The URL can be used to link to this page

First Addendum to Development Agreement distributed on the DaisINI J fA T ---lIMtj tJl2oC 7jJttlJt tJLIlnl IdI h l1 trJ 2nd Reading 2-B20-07 Draft FIRST ADDENDUM TO DEVELOPMENT AGREEMENT THIS FIRST ADDENDUM TO DEVELOPMENT AGREEMENT is made as of this day of 2007 this First 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 attached hereto and made a part hereof the Land B Concurrently therewith Owner and Developer also entered into a DevelopmentAgreementDevelopmentAgreementdatedasofJanuary52004settingforthamongother 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 amenitiesfacilitiesandotherinfrastructureimprovementsontheLandDevelopersImprovementsas set forth in the Development Agreement C The Development Agreement provided that Owner would develop certainunspecifiedInfrastructureImprovementsasaconditionofDevelopersobligationtoconstructtheDevelopersImprovementsandthatspecificInfrastructureImprovementswouldbeidentifiedinthefuturesubjecttotheOwnerobtainingtheCityCommissionsapprovalTheInfrastructureImprovementshavenowbeenidentifiedsubjecttotherequiredapprovals D The Development Agreement also contemplated that Owner might develop a parkParkoranothersimilarpublicamenityonrealpropertydefinedintheDevelopmentAgreementastheAdjacentPropertyandre-defined herein as the Park Project Zone A Park hasbeenenvisionedfortheParkProjectZoneforsometimeandisapartoftheCitysDistrictMasterPlanE Following the execution of the Lease and Development Agreement the Parties haveworkedtogethertodefinetheprocessesandrefinethescopeforimplementingtheDevelopersplansfortheDevelopersImprovementsontheLandandtheCitysoverallvisionforenhancingthedevelopmentoftheParkandtheareassurroundingtheParkandtheLandfortheuseandenjoymentbyallresidentsofandvisitorstotheCityofMiamiBeachandbyallvisitorstotheProjectasthattermisre-defined herein The Parties now wish to enter into this First AddenduminordertomemorializetheiragreementsregardingtheirrespectiveobligationsforimplementingtheforegoingFatto ALL Liz NWS First Addendum to DevAgreement 2nd Readiqg -redlined 2-20-07 doc 2nd Reading 2-B20-07 Draft NOW THEREFORE it ishereby mutually covenanted and agreed by and between the Parties hereto that this First Addendum is made in consideration of the terms covenants and conditions hereinafter set forth ICapitalized Terms Recitals All capitalized terms not defined herein shall have the meanings given to them in the Development Agreement For convenience the original Article I entitled Definitions of the Development Agreement is attached hereto as Exhibit B Hereafter all references to the Development Agreement shall mean the Development Agreement as modified and augmented by this First Addendum unless the context indicates otherwise The Recitals are incorporated herein by reference 2 Additional and Revised Definitions Article 1 entitled Definitions is amended by adding or revising the following definitions a Additional Improvements means certain improvements to City owned real property planned for and included only within Zone 1 and Zone 2 as described in subsection cc herein but excluding Developer s Improvements and the Garage The Additional Improvements may include streetscaping landscaping utilities graphics lighting adjustments to curb lines sidewalks hardscape streetscape furniture and the design development engineering and constructionofsuchimprovementsallasmaybedeterminedforeachZoneinaccordancewiththe applicable approval process and approved budget As of the date hereof the parties acknowledge and agree that the City has budgeted an amount not toexceed 6 4 millionfor the Additional Improvements Notwithstanding the preceding sentence in the event that the final cost for design development and construction of the Additional Improvements isless than the not to exceed amount of 64 millionthen the Parties agree that such additional amount s shall be applied toward design development and construction of the Park Project and accordingly shall beaddedtotheFinalParkProjectBudgetTheAdditionalImprovementsinZones1and2andthe improvements planned for Zones 4 and 5 are together the Infrastructure Improvements addressed in Article 23 ofthe Development Agreement b Change means any proposed or approved material addition deletion or revision in the Work or an adjustment in the Guaranteed Maximum Price or the Completion Date orotherconstructiontimetableissuedonoraftertheGuaranteedMaximumPricehasbeenagreedto c Change Order means a document which is signed by Developer Contractor OwnerandtheArchitectifrequiredandauthorizesaChangedDevelopment Site isamended to mean Zones 1and 2 and in the event the Park Project is approved by the City Zone 3 as well e 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 andsoftconstructioncostsanticipatedasofthedatehereoftobeincurredinconnectionwiththe design development and construction of the Park Project As of the date hereof the partiesacknowledgeandagreethattheCityhasbudgetedanamountnottoexceedFattoALL Liz NWS FirstAddendum to Dev Agreement 2nd Readi -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft 13 810 000 for Zones 3 1 3 2and 3 3 and an additional 1 150 000 for Zone 3 4for a total of 14 960 000 for the entire Park Project f Final Completion means the date when all Work has been fully completedinaccordancewiththeGMPContracttheapprovedFinalPlansandSpecificationstheDevelopmentAgreementandthisFirstAddendumandafinalCertificateforPaymentapprovedbytheOwnerhasbeenissuedbytheArchitectallfurthersubjecttoDeveloperscompliance with the provisions of Section 14 b g Final Garage Budget means thefinal budget as mutually agreed to by thePartiesandasapprovedbytheCityCommissionpriortoestablishmentbetweenDeveloperanditsContractoroftheGuaranteedMaximumPriceandrepresentingthefinalhardandsoftconstruction costs approved inconnection with the design development and construction ofthe Garage as reflected in the Preliminary Garage Budget h Final Park Project Budget means thefinal budget as mutually agreed to by the Parties and as approved by the City Commission prior to establishment between Developer and its Contractor ofthe Guaranteed Maximum Price and representing the final hard and soft construction costs approved in connection with the design development and construction ofthe Park Project Notwithstanding the preceding sentence in the event that the Additional Improvements are designed developed and constructed for less than the not to exceed 6 400 000 amount then any unused funds shall be applied by the Parties toward the design development and construction ofthe Park Project and accordingly shall be added to the Final Park Project Budget i GMP Contract means the guaranteed maximum pnce Guaranteed Maximum Price executed between Developer and the Contractor j Garage means thepublic municipal parking garage comprising Zone I 1 to be designed developed and constructed by Developer for Owner and funded as set forth in Section13hereofandoperatedbyOwneratitssolecostandexpenseonCity-owned property adjacent totheLandlegallydescribedinExhibitCItisanticipatedthattheGaragewillhavesix6storiesincludingfive5storiesofcoveredparkingplusopenrooftopparkingandground-floor retailspacealong17thStreetandPennsylvaniaAvenueOwnershallberesponsibleforoperationandmanagementoftheGarageincludingtheleasingandmanagementoperationsoftheretailportionoftheGaragekGarageDesign Costs shall include but not limited to all costs fees and expenses associated with the preparation design engineering planning work input and analysis by Developer andallofitsagentsemployeescontractorsconsultantsandprofessionalsincludingbutnotlimitedtotheArchitecturalConsultantwithrespecttotheoveralldesignmanagementandconstructionadministrationfortheGarage1Parkmeans the public park facility that is proposed to be developed within the ParkProjectZonepursuanttothisFirstAddendumFattoALL Liz NWS FirstAddendum to Dev Agreement 2nd Readi -redJined 2-20-07 doc 2nd Reading 2-20-07 Draft m Park Project means all of the improvements to be designed developed andconstructedwithinZone3-the Park Project Zone including Zones 3 1 3 2 3 3 and 3 4 in accordance with the provisions of this First Addendum n Park Project Concept Plan means the design of the Park Project prepared by the Architectural Consultant in consultation with the Developer and the City Manager and to be submitted for the review of the City Commission pursuant to the provisions of Section 10and the Program described in Exhibit D hereof 0 Park Project Costs means all costs fees and expenses incurred in connection with the design development and construction ofthe Park Project all of which costs fees and expenses are and shall be at the sole cost and expense ofthe Owner p Park Project Design means thefinal design of the Park Project approved bytheDesignReviewBoardDRBandbasedupontheapprovedParkProjectConceptPlanto be submitted tothe City Commission pursuant to the provisions of Section 1 0 and the Program describedinExhibitDhereofq Park Project Design Costs shall include but not limited to all costs fees and expenses associated with the preparation design engineering planning work input and analysis by Developer and all of its agents employees consultants and professionals including butnotlimitedtotheArchitecturalConsultantwithrespecttoitheParkProjectConceptPlanand any modifications thereof including 1 the modifications to the draft Basis of Design ReportasmayberequestedbytheCityinaccordancewiththeProgramdescribedinExhibitD and 2 the Final Basis of Design Report ii the Design-to Park Project Budget iii the Preliminary Park Project Budget iv Owner s approval process all subject to Sections 10 t and g hereof and v all construction administration and management fees rPreliminary Additional Improvements Budget means the total costs budgeted by the City for the Additional Improvements as mutually agreed to by the Parties and as approved by the City Commission which isthe preliminary estimate of costs including estimated hardandsoftconstructioncostsAdditionalImprovementsCostsanticipatedasofthedate hereof to beincurred in connection with the design development and construction of the Additional Improvements As of the date hereof the Parties acknowledge and agree that the City has budgetedanamountnottoexceed6400000fortheAdditionalImprovementssPreliminary Garage Budget means the total costs budgeted by the City for theGarageasmutuallyagreedtobythePartiesandasapprovedbytheCityCommissionwhichis the preliminary estimate of costs including estimated hard and soft construction costs Garage Costs anticipated as of the date hereof to be incurred in connection with the design development andconstructionoftheGarageAsofthedatehereofthePartiesacknowledgeandagreethat the City has budgeted an amount not to exceed 15 210 135 for the Garage t 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 CommissionconcurrentlywiththeapprovaloftheParkProjectConceptPlanpursuanttoFatto ALL Liz NWS First Addendum to DevAgreement 2nd Readiftl-redlined 2-20-07 doc 2nd Reading 2-20-07 Draft the provisions of Section 10 and the Program described in Exhibit D hereof which is the preliminary estimate of costs including estimated hard and soft construction costs anticipated as of the date thereof tobe incurred in connection with the design development and construction ofthe 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 of14 960 000 u Program means theprocedure the Parties shall follow in connection with obtaining City approval of the Park Project Design as described onExhibit D attached hereto v Project means the Developer sImprovements the Additional Improvements proposed to be designed and constructed in Zones 1 and 2 and the Garage in other words all improvements of every kind to be located in Zones 1 and 2 w Project Site means Zones 1 and 2 x Substantial Completion means the date when the Work or designated portionthereofwhichtheOwneragreestoacceptseparatelyissufficientlycompleteinaccordance with the applicable portions of the GMP Contract and the approved Final Plans and Specifications the Development Agreement and this First Addendum so the Owner can occupy or utilize the Work for its intended use and subject further to Developer scompliance with the provisions of Section 14 tt hereof y Unavoidable Delays means delays due to strikes slowdowns lockouts acts of God inability to obtain labor or materials reasonably within the originally contracted for price range war enemy action civil commotion fire casualty severe weather conditions eminent domain a court order which actually causes adelay unless resulting from disputes betweenoramongthePartiesalleginganUnavoidableDelaypresentorformeremployeesofficersmemberspartnersorshareholdersofsuchallegingPartyorAffiliatesorpresentorformer employees officers partners members or shareholders of such Affiliates of such alleging PartytheapplicationofanyRequirementoranothercausebeyondsuchPartyscontrolorwhich if susceptible to control by such Party shall be beyond the reasonable control of such Party Such Party shall use reasonable good faith efforts to notify the other Party not later than twenty 20 Calendar Calendar Days after such Party knows of the occurrence of an Unavoidable Delay Failure to provide timely notice as set forth herein shall not be deemed a waiver by the Party alleging an Unavoidable Delay In no event shall iany Party s financial condition other than due to a material increase in the costs of labor or materials or inability to fund or obtain funding or financing constitute an Unavoidable Delay except for an Institutional Lender s inability to fund which inability isnot caused by Developer with respect tosuchPartyiinorshallanydelayarisingfromaPartysdefaultunderthisDevelopmentAgreementoranyoftheConstructionAgreementsconstituteanUnavoidableDelaywithrespect to such Party s obligations hereunder The times for performance set forth in this Development Agreement and First Addendum other than for monetary obligations of a Party shallbeextendedtotheextentperformanceisdelayedbyUnavoidableDelayF atto ALL Liz NWS First Addendum to Dev Agreement 2nd Readi -red lined 2-20-07 doc 2nd Reading 2-20-07 Draft z Work means the construction and services required by the applicable portionoftheGMPContractfortheGaragetheAdditionalImprovementsandtheParkProjectandincludesallotherlabormaterialsequipmentandservicesprovidedortobeprovidedbytheContractor tofulfill its obligations aa Zone or Zones mean the geographical areas in which the three 3 primary components of the Project and the Park are located and the proposed improvements includingwithoutlimitationtheproposedAdditionalImprovementsandInfrastructureImprovements within each geographical area The Zones are generally but not legally described below and are identified onthe sketch attached hereto as Exhibit E i Zone 1 -Parking Garage Zone which means the real propertyownedbyOwnerandgenerallydescribedasthelandboundedontheNorthby17th Street on the East by the Land on the South by Lincoln Lane and on the West byPennsylvaniaAvenue ii Zone 2 -Symphony Campus Zone which means the realpropertyownedbyOwnerandgenerallydescribedasthelandboundedontheNorthby 17th Street on the East by the realigned Drexel A venue on the South by Lincoln Lane and on the West by the Garage Property iii Zone 3 -Park Project Zone which means the two parcels of real property owned by Owner and generally described as follows A the land bounded on the North by 1 ih Street on the East by Washington Avenue on the South by Lincoln Lane and on the West by the realigned Drexel Avenue Zones 3 1 3 2 and 3 3 and B a portion of land surrounding part of the City s Theater of Performing Arts TOP A and bounded on the north by on the south by 1 ih Street on the eastbyWashingtonAvenueandonthewestbyZone 3 4 iv Zone 4 -Lincoln Lane Improvement Zone which means the real property owned by Owner and generally described as that portionofLincolnLaneborderedontheWestbyPennsylvaniaAvenueandontheEastto Washington A venue vZone 5-Pennsylvania Avenue Improvement Zone which means the real property owned by Owner and generally describedasthatportionofPennsylvaniaAvenueborderedontheNorthby1ihStreetandon the South by Lincoln Lane 3 Amendment or Replacement ofCertain Sections of Development Agreement a The following section orsubsections intheDevelopmentAgreementaredeletedintheirentiretyand replaced with the following b Section 2 9 Confirmation ofLandDevelopmentRegulationsISamendedbydeletingitinitsentiretyandreplacing it with thefollowing F atto ALLLiz NWS First Addendum to DevAgreement 2nd Readi8-redlined2-20-07doc 2nd Reading 2-B20-07 Draft The zoning district classification of Zones 1 2 and 3 is CCC as defined in the Land Development Regulations cSection 2 1O b Required Development Permits isdeleted in its entirety and replacedwiththefollowingTothe best of Owner s knowledge and belief other than pertaining to Zone 1 Zones 2 2 and 2 3 and Zone 3 there are no reservations and or dedications of land for public purposes that are proposed under the terms of this Development Agreement d Section 2 11 Developers Right of Termination isamended as follows e Notwithstanding anything to the contrary contained herein Developer shall have the right to be released from its liability and to terminate this Development Agreement and the GroundLeasepriortothePossessionDatebecauseachangestotheProjectDesignandorPreliminaryPlans and Specifications required by the DRB or any other Governmental Authority including the City acting solely in its regulatory capacity render the Project economically unfeasibleinthereasonablebusinessjudgmentofDeveloperorbtheProjectcannotmeetconcurrencyrequirementsunderSection1633180FloridaStatutes1997orthecostsof concurrency mitigation and orEnvironmental Remediation onthe Project Site are in the reasonable businessjudgmentofDevelopereconomicallyunfeasibleorcDeveloperaftergoodfaith efforts has been unable to obtain a Building Permit for the Project pursuant to the Plans and Specifications submitted byDeveloper or d Owner and Developer cannot come toamutual agreement regarding the Parties respective shares of costs and other obligations relative to Environmental Remediation of the Project Site if required or e the City Commission acting onbehalfofOwnersolelyinitsproprietarycapacityandnotinitsregulatorycapacityoronbehalf of any other Governmental Authority imposes requirements or restrictions upon the Project andortheParkProjectwhichinDevelopersreasonablebusinessjudgmentirnposeanundueburdenonDeveloperorrendertheProjecteconomicallyunfeasibleorftheCityCommissiondoesnotapprovetheGrantassetforthinSection12hereofandthePartiesdonotexecutea Grant Agreement In the event of termination of this Development Agreement and the Ground LeasepursuanttosubsectionsathroughdofthisSection212DevelopershallreimburseOwnerforOwnersshareofall-Garage Costs Additional Improvements Costs and Park Project CostsincurredthroughtheterminationdateandfollowingOwnersreceiptofpaymentincleared funds of all sums due hereunder each Party shall bear its own costs and expenses incurred in connection with this Development Agreement and First Addendum and the Ground Lease andneitherPartyshallhaveanyfurtherliabilitytotheotherNotwithstandingtheprecedingsentenceDevelopershallhavenodutytoreimburseOwnerforOwnersshareofGarageCostsAdditionalImprovementsCostsandParkProjectCostsasreferencedaboveintheeventDeveloperterminatestheDevelopmentAgreementandtheGroundLeasepursuanttosubsectionseorfhereofhoweverinsucheventOwnershallreimburseDeveloperforallGarageCostsAdditionalImprovementsCostsandParkProiectCostsincurredbyDeveloperonOwnersbehalfthroughthetenninationdateandfollowingDevelopersreceiptofpaymentinclearedfundsofallsumsduehereundereachPartyshallbearitsownothercostsandexpensesincurredinconnectionwiththisDevelopmentAgreementandFirstAddendumandtheGroundLeaseandneitherPartyshallhaveanyfurtherliabilitytotheother7FattoALL Liz NWS First Addendum to Dev Agreement 2nd Readil tl-redlined 2-20-07doc 2nd Reading 2-20-07 Draft ill-Section 6 1 Developer s Contributions IS deleted III its entirety and replaced with the following Section 6 1 Developer s and Owner s Contributions Developer shall provide all of the funds necessary to complete Construction of Developer s Improvements in Zone 2 1 Owner shall provide all of the funds necessary to complete Construction of iallimprovementswithin Zone 1 including the Garage and the Additional Improvements to be located in Zones 1 2 and1 3 of the Parking Garage Zone and ii the Additional Improvements in Zones22and23subjecttotheotherprovisionsoftheDevelopmentAgreementandthisFirstAddendum As to the retail portion of the Garage Developer shall only be responsible for delivering to Owner and Owner shall only be responsible for funding a vanilla shell retail space as defined in Exhibit F attached hereto Owner shall be responsible for all leasing and management operations ofthe Garage including the retail portion of the Garage following ffi g Section6 2 Fees is deleted in its entirety and replaced with the Permit Fees Developer assumes payment responsibility for any and all Permits now or hereafter required to be obtained from the City or any other Governmental Authority for the construction of Developer s Improvements in Zone 2 1 including without limitation building permit applications inspection certification impact and connection fees that the City may levy by or through its Public Works Department including without limitation water and sewer fees and those fees to the extent applicable listed in the City of Miami Beach Building Department Fee Schedule or the most current edition adopted by the City which fee schedule isherebyincorporatedbyreferenceandmadeapartofthisAgreementcollectivelytheFeesOwnershallberesponsibleforallFeesassociatedwiththeGaragetheAdditionalImprovementstheParkProjectandtheInfrastructureImprovementstheamountsofallsuchFeeswillbeincludedintheapplicablebudgetsfgillll Sections23 3 and 23 4 ofthe Development Agreement entitled Adjacent Property andParkaredeletedintheirentiretyandreplacedwiththepertinentprovisionsofthisFirstAddendumfillil Section10 1 f is deleted in its entirety and replaced with the following If there is more than one Recognized Mortgagee only the three 3 most senior inlienRecognizedMortgageestotheexclusionofallotherRecognizedMortgageesshallberecognizedashavingrightsunderthisArticle10unlessoneofsuchseniorpriorityRecognizedMortgageeshasdesignatedinwritingtoOwneraRecognizedMortgageewhoseMortgageisjuniorinlientoexercisesuchright4City s Obligations Regarding Infrastructure Improvements The City has refined its plansfortheconstructionanddevelopmentofcertainpublicimprovementstoCity-owned property located withinZones1234and5FattoALL Liz NWS FirstAddendum to Dev Agreement 2nd Readi -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft a The Additional Improvements to City-owned property in Zone 1 and Zone 2 but specifically excluding the Developer s Improvements to be constructed by Developer withinZone21-the Symphony Campus together with the improvements to City-ownedpropertyinZones4and5aredesignatedtobetheInfrastructureImprovementsreferredto in Article 23 of the Development Agreement Upon timely completion of performance of all of Owner s obligations regarding the Infrastructure Improvements Owner shall have satisfied in full all of its obligations under Section 231 of the original Development Agreement b The Additional Improvements planned in Zone 1 and Zone 2 constitute portions of the Infrastructure Improvements referred to in Section 23 of the original DevelopmentAgreementanddesignatedinthisAddendumTheCitysplannedimprovementswithinZones4and5arenotincludedwithinthedefinitionofAdditionalImprovementsbutare included within the definition ofInfrastructure Improvements c Because the coordinated construction development and use of the Project andtheAdditionalImprovementswillprovidemutualbenefitstobothpartiesbyenhancingtheavailability and use of all of the Developer sImprovements as well as other property owned by theCityOwnerhasrequestedandDeveloperhasagreedthatDevelopershallcausetobedesigned developed and constructed at Owner s sole cost and expense the Additional Improvements inaccordance with the Plans and Specifications and the Preliminary Additional Improvements Budget 5 Zones 1 and 2 Sections 23 22 and 23 2 3 of the Development Agreement are deleted in their entirety and replaced with the following a Garage Costs Additional Improvements Costs Owner s obligation to fund the design development and construction ofthe public improvements within Zone 1 and Zones 2 2and 2 3 is described below subject to the provisions inSection 13 herein i Owner will fund an amount not to exceed 15 210 135 for the Garage Costs as reflected in the Preliminary Garage Budget Owner will fund an amount not to exceed 6 400 000 for the Additional Improvements Costs as reflected in t4e PreliminaryAdditionalImprovementsBudgetTheGarageCostsandAdditionalImprovements Costs shall be inclusive of but not be limited to the City s total funding contributionsforConcurrencyRequirementstheCitysPrevailingWageOrdinanceifapplicable and all costs in connection with all zoning permit matters and requirements imposedbyGovernmentalAuthoritiessubjecttotheothertermsoftheDevelopmentAgreementastheypertaintoZones122and23ii The Parties agree that the design development and construction ofthe Additional Improvements planned for Zones 1 21 32 2 and 2 3 shall be included within the definition ofProject and Project Site respectively and therefore included within the scope of Owner s obligation to fund and Developer s submissions and performanceofitsobligationspertainingtodesigndevelopmentandconstructionunderthe original Development Agreement F atto ALL Liz NWS First Addendum to Dev Agreement 2nd Readi -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft iii Owner shall pay to Developer the Garage Costs and the Additional Improvements Costs in the manner setforth in Section 13 herein b Zone 2 2 The construction ofthe Developer sImprovements within Zone 2 1 of the Symphony Campus Zone will require the displacement re-routing and rebuilding such workcollectivelyRealignmentofthatportionofDrexelAvenuethatisbetweenLincolnLane and 1 ih Street in Miami Beach Drexel in Zone 2 2 Owner has agreed that the Drexel A venue Realignment is part of the Additional Improvements for which Owner is responsible and that such work constitutes the public improvements within Zone 2 2 and Developer has agreed to perform such Drexel A venue Realignment on Owner s behalf at Owner s sole cost and expense 6 Zone 4 -the Lincoln Lane Improvement Zone The design development and construction ofall improvements planned for Zone 4 and all costs in connection therewith including but not limited to fees due to Architectural Consultant are solely the responsibility of Owner Zone 4 is a part of the aesthetically integrated project contemplated inthis First Addendum and the Parties agree to coordinate cooperate and consult with one another in the planning design development and construction including without limitation commencement of construction of all Zone 4 improvements 7 Zone 5 -the Pennsylvania Avenue Improvement Zone The design developmentandconstructionofallimprovementsplannedforZone5andallcostsinconnectiontherewith including but not limited to fees due to Architectural Consultant are solely the responsibility of Owner Zone 5 is a part of the aesthetically integrated project contemplated by this First Addendum and the Parties agree to coordinate cooperate and consult with one another in the planning design development and construction including without limitation commencementofconstructionofallZone5improvements 8 Development of Park Proiect a Owner has determined to develop the Park Project as contemplated herein and the Parties hereby agree that Developer will serve as developer of the Park Project on behalf of Owner and shall cause the Park Project to be designed developed and constructed on behalf of the Owner and at the sole cost and expense of the Owner subject to the terms and conditions as set forth herein Developer will select at its sole discretion all contractors including a general contractor and all subcontractors consultants and other Persons each a Contractor and collectively Contractors Developer deems necessary to complete the Park Project inaccordancewiththeprovisionsofthisFirstAddendumandtheDevelopmentAgreement b Developer s obligations pertaining to the Park Project are limited to thedesigndevelopmentandconstructionoftheimprovementslocatedortobelocatedwithintheParkProjectZonesubjecttotheprovisionsofSection13hereinandspecificallyexcludeanyobligationorresponsibilityorliabilitywhatsoeverforanyotherpropertyorZoneunlessotherwiseprovidedintheDevelopmentAgreementoragreedtoinwritingbytheParties 9 Park Proiect Design F atto ALLLiz NWS First Addendum to Dev Agreement 2nd Readro-redlined 2-20-07 doc 2nd Reading 2--B20-07Draft a Developer and Owner wish to enhance the benefits to the City the Owner and the Developer of an integrated vision and design for the development of the Project and the Park Project and therefore Developer with Owner s consent has selected Gehry Partners LLC as the architectural consultant for the Park Project Gehry Partners LLC and all necessary specialists andconsultantswhoGehryPartnersLLCrequirestocompletetheParkProjectDesignincluding but not limited to specialists and consultants in the areas of acoustics performance venues architecture and engineering shall be referred to hereafter as Architectural Consultant Owner further acknowledges that Developer has selected with Owner s consent Hines Interests Limited Partnership toact on behalf of Developer as the Project and Park Project construction managerbOwner and Developer acknowledge and agree that the design development andconstructionoftheProjectandtheParkProjectasanaestheticallyintegratedprojectinaccordancewiththesingledesignvisionoftheArchitecturalConsultantwillmaximizethebenefits of the Project and the Park Project to the City of Miami Beach Accordingly Owner and Developer further acknowledge and agree that the completion of the design construction and development of the Park Project pursuant to the terms and provisions of this First Addendum and in accordance with the Park Project Design is integral to the current design construction and development of the Project and that the Owner s election not to proceed with the Park Project as further described in Sections 10 c and 10 d and Section 11 a below may materially and adversely affect Developer s ability to meet its projected time frames for design construction and development of the Project c Any delays in Developer s ability to meet the Schedule and or the Construction Commencement Date and or the completion date for the Project and or any other deadline for the Project which delays arise from Owner s election not to proceed with the Park Project shall be treated as an Unavoidable Delay pursuant to the Development Agreement and this First Addendum and shall be further subject tosubsection 15 biii hereof 10 Procedure for Park Proiect Design Approval a The approved Park Project s Fmal Basis of Design Report to be obtained pursuant to the Program described in Exhibit D shall be the approved Park Project Concept Plan referredtohereinbThe Developer shall use the Design-to Park Project Budget as the cost basis as describedandapprovedintheParkProjectConceptPlanThecostsfeesandexpensesforsuchdesignandpreparationworkshallnotexceedthedollaramountallottedforsuchworkassetforth in the Design-to Park Project Budget Following approval of the Park Project Concept Plan pursuant totheProgramdescribedinExhibitDDeveloperandtheCityManageronbehalfoftheOwneractinginaproprietaryandnotregulatorycapacityshallmeettocommencethepreliminary review process Developer shall comply with the schedule of approvals outlined in theProgramdescribedinExhibitDcIntheevent the City Commission does not select and approve a Park Project Concept Plan oritelectsnottoproceedwiththeParkProjectimmediatelythereaftertheFlattolALLILizINWSFirst Addendum to Dev Agreement 2nd Readrl-redlined 2-20-07 doc 2nd Reading 2-20-07 Draft Owner shall notify the Developer in writing in accordance with Article 20 of the Development AgreementoftheOwnersintenttoterminatethoseportionsofthisFirstAddendumwhichrelate to the Park Project specifically Zone 3 Within thirty 30 Calendar Days after Developer s receipt of the Owner s notice of intent to terminate the applicable portions of this First Addendum the Owner shall reimburse Developer for Park Project Design Costs incurred by Developer which Park Project Design Costs shall not exceed the sum of 1 110 000 unless Owner consents toan increase in writing and which amount is deemed and agreed by the Parties to be the total allowable reimbursement toDeveloper for all costs incurred as a result of such action or inaction by the City to select and approve a Park Project Concept Plan or election by theCitynottoproceedwiththeParkProjectFollowingDevelopersreceiptofpaymentincleared funds of all sums due hereunder those portions of this First Addendum pertaining to the Park Project shall terminate and shall thereafter shall have no force or effect and neither Party shallhaveanyfurtherrightsorobligationstotheotherpertainingtotheParkProjectundertheDevelopment Agreement and this First Addendum except as set forth herein d Notwithstanding Owner s election not to select and approve aPark Project ConceptPlanornottoproceedwiththeParkProjectOwnersfundingobligationsassociatedwith Zones 1 and 2 will remain in full force and effect in accordance with the Development AgreementandthisFirstAddendumTerminationofsuchportionsofthisFirstAddendumregarding the Park Project shall not in any respect operate to terminate modify amend or affect any other of the respective rights and obligations of the Parties under this First Addendum the DevelopmentAgreementortheGroundLeaseallofwhichshallcontinuetobeinfullforceandeffect e Upon the City Commission s approval of a Park Project Concept Plan the Developer and the Architectural Consultant shall prepare a more detailed design during the course of which design process the Owner Developer and Architectural Consultant shall consult togetherasoftenasnecessaryWithin150CalendarDaysfollowingtheCityComrnissionsapprovaloftheParkProjectConceptPlantheArchitecturalConsultantandDevelopershallsubmitamorefullydevelopedprojectdesigntotheOwnerforreviewandapprovalThisfurtherdevelopedprojectdesignshallincludebutnotbelimitedtofullydetailedlandscapedrawingsdetailedsidewalkandstreetscapeimprovementspublicwalkwaysentertainmentvenuedetailsprojectionandsoundequipmentdetailsandspecificationsutilityimprovementsandanyotherimprovementrelatedtotheParkProjectthePreliminaryPlansandSpecificationsf The Preliminary Plans and Specifications submitted tothe Owner within the150CalendarDaydesignperiodshallbereviewedbytheOwnersCityManagerwithin60CalendarDaysfromreceiptofsaidPreliminaryPlansandSpecificationsIftheoriginallysubmittedPreliminaryPlansandSpecificationsareconsistentwiththeapprovedParkProjectConceptPlanbutOwnerrejectsthePreliminaryPlansandSpecificationsandrequirestheArchitecturalConsultanttoreviseorredesignthePreliminaryPlansandSpecificationsthenffitheeventOwnerelectsregardlessofwhetherornotOwnerelectstoproceedwiththeParkProjectOwnershallbeobligatedtoreimburseDeveloperforthecostsofsuchrevisionsandorredesignsandsaidcostsshallbeinadditiontothecapontheParkProjectDesignCostsasreferencedinsubsection1OchereofF lattol ALLILizINWS First Addendum to Dev Agreement 2nd Readrn -red lined 2-20-07 doc 2nd Reading 2-20-07 Draft g Upon obtaining the Owner s approval of the Preliminary Plans and Specifications Developer shall submit an application for approval of the Preliminary Plans and Specifications to the City s DRB Developer shall pursue approval of the application to the DRB with the assistance ofthe Owner acting diligently and in good faith h Upon receipt of the DRB s approval of the Preliminary Plans and Specifications the Park Project Design the Architectural Consultant shall prepare Final Plans and Specifications for construction ofthe Park Project consistent with the approved Park Project DesignTheFinalPlansandSpecificationsshallbesubmittedtotheOwnerwithin180CalendarDays from receipt of the DRB s approval of the Park Project Design The Final Plans and Specifications shall be reviewed by the Owner s City Manager solely for consistency with the Park Project Design as the same shall have been approved by the DRB The City Manager shall have 60 Calendar Days from receipt of the Final Plans and Specifications to review the Final Plans and Specifications If the originally submitted Final Plans and Specifications are consistent with Owner s approved Preliminary Plans and Specifications and the Park Project Design but Owner rejects the Final Plans and Specifications and requires Developer to revise or redesign the Final Plans and Specifications then in the event regardless of whether or not Owner elects not to proceed with the Park Project Owner shall be obligated to reimburse Developer for the cost s of such revision s and or redesign s and said costs shall be in addition tothe cap on the Park Proj ect Design Costs as referenced in subsection 1O c hereof 11 Final Park Proiect Budget Prior to Developer sexecution ofthe GMP Contract for construction ofthe Park Project Developer shall submit to Owner s City Manager who shall submit same for review and approval by the City Commission a proposed Final Park Project BudgetIfsuchproposedFinalParkProjectBudgetismateriallyinconsistentwiththePreliminary Park Project Budget then the proposed Final Park Project Budget shall be accompanied by a memorandum in writing in sufficient detail to explain all such material inconsistencies Approval ordisapproval or modification ofthe Final Park Project Budget shall be governed by the provisions governing the Plans and Specifications as applicable as set forth in Section 10above Informational copies of any material modifications tothe Final Park Project BudgetshallbepromptlydeliveredtoOwnersCityManagera Notwithstanding anything to the contrary contained herein f upon revielbutpriortoapprovaloftheFinalParkProjectBudgetOvmerthroughitsCityCommissiondeterminesintheexerciseofOlllersreasonablediscretionandjudgmentthatthe Park Project Design and or the Final Plans and Specifications exceed the budget acceptable totheCityortheParkProjectDesignandorFinalPlansandSpecificationsasapprovedbytheCityrendertheParkProjecteconomicallyunfeasibleOvnerandDevelopershallfirstmakereasonable good faith efforts to value engineer the Park Project Design so that the cost to construct arevisedPark Project design acceptable to Ovmer does not exceed a budgetod amount that is also acceptable to O vner Ifafter value er gineering the Park Project Design OVlller in itsreasonablediscretionandjudgmentelectsnottoapproveareviseddesignthatiswithinabudgetedamountthatisacceptabletoOvmerthenOwnershallnotbedeemedtohaveapprovedaFinalParkProjectBudgetandmayaccordinglytern1inatethoseportionsofthisFirstj ddendum pertaining to the Park Project Vithin thirty 30 Calendar Days after Developer s F latto ALL LizINWS First Addendum to Dev Agreement 2nd Readr l-redlined 2-20-07 doc 2nd Reading 2--B20-07Draft receipt of the Owner s notice of intent to terminate the Park Project pursuant to this subsection tho O Nnor shall reimburse Developer in full f-or all ParkProject Costs incurred by De elopor up to the date of termination including without limitation those Park Project Design Costs associated Nith the cap of 1 110 000 as referenced in subseetion 1 O c hereof and notwithstanding such cap the costs associated with the revision s and or redesign s of the Park Project Design pursuant to subsections 10 fand h hereof Not ithstanding the preceding sentence hmvever OVllershallhavenoobligationtoreimburseDeveloperforanyadditionalcostsincurredby Developer as a result of value engineering the Park Project Design and or such other revisions neoessitated and or undertakoo by the Parties pursuant to this subseotion 11 a Following Developer s reoeipt of payment in cleared funds of all sums due hereunder those portions ofthis First Addendum pertaining to the Park Projeot shall terminate and shall thereafter shall have no force or effect and neither Party shall have any further rights or obligations to the other pertaining to the Park Project under the Development Agreement and this First Addendum a Notwithstanding anything to the contrary contained herein if upon review but prior to approval of the Final Park Project Budget Owner through its City Commission determines in the exercise of Owner s discretion and iudgment that the Park Proiect Design and or theFinalPlansandSpecificationsalthoughalreadyapprovedbytheOwnerassetforthinsubsections10e f g and h hereof exceed the budget acceptable to the Owner Owner may elect to 1 value engineer the Park Proiect to get itback to an acceptable amount 2 add more money to thePark Budget or 3 terminate the Park Proiect To the extent Owner desires to value engineer the Park Proiect the Architectural Consultant shall suggest value engineering scope reductions or other cost savings options to achieve an acceptable Park Proiect Budget The Architectural Consultant shall revise the design to incorporate the value engineered options approved by the Owner at no additional cost to the Owner unless one or more of the following events causes the estimated Final Park Proiect Budget to exceed the budget acceptable to the City in which case the cost of such revisions shall be borne by the Owner ian inordinate increase in the cost of labor and materials caused as a result of unfavorable market conditions iiOwner initiated scope changes and or iii Owner s decision toreduce the previously established Park ProiectBudgetbIfOwner elects to terminate those portions ofthis First Addendum pertaining to the ParkProjectpursuanttosubsection11ahereofthenwithinthirty30CalendarDaysafterDevelopersreceiptoftheOwnersnoticeofintenttoterminatetheParkProiecttheOwnershallreimburseDeveloper in full for all Park Proiect Costs incurred by Developer through the termination date including without limitation those Park Proiect Design Costs associated with the cap of1110000asreferencedinsubsection10chereofandnotwithstandingsuchcapthecosts associated with the revision s and or redesign s of the Park Proiect Design pursuant to subsections 10 fand h hereof Following Developer s receipt of payment in cleared funds ofallsumsduehereunderthoseportionsofthisFirstAddendumpertainingtotheParkProiectshallterminateandshallthereaftershallhavenoforceoreffectandneitherPartyshallhaveanyfurtherrightsorobligationstotheotherpertainingtotheParkProiectundertheDevelopmentAgreementandthisFirstAddendumFlattolALLILizINWS First Addendum to DevAgreement 2nd Readf14 -red lined 2-20-07 doc 2nd Reading 2-20-07 Draft f tlWNotwithstanding anything contained in this First Addendum or the Development Agreement the Parties acknowledge and agree that if and when approved by the City Commission itheFinalPark Project Budget shall represent the total amount offunding whichtheOwnerhasdeterminedtomakeavailableforthedevelopmentdesignandconstruction ofthe Park Project and accordingly the Final Park Project Budget shall not be exceeded and or increased without the express authorization of the City Commission The Developer shall not be liable to Owner or any Contractor or other third party for payment of any portionofthecostsfeesorexpensesproperlyincurredbyDeveloperonbehalfofOwnerinconnection with the Park Project provided such costs fees or expenses are within and in accordance with the Final Park Project Budget Moreover Developer shall have no obligation or duty whatsoever toincur costs or expenses which would cause the Park Project Design Costs to exceed the Final Park Project Budget Except as otherwise set forth in this Addendum tothe contrary the general proceduresandrequirementssetforthintheDevelopmentAgreementpertainingtotheconstruction of the Garage and Developer sImprovements shall apply to construction by DeveloperoftheAdditionalImprovementsandtheParkProjectincludingbutnotlimitedtoSections25efandgSection33Section33Article4Sections53and54andasotherwise applicable to construction in general Trish Please Rate my references There is BO Seetion 32 1 in Dj 1and I dOB t think 34 applies 12 Grant-In-Aid Reimbursement Agreement The Parties agree that it is in the best interests of the City its residents the Owner and the Developer for the Project to be built and operated as envisioned in the Ground Lease and the Development Agreement Consequently in full understanding andacknowledgementthateachPartysagreementtoperformitsrespectiveobligationsisexpresslyconditionedupontheotherPartysagreementtoperformitsobligationsandtheobligationofeachtoperformismutuallycontingentupontheothersperformanceandthatbutfortheagreementandperformanceofeachthisFirstAddendumcouldnotsucceedthePartiesagreeasfollowsaOwnerhereby grants toDeveloper and agrees to pay to Developer a grant-in-aid Grant intheaggregatesumof15000000inaccordancewiththegeneraltermsandconditionsdescribedinExhibitGattachedheretoandsubjectfurthertoexecutionofaGrantAgreementmemorializingsaidtermandspecifyingthemannerandtimelinesforpaymentoftheGrantReceiptoftheGrantiscriticaltothesuccessoftheProjectTheGrantismadeandshallbeusedforthesolepurposeofdefrayingaportionoftheDeveloperscapitalexpensesofdevelopingandconstructingtheDevelopersImprovementsTheGrantandallsumspaidortobepaidthereunderarenotandshallnotbedeemedtobepartoforincludedwithinbutareseparateandapartand in addition to any and all other financial obligations of Owner contemplated in the GroundLeaseortheDevelopmentAgreementasamendedbythisFirstAddendum13FundingOwners funding of costs of the Garage the Additional Improvements and the Park ProjectasapplicableshallbeinaccordancewiththetermsofthisFirstAddendumandtheapprovedfinalbudgetsforsaidimprovementsandshallbemadeasfollowsFlattolALLLizINWS First Addendum toDev Agreement 2nd Readr -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft a All costs and fees attributable towork performed by Developer on behalf of Owner shall be identified tracked accounted for invoiced and paid separately from Developer sImprovements costs in a manner that clearly distinguishes Owner s costs from Developer s Improvements costs Owner shall have the right to make payment by check or wire transfer tothe Developer b Within thirty 30 Calendar Days after the Parties execution ofthis First Addendum Owner shall fund directly to Developer in a lump sum payment all of the costs fees and expenses incurred through and including the execution date of this First Addendum by DeveloperontheOwnersbehalfinconnectionwithZones1and3asdetailedonExhibitHattached hereto c Section 232 2 v of the original Development Agreement is deleted in its entirety and replaced with the following provision which shall govern the funding appropriation anddisbursementprocessfortheGarageParkProjectandAdditionalImprovementsFollowing approval of this First Addendum by the City Commission and execution thereof by thePartiesOwnershallappropriateorcausetobeappropriatedfundsfortherespectivedesigndevelopmentandconstructionoftheaforestatedimprovementsasfollowsi the funding process associated with design costs for the Garage ParkProjectandAdditionalImprovementsrespectivelyshallbeappropriatedandcommence within thirty 30 Calendar Calendar Days after the Parties execution ofthis First Addendum ii the funding process associated with construction ofthe Garage shallbeappropriatedandcommencenoearlierthanOctober12008iii the funding process associated with construction of the Park Project shall be appropriated and commence noearlier than October 1 2009 iv the funding process associated with construction ofthe Additional Improvements shall be appropriated and commence noearlier than October 1 2007 and v the funding process for the Grant-in-Aid if said Grant is approved by the CityCommissionshallcommenceandbeappropriatednoearlierthanOctober12009Exceptfor the funding disbursements for the Grant which shall be governed separately Developer shall beentitledtobepaidbytheOwnerperiodicprogresspaymentspartialpaymentsnotmorefrequentlythanoncepermonthforthefollowingportionsoftheWorkfortheGarageAdditionalImprovementsandParkProjectrespectivelycompletedandacceptabletotheOwneriForsoft costs associated with the design development and construction of theGaragetheAdditionalImprovementsandtheParkProjectincludingFlattolALL LizINWS First Addendum to Dev Agreement 2nd Readro -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft but not limited to the Work of the Architectural Consultant and other consultants and professionals and associated with the Work under the applicable budget then in effect and ii For hard costs associated with the design development and construction ofthe Garage the Additional Improvements and the Park Project including butnotlimitedtotheportionsoftheWorkperformedundertheapplicablebudgetthenineffect iii Partial payments shall be in an amount equal to the amounts paid by Developer for such portions of the Work iv Such partial payments of hard costs shall constitute advances against the GMP Contract until final payment is made and accepted No partial payment approvednormadeshallconstituteanacceptanceofanyWorkcompletednotinaccordance with the approved final Plans and Specifications and or the Final approved budgetsv The Developer may make applications for periodic progress paymentsduringconstructionbysubmittingtotheOwneronorbeforethefifth5thdayofeachmonthbutnotmoreoftenthanonceamonthanitemizedapplicationforpayment Requisition for those items properly payable hereunder Each Requisition shallbesubmittedinaformacceptabletobothPartiesandshallbeaccompaniedbyevidenceofproperapplicationofallpriorpaymentsincludingwithoutlimitationastohard costs an unconditional partial waiver of lien from the General Contractor and each subcontractor in form and substance satisfactory to the Owner covering the full amount ofallpastpaymentsfordirectconstructioncoststhroughthedateofsuchwaiveroflienand an unconditional final waiver of lien in form and substance satisfactory to the Owner from each subcontractor who as of the most recent payment had completed the work coveredbyitssubcontractcoveringthefullamountdueeachsubcontractorandaconsent ofsurety Developer shall also furnish such other supporting evidence as Owner may reasonably require to establish the cost or value of the improvements and equipment forwhicheachhardcostspaymentistobeandhasbeenmadevi Each Requisition for hard costs shall be based upon the most recent schedule ofvalues submitted by the General Contractor The schedule ofvalues shallallocatetheentireGuaranteedMaximumPriceamongthevariousportionsoftheWork The schedule ofvalues shall be prepared insuch form and supported by such data to substantiate its accuracy as the Owner may reasonably require This schedule unless objectedtobytheOwnershallbeusedasabasisforreviewingtheDevelopersRequisition Requisitions shall show the percentage completion of each portion of the WorkasoftheendoftheperiodcoveredbytheRequisitiond The Owner within thirty 30 Calendar days after receipt of the RequisitionwillpayanapprovedRequisitiontotheDeveloperforsuchamountastheOwnerdeterminestobeproperlydueandifitobjectstoandwithholdsfundingforanyitemoramountF attol ALL LizINWS First Addendum to Dev Agreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft shall state in writing the reasons forsuch action The Developer after receipt of an objection to funding shall disprove or cure such objection orthe Parties shall otherwise work in good faith to resolve such objection Each claim question difficulty ordispute which cannot be resolved by mutual agreement of the Owner and Developer shall be resolved in accordance with the procedure set forth in Exhibit I attached hereto 14 Substantial Completion Final Completion The construction of individual improvements within a Zone or other portion of the Garage or Additional Improvements orthe Park Project may go forward and be completed inaccordance with different schedules Permits and Approvals Therefore the portions of Work within a Zone or portion of the Garage or Additional Improvements or the Park Project which have been permitted by different Permits and Approvals shall be deemed to have been completed in substantial accordance with the approved Final Plans and Specifications thereof as they may be modified from time to time upon mutualagreementofthePartiesnotwithstandingthatminoradjustmentsmayberequiredbyDeveloperorminorerrorsoromissionsmayrequirecorrectionprovidedthatsuchadjustmentsandcorrectionsaremadewithinareasonableamountoftimeafterdiscoveryofsameOwnershall be solely responsible for all costs fees and expenses properly incurred by Developer in connection with this Section As such portion of Work under such Permits and Approvals is completed Developer shall submit to Owner the final as built approved Final Plans and Specifications for such portions of Work within a Zone or other portion of the Garage or Additional Improvements or Park Project and any additional costs properly incurred by DeveloperwhichmaybedueandowingshallbepaidinfullbyOwnertoDeveloperwithinthirty 30 Calendar Days after such submittal All payments shall be made in cleared U S funds a When the Developer determines that there has been achieved Substantial Completion of Work constituting a portion of the Work for the Garage or the Additional Improvements orthe Park Project which the Owner agrees to accept separately the Developer shallsubmittoOwnerforOwnersacceptanceandapprovali A Temporary Certificate of Occupancy TCO or Temporary CertificateofCompletionTCCasapplicablefortheWorkdulyissuedbytheGovernmental Authority having jurisdiction thereof ii The Architect s Certificate of Substantial Completion stating that on the basis of observations and inspections the referenced Work for the Garage or the Additional Improvements orthe Park Project as applicable has been substantially completedinaccordancewiththeapplicablecontractdocumentsandtheapprovedFinalPlans and Specifications inall material respects stating the responsibilities of Owner and Developer if any for security maintenance utilities damage to the Work and insurance listing all Work yet to be completed to satisfy the requirements under the applicable contract documents and approved Final Plans and Specifications for Final Completion The failure to include any items of corrective Work on such list shall not alter the responsibility of Developer to complete all of the Work in accordance with the GMP Contract the approved Final Plans and Specifications or the Development AgreementandthisFirstAddendumandF latto ALLILizINWS First Addendum to Dev Agreement 2nd ReadF3 -red lined 2-20-07 doc 2nd Reading 2-B20-07 Draft iii A Requisition for payment for such Work Upon receipt of the foregoing and Owner s approval of the Certificate of Substantial Completion Owner shall pay the Requisition in accordance with the provisions of this Addendum b When the Developer has received from the Contractor a Final Contractor s Affidavit and Final Lien Waivers in accordance with Chapter 713 Florida Statutes a written notice that the Work is ready for final inspection and acceptance and a final application for paymentDeveloperandArchitectwillpromptlymakesuchinspectionandwhenDeveloperdeterminesthatFinalCompletionoftheWorkhasbeenachievedtheDevelopershallsubmittoOwnerfor Owner s acceptance and approval iA Final Certificate of Occupancy CO or Final Certificate of Completion CC as applicable for the Work duly issued by the Governmental Authority having jurisdiction thereof iiThe Architect s Certificate of Final Completion approved by the Developer stating that on the basis of observations and inspections the referenced Work for the Garage or the Additional Improvements or the Park Project as applicable has been fully performed and all such Work has been completed in accordance with the applicable contract documents and the approved Final Plans and Specifications in all material respects and that the entire balance found tobe due the Contractor and noted in the final Certificate is due and payable iii A final Requisition for payment iv Copies of all agreements Permits and Licenses and all insurance policies or certificates if any pertaining to the completed Work v All manufacturers suppliers andsubcontractorswarranties duly assigned totheOwnertheWarrantiesandallmaintenanceandoperatinginstructionsifany pertaining to the completed Work cUpon receipt of the foregoing and Owner s approval of the Certificate of Final Completion Owner shall pay the Final Requisition in accordance with the provisions of this Addendum Developer s acceptance of final payment from Owner shall constitute a waiver of all claims by Developer against the City except those previously made in strict accordance with the applicable provisions of the Development Agreement and this First Addendum and identified by Developer as unsettled at the time of acceptance of final payment d Following Substantial Completion Owner s entry into possession of any portion oftheGarageortheAdditionalImprovementsortheParkProjectasevidencedbytheusethereof by Owner the date such use first occurs being the Possession Date as to the portion occupied will constitute acknowledgment by Owner that the occupied portion is in the condition in which Developer was required to deliver it under the terms of the GMP Contract and the Development Agreement as amended by this First Addendum and that Developer has F atto ALLILizINWS First Addendum to DevAgreement 2nd ReadN-red lined 2-20-07 doc 2nd Reading 2-20-07 Draft performed all of its obligations relating to the design development and construction thereof provided however that Owner s entry into possession of any of the aforestated project components shall not be deemed a waiver of any rights Owner may have against Contractors pursuant tosubsection 14e hereof e Notwithstanding anything contained in the Development Agreement or this First Addendum the making of final payment shall not constitute a waiver of claims by OwnerforifaultyordefectiveWorkappearingafterOwnersapprovalofArchitectsCertificate of Final Completion b failure of the Work to be in strict accordance with the requirements of the GMP Contract or the approved Final Plans and Specifications eF--the Developmentgreemont and this First ddondum discovered after completion of theWork and c terms of all Warranties required by the applicable contract documents Notwithstanding the preceding sentence however Owner agrees that in the event of discovering any defective Work in constructionfromtheapprovedFinalPlansandSpecificationsincludinglatentdefectsDevelopershall have no liability for any defective Work and Owner acknowledges and agrees that itwilllooksolelytotheContractorssubcontractorsandsuppliersandortheWarrantiesforreliefin connection with anyclaim arising from any defects Accordingly Developer hereby acknowledges andagreesthatOwnerisintendedtobeathirdpartybeneficiarytoDevelopersagreements with Contractors and other aforestated parties and shall accordingly comply with the provisionsofSection19hereoffDeveloper shall cause its construction manager Hines Interests Limited Partnership tofullycooperatewithandassistOwnerinresolutionofanyissueswithregardtoOwners claims for defects Warranty issues and or other post-construction issues contemplated in subsection 14eaboveastheymayariseConstructionmanagersfeesandcostsshallbebournebyOwnerprovidedhoweverthatconstructionmanagershallcontinuetochargeOwnerthesameratesandfeesthatitconsistentwithratesandfeesthatarechargedtoDeveloperforconstructionmanagementoftheProjectandParkProjectgAllWarranties shall commence on the date of Final Substantial Completion of theWorkordesignatedportionthereofunlessotherwiseprovidedintheCOorCC15Changesto Work Change Orders Owner Consent The Parties understand that during the constructionphaseoftheGaragetheAdditionalImprovementsandtheParkProjectsituationsmayarisethatwouldrequireGfhangestobemadetotheWorktheapprovedFinalPlansandSpecificationsthecompletiondatetheFinalParkProjectBudgettheFinalGarageBudgettheFinalAdditionalImprovementsBudgetorothersimilarmattersChangesChangesshallbedealtwithinthefollowingtwo2waysaDrawAgainst Contingency The Final Park Project Budget the Final Garage Budget andtheFinalAdditionalImprovementsBudgeteachwillincludeaconstructioncontingencyreserveOwnersContingencywhichshallbeinadditiontoanyconstructioncontingencyreserveincludedwithintheGuaranteedMaximumPriceContractorsContingencyTheOwnersContingencyamountwillnotbedisclosedtothirdpartiesTheproposedContractorsContingencyshallbeinanamountwhichtheDeveloperbelievesinitsFlattolALLlLizINWS First Addendum to Dev Agreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2--B20-07Draft best judgment is reasonable to cover construction-related costs which were not specifically foreseeable or quantifiableasofthedatetheGuaranteedMaximumPricewasestablishedincludingbutnot limited to the following correction of minor defects or omissions in the Work not caused by the Developer s negligence cost overruns due to the default of any subcontractor or supplier minor changes caused by unforeseen or concealed site conditions and minor changes in the Work not involving adjustment in the Guaranteed Maximum Price or extension of the completion date and not inconsistent with the approved Final Plans and Specifications and the Development AgreementasamendedbythisFirstAddendumiDrawsmay be charged against the Contractor s Contingency only with the OwnerswrittenconsentwhichshallnotbeunreasonablywithheldordelayedTheContractorsContingencyexcludesandshallnotbeusedforcostsincurredtodemobilizeandremobilizeduetosuspensionsorderedbytheOwnerorforOwner-requested Changes to the scope of the Work all of which are to be treated only by Change Order iiDrawsmay be charged against the Owner sContingency only with the Owner s written consent which shall not be unreasonably withheld or delayed Wfiii Upon making a draw against either the Owner s or the Contractor s Contingency the Developer shall increase the relevant budgeted line items by the amount of the draw and decrease the respective Contingency line item accordingly The Developer shall maintain records satisfactory tothe Owner to document each draw against each Contingency fiv Any remaining amounts in the Contractor s Contingencv remammg after Final Completion shall be divided equally between Owner and Developer b ChangeOrders As material site issues and or Unavoidable Delays arise the Developer shallcoordinatetheprocessingofChangeOrdersandwillnegotiateforfinalapprovalandexecution by Owner all Change Orders with Contractor Developer shall submit a proposed Change OrdertoOwnerwithinareasonableperiodoftimepriortocommencementofWorkrelatingtoanyproposedChangethatisnotproperlyeligibleforpaymentfromtheContingencyRequestsforanyChangeOrdershallbesubmittedonachangeorderformacceptabletoOwnersignedbyDevelopertheGeneralContractorandifrequiredbyOwneralsobytheArchitecturalConsultantandshallincludeawrittendescriptionoftheproposedChangethejustificationthereforeandsupportingdocumentationAtitsoptionOwnermayrequireDevelopertoprovideadditionalevidencesatisfactorytoOwnerofthecostandtimenecessarytocomplete the proposed Change The appropriate budget and orProject Schedule as applicable will berevisedasnecessarytoreflectapprovedChangeOrdersiInthe event by reason of Una oidablo Delays orotherv ise the Owner requests a Change to the scope of V ork or systems kinds or quality of materials finishes or equipment or the O Nner orders an acceleration or resequcncing of V ork or the O vner requirosscopechangestobemadetothoParkProjectthedditionalFlattolALL LizINWS First Addendum to Dev Agreement 2nd Read 21l-redJined 2-20-07doc 2nd Reading 2-20-07 Draft Improvements orthe Garage after the Guaranteed Maximum Price has been established all costs pertaining to or associated vith making such Changes shall be the sole responsibility of O vner and may not and shall not be funded from the Contractor s Contingency ith the exception of Changes due to delays including vithout limitation Unavoidable Delays which shall not require Ovmer to appro e or otherwise result in a Change Order for an increase in costs but shall only require if approved a Change Order for an extension of the timos f-or performaneeset forth in the Development Agreement and thisFirstddendumallasfurthersetforthinsubsection15biiihereofiIn the event by reason of Unavoidable Delays or otherwise the Owner requests a Change to the scope of Work or systems kinds or quality of materials finishes or equipment or the Owner orders anacceleration or resequencing of Work or the Owner requires scope changes to be made to the Park Proiect the Additional Improvements or the Garage after the Guaranteed Maximum Price has been established all of the foregoing individually or collectively Sco e Changes all costs pertaining to orassociatedwithmakingsuchScopeChangesshallbethesoleresponsibilityofOwnerand shall include those costs incurred when the Owner s Change Order regarding a portion of the Park Proiect the Additional Improvements or the Garage causes additional costs tobe incurred in connection with another portion of the Development Site ScopeChangesmaynotandshallnotbefundedfromtheContractorsContingencybut shall be funded by Owner either from the Owner s Contingency or from other funds of Owner Notwithstanding anything herein to the contrary Owner s responsibility to pay the foregoing costs is not and shall not be conditioned upon whether there are sufficient funds or any funds in Owner s Contingency to pay such costs Owner s obligation to fund such costs in accordance with this Section 15 shall be in addition to and not part of its obligation to fund the scheduled amounts contained in the GMP contracts for the Park the Garage and the Additional Improvements iiChange Orders submitted to Owner in accordance with this Section 15shallbereviewedandapprovedbyOwnerinatimelyandreasonablemannerDevelopershall at all times maintain for inspection by Owner a full set of working drawings oftheImprovementsiiiNo Damages for Delay No claim for damages or any claim other than for an extension of time shall be made or asserted against Owner by reason of any delay includingwithoutlimitationUnavoidableDelaysandoranydelaysinthedesigndevelopmentandconstructionoftheProjectwhichmayariseasaresultofOwnerselectionnottoproceedwiththeParkProjectDeveloperandincludingwithoutlimitationitsContractorandallofDevelopersagentsemployeescontractorsconsultantsandprofessionalsincludingwithoutlimitationArchitecturalConsultantshallnot be entitled to claim nor shall Owner have any obligation to fund a Change Order andorotherclaimssorrequestsforanincreasetotheFinalBudgetsorotherpaymentor compensation of any kind from Owner for direct indirect consequential impact orothercostsexpensesordamagesarisingbecauseofdelaydisruptioninterferenceorhindrancefromanycausewhatsoeverincludingbutnotlimitedtoFlattol ALLILizINWS First Addendum to DevAgreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft Unavoidable Delays and or any delays in the design development and construction ofthe Project which may arise as a result of Owner s election not to proceed with the Park Project Provided however that this subsection shall not precludeinc1udc recovery ofdamages by Developer for actual delays due solely to fraud bad faith or active interference on the part of Owner Otherwise Developer shall be entitled only to extensions of time for performance as the sole and exclusive remedy for delay s in accordance with and to the extent specifically provided above 16 Casualty Damage Destruction ofPark Proiect ParkProiect Zone Following the Park Project Zone Possession Date in the event the Park Project and or the Park Project Zone shall be damaged or destroyed in whole or inany material way as determined by Owner by fire hurricane flood or other casualty hereinafter collectively referred to as the damaged property Owner at its sole option and discretion shall have the right to elect not to repair or restore the damaged property a Notwithstanding the foregoing in the event i Owner elects not to restore or repair the damaged property and ii Developer gives written notice to Owner within sixty 60 Calendar Days of the casualty that Developer iswilling to repair restore the damaged propertywithitsownfundsandiii Within six 6 months following such notice Developer proves to Owner s sole satisfaction and discretion that it has adequate funds immediately available to effect the repair restoration and iv Owner and Developer each acting in its reasonable discretion agree within sixty 60 Calendar Days after Owner deems that Developer has demonstrated that it has adequate funds to effect the repair restoration to the conditions timing plans procedures contractors subcontractors disbursement mechanisms and other matters with respect to the repair restoration Developer shall be entitled toeffect the repair restoration with its own funds Developer shallcommenceandcompletesuchrepairrestorationwithinareasonableperiodoftimeb Further in the event neither Owner nor Developer elects to repair or restore the damaged property as set forth above Owner shall remove all above-ground improvements anddebrisfromtheParkProjectZoneandreturntheParkProjectZonetoasafeandsightly condition with areasonably level grade within a reasonable period oftime 17 Miscellaneous a Compliance with Comprehensive Plan The Owner has adopted and implemented theComprehensivePlanTheOwnerherebyfindsanddeclaresthattheprovisionsofthisFirstAddendumandtheDevelopmentAgreementdealingwiththeLandandtheParkFlatto ALLILizINWS First Addendum to DevAgreement 2nd Read J 1-redJined 2-20-07 doc 2nd Reading 2-20-07 Draft Project Zone and the approval of any Park Project Design shall be consistent with the Owner s adopted Comprehensive Plan and Land Development Regulations subject to all applicable RequirementsPermitsandApprovalsb Counterparts To facilitate execution the Parties hereto agree that this First Addendum may be executed in counterparts as may be required and it shall not be necessary that the signature of or on behalf ofeach Party or that the signatures of all persons requiredtobindanyPartyappearoneachcounterpartitshallbesufficientthatthesignatureofor 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 First Addendum c References All references in the Development Agreement to the Agreement shall hereafter mean and refer to the Development Agreement as amended by this First Addendum If there is a contradiction between the terms of the Development Agreement andthisFirstAddendumthenthetermsofthisFirstAddendumshallcontrolFacsimilesignaturesappearinghereonshallbedeemedanoriginald Effect of First Addendum Except as modified herein the Development AgreementremainsinfullforceandeffectIntheeventofanyconflictorambiguitybetweenthe Development Agreement and this First Addendum this First Addendum shall control 18 Exhibits The following exhibits are attached tothis First Addendum and made a part hereof 19 Third Party Beneficiary Developer and Owner agree and acknowledge that with respect to the design development and construction ofthe Garage Additional Improvements andtheParkProjectOwnerisanintendedthirdpartybeneficiaryinanycontractenteredintobetween1DeveloperandArchitectbutexcludingArchitecturalConsultant2DeveloperandContractorsincludingwithoutlimitationtheGMPContractandoranycontractsenteredintowithanyrespectivesubcontractorsandorsubconsultantsofArchitectandContractorsexcludingArchitecturalConsultantAccordinglyDeveloperhereinrepresentstoOwnerthatitsagreementswith1Architect2Contractorand3withanyrespectivesubcontractorsandorsubconsultantsofArchitectsandContractorsexcludingArchitecturalConsultantshallincorporatethetermsandconditionsoftheDevelopmentAgreementasamendedbythisFirstAddendumandDevelopershallassumesoleandabsoluteresponsibilityforbindingArchitectContractorandtheirapplicablerespectivesubconsultantsandsubcontractorsexcludingArchitecturalConsultanttosameasifOwnerwereapartytothoseagreementsSignatures commence onfollowing pageF latto ALLILizINWS First Addendum to Dev Agreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft EXECUTION BYOWNER IN WITNESS WHEREOF Owner and Developer intending to be legally bound have executed this First Addendum toDevelopment 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 ATTEST Print Name By SEAL STATE OF FLORIDA ss COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of by as Mayor and as City ClerkoftheCITYOFMIAMIBEACHFLORIDAamunicipalcorporationoftheStateofFloridaonbehalfofsuchmunicipalcorporationTheyarepersonallyknowntomeorproducedvalidFloridadriverslicensesasidentificationMycommission expires Notary Public State of Florida Print Name Flattol ALLILizINWS First Addendum to DevAgreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft EXECUTION BYDEVELOPER WITNESSES THE NEW WORLD SYMPHONY anot-for-profit Florida corporation Print Name 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 NEWWORLDSYMPHONYanot-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 ofFlorida Print Name Flattol ALLILizINWS First Addendum to Dev Agreement 2nd Read-redlined 2-20-07 doc List of Exhibits Exhibit A Legal Description of Land Exhibit B Article 1 -Definitions from Original Development Agreement Exhibit C Legal Description of Garage Property Exhibit DProcedure for Obtaining Park Project Approval Exhibit E Sketch ofImprovement Zones Exhibit FDefinition ofVanilla Shell Retail Space Exhibit G Terms of Payment of Grant-in-Aid Exhibit H Costs Fees and Expenses Incurred by Developer Through 2007 in connection with the Park Project and the Garage Project 2nd Reading 2- 20-07 Draft Exhibit I Dispute Resolution Procedures Flattol ALLILizINWS First Addendum to DevAgreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2-20-07 Draft Exhibit FDefinition ofVanilla Shell Retail Space V anilla Shell Retail Space shall mean aconstruction space prepared by the Developer for the O Nner which shall include iconcreteslab floor broom sv ept ii weathertight space including allstorefrontglassvindovsinsulatedexteriorvallsandconcreteceilingslabiiinodemisingvallsbetweenretailspaoesorinteriorpartitionsshallbeinstallediyoneexteriordoorperretailspaceycentralelectricalroomwithoneretaileleotricalservicevione3emptyelectrical cORduit from the demising line of each retail space to the central electrical room yii one 2empty electrical oonduit from the deminsing line of each retail space to the central fire alarm room yiii fire protection main line installed above the typical ceiling elevation ofeaoh retail spaee and oapped ix a 2 diameter domestic water line vith shut offval 8 installed abo e the typioal eeiling elevation ofeach retail space x a 1 capped sanitary sewer stub out in one location to each retail space capped xii retail tenants HV C condenser Uflits and installation ofHV C piping for this equipment xii no gas service shall be brought to any retail space xiii no grease trap shall be provided for any retail spaoe xi normal fresh air and exhaust airgrilles shall be designed f-or eachretail spaee with blank off plates xv no large kitchen exhaustductorpathshallbeprovidedfromanyretailspacetotheexteriorofthegarageVanillaShell Retail Space shall mean a construction space prepared by the Developer for the Owner which shall include iconcrete slab floor broom swept iiweathertight space including all storefrontglasswindowsinsulatedexteriorwallsandconcreteceilingslabiiinodemisingwallsbetweenretailspacesorinteriorpartitionsshallbeinstalledivoneexteriordoorperretailspace v central electrical room with one retail electrical service vi one 3 empty electrical conduitfromthedemisinglineofeachretailspacetothecentralelectricalroomviione 2 empty electrical conduit from the deminsing line of each retail space to the central fire alarm room viii fire protection main line installed above the typical ceiling elevation of each retail space and capped ix a 2 diameter domestic water line with shut off valve installed above the typical ceiling elevation of each retail space x a 4 capped sanitary sewer stub out in one location to each retail space capped xi a dedicated location on the roof of the Garage for retail tenants HV AC condenser units and an obstruction-free path from this dedicated location to each retail space for tenants installation of HV AC piping for this equipment provided that Owner shall have the option to add by Change Order HV AC condenser unitsif the specifications and costs are identified so as not to impair the critical path for the Garage xii no gas service shall be brought to any retail space xiii no grease trap shall be provided for any retail space xiv normal fresh air and exhaust air grilles shall be designed for each retail space with blank offplates xv no large kitchen exhaust duct or path shall be provided from any retail space to the exterior of the garage Flattol ALL LizINWS First Addendum to Dev Agreement 2nd Read S -redJined 2-20-07 doc 2nd Reading 2-20-07 Draft F lattol ALL LizINWS First Addendum to Dev Agreement 2nd Read -redlined 2-20-07 doc 2nd Reading 2--B20-07Draft Exhibit G General Terms and Conditions for Grant-in-Aid Grant Note These terms and conditions are subject to execution by the Parties ofa Grant Agreement Owner shall pay the Grant to Developer by check or wire transfer as follows Owner will provide 15 million in supplemental funding for the NWS Campus Expansion Project as itisneededDevelopermustexpend135 million towards the Campus Expansion Project Developer s Improvements beforeOwnerisobligatedtoreleaseanyGrantfundsQualifyingexpendituresfor Grant funding include fees for Architect Architectural Consultant and their respective sub consultants fees for the construction manager Hines Interest Limited Partnershipsl fees for Permits and Approvals fees fort Prolect related Project engineerin tests and borings and fees for Contractors and Project construction costs -Developer must demonstrate evidence to Owner s reasonuble satisfaction that the Project is fully funded and in balance before O vVner isobligated to release any Grant funds ieiftheProjeotcostexceedsS150millionthenDeveloper-vill need to shov the source of thefunding abO 0 the 150 million In the event the costs of the Campus Expansion Proiect are anticipated by Developer to exceed 150 million Developer must provide evidence reasonably satisfactory to Owner ofthesourcesoffundingabove150millionGrantfundswillbe available no earlier than October 1 2009 and will be provided on an as-needed basis -O Nner and De eloper vill split fifty fiftyany unspent Grant funds if any Owner and Developer will split fifty fifty any unspent Grant funds if any and in such event the City shall fund toDeveloper its fifty percent share of such unspent funds within 60 calendar days after Developer certifies that all Campus Expansion proiect expenses have been identifiedFattolALLLizINWSFirst Addendum to DevAgreement 2nd Read-redlined 2-20-07 doc 2nd Reading 2-20-07 Draft Developer will provide Owner with 180 Calendar Days advanced notice of Developer sintent to begin drawing funds on the Grant Developer will follow-up with a second 60 Calendar Days advanced notice so Owner may institute its internal disbursement process in a timely manner All draws against the Grant shall be made pursuant to the procedures set forth in Section 13 of the First Addendum Developer agrees to provide Owner with an Option to purchase the Lincoln Theater at a price to be determined through a comparison of the City appraisal a Developer appraisal and such further negotiations as the Parties may deem necessary This option will be valid through December 312007 Public Benefits to be provided by Developer as further consideration for the Grant will be developed and agreed upon mutually between the Parties prior to the Possession Date Developer isalso pursuing agrant-in-aid in the aggregate sum of 30 000 000 from Miami-Dade County the County Grant for the purpose of defraying a portion of the Developer s capital expenses of developing and constructing the Developer s Improvements Receipt of the County Grant is critical to the success of the Project Developer agrees that in the event it is not able to obtain the County Grant which commitment is reasonably satisfactory toDeveloper and to Owner and such inability to obtain the County Grant causes Developer to terminate the Ground Lease and Development Agreement pursuant to Section 211 of the Development Agreement then Developer shall become obligated to and shall promptly reimburse Owner for its share of costs through the date of termination as provided in this First Addendum Developer shall not undertake any design work on the Garage or the Park with the exception of such work already completed and referred to in Exhibit Huntil after the County Grant is secured In the event the County agrees totimely make the County Grant but prior to the Commencement of Construction of the Project Developer terminates the Ground Lease and the Development Agreement for any reason other than as permitted in Section 2 1l e and t of the Development Agreement then in addition to any and all remedies Owner may have as a result of such termination if any Developer agrees to promptly reimburse Owner for all of its share of costs through the date of termination without demand by Owner Owner s obligation to fund all or any portion of the Grant is subject to and contingent upon such funding continuing to be allowed and permissible pursuant Flattol ALLILizINWS First Addendum to Dev Agreement 2nd ReadS1l-red lined 2-20-07 doc 2nd Reading 2 20-07 Draft to applicable Florida law as same may be amended from time to time In the event that Owner s performance and obligation to Developer with respect to the Grant isrendered impossible by applicability oflaw s then the Parties agree that Owner s obligation shall be extinguished and that neither Party shall have any furtherliabilitytotheotherwithrespecttothisGrantThe Parties agree that Ovmer shall be eHtitled to place and maintain adedicatory plaqueontheexteriorportionoftheNVSCampusExpansionbuildingvihiohplaque shall acknowledge the City of Miami Beach s oontribution tothe facility andtheProjectproidedhov6verthatinnoeventshallsuchdedicatoryplaquebeplacediwithoutthemutualagreementofthePartiesastothelocationandsize design and such other specifications to the plaque as the Parties may deem necessary ii the plaque is not intended nor at any time shall it be used for commercial or sponsorship purposes or on behalf ofa non City of Miami Beach affiliated third parties and iii O vner shall be solely responsible for all costs related to the design de 610prnent fabrication installation and maintenance ofsaid plaque including replacement of same due to damage or otherwise The Parties agree that Owner shall be entitled to appropriate mutually agreeable permanent recognition for its contributions to the NWS Campus Expansion Proiect in accordance with such recognition provided to other donors to the Proiect F lattol ALL LizINWS First Addendum to Dev Agreement 2nd ReadSt -red lined 2-20-07 doc 2nd Reading 2-20-07 Draft Exhibit I Resolution ofDisputes 1 To prevent all disputes and litigation with respect to the Garage Additional Improvements Park Project and Infrastructure Improvements it is agreed by the parties hereto that the Architect shall decide all questions claims difficulties and disputes of whatever nature which may arise relative to the technical interpretation of the approved Final Plans and Specifications and fulfillment of the applicable portions of the GMP Contract as to the character quality amount and value of any Work done and materials furnished or proposed to be done or furnished under or by reason of the GMP Contract and Architect s estimates and decisions upon all claims questions difficulties and disputes shall be final and binding to the extent provided in Paragraph 2 below Any claim question difficulty ordispute which cannot be resolved by mutual agreement of Owner and Developer shall be submitted to Architect in writing within twenty-one 21 Calendar Days Unless a different period of time is set forth herein Architect shall notify Owner and Developer in writing of Architect s decision within twenty-one 21 Calendar Days from the date of the submission of the claim question difficulty or dispute unless Architect requires additional time to gather information or allow the parties to provide additional information All nontechnical administrative disputes shall be determined mutually by representatives of the Owner and Developer pursuant to the time periods provided herein During the pendency of any dispute and after a determination thereof Owner Developer and Architect shall act in good faith to mitigate any potential damages including utilization of construction schedule changes and alternate means of construction 2In the event the determination ofa dispute under this Exhibit I is unacceptable to either Party hereto the Party objecting to the determination must notify the other Party in writing within ten 10 Calendar Days of receipt of the written determination The notice must state the basis ofthe objection and must be accompanied by a statement that any contract price adjustment claimed is the entire adjustment to which the objecting Party has reason to believe itis entitled to as a result of the determination Within sixty 60 Calendar Days after Final Completion of the Work the Parties shall participate in mediation to address all objections to any determinations hereunder and toattempt to prevent litigation The mediator shall be mutually agreed upon by the Parties Should any objection not be resolved in mediation the parties retain all their legal rights and remedies provided under State law A Party objecting to a determination specifically waives all of its rights provided hereunder including its rights and remedies under State law if said Party fails to comply in strict accordance with the requirements of this Exhibit I F lattol ALLILizINWS First Addendum to Dev Agreement 2nd Read -redlined 2-20-07 doc