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')~1)$ SECOKD DENDU'~i TO llE~'ELOP~iENT ;1GREEIIENT is made as of
this _`J_C_~J day of , 2009 (this "Second Addendum") by and between the
C[TY OF MIAMI BLA H, F RDA ("Owner" or "Cih~'), a municipal corporation dilly
organised and existing under th 'laws of the State of Florida, and NEW WORLD SYMPHONY,
[nc. 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 wluch Owner leased to Developer certain real properly described in
Exhibit "A" to said Lease (the "Land").
B. Concurrently therewith, Owner and Developer also entered into a Development
Agreement ("Development Agreement") dated a of January 5, ?004, 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 othcv infrastructure improvements on the Land ("Developer's Improvements"), as
set forth in the Development Agreement.
C. On February 20, ?007, Owner and Developer entered into a First Addendum to
Development Agreement ("First Addendum"), further clarifying the panics' respective
obligations (including processes, scopes for implementation, and estimated costs and budgets)
fir 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 2 ~, 200R, 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 tiscalitinancial 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).
KOW 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.
I. Capitalized Terms; Recitals. All capitalized terms not defined herein shall have
the meanings given to them in the Developmcrtt Agreement, as amended by the First Addendum.
Hereafter, all references to the Development Agrcemc~trt shall mean the Devclopmcnt
Agreement, as modified and augmented by the Fittt Addendum and this Second Addendum,
unless the context indicates otherwise. The Recitals are incorporated herein by reference.
2. Additional and Revised Definitions. The ti~Ilowing definitions. as initially set
ti~rth in the Devclopmcnt Agreement or as may have been subseyuently 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 Pazk Project. As of the date
hereof, the parties acknowledge and agree that the City has budgeted an amount not to exceed
$13A85,000 for Zones 3.1, 3.2 and 3.3, °°a °° ...,.,:':.•°••' ~' ' ~^ ^^^ `•-'.•-°' " for a total of
$-F-~96(lA(~ $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 m the Land, legally described in Exhibit "C." [t
is anticipated that the Garage will maximize public parkinu and minimize any net loss of public
parking within Zone I.1 and will have approximately 53~ (but no less than 520) spaces: kav~e six
(6) stories, including five (~) 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 l?th Street and Pennsylvania Avcnuc. Owner shall be responsible for operation and
management of the Garage, including the leasing and managctncnt opwations of the retail
portion of the Garage.
(c) "Pmliminazy Park Project Budget" means the total cost budgeted by the
City tier 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 Panics 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
(d) .All reference (s) in the Agrcetnent to "Zone 3.4" (as said tcmt is defined
in the First Addendum) is hereby deleted. Accordingly, the area encompassing Zone 3.4, and any
improvements to he 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 Pn>ject Budget (or $I.l~U,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).
3. Amendment or Replacement of Certain Sections of Development .Agreement.
The following subsection in the Development Agrec~rttent 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 constntct the Garage (as set forth in the
Development A~•eement), ut 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. Garage Costs.
(a) The amount Eor the Garage Costs, as set forth in Section 5(a)(i) of the First
.Addendum, is hereby amended from S 15,210,135, to S 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 Gchry
Partners, LLC, the City Commission shall retain authority and final
approval over whether to add certain proposed "architectural
treatments", to the cast fagade 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) ofthe First Addendum shall remain in full force
and effect and Dcvdopcr shall not obligate any amount in excess
of $ 15,210, l35 for the design, development and construction of the
Garage, prior to October I, 2049, with the balance of the funding
in the amount of S L8?5.000, available after Octobo~r L 2009.
S. Section 14 of the First Addendum (entitled "Substantial Completion; Final
Completion') is amended to include the ti~llow•ing new subsection (h):
(h) Any amounts remainine unspent upon Final Completion of the Garage
Proiect shall he transferred to the Park Proicet 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.
Redevelopment Agency ("CCRDA"1 in the fiscal year that the Grant Monies are due (and where
said revenues and expenditures were idetttificd in the annual budget approved by the CCRDA
Board of Directors and Miami-Dade County), then the Parties agree that the City shall pay to the
Developer such portions of the Grant Monies &~r which the City has sufficient CCRDA revenue
collections. and the City shall continue to pay the remaining Grant Monies to the Developer as
CCRD:\ funds become available, until I(}U~b of the Grant Monies have been paid.
6.1 AlthouKh 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
agreeing to an alternate plan and payment schedule for funding draw• requests with Grant
Iv4onics,pursuant to which plan and payment schedule the City shall pay to NW'S such
Grant Monies as they become available until l0U°.~o of the Grant Monies have been paid.
~'. Miscellaneous.
(a) Counterpane. 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 ot; or on behal f 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 oI;
or on behalf of, each Party, or that the sigtatures 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.
(h) 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 he deemed an original.
(c) Effect of Second Addendum. Execpt a, modified herein, the Development
A~eement remains in full force and effect. In the event of any conflict or ambit~nrity between
the Development Agreement, the First Addendum, and this Secaid Addendum. this Second
Addendum shall control.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK)
F.attu .4Gl'R:IGREE.\IEST N WS iS:unnd Addendum to Dev Agrcrmcnt!'_nd RcaAm~ 3-?3-1iY Agenda -Fail ?-?-ueilarn'
EXECUTION BY OW'NEK
[V 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 DfIA11tI BEACH, FLORIDA, a
municipal corporation of the State of Florida
Print Name: ON By:
~ .-~
Pn`nt Name: L/r~l j~ ' ~ f ,~. ~~~~ / [
By: 'LC l ~ ~ GL L C-k~l.-~--~_ (SEAL]
STATE OF FLORIDA )
~55:
COUNTY OF V1LaNI1-D.~E ) ,~.~t
The foregoing instrum nts was, acl5nowlcdgcd before me~thjs, _~ ~% ;' day of
~~ ~ ~d_ c~-- by Jz u.'~l..; as Mayor, ands r ~K'ti - ,. u~l~c~-, as
ity erk of the CITY OF biLaMl BEACH, FLORIDA, a municipal corporation of the State
of Florida, on behalf of such municipal corporation. They are personals wn to me or
produced valid Florida driver's licenses as identification
My commission expires:
2..~~p" t1LLiAN 6FAJCUprAPi
hr' rvr r ~ y r 3.:1F
~ ~i ~ ~
'%f} .. ~_ ae.
,~C.CIrZ. ~~i~l'iGLtCrL(.Z~J'
otary Public, State of Florida ~ ,/~
Print Namc: / ; //iA~ %3l Q(!%i'E~4iy]/-i
APPROVED AS TO
FORM 8~ LANGUAGE
tk FOR EXECUTION
,~.r- .l_~'0`I
ity orney Date
E_?OOt: r?bS`c~r6 WAGE 4'346
L. AST F'AGE
W'l"I'NESSES:
Print Vame: I~N
Print Name: i ~iow~~i
THF. KE~V WORLD SYD1Pl1ONY, a not-fbr-
profit Florida corporation
i !
r
Howard Herring, resident a d CEO
ATTEST:
Secretary
[CORPORA"I'E SEAL]
STATE OF FLORIDA )
)JS:
CO[,RVTY OF MIAh4I-DADS )
The foregoing instrument was acknowledged before me this C{ day of
~~(~ , by Howard Hemng, as President and CEO, and , as Secretary,
of THE NEW' WORLD SYViPHONY, snot-for-profit Florida corporation, on hehal f of such
corporation. They arc personally known to me or produced valid Florida driver's licenses as
identification.
My commission expires: rs`/~'
Not. y Public, State of Florida
Print Name:
NOTARY FUISIJCSTATE OF FU>Rt~A
,,,....,. Evelyn De Jesus
Cnmmissioa 0 DD870486
~:.+~ ExD~: MAR. 15, 2013
FcL1,gp ii3NV Al'LAB711: aUNllING CU. a1C.
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Robert Parcher
City Clerk
~'~
FROM: Raul J. Aguilar ~``~~~
Deputy City Attorhiey
SUBJECT: Recorded Second Addendum to New World Symphony Development
Agreement
DATE: August 17, 2009
Attached please find original recorded copy of the above-referenced matter.
Should you have any questions or comments regarding the above, please do not hesitate
to contact me.
RJA1ed