2nd Addendum to Development Agreementaoo~-~7os6
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SECOND ADDENDUM TO DEVELOPMENT AGREEMENT
THIS SECOND ADDENDUM TO DEVELOPMENT AGREEMENT is made as of
this ~ day of , 2009 (this "Second Addendum") by and between the
CITY OF MIAMI BEA H, F ORIDA ("Owner" or "City"), a municipal corporation duly
organized and existing under the laws of the State of Florida, and NEW WORLD SYMPHONY,
Inc. anot-for-profit Florida corporation ("Developer") (the Owner and Developer, each a "Party"
and collectively, the "Parties").
RECITALS:
A. Owner and Developer entered into an Agreement of Lease ("Lease") dated as of
January 5, 2004, pursuant to which Owner leased to Developer certain real property described in
Exhibit "A" to said Lease (the "Land").
B. Concurrently therewith, Owner and Developer also entered into a Development
Agreement ("Development Agreement") dated as of January 5, 2004, setting forth, among other
things, the Owner's and Developer's respective responsibilities and agreement to coordinate and
cooperate in the planning, scheduling and approval of the development, design and construction
of an automobile parking garage (the "Garage") to be located on land adjacent to the Land, and a
performance, educational and Internet broadcast facility, together with certain related amenities,
facilities and other infrastructure improvements on the Land ("Developer's Improvements"), as
set forth in the Development Agreement.
C. On February 20, 2007, Owner and Developer entered into a First Addendum to
Development Agreement ("First Addendum"), further clarifying the parties' respective
obligations (including processes, scopes for implementation, and estimated costs and budgets)
for the Garage and Developer's Improvements, and also pertaining to certain Additional
Improvements and Infrastructure Improvements, and the design, development, and construction
of the Park (collectively, for purposes of these Recitals, the "Project").
D. On January 23, 2008, Developer commenced construction of Developer's
Improvements. Notwithstanding the preceding, subsequent to the execution of the Lease,
Development Agreement and First Addendum, and commencement of construction, and given
the current fiscal/financial realities affecting the U.S. and global economies, the Parties now wish
to enter into this Second Addendum, further clarifying and memorializing their agreements
regarding the ongoing development of the Project (including, without limitation, the Garage and
Park components).
NOW THEREFORE, it is hereby mutually covenanted and agreed by and between the
Parties hereto that this Second Addendum is made in consideration of the terms, covenants and
conditions hereinafter set forth.
1. Capitalized Terms; Recitals. All capitalized terms not defined herein shall have
the meanings given to them in the Development Agreement, as amended by the First Addendum.
Hereafter, all references to the Development Agreement shall mean the Development
Agreement, as modified and augmented by the First Addendum and this Second Addendum,
unless the context indicates otherwise. The Recitals are incorporated herein by reference.
2. Additional and Revised Definitions. The following definitions, as initially set
forth in the Development Agreement or as may have been subsequently added or amended
pursuant to the First Addendum are amended as follows:
(a) "Design-to Park Project Budget" means the preliminary total costs
budgeted by the City for the Park Project, which is the preliminary estimate of costs, including
estimated hard and soft construction costs, anticipated as of the date hereof, to be incurred in
connection with the design, development and construction of the Park Project. As of the date
hereof, the parties acknowledge and agree that the City has budgeted an amount not to exceed
$13,085,000 for Zones 3.1, 3.2 and 3.3, anr~-~ad~emx~'~ 0,~,~o~d~~cy-4, for a total of
$-1-4,~i~,888 $13,085,000, for the entire Park Project.
(b) "Garage" means the public municipal parking garage comprising Zone 1.1
to be designed, developed and constructed by Developer for Owner and funded as set forth in
Section 13 of the First Addendum (as amended hereto), and operated by Owner at its sole cost
and expense on City-owned property adjacent to the Land, legally described in Exhibit "C." It
is anticipated that the Garage will maximize public parking and minimize any net loss of public
parking within Zone 1.1 and will have approximately 535 (but no less than 520 spaces• l~a~e six
(6) stories, including five (5) stories of covered parking plus open rooftop parking; two (2) FPL
vaults; four (4) elevators; a pedestrian bridge to Developer's Project; and ground-floor retail
space along 17th Street and Pennsylvania Avenue. Owner shall be responsible for operation and
management of the Garage, including the leasing and management operations of the retail
portion of the Garage.
(c) "Preliminary Park Project Budget" means the total cost budgeted by the
City for the Park Project, as mutually agreed to by the Parties and as shall be approved by the
City Commission concurrently with the approval of the Park Project Concept Plan (pursuant to
the provisions of Section 10 and Exhibit "D" of the First Addendum, as amended hereto), which
is the preliminary estimate of costs, including estimated hard and soft construction costs,
anticipated as of the date thereof to be incurred in connection with the design, development and
construction of the Park Project, including the sound system. The Parties acknowledge and agree
that the Preliminary Park Project Budget shall be established in accordance with the dollar
amounts set forth in the "Design to" Park Project Budget, in the amount of
$13,085,000.
(d) All reference (s) in the Agreement to "Zone 3.4" (as said term is defined
in the First Addendum) is hereby deleted. Accordingly, the area encompassing Zone 3.4, and any
improvements to be designed, developed and constructed thereon, shall not be part of the Park
Project or Park Project Zone, and the budgeted amount allocated to Zone 3.4 in the Design-to
Park Project Budget (or $1,150,000), as defined in the First Addendum, has been allocated to the
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Park Project Budget for Zones 3.1, 3.2 and 3.3 (which shall hereafter consist of the Park Project
Zone).
3. Amendment or Replacement of Certain Sections of Development Agreement.
The following subsection in the Development Agreement or the First Addendum, as
noted respectively below, is amended as follows:
(a) Section 23.2.1 of the Development Agreement is deleted in its entirety and
replaced with the following:
Developer shall design and construct the Garage (as set forth in the
Development Agreement), at Owner's cost and expense, and as
further set forth and subject to the provisions of the Development
Agreement. The Parties acknowledge that the timing of
construction and completion of the Garage is critical; therefore,
Developer agrees to, and shall, as expeditiously as reasonably
possible, obtain Substantial Completion of the Garage prior to
completion of Developer's Improvements.
4. Gara e Costs.
(a) The amount for the Garage Costs, as set forth in Section 5(a)(i) of the First
Addendum, is hereby amended from $15,210,13 5, to $17,085,000.
(b) The City and Developer hereby mutually agree upon, and the City
Commission hereby approves, the Final Garage Budget, in the amount of $17,085,000; such
approval by the City is further subject to, and contingent upon, the following conditions:
(i) The approval of the Final Garage Budget contemplates the design,
development, and construction of the Garage, as said term is
defined in this Second Addendum;
(ii) At the City's sole cost, and subject to the approval of Gehry
Partners, LLC, the City Commission shall retain authority and final
approval over whether to add certain proposed "architectural
treatments", to the east facade of the Garage including, without
limitation, the stainless steel mesh and LED lighting. The City
Commission shall review, consider, and approve or disapprove, the
inclusion of the aforestated treatments on or before October 15,
2009; and
(iii) Section 13 (c) (iii) of the First Addendum shall remain in full force
and effect and Developer shall not obligate any amount in excess
of $15,210,13 5 for the design, development and construction of the
Garage, prior to October 1, 2009, with the balance of the funding
in the amount of $1,875,000, available after October 1, 2009.
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5. Section 14 of the First Addendum (entitled "Substantial Completion; Final
Completion") is amended to include the following new subsection (h):
(h) Any amounts remainin unspent upon Final Completion of the Garage
Proiect shall be transferred to the Park Proiect to be utilized at the sole
discretion of the City Commission
6. The Parties herby ratify re-state and reaffirm subsections 4 8 and 4 9
respectively, of the Grant-in-Aid Agreement entered into between the City and Developer dated
July 23, 2008 (hereinafter the Grant A~-eement) In particular subsection 4 8 of the Grant
Agreement provides in part that "The City's obligation to fund all or andportion of the Grant
fas such term is defined m the Grant Agreement] is subject to and contin e~ nt upon such funding
continuing to be allowed and permissible pursuant to Florida law as same maybe amended from
time to time." (Brackets suppliedl The Parties in hereby ratifying restating and reaffirming
subsection 4.8 of the Grant Agreement hereby agree and acknowledge that in connection with
subsection 4.8 if, during any such time that the City is obligated to fund Grant Monies (as such
term is defined in the Grant Agreement) to NWS under the terms of the Grant Agreement the
City has insufficient funds to pay 100% of such Grant Monies as they become due which
insufficiency is a direct result of insufficient revenue collections for the City Center
Redevelopment Agency ("CCRDA") in the fiscal year that the Grant Monies are due (and where
said revenues and expenditures were identified in the annual budget approved by the CCRDA
Board of Directors and Miami-Dade County) then the Parties agree that the Cit sy hall pay to the
Developer such portions of the Grant Monies for which the City has sufficient CCRDA revenue
collections, and the Crtv shall continue to pay the remaining Grant Monies to the Developer as
CCRDA funds become available until 100% of the Grant Monies have been aid.
6.1 Although the City's payment of portions of the Grant Monies in
accordance with the terms of the Grant Agreement may be deferred temporarily such
deferrals shall be solely in the instances described herein and no part of the City's
obligations under the Grant Agreement shall be or hereby are forgiven or waived by
Developer. The Parties acknowledge and agree to cooperate in jointly developing and
~eemg to an alternate plan and payment schedule for funding draw requests with Grant
Moines ursuant to which lan and a ent schedule the Cit shall a to NWS such
Grant Monies as they become available until 100% of the Grant Monies have been paid
6.2 In addition the Parties acknowledge and agree that any agreement herein
to defer and any such deferral of the City's obligation to pay the Developer a portion or
ortions of such Grant Moines in accordance with the schedule contemplated in the Grant
Agreement shall not alter in any way whatsoever the current priority of the Developer's
Improvements and the Grant Agreement and the City's obligation to pay such Grant in
full, as compared to any other obligations it may have re arding_payments to third parties
from CCRDA revenues, and the Crtv agrees that it shall not fund or otherwise pay from
CCRDA revenues any other grants or similar agreements for proiects or other
improvements whose pnonty currently is inferior to that of the Developer's
Improvements and the funding of the Grant Agreement until the Grant is paid in full to
Developer.
g7. Miscellaneous.
(a) Counterparts. To facilitate execution, the Parties hereto agree that this
Second Addendum may be executed in counterparts as may be required and it shall not be
necessary that the signature of, or on behalf of, each Party, or that the signatures of all persons
required to bind any Party, appear on each counterpart; it shall be sufficient that the signature of,
or on behalf of, each Party, or that the signatures of the persons required to bind any Party,
appear on one or more of such counterparts. All counterparts shall collectively constitute a
single Second Addendum.
(b) References. All references in the Development Agreement (or the First
Addendum) to the "Agreement" shall hereafter mean and refer to the Development Agreement,
as amended by the First Addendum and this Second Addendum. If there is a contradiction
between the terms of the Development Agreement, the First Addendum, and this Second
Addendum, then the terms of this Second Addendum shall control. Facsimile signatures
appearing hereon shall be deemed an original.
(c) Effect of Second Addendum. Except as modified herein, the Development
Agreement remains in full force and effect. In the event of any conflict or ambiguity between
the Development Agreement, the First Addendum, and this Second Addendum, this Second
Addendum shall control.
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F^atto~,AGUR`,AGREEMENT`,NWS (Second Addendum to Dev Agreement (2nd Reading 4-22-09 Agenda -Final 7-7-09)).doc
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EXECUTION BY OWNER
IN WITNESS WHEREOF, Owner and Developer intending to be legally bound have
executed this Second Addendum to Development Agreement as of the day and year first above
written.
WITNESSES:
Print Name: f~'N ON
Print Name: 4 jlc,~, m ' ~,~,~
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation of the State of Florida
By:
ATTEST:
B : ~ P~~
y [SEAL)
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
1 The foregoing instrument was acknowledged before me this ~~ day of
.try ~.. ~ c
, ` • ~ '~ ' by l~-~~i ,~1 ~.1~,~~ ~' ~" , as Mayor, and ~!'ca,b~~, _-7` ~ ~7rz~ l~; /;. as
ity C erk of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State
of Florida, on behalf of such municipal corporation. They are personally known to me or
produced valid Florida driver's licenses as identification
My commission expires:
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°`'o~ PXPIREu, April 29 2010
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APPROVED AS TO
FORM & LANGUAGE
~ FOR EXECUTION
(City A rney Date
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EXECUTION BY DEVELOPER
WITNESSES:
Print Name: l~3'~+
Print ame:_~,e c/~'.i Ci~o ~ r-
THE NEW WORLD SYMPHONY, anot-for-
profit Florida corporation
By.
Howard Herring, President and EO
ATTEST:
By:
Secretary
[CORPORATE SEAL]
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this~1 day of ~„~~
o?OC~q , by Howard Herring, as President and CEO, and , as ecretary,
of THE NEW WORLD SYMPHONY, anot-for-profit Florida corporation, on behalf of such
corporation. They are personally known to me or produced valid Florida driver's licenses as
identification.
My commission expires:
Notary ublic, State of Florida
Print ame:
NOTARY PUBLIC~7'ATE OF FLORIDA
""" Evelyn De Jesus
~.~: Commission # DD870486
~;~.•~ Expires: MAR.15.2013
$ONDED TfiRU AIZAA"rIC BONDING CO., INC
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