business and theater events indoors. It’s intended to reduce the need for Boca Raton residents to visit West Palm Beach’s Kravis Center, Fort Lauderdale’s Broward Center for the Performing Arts or Miami’s Adrienne Arsht Center for the Performing Arts.
“We want to make sure that not only are we serving the needs of our local organizations for traditional performing arts, but we’re making this place as vibrant and versatile and exciting and sustainable as possible,” said Andrea Virgin, president of the Boca Raton Center for Arts and Innovation’s board of directors.
The arts organization expects that the improvements to the cultural center will add millions of dollars and hundreds of jobs to Boca Raton’s economy in the first five years after it opens, as well as help to fill hotel rooms in South Florida.
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In four previous votes, from 2019 through April 2022, the council supported conceptual plans for the project.
“I just had every expectation that we would be able to get this done,” council member Andrea Levine O’Roruke said.
The 94-year lease grants the city a maximum of 24 days a year to use the space for annual events it typically hosts at the amphitheater. The lease includes a clause asking that the city cover the cost of “actual damages,” or replace losses caused by any potential breaches of contract. Breaches could include failure to vacate the space on time, or damage to property during a city event. The center has already agreed to cover the cost of any damages incurred while they use the space.
Brian Hickey, an attorney at Nason, Yeager, Gerson, Harris & Fumero, P.A., is representing the center. He said that actual damages are a standard part of most contracts, adding that the Boca Raton Center for Arts and Innovation is “not looking to be litigious or punitive.”
The center, Hickey said, would not be able to pursue damages arbitrarily. Rather, it would have to prove damages were suffered, and that the city failed to meet a commitment explicitly mentioned in the lease. According to Hickey, the center does not plan to ask the city for compensation if the cost of damages can be covered by insurance.
“You have granted us a wonderful bundle of rights under this agreement,” Hickey said. “We are simply looking for an equitable remedy to protect those rights.”
But Mayor Scott Singer and council members Andy Thomson and Yvette Drucker expressed concern about the actual damages provision. With such a long-term lease, and no cap on the amount of damages that can be pursued, they feared the city would be put at risk.
Both the center and the city recognized that breaches of the contract are unlikely to occur frequently. But city attorney Diana Frieser said anticipating examples of instances where damages might be owed is a futile effort — the incentive to pursue damages, she said, is what jeopardizes the city.
“That is a provision that I, in good conscience, could not recommend to the council,” Frieser said. “Many things will happen in five years, in 20 years, in 80 years that nobody in this room can anticipate. No matter how well-written the contract is, there is no contract that, over that length of time, will not raise issues of uncertainty.”
Ultimately, the inclusion of the actual damages clause is as much a deal-breaker for the city as its absence is for the center.
“It’s the simple concept of, what we teach our children is, if you break it, you bought it,” Virgin said. “And we’re not even saying you have to buy it — we’re just saying that if something happens, and after we exhaust insurance, and anything else that we could potentially (do) — if you do something, be responsible for it.”
Both parties’ fears were vested in the future — Hickey and Frieser jointly expressed the unpredictability of entering an agreement that could outlive every member of the room with no protections.
“None of us will be here in 50 years,” Frieser said. “We are not the parties that will be sitting here. So it’s about what the contract will provide.”
Previously, the center resisted the solution of a potential cap on damages it could pursue under the lease. Before the end of the meeting, they announced a new willingness to consider a compromise during negotiations over the next month.
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Another major roadblock prevented the city from authorizing the lease: the unknown cost of construction.
Currently, the center estimates the project’s price tag is a minimum of $75 million. This amount, though, does not account for a recent estimated 30 percent increase in construction costs, and is not indexed for inflation.
“I think, to be responsible for the residents, we need to know what those costs are, and have them reviewed by our staff … ,” Mayor Singer said. “I think we need that transparency to make sure we’re being good custodians of this sacred land and the taxpayer’s dollars.”
Ele Zachariades, a lawyer representing the center, stressed that once the center has received money from donors who are waiting for the lease to be approved, it will already have fundraised close to 50 percent of the minimum cost of construction.
While the center expects to have an updated cost estimate within the next few months, Zachariades said this estimate will likely change multiple times.
“Construction costs are going to continue to vary from today to next week. … It is a moving target. It is constantly changing,” she said.
The center offered to remove the cost minimum from the lease entirely. Whether it will be a part of the lease is up for discussion during the next 30 days of negotiations.
Once the project is approved, the center said it would ramp up fundraising efforts.
The plan to revamp the amphitheater interior includes creating a 1,100-seat reconfigurable theater and a 99-seat theater that will double as an event and rehearsal space.
The project also features a new 250-person rooftop terrace, and improvements to the outdoor plaza of the amphitheater. An outdoor canopy will protect against poor weather conditions, while improved amenities — such as a new restaurant, and increased parking options — will better visitors’ experiences.
Virgin, a longtime Boca Raton resident and former student of the Boca Ballet Theater, an organization that hopes to make the new amphitheater its permanent home, has worked on this project pro bono for the past five years. Toward the meeting’s end, she made an impassioned final push for approving the lease.
“We are here at the 11th hour. I have been keeping (donors) very warm. But that patience is running thin, and this opportunity will not come to Boca if we continue to press those donors away from the project,” Virgin said.
“I’ve sacrificed time with my family. People have sacrificed their money, five to seven figures, some of which are donations that these people have never given in that capacity before, but they did so because of this project, because of this community, and because of this city. … I beg you to not lose this opportunity.”
After three hours of debate, the center and council agreed to continue the discussion and negotiations.
“We can’t keep putting this off,” O’Rourke said. “We have got to get this done, and I will do whatever I can to support this project.”