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2009-27040 ResoRESOLUTION NO. 2009-27040 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING ON FIRST READING, IN ACCORDANCE WITH THE REQUIREMENTS OF SECTIONS 163.3220 - 163.3243, FLORIDA STATUTES, ALSO REFERRED TO AS THE "FLORIDA LOCAL GOVERNMENT DEVELOPMENT ACT", A SECOND ADDENDUM ("SECOND ADDENDUM") TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND THE NEW WORLD SYMPHONY ("NWS"), DATED JANUARY 5, 2004 (THE DEVELOPMENT AGREEMENT), AS AMENDED BY THAT CERTAIN FIRST ADDENDUM TO DEVELOPMENT AGREEMENT, DATED FEBRUARY 20, 2007 (THE FIRST ADDENDUM) (COLLECTIVELY, THE JANUARY 5, 2004 DEVELOPMENT AGREEMENT AND THE FIRST ADDENDUM MAYALSO COLLECTIVELY BE REFERRED TO AS THE "NWS DEVELOPMENT AGREEMENT"); SAID SECOND ADDENDUM PROVIDING FOR THE FOLLOWING: 1) APPROVAL OF THE FINAL GARAGE BUDGET, IN THE AMOUNT OF $16,798,000; 2) AMENDING THE PRELIMINARY PARK PROJECT BUDGET FROM $14,960,000, TO $13,372,000; 3) DELETING THE REFERENCE IN THE FIRST ADDENDUM SPECIFYING GEHRY PARTNERS, LLC, AS THE ARCHITECTURAL CONSULTANT FOR THE PARK PROJECT, AND ALSO WAIVING THE REQUIREMENT UNDER SECTION 26.20 OF THE DEVELOPMENT AGREEMENT ("KEY MAN" CLAUSE) AND SECTION 9 OF THE FIRST ADDENDUM BUT ONLY AS IT PERTAINS TO GEHRY PARTNERS, LLC'S PARTICIPATION AS THE ARCHITECTURAL CONSULTANT FOR THE PARK PROJECT; 4) AUTHORIZING NWS TO PROCEED WITH THE SELECTION OF A NEW ARCHITECTURAL CONSULTANT AND/OR ARCHITECTURAL ENGINEERING (A/E) FIRM FOR THE DESIGN OF THE PARK PROJECT, WITH NWS'S SELECTION PROCESS THEREFORE SUBJECT TO THE PRIOR WRITTEN APPROVAL OF THE CITY MANAGER (PRIOR TO IMPLEMENTATION BY NWS); 5) IN CONJUNCTION WITH THE CITY COMMISSION'S FUTURE CONSIDERATION AND REVIEW OF THE PARK PROJECT CONCEPT PLAN, DIRECTING NWS TO ALSO, AT THAT TIME, BRING TO THE CITY COMMISSION, FOR REVIEW AND CONSIDERATION, THE PENDING ISSUE OF WHETHER TO ADD CERTAIN ARCHITECTURAL TREATMENTS (AS DISCUSSED AT THE CITY'S FINANCE COMMITTEE MEETING ON MARCH 10, 2009 AND INCLUDING, WITHOUT LIMITATION, THE STAINLESS STEEL MESH AND LED LIGHTING) FOR THE EAST FACtADE ELEVATION OF THE NWS GARAGE, WITH THE FINAL DECISION ON WHETHER TO ADD SUCH TREATMENTS TO BE SUBJECT TO THE APPROVAL OF THE CITY COMMISSION AT THAT TIME; 6) AMENDING SECTION 23.2.1 OF THE DEVELOPMENT AGREEMENT ("GARAGE")DELETING THE REFERENCE THAT THE NWS GARAGE ACCOMMODATE APPROXIMATELY 320 CARS AND, FURTHER, AMENDING THE DEFINITION OF "GARAGE" IN SECTION 2Q) OF THE FIRST ADDENDUM TO INCLUDE THAT THE GARAGE, AS CONTEMPLATED BY THE PARTIES, SHALL CONTAIN APPROXIMATELY 535 SPACES (BUT NO LESS THAN 520 SPACES) AND SHALL BE DESIGNED, DEVELOPED, AND CONSTRUCTED BY DEVELOPER IN ACCORDANCE AND CONSISTENT WITH THAT CERTAIN ORDER OF THE CITY'S DESIGN REVIEW BOARD (FILE NO. 22010), APPROVED ON MARCH 3, 2009; AND 7) THAT THE FINAL GARAGE BUDGET WILL NOT INCLUDE FUNDING FOR THE TWO (2) ELEVATORS IN THE MIDDLE OF THE GARAGE (ON THE EAST SIDE), AND HAVING A CONSTRUCTION VALUE OF $275,000, WHICH HAVE BEEN DESIGNED TO PRIMARILY ACCESS NWS' BUILDING, HOWEVER, SAID ELEVATORS WILL BE INCLUDED IN THE GARAGE AND FUNDED AT THE SOLE COST AND EXPENSE OF NWS; AND FURTHER AUTHORIZING NWS TO PROCEED WITH DESIGN AND ENGINEERING OF THE GARAGE UPON APPROVAL OF FIRST READING OF THE SECOND AMENDMENT OF THE DEVELOPMENT AGREEMENT. WHEREAS, on January 5, 2004, the City of Miami Beach (City) and the New World Symphony (NWS), entered into a Development Agreement and Ground Lease Agreement (the Agreements), providing for design, development and construction of an educational performance and Internet broadcast facility and exterior screen (formally known as "Soundspace„ and now known as the "NWS Campus Expansion Project") and a public parking garage to`be located on the westernmost portion of the 17th Street surface parking lots, bounded by 17th StrArrt to the north; North Lincoln Lane to the south; Drexel Avenue to the east; and Pennsylvania Avenue to the west; and WHEREAS, pursuant to the direction of the City Commission on September 8, 2004, and consistent with the Planning Board's August 24, .2004, recommendation, the Project site was expanded east to Washington Avenue to include both surface lots; and WHEREAS, on February 20, 2007, the City and NWS executed the First Addendum to the Development Agreement (First Addendum) wtxich further established the Parties' respective obligations (including processes, scopes for implemerXEation, and estimated costs and budgets for the NWS Campus Expansion, the Garage, and also pertaining to certain Additional Improvements, Infrastructure Improvements, and the design, developrr~nt and construction of a Park); and WHEREAS, the First Addendum also established the City's Preliminary Budgets forthe Garage Project at $15,210,135, and the Park project at $14,960,000, and approved a $15 million Grant-in-Aid for the NWS building; and WHEREAS, throughout tote course of the Project's development, the City Commission has consistently taken the position than the Project should not result in a net loss of parking spaces and has consistently contemplated a Fr;~nk Gehry designed Garage containing 500 to 600 parking spaces; and WHEREAS, the Firryt Addendum requires that NWS secure the City's approval of the Final Garage Budget prior to NV10S entering into a Guaranteed Maximum Price ("GMP") contract with a contractor to construct th6~ Garage; and WHEREAS, N10VS and Hines (NWS's Project Manager) conducted aproposal/solicitation process for adesign/build contractor for the Garage, which resulted in the selection of KVC Construction, Inc., (KVC) as the lowest responsive bidder; and WHEREAS, KVC's proposal to build the Garage (containing 550-562 parking spaces) came in at $20,789,459, exceeding the Preliminary Budget set forth in the First Addendum(by $5,579,323); and WHEREAS, on February 11, 2009, the Finance and Citywide Projects Committee (the Committee) discussed KVC's proposal in the context of the overall Project; the costs involved; and the status and design of the Park; and WHEREAS, the Committee requested that NWS and Hines continue working with KVC to reduce the proposed cost of the Garage; that NWS contact Gehry Partners, LLC to determine if Gehry's proposed design fees for the Park could be reduced in order to potentially free up funding for the difference in the Garage cost; and that NWS proceed to the March 3, 2009, Design Review Board meeting for approval of the Garage design (with certain design alternatives, including elimination of the stainless steel mesh and LED lighting on the eastern facade); and WHEREAS, the Committee also requested that NWS and Hines work with the City to identify alternative options that would allow for the Park to be designed, permitted and constructed in time for the grand opening of the NWS Campus Expansion; and WHEREAS, on March 10, 2009, the Administration reported back to the Committee, indicating that the proposed cost of the Garage had been reduced to $16,798,000, for a difference of $1,588,000 from the Preliminary Garage Budget allocation; and WHEREAS, since Gehry Partners would not lower its fees for the design of the Park, NWS and Hines recommended that the City be considered an altemative design professional for the Park, so that the projected difference in the Garage costs could be moved from the Preliminary Park Project Budget without any reduction in scope to the proposed Park; and WHEREAS, pursuant to the recommendations of the Committee at its March 10th meeting, the City and the NWS have negotiated a Second Addendum to the Development Agreement, providing for the following: 1) The definition of the Garage will be modified to specifically state that the Garage will have approximately 535 parking spaces, but no less than 520 parking spaces; and 2) Approving the Final Garage Budget, in the amount of $16,798,000; and 3) Approving the Design to the Park Budget, in the amount of $13,372,000; and 4) Waiving the "Key Man" requirement for Gehry Partners, LLC., but only as to Gehry Partners having to be the Architectural Consultant for the Park Project; and 5) Authorizing NWS to proceed in preparing aselection/solicitation for a new architect (A/E firm) for the Park Project, pursuant to a competitive process to be approved by the City Manager, and requiring further that the City Commission must approve the new recommended A/E firm; and 6) The City Commission may, in its sole and absolute discretion, at the time of its consideration of the Park Project Concept Plan, determine whether or not to include the certain architectural treatments (i.e., stainless steel mesh and LED lighting) on the east fagade of the Garage (which approval would be subject to Gehry Partners' concurrence and, if approved, the treatments would be included at the City's cost); and 7) The Final Garage Budget, as approved by the City, does not contemplate the City funding the two (2) elevators in the middle of the Garage (on the East side and having a construction value of $275,000), which have been designed to primarily access NWS' building; said elevators will be included in the Garage and shall be funded at the sole cost and expense of NWS. 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 hereby approve, on First Reading, in accordance with Sections 163.3220 -163.3243, Florida Statutes, also referred to as the "Florida Local Government Development Act", a Second Addendum to the Development Agreement between the City of Miami Beach and the New Wo~1d Symphony (NWS), dated January 5, 2004, (the Development Agreement), as amended by that certain First Addendum to the Development Agreement, dated February 20, 2007 (the First Addendum) (collectively, the January 5 2004 Development Agreement and the First Addendum may be referred to as the "NWS Development Agreement"); said Second Addendum providing for the following 1) approval of the Final Garage Budget in the amount of $16,798,000; 2) amending the Preliminary Park Project Budget from $14,960,000 to $13,372,000; 3) deleting the reference in the First Addendum specifying Gehry Partners, LLC, as the architectural consultant on the Park Project, and also waiving the requirement under section 26.20 of the Development Agreement ("Key Man" clause) and section 9 of the First Addendum, but only as it pertains to Gehry Partners, LLC's participation as the architectural consultant for the Park Project; 4) authorizing NWS to proceed with the selection of a new architectural and/or architectural engineering (A/E) firm for the design of the Park Project, with NWS' selection process therefore subject to the prior written approval of the City Manager (prior to implementation by NWS); 5) in conjunction with the City Commission's future consideration and review of the Park Project Concept Plan, directing NWS to also, at that time, bring to the City Commission, for review and consideration, the pending issue of whether to add certain architectural treatments (as discussed at the City's Finance Committee meeting on March 10, 2009, and including without limitation, the stainless steel mesh and LED Lighting) for the east fagade elevation of the NWS Garage, with the final decision on whether to add such treatments to be subject to the approval of the City Commission at that time; 6) amending Section 23.2.1 of the Development Agreement ("Garage"), deleting the reference that the NWS Garage accommodate approximately 320 cars and, further amending the definition of "Garage" in section 2(j) of the First Addendum to include that the Garage, as contemplated by the parties, shall contain approximately 535 spaces (but not less than 520 spaces) and shall be designed, developed, and constructed by the Developer in accordance and consistent with that certain order of the City's Design Review Board (File no. 22010), approved on March 3, 2009; and 7) that the final Garage Budget will not include funding for the two (2) elevators in the middle of the Garage (on the east side), and having a construction value of $275,000, which have been designed to primarily access the NWS building; however said elevators will be included in the Garage and funded at the sole cost and expense of NWS; and further authorizing NWS to proceed with design and engineering of the Garage upon approval of First Reading of the Second Addendum to the Development Agreement. PASSED and ADOPTED this 18th day of March, 2009. M TI HERRE OWER, MAYO ATTEST: RO ERT PARCHER, CITY CLERK t:\Agenda\2009UAarch 18\Regular\NWS-Second Addendum Reso -First Reading.doc APPROVED AS TO FORM & LANGUAGE ett FOR EXECUTION ;1-- ~ ~~ f. 6~ ity Attom Date COMMISSION ITEM SUMMARY Condensed Title: A resolution approving on 1st Reading a 2" Addendum to the Development Agreement between the City and the New World Symphony (NWS), approving the final Garage Budget in the amount of $16,798,000, amending the Preliminary Park Budget from $14,960,000 to $13,372,000 and modifying certain provisions in the Development Agreement and the First Addendum pertaining to the Garage and the Park as noted in the following summary. Key Intended Outcome Supported: Increase community rating of cultural activities and ensure well maintained facilities. Supporting Data (Surveys, Environmental Scan, etc.): While a majority of residents say that the City has the right amount of cultural activities, approximately 30% of those surveyed say there are too few cultural activities. The NWS Project will significantly enhance the City's attraction as a cultural destination. Issue: Shall the City Commission approve the proposed 2" Addendum to the Development Agreement between the City of Miami Beach and the NWS? Item Summa /Recommendation: Pursuant to the provisions set forth in the Development Agreement between the City and NWS and the 1S Addendum thereto, dated February 20, 2007, NWS is required to secure the City's approval of the Final Garage Budget prior to NWS entering into a Guaranteed Maximum Price ("GMP") contract with a contractor to construct the Garage. In accordance with these provisions, NWS and Hines conducted an RFP process which resulted in the selection of KVC Construction, Inc., (KVC) as the lowest and most responsive bidder. KVC's proposal to build a garage, containing over 500 parking spaces came in at $20,789,459, exceeding the not-to-exceed Preliminary Budget set forth in the First Addendum by $5,579,324. Pursuant to direction of the Finance Committee on February 11, 2009, NWS and Hines proceeded to reduce the proposed cost of the Garage to $16,798,000, for a difference of $1,588,000 from the Preliminary Budget allocation. The revised cost was present to the Finance Committee on March 10, 2009. It was also reported that since Gehry Partners would not lower their fees for the design of the Park, NWS and Hines recommended that the City consider an alternative design professional forthe Park. The resulting savings could be moved from the Park Budget to fund the projected difference in the Final Garage Budget, without any reduction in scope to the proposed Park. The Administration is recommending a 2"d Addendum to the Development Agreement, generally providing for the following modifications to the Development Agreement and the 1St Addendum: modifying the definition of "Garage" to state that the Garage will have approximately 535 parking spaces, but no less than 520 parking spaces; approving the Final Garage Budget in the amount of $16,798,000; approving the Design-To Park Budget in the amount of $13,372,000; waiving the "Key Man" requirement for Gehry Partners, LLC., to design the Park component; authorizing NWS to proceed in selecting an Architect and/or Architectural Consultant for the Park project pursuant to a competitive process approved by the City Manager, and approval by the City Commission of the recommended Architect and/or Architectural Consultant; providing for the City Commission to determine at the time of the Park Concept Plan approval, to decide whether or not to place the architectural treatment on the east facade of the Garage; and providing that the Final Garage Budget will not include funding for the two (2) elevators in the middle of the Garage (on the East side), having a construction value of $275,000, which shall be funded at the sole cost and expense of NWS. In addition, given the time requirements of the Project, NWS should be authorized to proceed with design/engineering of the Garage upon approval of the 1St Reading of the Second Addendum. Adviso Board Recommendation: Finance & Citywide Projects Committee, Feb 11, 2009 & Mar 10, 2009: Recommendation in favor of proposed modifications to the Develo ment A reement and 1st Addendum as noted above. Financial Information: Source of Funds: Amount Account Approved OBPI Total 1,588,000 Financial Impact Summary: The difference between the Preliminary Garage Budget and the Final Garage Budget in the amount of $1,588,000 is being proposed to be funded from the FY 2009/10 appropriation for the Park, thereby reducing the overall Park Budget from $14,960,000 to $13,372,000. No new appropriation of funding is required, just a reallocation from planned future capital a ro riations. ~~~ ~~~~ AGENDA ITEM R~~ ~'" DATE 3-I $ _d y Ci Clerk's Office Le islative Trackin Kent O. Bonde, Redevelopment Coordinator m MIAMIBEACH City of Miami i3sach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachH.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manage FIRST READING PUBLIC HEARING DATE: March 18, 2009 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING ON FIRST READING, IN ACCORDANCE WITH THE REQUIREMENTS OF SECTIONS 163.3220 - 163.3243, FLORIDA STATUTES, ALSO REFERRED TO AS THE "FLORIDA LOCAL GOVERNMENT DEVELOPMENT ACT", A SECOND ADDENDUM ("SECOND ADDENDUM") TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND THE NEW WORLD SYMPHONY ("NWS"), DATED JANUARY 5, 2004 (THE DEVELOPMENT AGREEMENT), AS AMENDED BY THAT CERTAIN FIRST ADDENDUM TO DEVELOPMENT AGREEMENT, DATED FEBRUARY 20, 2007 (THE FIRST ADDENDUM) (COLLECTIVELY, THE JANUARY 5, 2004 DEVELOPMENT AGREEMENT AND THE FIRST ADDENDUM MAY ALSO COLLECTIVELY BE REFERRED TO AS THE "NWS DEVELOPMENT AGREEMENT"); SAID SECOND ADDENDUM PROVIDING FOR THE FOLLOWING: 1) APPROVAL OF THE FINAL GARAGE BUDGET, IN THE AMOUNT OF $16,798,000; 2) AMENDING THE PRELIMINARY PARK PROJECT BUDGET FROM $14,960,000, TO $13,372,000; 3) DELETING THE REFERENCE IN THE FIRST ADDENDUM SPECIFYING GEHRY PARTNERS, LLC, AS THE ARCHITECTURAL CONSULTANT FOR THE PARK PROJECT, AND ALSO WAIVING THE REQUIREMENT UNDER SECTION 26.20 OF THE DEVELOPMENT AGREEMENT ("KEY MAN" CLAUSE) AND SECTION 9 OF THE FIRST ADDENDUM BUT ONLY AS IT PERTAINS TO GEHRY PARTNERS, LLC'S PARTICIPATION AS THE ARCHITECTURAL CONSULTANT FOR THE PARK PROJECT; 4) AUTHORIZING NWS TO PROCEED WITH THE SELECTION OF A NEW ARCHITECTURAL CONSULTANT AND/OR ARCHITECTURAL ENGINEERING (A/E) FIRM FOR THE DESIGN OF THE PARK PROJECT, WITH NWS'S SELECTION PROCESS THEREFORE SUBJECT TO THE PRIOR WRITTEN APPROVAL OF THE CITY MANAGER (PRIOR TO IMPLEMENTATION BY NWS); 5) IN CONJUNCTION WITH THE CITY COMMISSION'S FUTURE CONSIDERATION AND REVIEW OF THE PARK PROJECT CONCEPT PLAN, DIRECTING NWS TO ALSO, AT THAT TIME, BRING TO THE CITY COMMISSION, FOR REVIEW AND CONSIDERATION, THE PENDING ISSUE OF WHETHER TO ADD CERTAIN ARCHITECTURAL TREATMENTS (AS DISCUSSED AT THE CITY'S FINANCE COMMITTEE MEETING ON MARCH 10, 2009 AND INCLUDING, WITHOUT LIMITATION, THE STAINLESS STEEL MESH AND LED LIGHTING) FOR THE EAST FACtADE ELEVATION OF THE NWS GARAGE, WITH THE FINAL DECISION ON WHETHER TO ADD SUCH TREATMENTS TO BE SUBJECT TO THE APPROVAL OF THE CITY COMMISSION AT THAT TIME; 6) AMENDING Commission Memorandum -NWS Second Addendum March 18, 2009 Page 2 of 10 SECTION 23.2.1 OF THE DEVELOPMENT AGREEMENT ("GARAGE") DELETING THE REFERENCE THAT THE NWS GARAGE ACCOMMODATE APPROXIMATELY 320 CARS AND, FURTHER, AMENDING THE DEFINITION OF "GARAGE" IN SECTION 2(j) OF THE FIRST ADDENDUM TO INCLUDE THAT THE GARAGE, AS CONTEMPLATED BY THE PARTIES, SHALL CONTAIN APPROXIMATELY 535 SPACES (BUT NO LESS THAN 520 SPACES) AND SHALL BE DESIGNED, DEVELOPED, AND CONSTRUCTED BY DEVELOPER IN ACCORDANCE AND CONSISTENT WITH THAT CERTAIN ORDER OF THE CITY'S DESIGN REVIEW BOARD (FILE NO. 22010), APPROVED ON MARCH 3, 2009; AND 7) THAT THE FINAL GARAGE BUDGET WILL NOT INCLUDE FUNDING FOR THE TWO (2) ELEVATORS IN THE MIDDLE OF THE GARAGE (ON THE EAST SIDE), AND HAVING A CONSTRUCTION VALUE OF $275,000, WHICH HAVE BEEN DESIGNED TO PRIMARILY ACCESS NWS' BUILDING, HOWEVER, SAID ELEVATORS WILL BE INCLUDED IN THE GARAGE AND FUNDED AT THE SOLE COST AND EXPENSE OF NWS; AND FURTHER AUTHORIZING NWS TO PROCEED WITH DESIGN AND ENGINEERING OF THE GARAGE UPON APPROVAL OF FIRST READING OF THE SECOND ADDENDUM OF THE DEVELOPMENT AGREEMENT. Administration Recommendation Adopt the Resolution. Funding Pursuant to the City's Capital Plan, the balance of funding for the Park component, in the amount of $13,910,000 is anticipated to be appropriated as part of the FY 2009/10 Capital Budget, to be funded from City Center Redevelopment Agency TIF. The Administration is recommending to fund the difference between the Preliminary Garage Budget and the Final Garage Budget in the amount of $1,588,000 from the FY 2009/10 appropriation for the Park, thereby reducing the overall Park Budget from $14,960,000 to $13,372,000. Background On January 5, 2004, the City of Miami Beach (City) and the New World Symphony (NWS), entered into a Development Agreement and Ground Lease Agreement (the Agreements), providing for design, development and construction of an educational performance and intemet broadcast facility and exterior screen (formally known as "Soundspace") and a public parking garage to be located on the westernmost portion of the 17~' Street surface parking lots, bounded by 17~' Street to the north; North Lincoln Lane to the south; Drexel Avenue to the east; and Pennsylvania Avenue to the west. Pursuant to the direction of the City Commission on September 8, 2004 and consistent with the Planning Board's August 24, 2004 recommendation, the Project site was expanded east to Washington Avenue to include both surface lots, to be designed as an integrated site, to include the development of a Park and certain other public improvements. The Agreements have NWS serving as the Developer of the site and, in this capacity; NWS enters also into separate agreements with its vendors to plan, design, and construct the Garage and the Park on the City's behalf. The City is obligated to provide funding for these improvements upon approval of the scope of work and budgets for each. Commission Memorandum -NWS Second Addendum March 18, 2009 Page 3 of 10 On February 20, 2007, the City and NWS executed the First Addendum to the Development Agreement (First Addendum) that established the City's Preliminary Budgets for the Garage Project and the Park Project and established a $15 million Grant-in-Aid for the NWS building. The Preliminary Garage Budget was established as $15,210,135, and the Preliminary Park Budget was established as $14,960,000. The First Addendum requires that NWS secure City approval of the Final Garage Budget prior to NWS entering into a Guaranteed Maximum Price ("GMP") contract with a contractor to construct the Garage. NWS has advised the City that it is ready to proceed with the Garage design/build contract. Architectural Consultant Criteria The Development Agreement and the First Addendum contain language that names "Gehry Partners, LLC„, as the Architectural Consultant for the Project (including the Garage and the Park components). A considerable amount of importance was placed on having the entire project site developed in accordance with the "single design vision of the Architectural Consultant...". The City and NWS agreed that a "Gehry' designed Project (including Garage and Park) was a material and integral part of the development of the site. In deciding that a "Gehry" design was a material element, the City Commission carefully considered the potential financial costs attached to making the Architectural Consultant a material requirement. The firm "Gehry Partners, LLC" is an architectural company created by Frank O. Gehry. The services of Mr. Gehry and his firm, Gehry Partners, are in demand throughout the world. Mr. Gehry is particularly known for the Guggenheim Museum in Bilbao, Spain; the Millennium Park in Chicago; the Walt Disney Concert Hall in downtown Los Angeles; the Experience Music Project in Seattle; the Weisman Art Museum in Minneapolis; the Dancing House in Prague, Czech Republic; and his private residence in Santa Monica, California. His work is often sought by owners to distinguish themselves from others, as the buildings that he designs become tourist attractions in and of themselves. The projects designed by Gehry Partners are considered to be world class facilities. This type of distinction, which carefully and uniquely combines art with function is, by its nature, higher in expense than a typical municipal project. The firm is able to command a premium in fees, and the projects that are designed by them are high end products with a commensurate premium in the cost of construction. In approving the First Addendum, the City Commission considered the premium that went with making a Gehry design a material element, and determined that the distinctive value of the end product, a world class design, was worth the premium cost of design and construction. The Garage Project From the inception of the Project, the Garage has been an integral component. The Project site, including the Park and the Garage, was previously two (2) City surface parking lots that contained just over 500 parking spaces. Throughout the course of the Project's development, the City Commission has taken the position that the Project should not result in a net loss of parking spaces. For this reason, the Project has consistently contemplated a Gehry designed Garage containing 500 to 600 parking spaces. Commission Memorandum -NWS Second Addendum March 18, 2009 Page 4 of 10 The First Addendum increased the total Preliminary Garage Budget from approximately $7 million, to $15,210,135, for 608 spaces, and including the City Code required retail component on the ground floor. The Preliminary Garage Budget provided by NWS and approved by the City Commission in the First Addendum was generally divided as follows: Total Architectural/En ineerin Cost $1,511,000 Total Construction Cost $12,106,000 Total Site Cost $650,680 Total Tax/Insurance Cost $215,608 Total Owner Ex enses $10,000 Total General/Admin Costs $568,755 Total Contin enc Cost $148,092 Total Pro'ect Cost $15,210,135 The First Addendum anticipated a potential change between the Preliminary Garage Budget and the Final Garage Budget, and therefore requires NWS to bring back its Final Garage Budget, for consideration and potential approval by the City Commission. As of March 10, 2009, NWS advised the City that it is prepared to present a Final Garage Budget. Since execution of the First Addendum on February 20, 2007, NWS has proceeded with both the construction of the NWS building (now known as the "NWS Campus Expansion") as well as the conceptual design for the Garage with Gehry Partners. The recommended and approved process (in large part to help limit the design fees) was to have Gehry Partners do the conceptual design and obtain Design Review Board approval. Currently, the conceptual design has been bid todesign/build contractors, and the selected contractor and its design professional will be responsible for finishing the design and engineering in accordance with the DRB approved conceptual plans (when that occurs), and then construct the Garage. The selected design/build contractor is contemplated to be asub-contractor of the NWS Campus Expansion, general contractor, Facchina McCaughan, LLC. Schedule Successful completion of the Garage is on the same Critical Path as for completion of the NWS Campus Expansion building, for two reasons: (1) The electrical power vaults for both the Campus Expansion building and the Garage are located within the Garage. At this point, permanent power cannot be provided to the Campus Expansion building without the Garage commencing construction. In order to meet the Critical Path for the Campus Expansion building, final engineering for the Garage would need to commence by the beginning of April 2009 (at the latest); and (2) Pursuant to Resolution No. 2007-26704, the City Commission approved a temporary license agreement for NWS to count 175 parking spaces within the proposed Garage to meet its City Code required parking for a period of five (5) years from the date of Certificate of Occupancy (C.O.) of the Campus Expansion building. This requires that the Garage be constructed and open in order for a C.O. to be granted on the Campus Expansion building. After five (5) years, NWS would need to provide for its 175 Code- required parking spaces at an alternate location. As soon as approval from the City Commission is obtained, NWS can hire the design/build contractor (Facchina McCaughan) and finalize the design and initiate the permitting and construction of the site. If this schedule is met, then completion of the Garage is projected to be August/September 2010. Commission Memorandum -NWS Second Addendum March 18, 2009 Page 5 of 10 Park The planning effort for the Park has not yet officially commenced. Up until March 1, 2009, NWS was still in negotiations with Gehry Partners regarding the proposed design services and fees for this component. The Preliminary Park Budget in the First Addendum is $14,960,000. Total Project Funding The allocated funding for the NWS Project comes from City Center RDA funds. The funding approved by the City is as follows: Gara a FY 09 $15,21.0,135 Additional Im rovements FY 08 $6,400,000 Park Desi nFY09/ConstFY2010 $14,960,000 Grant in Aid FY 2010 $15,000,000 Total Fundin Commitment $51,570,135 As noted above, the funding commitments forthe Garage, the Additional Improvements, and the design for the Park have already been appropriated by the City Commission. The funding commitment for the construction of the Park and for the Grant-in-Aid will be due as of October 1, 2009. Finance and Citywide Projects Committee -February 11, 2009 At the February 11, 2009 FCWPC Meeting, the status of the proposed Garage and of the Park were discussed. The Committee was generally advised that the Garage budget at that time was over the allocated amount. NWS also advised that no Agreements had been executed with Gehry Partners to design the Park and that the negotiations regarding the Park were ongoing. Based on the information from this meeting, the Committee made the following requests and recommendations: 1) For NWS/Hines to continue to work with the low bidder(s) for the proposed Garage and to continue to reduce the proposed cost of the Garage; 2) For NWS, and specifically, Michael Tilson Thomas, to contact Frank Gehry directly and see if the design fees for the Park portion of the Project can be brought to within $1.5 million with Gehry Partners remaining as the Architect or Architectural Consultant; 3) If it is determined that Gehry Partners cannot be retained on the Park Project within the design fee target identified by the City, then the FCWPC requested that NWS/Hines work with City staff to determine if a high end urban park can be designed and built to compliment the Gehry designed Campus Expansion building for the identified construction budget of $8.5 million with an alternative designer. 4) For NWS/Hines to proceed to the March 3, 2009 Design Review Board Meeting with the proposed Gehry designed Garage to see if DRB Approval for Commission Memorandum -NWS Second Addendum March 18, 2009 Page 6 of 10 the proposed Garage, with certain design alternatives, such as the elimination of the stainless steel mesh and LED lighting on the eastern fagade, would be approved. 5) For NWS/Hines to identify an alternative that would allow for the Park to be designed, permitted, and constructed in time forthe planned Grand Opening of the new Campus Expansion building in winter 2010/2011. Finance and Citywide Projects Committee -March 10, 2009 At the March 10, 2009 FCWPC meeting, the following information was provided: The NWS/Hines development team has selected a low bidder for the Garage. The low bidder for the Garage is a local company doing business as KVC Construction (KVC). The principals of KVC are Miami Beach residents and, although not related, currently have a contract with the City as the Construction Manager at Risk for the Scott Rakow Youth Center project. As of the February 11, 2009 FCWPC Meeting, the cost projected for the proposed Garage was as follows: Total Architectural/En ineerin Cost $2,255,612 Total Construction Cost $16,235,372 Total Site Cost Included in Construction Cost Total Tax/Insurance Cost $331,500 Total Owner Ex enses $0 Total General/Admin Costs $977,000 Total Contin enc Cost $989,974 Total Pro'ect Cost $20,789,458 The current proposed Garage costs as of March 11, 2009 by NWS/Hines are: Total Architectural/En ineerin Cost $2,155,612 Total Construction Cost $13,132,888 Total Site Cost Included in Construction Cost Total Tax/Insurance Cost $181,500 Total Owner Ex enses $0 Total General/Admin Costs $578,000 Total Contin enc Cost $750,000 Total Pro'ect Cost $16,798,000 At the current proposed total cost of $16,798,000, the projected amount over the contractually allocated $15,210,135 is $1,587,865 (for purposes of the 2"d Addendum, this amount has been rounded up to $1,588,000). KVC's design/build proposal projects approximately 535+ parking spaces, although the final count will not be known until the full engineering and permitting effort is completed. Commission Memorandum -NWS Second Addendum March 18, 2009 Page 7 of 10 The proposed Garage received approval by the DRB at the March 3, 2009 meeting. The DRB approval calls for the stainless steel mesh on 3 sides of the structure with the proposed LED lights. The DRB Order does not include the facade treatment on the eastern elevation, but does allow for it if funds become available to add the treatment at a future date. Update on Park Agreement with Gehrv Partners NWS advised the City that Michael Tilson Thomas discussed the proposed Park fees with Frank Gehry over the February 28/March 1, 2009 weekend. NWS advised the City that Gehry Partners will not lower their requested fees. Proposed Park Status and Potential Alternatives NWS/Nines is proposing that the City consider an alternative design professional for the Park, such as a well-known Landscape Architect. NWS/Nines has advised the City that it has had initial discussions with several firms since the February 11, 2009 FCWPC meeting and believes that the design costs for the park can be substantially reduced from the Gehry Partners proposed fee. Presently, NWS/Nines is proposing to the City that if the design professional is changed, then the projected shortage to the Garage can be moved from the Park project without any reduction in scope to the proposed Park. NWS/Nines has advised the City that the can-ent Park construction budget can be increased under the NWS proposal described above. The previous Park budget, as of February 11, 2009 was: Total Architectural/En ineerin Cost $4,662,800 Total Construction Cost $8,628,600 Total Tax/Insurance Cost $300,000 Total Owner Ex enses $300,000 Total General/Admin Costs $878,600 Total Contin enc Cost $190,000 Total Project Cost $14,960,000 The proposed Park Budget byNWS/Nines is summarized belowfor a 535+ space Garage, if the Park design professional is changed: Total Architectural/En ineerin Cost $1,500,000 Total Construction Cost $10,344,000 Total Tax/Insurance Cost $300,000 Total Owner Ex enses 0 Total General/Admin Costs $578,000 Total Contin enc Cost $650,000 Total Project Cost $13,372,000 Under this proposal from NWS/Nines, the NWS would meet its commitments to provide a 500 to 600 space parking garage and a high end urban park to compliment the total campus site and remain within the overall contractual amounts for the Project. It does require the City Commission Memorandum -NWS Second Addendum March 18, 2009 Page 8 of 1 D Commission to approve the transfer of dollars between budgets ($1,588,000) within the current NWS Development Agreement, as well as removing the Gehry "key man" requirement for the Park design. This proposal would also increase the construction budget for the Park by approximately $1.7 million above the current allocation. Park Schedule The schedule for the Park is largely dependent upon how the City elects to proceed at this point. If Gehry Partners is maintained as the Park Project consultant, then the current Development Agreement allows for a Planning and Design phase of 18 months, followed by a construction period of 12 months. If this schedule is met, then the opening of the Park would be 30 months from the time that Park notice to proceed is issued to Gehry Partners. If this were to be done on May 1, 2009, then the proposed opening date would be around November 2011. If the decision is made to proceed with an alternative design professional to Gehry Partners, then the timeline would be directly affected by the selection process required by the City. A full City procurement process for an altemative design professional would take at least 4 months. The projected Planning and Design period is 12 months, followed by a 12 month construction period. Under this scenario, assuming authorization to proceed is granted by May 1 ~ 2009, the projected opening date for the Park would be September 2011. Alternatively, if the City authorized NWS/Hines to select an alternative design professional, then this timeline may be reduced by as much as 60 to 120 days. In any event, depending upon the quality of the design professional, it may be possible to shorten both the design and construction timelines; however, staff is not prepared to adjust these timelines until a design professional is selected. Proposed Second Addendum to the Development Agreement Based on the above, and pursuant to the recommendation of the FCWPC, the City Administration is recommending that the City Commission consider a Second Addendum to the Development Agreement to memorialize the changes to the Development Agreement and the First Addendum requested by New World Symphony. Although more specifically delineated above, NWS is requesting the following changes be considered by the City Commission: 1) The definition of Garage will be modified to specifically state that the Garage will have approximately 535 parking spaces, but no less than 520 parking spaces; and 2) Approving the Final Garage Budget in the amount of $16,798,000; and 3) Approving the Design To Park Budget in the amount of $13,372,000; and 4) Waiving the "Key Man" requirement for Gehry Partners, LLC., to design the Park component under the Development Agreement; and 5) Authorizing NWS to proceed in selecting an Architect and/or Architectural Consultant, or both, for the Park project, pursuant to a competitive process approved by the City Manager, and with a reservation that the City Commission Commission Memorandum -NWS Second Addendum March 18, 2009 Page 9 of 10 must approve the recommended Architect and/or Architectural Consultant; and 6) The City Commission, may, in its sole and absolute discretion, determine at the time of Concept Plan approval for the Park, whether or not to place the architectural treatment (i.e., stainless steel mesh and LED lighting) on the east fagade of the building; and 7) The Final Garage Budget will not include funding for the two (2) elevators in the middle of the Garage (on the East side), and having a construction value of $275,000, which have been designed to primarily access NWS' Building; however, said elevators will be included in the Garage and funded at the sole cost and expense of NWS. The proposed Second Addendum has the same force and effect of the original Development Agreement and the First Addendum. The purpose of the proposed Addendum is to formalize the agreement of the parties of the above noted items, as well as to clarify the intent of the parties in some areas of the previous Agreements. Disputed Items The Second Addendum to the Development Agreement is essentially agreed to by staff and New World Symphony with one exception. At the March 10, 2009 FCW PC Meeting, the recommendation of the Committee was for the Garage to have four (4) elevators. Two (2) of the elevators are to be paid by the City and two by NWS. The two NWS elevators are located in the middle of the Garage on the East elevation and serve primarily NWS patrons. The value of these two elevators is $275,000. The elevators are appropriate to address the rush of attendees as functions in the facility begin or end. The value of $275,000, has been removed from the City's portion of the Final Garage Budget and the City's expectation is the NWS will separately fund these two elevators. Subsequent to the March 10~' meeting, NWS has advised the City that it will not fund these two elevators. NWS is recommending that these two elevators be removed from the Garage. If this is done, this would result in only two elevators for the Garage, one (1) in the Southwest corner, and the other in the Northeast comer. Design for Garage Due to the timing of the Project, NWS would like to proceed with the design and engineering of the Garage as approved at the March 3, 2009 DRB Hearing. If the Second Addendum is approved by the City Commission on First Reading, I recommend that NWS be authorized to proceed with the design and engineering for the Garage. The proposed Addendum is attached. Conclusion As noted the Garage component is a critical piece of the overall development of the NWS campus. At the present time, it is appropriate to move forward with the Garage as Commission Memorandum -NWS Second Addendum March 18, 2009 Page 10 of 10 recommended by the FCWPC. The overall cost for the Garage is competitive for a Frank Gehry designed building and will provide an appropriate architectural companion to the Symphony Campus Expansion Building. The proposed transfer of funds from the Park Budget, combined with the waiver of the "Key Man" clause will result in a higher Park construction budget. It is possible to construct awell-designed and high end Urban Park for the $10 million proposed. The issue of the elevators for the NWS building is the only remaining issue in dispute between staff and NWS. The elevators will serve a necessary purpose during periods of entry or exit from events within the Symphony building and are appropriate given how the Garage is likely to be used. Since the elevators would serve primarily the NWS building, it is appropriate for NWS to fund same. I recommend that the Commission approve on First Reading the Second Addendum as recommended by the FCWPC. Attachment T:\AGENDA\2009\March 18\RegularWew World Symphony 2nd Addendum MEMO2.doc p~ FRIQAY, MARCH 15, 2009 I 5B m A/11AM1 ~A~I~ CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that a public hearing will be held by the Mayor and City Commission of the City of Miami Beach, Florida, in the City Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive, Miarni Beach, Florida, on Wednesday, March 18, 2009, at 11:00 a.m., to consider approval, on First Reading, of a Second Addendum to the Development Agreement between the City of Miarnl Beach and the New World Symphony (NWS), dated January 5, 2004, (the Development Agreement), as amended by that certain First Addendum to the Development Agreement, dated February 20, 2007 (the .First Addendum) (collectively, the January 5, 2004 Development Agreement and the First Addendum may be referred to as the "NWS Development Agreement"); said Second Addendum providing for the following 1) approval of the Final Garage Budget in the amount of $17,033,120; 2) amending the Preliminary Park Project Budget from $14,960,000 to $13,137,015; 3) deleting the reference in the First Addendum specifying Gehry Partners, LLC, as the architectural consultant on the Park Project, end also waiving the requirement under section 26.20 of the Development Agreement ("Key Man" clause) and section 9 of the First Addendum, but only as it pertains to Gehry Partners, L_LC's participation as the architectural consultant for the Park Project; 4) authorizing NWS to proceed with the selection of anew architectural andlor architectural engineering (A/E) firm for the design of the Park Project, with NWS' selection process therefore subject to the prior written approval of the City Manager (prior to implementation by NWS); 5) in conjunction with the City Commission's future consideration and review of the Park Project Concept Plan, directing NWS to also, at that time, bring to the City Commission, for review and consideration, the pending issue. of whether to add certain architectural treatments (as discussed at the City's Finance Committee meeting on March 10, 2009, and including without limitation, the stainless steel mesh and LED Lighting) for the east fagade elevation of the NWS Garage, with the final decision on whether to add such treatments to be subject to the approval of the City Commission at that time; 6) amending Section 23.2.1 of the Development Agreement ("Garage"); deleting-the reference that the NWS Garage accommodate approximately 320 cars and, further amending the definition of "Garage" in section 2Q) of the First Addendum to include that the Garage, as contemplated by the parties, shall contain approximately 540 spaces (but not less than 525 spaces) and shall be designed, developed, and constructed by the Developer in accordance and consistent with that certain order of the City's Design Review Board (File no. 22010), approved on March 3, 2009; and 7) that the final. Garage Budget will not include funding for the two (2) elevators in the middle of the Garage (on the east side), and having a construction value of $300,000, which have keen designed to primarily access the NWS building; however said elevators will be included in the Garage and funded at the sole cost and expense of NWS. Inquiries may be directed to the Miami Beach Redevelopment Agency at (305) G73-7295. INTERESTED PARTIES are invited to appear at this meeting or be represented by an agent or to express their views in writing addressed to the City Commission c/o the .City Clerk, 1700 Convention Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139. This meeting may be opened and continued and under such circumstances additional legal notice would not be provided. Robert E. Percher, City Clerk City of Miami Beach Pursuant to Section 286.0105, FL Statutes, the City hereby advises the public that: if a person decides to appeal any decision made by the City Commission with' respect to any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal. is tq be based. This notice does not constitute consent by the City 'for the introduction or adrnissi~n of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in accessible format, sign language interpreters information on access for persons with disabilities, and/or any accommodation to review any. document or participate in any City-sponsored proceeding, please contact (305) 604-2489 (voice), (305) 673-7218(TTY) five days in advance tp initiate your request. TTY users may also call 711 (Florida Relay Service). Ad #528 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 BEACH, FLORIDA ("Owner" or "City"), a municipal corporation duly organized and existing under the laws of the State of Florida, and NEW WORLD SYMPHONY, a not-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 1 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 $AA9 $13,372,000 for Zones 3.1, 3.2 and 3.3, , for a total of ~#,~,589 $13.372.000, 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; have six (6) stories, including five (5) stories of covered parking plus open rooftop parking; two (2) FPL vaults; four (4) elevators [NOTE: DISPUTED ITEM]; 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 $~4;96A;A88 $13,372,000. (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 Park Project Budget for Zones 3.1, 3.2 and 3.3 (which shall hereafter consist of the Park Project Zone). 2 3. Amendment or Replacement of Certain Sections of Development Agreement. The following section or subsections in the Development Agreement or the First Addendum, as noted respectively below, are 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. (b) Section 26.20 of the Development Agreement ("Key Man" Clause), shall not be deemed to include Gehry Partners, LLC as the Architectural Consultant (as said term is defined in the Development Agreement) for the Park Project. Accordingly, to the extent that there is any other reference in the Development Agreement, or any exhibits thereto, to the Architectural Consultant in relation to the design, development, and construction of the Park Project (but only as to the Park Project), then such reference shall not be interpreted as referring to Gehry Partners, LLC but, rather, shall refer to the successor architect/engineering (A/E) firm selected by NWS, and approved by the City, for the Park Project. (c) (i) In accordance with Section 3(b) above, Section 9 of the First Addendum ("Park Project Design") shall also be amended to delete the reference to Gehry Partners, LLC, as the architectural consultant for the Park Project, and the use of the defined term "Architectural Consultant" in Section 9 (as well as in any other section of the First Addendum, and/or exhibits thereto) referring to, or intending to refer to, the Architectural Consultant, in relation to the Park Project only, shall be deemed to refer to the successor A/E firm selected by Developer, and approved by the City, for the Park Project. (ii) The first sentence of Section 9(b) of the First Addendum is deleted. 4. Gara ems. (a) The amount for the Garage Costs, as set forth in Section 5(a)(i) of the First Addendum, is hereby amended from $15,210,135, to $16,798,000 (b) The City and Developer hereby mutually agree upon, and the City Commission hereby approves, the Final Garage Budget, in the amount of $16,798,000; such approval by the City is further subject to, and contingent upon, the following conditions: 3 (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 aforestated treatments concurrent with its review of the Park Project Concept Plan; and (iii) [NOTE: DISPUTED ITEM] The approved Final Garage Budget, as set forth in this Second Addendum, shall not include the cost for the two (2) elevators in the middle of the Garage (on the east side) which will primarily service NWS's patrons and guests. These elevators shall be designed, developed and constructed at NWS's sole cost and expense. (iv) 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 $15,210,135 for the design, development and construction of the Garage, prior to October 1, 2009, with the balance of the funding in the amount of $1,588,000, available after October 1, 2009.. 5. 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. 4 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: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida Print Name: BY~ Print Name: STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) ATTEST: By: [SEAL] The foregoing instrument was acknowledged before me this day of by , as Mayor, and , as City Clerk 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: Notary Public, State of Florida Print Name: APPROVED AS TO FORM & LANGUAGE ~ FOR EXECUTION 5 ~ ~ ~~~~; ~l~ z~ 4a m Date EXECUTION BY DEVELOPER WITNESSES: Print Name: THE NEW WORLD SYMPHONY, snot-for- profit Florida corporation By: Howard Herring, President and CEO Print Name: ATTEST: By: Secretary [CORPORATE SEAL] STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , by Howard Herring, as President and CEO, and , as Secretary, 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 Public, State of Florida Print Name: 6