2007-26475 Reso
RESOLUTION NO.
2007-26475
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING ON SECOND READING, IN
ACCORDANCE WITH THE REQUIREMENTS OF SECTIONS 163.3220-
163.3243, FLORIDA STATUTES, ALSO REFERRED TO AS THE
"FLORIDA LOCAL GOVERNMENT DEVELOPMENT ACT", A FIRST
ADDENDUM ("ADDENDUM") TO THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND THE NEW WORLD
SYMPHONY ("NWS"), DATED JANUARY 5, 2004, WHICH AGREEMENT
PROVIDES FOR DEVELOPMENT OF THAT CERTAIN PROJECT
(FORMERLY REFERRED TO AS "SOUNDSPACE" AND NOW
REFERRED TO AS THE "NEW WORLD SYMPHONY CAMPUS
EXPANSION PROJECT"), WHICH PROVIDES FOR THE DESIGN,
DEVELOPMENT AND CONSTRUCTION OF A NOT TO EXCEED 50,000
SQUARE FOOT EDUCATIONAL PERFORMANCE AND INTERNET
BROADCAST FACILITY AND AN EXTERIOR SCREEN, A PUBLIC
PARKING GARAGE CONTAINING BOTH PARKING AND GROUND
FLOOR RETAIL SPACE, AND CERTAIN OTHER PUBLIC STREETSCAPE
IMPROVEMENTS, INCLUDING A PARK; APPROVING SAID FIRST
ADDENDUM AND AUTHORIZING NWS TO PROCEED WITH THE
FOLLOWING PUBLIC IMPROVEMENTS, FUNDED BY THE CITY, AND TO
BE DESIGNED, DEVELOPED, AND CONSTRUCTED BY NWS (IN
ACCORDANCE WITH THE TERMS OF THE DEVELOPMENT
AGREEMENT, AS AMENDED BY THE FIRST ADDENDUM): THE
PARKING GARAGE, AT A TOTAL COST NOT TO EXCEED $15,210,135;
THE PARK ADJACENT TO THE PROPOSED NWS CAMPUS EXPANSION
(THE PARK PROJECT), AT A TOTAL COST NOT TO EXCEED
$14,960,000; AND CERTAIN OTHER ADDITIONAL PUBLIC
STREETSCAPE IMPROVEMENTS (THE ADDITIONAL IMPROVEMENTS),
AT A TOTAL COST NOT TO EXCEED $6,400,000; FURTHER
AUTHORIZING THE ADMINISTRATION TO RELEASE CERTAIN INITIAL
FUNDING TO NWS, IN THE NOT TO EXCEED AMOUNT OF $3,500,000,
TO PROCEED WITH DESIGN DEVELOPMENT OF THE GARAGE AND
THE PARK PROJECT (SAID FUNDING TO BE APPROPRIATED BY THE
MIAMI BEACH REDEVELOPMENT AGENCY FROM CITY CENTER
REDEVELOPMENT AREA FUNDS AND SUBJECT TO FINAL APPROVAL
OF THIS FIRST ADDENDUM, AND EXECUTION OF SAME BY THE CITY
AND NWS.)
WHEREAS, on January 5, 2004, the City of Miami Beach (City) and the New World
Symphony (NWS), entered into a Development and Lease Agreement, providing for design,
development and construction of a 50,000 square foot educational performance and internet
broadcast facility and exterior screen (formally known as "Soundspace" and currently referred to as
the "New World Symphony Campus Expansion Project") and a public parking garage to be located
on the westernmost portion the 1 ih Street surface parking lots, bounded by 1 ih Street to the north,
North Lincoln Lane to the south, Washington Avenue to the east and Pennsylvania Avenue to the
west; ; and
WHEREAS, on September 8, 2004, the Mayor and City Commission adopted Resolution No. 2004-
25681, approving Concept Plan #4 presented by NWS; referred the issue of the Park design to the Finance
and Citywide Projects Committee; recommended to maximize the number of parking spaces in the
City's parking structure; and requested the Design Review Board to conduct a preliminary design review of the
NWS Project; and
WHEREAS, pursuant to the direction of the City Commission, on September 8, 2004, and consistent
with the Planning Board's August 24, 2004 recommendation that the entire two (2) blocks, including the Park,
be designed as an integrated site, NWS's Architectural Consultant, Gehry Partners LLP, was asked to submit
a proposal and cost estimate to undertake design services for the proposed Park; and
WHEREAS, on October 26,2004, the Finance and Citywide Projects Committee, upon reviewing
NWS's proposal, recommended in favor of expanding NWS's scope of responsibilities to include the design
and development of the Park; Drexel Avenue, between North Lincoln Lane and 1 ih Street and improvements
adjacent to the new Garage, at the City's cost and expense, but not to exceed $10,000,000; an area
comprising the Theater of the Performing Arts entry landscaping, at the City's cost and expense, but not to
exceed $1,150,000; and an area comprising North Lincoln Lane improvements, at the City's cost and
expense, but not to exceed $500,000; and
WHEREAS, on December 8, 2004, the Mayor and Commission held a duly noticed public hearing to
consider, on first reading, a First Addendum to the Development Agreement, relative to the City and NWS's
respective responsibilities regarding the design and construction of the Park; and
WHEREAS, the Mayor and City Commission expressed concerns about proceeding with the Park
Project, and the corresponding expenditure of funds for design services, without ensuring NWS's commitment
to proceed with its Project; and
WHEREAS, the proposed First Addendum was subsequently withdrawn, until such time as the City
Commission's concerns could be addressed; and
WHEREAS, on January 9, 2006, in accordance with the timelines specified in the Development
Agreement, NWS submitted preliminary plans and specifications for the Project (the NWS Campus Expansion
building and the Garage), for review and comment by the Administration; and
WHEREAS, since the plans did not substantially deviate from the Concept Plan that was approved
by the City Commission on September 8, 2004, the City Manager authorized NWS to proceed with design
development, subject to comments and concerns submitted by the City's Planning and Zoning Department,
and other departments which reviewed the plans; and
WHEREAS, since that time, NWS and the City have been working together to define the processes
and refine the scope for implementing NWS's plans, as well as the City's overall vision for developing the Park
and the public areas surrounding the entire development site; and
WHEREAS, this process involved redefining the zones that were initially presented at the October 26,
2004 Finance and Citywide Projects Committee meeting, to better address the phasing and inter-relation of
the various components (i.e., the NWS Expansion building, the Garage, the Park, and the Lincoln Lane and
Pennsylvania Avenue improvements); defining the City's and NWS's respective scope and responsibilities
relative to surrounding infrastructure and streetscape improvements; re-valuing the "build-to" cost estimates
for the Garage, the Park Project, and related infrastructure components; determining the not-to-exceed cost
estimate to develop schematics and the Basis of Design Report (BOOR) for the Park Project; and establishing
terms and conditions relative to the development of the Park Project; and
WHEREAS, on November 30, 2006, a revised First Addendum to the Development Agreement was
presented to the Finance and Citywide Projects Committee for its consideration and approval, in addition to a
request by NWS for a "Grant-in-Aid", in the amount of $15 Million, for operational and non-capital costs
anticipated by NWS as necessary in order to sustain the viability of its Project, and
WHEREAS, the Committee expressed concern with approving a higher budget for the Garage than
the City's maximum, per-space, cost that was originally committed to in the Development Agreement ($12,250
per space for hard costs and 12.5% of the hard cost per space for soft costs), which also includes a provision
for a CPI adjustment to address cost escalations at the time the building permit is issued; and
WHEREAS, the Committee also expressed concern with approving the $15 Million Grant-in-Aid
request, without the benefit of further review by the City Commission as a whole, and input from the public;
and
WHEREAS, with respect to the Garage, the Committee recommended that, pending further evaluation
of the additional cost requested, NWS should abide by the numbers in the Development Agreement, as noted
above, and proceed with the design of the Garage accordingly; and
WHEREAS, the Committee accepted the City Manager's recommendation to re-visit the requested
increased Garage cost at a later date, but to allow NWS to proceed with the Park Project, at a total not to
exceed the cost of $13,810,000, and certain streetscape and other improvements (referred to in the First
Addendum as the Additional Improvements), at a total not to exceed cost of $6,400,000; and
WHEREAS, the Committee recommended adding TOPA's entry way landscaping back into the scope
for the Park Project, at an estimated additional cost of $1,150,000; and
WHEREAS, the Committee recommended that, as an option, or in lieu of, the City requiring NWS to
reimburse the City for its soft costs in the event that NWS Campus Expansion Project failed to proceed, NWS
should secure a full right-of-assignment from Gehry Partners, LLP and the Project's General Contractor, which
would allow the City, at its option, to assume the agreements and proceed with completion of the Park and
Garage portions of the Project; and
WHEREAS, the First Addendum was approved following a duly noticed public hearing on December
6,2006, subject to finalization of the concerns expressed at the Finance and Citywide Projects Committee and
by the City Commission, as well as such other terms as the Parties deemed appropriate, and Second and
Final Reading was scheduled for February 14, 2007, and
WHEREAS, following First Reading, pursuant to the ongoing negotiations between the City and NWS
to finalize the First Addendum, NWS informed the City that, instead of securing a full-right-of-assignment from
Gehry Partners, LLP and its General Contractor, it would reimburse the City for its soft costs, in the event the
NWS Campus Expansion Project failed to proceed (the Guaranty); and
WHEREAS, NWS would be exempt from fulfilling such Guaranty if the City Commission acting in its
proprietary capacity, imposed requirements which made the Project infeasible, or if the City did not commit to
the $15 Million Grant-in-Aid; and
WHEREAS, additionally, pursuant to the City's Commission's directive on the First Reading of the
First Addendum, a City Commission Workshop was duly noticed and held on February 12, 2007; in particular,
the issues to be addressed at said Workshop included, without limitation, further discussion regarding:
1 . The proposed request to increase the City's contribution for the Garage, to
a not to exceed cost of $15,210,135.00;
2. the Guaranty provisions; and
3. alternative solutions to NWS's regarding parking (175 spaces) pursuant to
the City's Zoning Ordinance; and
4. the Grant in-Aid; and
WHEAREAS, following approval of the First Addendum on First Reading, and the City Commission
Workshop on February 12, 2007, representatives of the City and NWS have continued to meet to refine and
finalize the terms of the First Addendum, in preparation for Second and Final Reading on February 20,2007,
and;
WHEAREAS, accordingly, the City Administration hereby recommends that the City Commission
approve, following a duly noticed public hearing on February 20,2007, the attached draft First Addendum to
the Development Agreement, subject to any and all comments, additions, and/or revisions, as may be
requested by the City Commission following said meeting, and subject further to such additional non-material
comments, additions, and/or revisions as may be deemed necessary in the reasonable discretion of the City
Administration and the City Attorneys Office.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, on first reading, in
accordance with the requirements of Sections 163.3220 - 163.3243, Florida Statutes, also referred to as the
"Florida Local Government Development Act," a First Addendum to the Development Agreement between
the City of Miami Beach and the New World Symphony (NWS), dated January 5, 2004, which Agreement
provided for development of that certain Project, now referred to as the "New World Symphony Campus
Expansion Project", which Project provides for the design, development, and construction of a not to exceed
50,000 square foot educational performance and internet broadcast facility and an exterior screen (formerly
known as "Soundspace"), a public parking garage containing both parking and ground floor retail space, and
certain other public streetscape improvements, including a Park, as same shall be agreed upon between the
City and NWS; approving said First Addendum and authorizing NWS to proceed with the following public
improvements, to be funded by the City, and designed, developed, and constructed by NWS (in accordance
with the Development Agreement and by the First Addendum): the Parking Garage adjacent to the proposed
NWS Campus, at a total cost not to exceed $15,210,135; the Park adjacent to the proposed NWS Campus
Expansion (the Park Project), at a total cost not to exceed $13,810,000; and certain other additional public
streetscape improvements (the Additional Improvements), at a total cost not to exceed $6,400,000; further
authorizing the Administration to release certain initial funding to NWS, in the not to exceed amount of
$3,500,000, to proceed with design development of the Garage and Par portions of the Project (said funding
to be appropriated by the Miami Beach Redevelopment Agency fr Ci Center Redevelopment Area funds
and subject to further final approval of this First Addendum, an xe tion of same by the City and NWS,
upon approval of the Addendum.
PASSED and ADOPTED this 20th day of February, 2 07.
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ROBERT PARCHER, CITY CLERK
F:\atto\AGUR\RESOS-ORD\NWS - Amendment to First Addendum Reso - Second Reading.doc
APPROVED AS TO
FORM & LANGUAGE
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CUMMI~~IUN II tM ~UMMAI<Y
Condensed Title:
A resolution following a duly noticed public hearing approving on Second and Final reading a First Addendum to the
Development Agreement between the City and the New World Symphony (NWS), increasing the amount of the City's funding
for the design, development and construction of the parking garage at a total cost notto exceed $15,210,135; requiring the
NWS to proceed with the design and development of certain additional improvements to be funded by the City, generally
located within two (2) geographical areas or "zones" defined herein as Zone 1 - the "Parking Garage Zone," and Zone 2 - the
"Symphony Campus Zone," at a total cost not to exceed $6,400,000; and, requiring the NWS to proceed with the design of
the Park Proiect (Zone 3 - the "Park Project Zone"), at a total cost not to exceed $14,960,000.
Key Intended Outcome Supported:
Increase community rating of cultural activities and ensure well maintained facilities.
Issue:
Shall the City Commission approve the proposed First Addendum to the Development Agreement between the City of Miami
Beach and the NWS for the Park Pro"ect, followin the Second and Final Public Hearin ?
Item Summary/Recommendation:
Subsequent to the November 30, 2007, meeting of the Finance Committee, a duly noticed public hearing was held on
December 6, 2006 to consider the proposed First Addendum on First reading. Following a comprehensive discussion of
same by the Mayor and City Commission, the City Commission substantially concurred with the recommendations of the
Finance Committee, and recommended approval of the proposed Addendum, authorizing the NWS to proceed with the
design of the Park, adjacent to the proposed NWS Campus Expansion (the Park Project), at a total cost not to exceed
$13,810,000; and certain other additional public streetscape improvements (the Additional Improvements), at a total cost not to
exceed $6,400,000; authorizing NWS to add TaPA's entry way landscaping back into the scope for the Park, at a cost to be
determined in time for the second and final reading; and, authorizing the Administration to release certain funding to NWS, in a
notto exceed amount of $1 Million, to proceed with design development ofthe Garage portion ofthe Project (based upon the
original "Garage Costs", defined in the Development Agreement). On February 20th, subject to the request of the City
Commission, a special Commission Workshop was held to consider 1) NWS' requested increase in the Garage Costs, to a
notto exceed amount of $15,21 0,185; 2) the additional costs associated with the TaPA entry-way landscaping; 3) guarantee
provisions for the repayment of soft costs, in the event NWS does not proceed with its Project and, 4) a Grant-in-Aid request
from the NWS, in the amount of $15 Million towards its share of improvements. The parties' final agreement on these
outstanding issues has been incorporated in the Proposed First Addendum for Second and Final reading. The Administration
recommends approval of the proposed Addendum in order to allow for the design- development to proceed on the Parking
GaraQe, the Park and the Additional Improvements.
Board Recommendation:
ide Pro'ects Committee, Nov 30,2006: Recommendation to C' Commission for A roval
Financial Information:
Source of Amount Account Approved
Funds: 1 $15,210,135
I~ity Center I 2 $21,360,000
TIF 3
OBPI Total $36,570,135
Financial Impact Summary: $35,210,135 funding programmed as part of Citywide Capital Plan adopted on Sept
21,2006
City Clerk's Office Le islative Tracking:
Kent O. Bonde, Redevelopment Coordinator
Assistant City Manager
City Manager
tD
..."
MIAMI BEACH
AGENDA ITEM
DATE
R7A
;).-a.o-o 7
lD
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
TO:
FROM:
DATE:
SUBJECT:
COMMISSION MEMORANDUM
Mayor David Dermer and Members of the City Commission
Jorge M. Gonzalez, City Manager) or- '- /
{5 SECOND READING
February 20, 2007 PUBLIC HEARING
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING ON SECOND AND FINAL
READING, IN ACCORDANCE WITH THE REQUIREMENTS OF SECTIONS
163.3220 -163.3243, FLORIDA STATUTES, ALSO REFERRED TO AS THE
"FLORIDA LOCAL GOVERNMENT DEVELOPMENT ACT", A FIRST
ADDENDUM ("ADDENDUM") TO THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND THE NEW WORLD
SYMPHONY ("NWS"), DATED JANUARY 5, 2004, WHICH AGREEMENT
PROVIDED FOR DEVELOPMENT OF THAT CERTAIN PROJECT
(FORMERLY REFERRED TO AS "SOUNDSPACE" AND NOW REFERRED
TO AS THE "NEW WORLD SYMPHONY CAMPUS EXPANSION
PROJECT"), WHICH PROVIDES FOR THE DESIGN, DEVELOPMENT AND
CONSTRUCTION OF A NOT TO EXCEED 50,000 SQUARE FOOT
EDUCATIONAL PERFORMANCE AND INTERNET BROADCAST FACILITY
AND AN EXTERIOR SCREEN, A PUBLIC PARKING GARAGE CONTAINING
BOTH PARKING AND GROUND FLOOR RETAIL SPACE, AND CERTAIN
OTHER PUBLIC STREETSCAPE IMPROVEMENTS, INCLUDING A PARK;
APPROVING SAID FIRST ADDENDUM AND AUTHORIZING NWS TO
PROCEED WITH THE FOLLOWING PUBLIC IMPROVEMENTS, FUNDED
BY THE CITY, AND TO BE DESIGNED, DEVELOPED, AND CONSTRUCTED
BY NWS (IN ACCORDANCE WITH THE TERMS OF THE DEVELOPMENT
AGREEMENT, AS AMENDED BY THE FIRST ADDENDUM): THE PARKING
GARAGE, AT A TOTAL COST NOT TO EXCEED $15,210,135; THE PARK
ADJACENT TO THE PROPOSED NWS CAMPUS EXPANSION (THE PARK
PROJECT), AT A TOTAL COST NOT TO EXCEED $14,960,000; AND
CERTAIN OTHER ADDITIONAL PUBLIC STREETSCAPE IMPROVEMENTS
(THE ADDITIONAL IMPROVEMENTS), AT A TOTAL COST NOT TO
EXCEED $6,400,000; FURTHER AUTHORIZING THE ADMINISTRATION TO
RELEASE CERTAIN INITIAL FUNDING TO NWS, IN THE NOT TO EXCEED
AMOUNT OF $3,500,000, TO PROCEED WITH DESIGN DEVELOPMENT
OF THE GARAGE AND THE PARK PORTIONS OF THE PROJECT, (SAID
FUNDING TO BE APPROPRIATED BY THE MIAMI BEACH
REDEVELOPMENT AGENCY FROM CITY CENTER REDEVELOPMENT
AREA FUNDS AND SUBJECT TO FURTHER FINAL APPROVAL OF THIS
FIRST ADDENDUM, AND EXECUTION OF SAME BY THE CITY AND NWS.
UPON APPROVAL OF THE ADDENDUM.
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 20f9
ADMINISTRATION RECOMMENDATION:
The Administration recommends adopting the proposed First Addendum upon second
and final reading.
ANAL YSIS
The New World Symphony (NWS) and the City have been working together to define the
processes and refine the scope for implementing NWS' plans pertaining to its Campus
Expansion Project (formerly known as "Soundspace Project"), as well as the City's
overall vision for developing the Park and the areas surrounding the entire development
site, comprising the 1 ih Street surface lots. This process has involved "redefining" the
zones that were initially presented at the October 26, 2004 Finance Committee meeting,
to better address the phasing and inter-relation of the various components, (Le., the
Garage, The Campus Expansion ,the Park, Lincoln Lane and Pennsylvania Avenue;
defining the City's and NWS' respective scope and responsibilities relative to
surrounding infrastructure and streetscape improvements; re-valuing the "build-to" cost
estimates for the Garage, the Park Project and related infrastructure components;
determining the not-to-exceed cost estimate to develop schematics and the BODR for
the Park Project; and establishing terms and conditions relative to the development of
the Park Project). In order to memorialize the results of these discussions, the City and
NWS drafted a revised First Addendum to the Development Agreement, which generally
provides for the following proposed amendments to the Development Agreement:
Zone Designations
As indicated previously, during the initial discussion at the Finance and Citywide Projects
Committee on October 26, 2004, the zone designations were used to define certain add
alternate components involving the Park and surrounding street and landscaping
improvements, including the entry way to JGT, which on account of a separate proposal
process for permanent use of JGT, was removed from the scope of this Project.
However, in consideration of Cirque Du Soleil's recent withdrawal of its proposal for
TaPA, the Finance and Citywide Projects Committee, at its meeting on November 30,
2006, concurred that the entry way landscaping be added back into the scope for the
Park.
The new proposed Zones correlate the three primary Project components (Parking
Garage, the Symphony Campus Expansion and the Park), with their respective
contiguous street and/or landscape improvements that would need to be permitted and
phased concurrently. The two additional Zones, identified as Zone 4 - Lincoln Lane,
and Zone 5 - Pennsylvania Avenue, are currently planned to be undertaken by the City
as part of the City Center Right-of-Way Improvement Project, and are not within NWS'
scope of work. The three (3) Zones within NWS' proposed scope of work and their
respective sub-zones are summarized as follows and are illustrated in the attached Zone
diagram, included as Exhibit 2 to this memorandum:
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 30f9
Proposed Zones
Zone 1
Parkina Garaae Zone
Zone 1.1
Zone 1.2*
Parking Garage
Garage landscaping along Lincoln Lane and
Pennsylvania Ave
17th Street and Lincoln Lane streetscape
and landscaping improvements contiguous with Zone 1.1
Zone 1.3*
Zone 2
Symphony Campus Zone
Zone 2.1
Symphony Campus (also referred to as the Developer's
Improvements)
Drexel Ave Reali~nment
17 h Street and Lincoln Lane streetscape
and landscaping
improvements contiguous with Zone 2.1
Zone 2.2*
Zone 2.3*
Zone 3
Park Proiect Zone
Zone 3.1
Zone 3.2
Zone 3.3
City Center Park
Washington Ave Streetscape Improvements
1 ih Street and Lincoln Lane streetscape and landscaping
improvements contiguous with Zone 3.1
*Zones 1.2, 1.3, 2.2, and 2.3 are defined as "Additional Improvements," and no
part of Zone 3 is included in this definition.
Funding Considerations
One of the main objectives of the proposed First Addendum is to clearly define NWS'
scope of responsibilities relative to surrounding/abutting infrastructure and streetscape
improvements that will implement the City's overall vision for developing the Park Project
and the surrounding area, and that need to be addressed as part of the regulatory
review and permitting process pursuant to the existing Development Agreement.
Pursuant to the Citywide Capital Plan that was adopted on September 21, 2006, the
City's anticipated share of costs associated with the respective Zone improvements,
(originally budgeted at $35,210,135), is to be funded from City Center Redevelopment
Area funds. These improvements are describe as follows:
Zone 1.1 - Parking Garage
Pursuant to the existing Development Agreement, the City was to fund an amount not to
exceed $12,250 per parking space for all hard costs ($3.9 Million based on 320 spaces
and $7.5 million based on 608 spaces) plus 12.5% of the hard cost per space for soft
costs. While there is also a provision for a CPI adjustment (not to exceed 5%) at the time
the Building Permit is issued, it should be noted that these numbers were based on
comparable garage facilities that were built pre-2004. Pursuant to the City
Commission's mandate noted above, the Garage is planned to maximize the number of
parking spaces and to also contain certain space on the ground floor for retail uses,
which makes the currently estimated parking spaces number 608.
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 4 of 9
However, since the Development Agreement was executed, the area has seen
considerable escalation in the cost of construction and construction materials. These
cost increases, combined with the anticipated doubling in size of the Garage's original
number of spaces, together result in a significant increase in the overall cost. The
current cost of the Garage is estimated at $15,210,000. Based on the current required
City contribution (with contractually allowed escalation) of $13,505 per space or
$8,211,040, NWS would need to payout of their funds the remaining difference of
approximately $7 million plus any cost overruns. NWS has advised the City that they do
not have the financial resources to meet this requirement and that if the City does not
alter this requirement, then the entire project cannot proceed. Since the Garage has
always been intended to be a City responsibility and will also be wholly owned and
operated by the City, the City Administration recommends that the City assume the
whole cost of the Garage, currently estimated at $15,210,000 (approximately $25,016
per space) for the design, development and construction of the Garage (which amount is
reflected in the Capital Plan that was adopted by the City Commission on September 21,
2006). If this recommendation is accepted, the City would also be responsible for any
and all cost overruns associated with the Garage.
It should also be noted that the Development Agreement currently provides for the City
to pay NWS the Garage Costs in sixteen (16) equal monthly installments, beginning on
the first day of the second month following commencement of construction on the
Garage. The basis for this provision is to afford protection to the City in the event
construction of the Garage does not occur. This position is also consistent with the
City's standard public/private development agreements wherein the City does not put
funds at risk until construction begins.
However, NWS has pointed out that the original payment schedule does not accurately
reflect the timing of required expenditures, and is requesting that in the event of approval
of the First Addendum, at that time, the City would reimburse the NWS, in a lump sum,
payment all of the costs, fees and expenses related to Zone 1 (that amount currently is
approximately $41,000) incurred through and including the execution date of the
Addendum and that, going forward, beginning with the execution date, NWS would be
reimbursed monthly for hard and soft costs on a percentage of completion basis.
In considering this request, and as noted above, the City traditionally does not put its
funds at risk until construction has commenced. This request would put these funds at
risk if for some reason NWS makes the decision not to proceed with the project. In
exchange for this preliminary outlay of funds, NWS is willing to make the City whole in
the event that the Symphony Campus Project does not proceed, by reimbursing the City
for its share of the costs incurred through commencement of construction of the Garage.
NWS has two qualifications of this guarantee of reimbursement by exempting its
obligation to reimburse the City under the following circumstances: 1) if the City
Commission imposes requirements that make the Project infeasible; and/or 2) if the City
does not commit to a $15 Million grant-in-aid. Although a right of assignment was
requested by the City in lieu of the guarantee of reimbursement, NWS has reported that
Gehry Partners will not provide this right of assignment prior to construction
commencement. This represents considerable movement on the part of NWS since the
December 6, 2007 Commission Meeting.
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 50'9
Finally, NWS has agreed that, with the exception of funding required to commence
design development, the RDA's contribution for the Garage will be drawn no earlier than
October 1, 2008.
Additional Improvements: Zones 1.2 - Garage Landscaping along Lincoln Lane
and Pennsylvania Avenue; Zone 1.3 .. 17th Street Streetscape contiguous with
Zone 1.1; Zone 2.2 - Drexel Avenue Realignment; and Zone 2.3 - 17th Street
Streetscape contiguous with Zone 2.1
Following the directive to create an integrated Project site, the City, as described below,
has budgeted $20,210,000 towards the Park Project ("Park Project Budget"), which as in
the case of the Garage, is consistent with the Capital Plan that was adopted by the City
Commission on September 21, 2006. Included within the Park Project Budget is funding
for the Additional Improvements to be designed, developed and constructed concurrently
with the Symphony Campus and the Garage. The City estimates, and is budgeting an
amount not to exceed $6,400,000 for completion of the Additional Improvements; (this
cost is included in the not-to-exceed Park Project Budget of $20,210,000, although this
$6.4 Million will be needed as of October 1, 2007). In the event the actual cost of the
Additional Improvements is less than the budgeted amount, the excess of such funds
shall be available to be used for the design, development and construction of the Park
itself (Zone 3).
Zone 3.1 . City Center Park
Based on comparable park projects throughout the City and taking into consideration the
additional scope of work involving the abutting streetscape improvements along
Washington Avenue (Zone 3.2) and along 17th Street, contiguous with Zone 3.1 (Zone
3.3), the City, as part of its adopted Capital Plan, has established a not-to-exceed Park
Project Budget in the amount of $20,210,000 for the Park Project (which amount
includes the Additional Improvements in Zones 1 and 2 as noted above). Using this
build-to number as a basis, included within the Park Project Budget is a not-to-exceed
cost estimate to develop schematics and the BODR for the Park Project (which includes
all components within Zone 3) in the amount of $1,110,000. This $1,110,000 includes
approximately $29,600 to reimburse the NWS for costs, fees and expenses that NWS
has already incurred in connection with Zone 3.
At the December 6,2006 City Commission Meeting, the City Commission determined to
add JGT's entry way landscaping back into the scope for the Park, at an estimated
additional cost of $1,150,000. This decision increased the cost for the Park from
$20,210,000 to $21,360,000. Based on funding commitments for the City Center RDA,
NWS and the City have agreed that with the exception of the funding required to achieve
the BODR, funding for construction of the Park will be available no earlier than October
1,2009.
As shall be memorialized in the proposed First Addendum, the process for review and
approval of the Park Project Design will generally provide for two (2) Community Design
Workshops, and for appropriate review and approval milestones (of the concept plan
and plans and specifications, respectively) for the City Manager and the City
Commission. The NWS, upon approval of the BODR by the City Commission, shall
have the opportunity to price labor and materials and establish a final GMP, within range
of the numbers presented in the BODR. If the final construction numbers exceed the
range established in the BOOR, the City will have the following options to bring the
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 60f9
Project within budget: fund the higher amount; and/or, value engineer the Project;
and/or, delete scope to bring the Project within budget. The City is also responsible for
any cost overruns for the Park and Additional Improvements.
With respect to the design costs for the Park itself, the NWS has also agreed that, in the
event it elects not to proceed with Symphony Campus Project, it will reimburse the City
for its share of costs associated with providing schematics and a BODR for the Park,
which is estimated at $1.1 million. However, as in the case of the Garage, NWS
qualifies this guarantee of reimbursement by exempting its obligation to reimburse the
City under the following circumstances: 1) if City Commission imposed requirements
make the Project infeasible; and/or 2) if the City does not commit to a $15 Million grant-
in-aid. Although a right of assignment was requested by the City in lieu of the guarantee
of reimbursement, NWS has reported that Gehry Partners will not provide this right of
assignment prior to construction commencement.
It should also be noted that Section 2.11 of the Development Agreement provides NWS
with the right to terminate the Development Agreement and the Ground Lease prior to
the Possession Date, in the event of any conditions that would render the Project
economically unfeasible, including, but not limited to regulatory agency requested design
changes, concurrency requirements and/or environmental remediation costs without
liability or further obligation. As noted above, in the event of such termination by NWS,
the proposed First Addendum revises this section of the Development Agreement to
provide for reimbursement to the City of all design costs incurred in connection with the
Park and the Garage.
Funding Request Summary
Zone Descri tion
Zone 1.1 Parking
Garage
Total Cost
$15,210,135 (Est 608
spaces @ $25,016/space +
soft costs)
Zones 1.2, 1.3, 2.2, 2.3 -
Addt'l Improvements
Zones 3.1, 3.3 - Park
Park Improvements,
including JGT entry-way
landscaping
Total $36,570,135 $3,500,000 $33,070,135
Note: The Citywide Capital Plan adopted in September 21, 2006, programmed a total of$35,210,135
for the City's share of NWS-related improvements. It did not reflect the re-introduction of the Jackie
Gleason Theater (JGT) entry-way improvements, which was initially estimated at $1,150,000.
$ 6,400,000
$14,960,000
$ 6,400,000
(by Oct 1,2007)
$13,850,000
(by Oct 1,2009)
Grant-in-Aid
Initially, the NWS requested a $30 Million Grant-in-Aid for the Soundspace Project.
However, in subsequent discussions, the NWS has since revised its request to $15
Million. NWS has indicated that this grant is critical to the Project proceeding at this
time, and as noted earlier, is unwilling to guarantee return of any City soft costs in the
event the Project fails, unless this grant is funded.
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 7 of 9
It should be noted that between actual expenditures to date (including land value,
studies and appraisals) and future commitments (direct and indirect capital
appropriations), the City already anticipates contributing more than $70 Million towards
and in support of the NWS Project, estimated as follows:
Est. Land Value - NWS footprint, including planned
service alley and green space (73,200 sqft @ $200/sqft)
Zyscovich Study, land appraisal and related analyses (incurred cost)
Est. 644-space Garage component (budgeted cost as amended)
Est. Park and Additional Improvements (budgeted cost as amended)
Multi-Purpose Municipal Parking Garage, excluding office space
(appropriated)
Total Est. City Contributions:
$ 14,640,000
280,757
15,210,135
20,210,000
20.573.000
$ 70,913,892
During the December 6, 2006 City Commission Meeting, sentiment was expressed by
the Commission for the City Manager to continue negotiations regarding how and when
this $15 million Grant-in-Aid would be made available to NWS. NWS has continually
represented that the funds needed to be available prior to the end of the project and
regardless of the form of the grant, the effective yield of the funds needed to be $15
million (in effect, if City funded this amount over a period of years, then the total amount
would need to exceed $15 million in order to make up for the cost of funds incurred by
NWS to borrow money to build the project).
Over the past two months, the City Manager and NWS have come to the following
tentative agreement with regard to the $15 million Grant-in-Aid. This is offered for the
City Commission's consideration:
· City will provide $15 million in supplemental funding for the Soundspace project
as it is needed.
. NWS must expend $135 million towards the project before the City will release
any funds. Qualifying expenditures include AlE fees, Hines fees, permits, related
engineering tests and borings, construction costs.
. NWS must demonstrate to the City that the project is fully funded and in balance
before the City will release any funds, Le., if the project cost exceeds $150
million, then NWS will need to show the source of the funding above the $150
million.
· Funds for the Grant-in-Aid will be available no earlier than October 1, 2009 and
will be provided on an "as-needed" basis.
. City and NWS will split 50/50 any unspent funds, if any.
. NWS will provide the City with a 180 day advance notice to City of NWS intent to
draw on the Grant. NWS will follow-up with a second 60 day advance notice so
that City intemal processes may begin.
· City contribution is subject to availability of funds in accordance with Florida
Statutes and considers the potential effect of pending bills in the State
Legislature.
· NWS has agreed to provide the City an Option to purchase the Lincoln Theater
at a price to be determined through a comparison of the City appraisal, a NWS
appraisal, and a negotiation. This option will be valid through December 31,
2007.
· Public Benefits for this Grant-in-Aid will follow, but have yet to be fully defined.
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 80'9
NWS Required Parking
A final outstanding issue for the project concerns the City Code required parking for the
Campus Expansion project. Currently, the NWS' required parking is satisfied by the
future development of the 420 Lincoln Road Project. The Commission expressed
concern regarding whether or not there was a contingency provision to address NWS'
parking requirement, in the event the 420 Lincoln Road Project failed to proceed. Since
the Covenant-in-Lieu-of-Unity-of-Title does not address this condition, in the event that
the 420 Lincoln Road Project were not to proceed, the NWS would still have to comply
with its parking requirement under the Zoning Code (175 spaces) and it is anticipated
that 1) NWS would either request that the City Commission approve an Ordinance
request for a Waiver of Development Regulations from the City, or 2) NWS would be
required to purchase, lease, or provide some similar interest for 175 spaces in the
Garage. It should be noted that a purchase of spaces in the Garage or a lease of spaces
for more than ten (10) years, would trigger the provisions of the City Charter and be
subject to approval in a Citywide referendum. If this issue is not resolved by the time the
Project is constructed, then the Project will not receive legal occupancy.
During the discussions between the City and NWS, NWS has indicated that it would
prefer to resolve this issue prior to their Commencement of Construction. Guidance
from the City Commission is being sought as to whether there is any preference by the
Commission as to how this requirement should be addressed.
Special Commission Workshop
On February 12, 2007, a Commission Workshop was held, specifically to address the
increased costs associated with the Garage, to a not to exceed cost of $15,210,135;
the Guaranty provisions in the event of termination by NWS; the proposed terms and
timeline for the Grant-in-Aid; and alternative solutions to NWS' parking requirements.
The Commission was generally receptive to the increased costs associated with the
Garage, as well NWS' election to provide a qualified reimbursement guarantee in the
event of termination, instead of a right-of-assignment (which was previously requested
by the City). With respect to the exemption conditions, Commissioner Gross wanted to
ensure that the exemption due to City Commission-imposed proprietary requirements,
excluded required regulatory and/or permitting requirements necessary in order to obtain
a building permit.
While the Commission was generally supportive of the Grant-in-Aid, there was concem
regarding the County's ability to fund its commitment to the NWS, in the amount of $30
Million since NWS represented that, at this time, no official action has been taken by the
Board of County Commissioners or the County's Administration. It was recommended
that NWS obtain the necessary assurance of the County's pledge, as a condition to
drawing down on the City's Grant-in-Aid. Commissioner Gross further suggested waiving
the condition to split any unspent funding between the City and NWS, if the City didn't
have to front the Grant-in-Aid funds.
With regard to the discussion pertaining to alternative solutions to NWS' parking
requirements, it was determined that the easiest solution would be for the NWS to seek
a Waiver of Development Regulation, which, as noted above, would require approval
City Commission Memorandum
February 20, 2007
New World Symphony - Proposed First Addendum to Development Agreement
Page 90f9
and adoption of an Ordinance. As also set forth above, the other option, involving the
lease or purchase of spaces in the Garage, would trigger a referendum requirement for
sale and/or lease, if such sale or lease extends beyond a ten (10)-year term. Either
option would likely trigger negative reaction from surrounding businesses due to the
resulting loss of parking spaces, as well as negatively impact the 420 Lincoln Road
Project's F.A.R. The City Manager advised that since this issue could not be resolved in
time for the Second and Final reading of the First Addendum on February, 20th, to re-
address it at the point and time that the 420 Lincoln Road Project's schedule was
known, (which is anticipated within the next five or six months).
Commissioner Steinberg had two concerns relating to the Development and Lease
Agreement. The first concerned the NWS' capacity to mortgage its leasehold interest. To
the extent that the NWS' improvements revert to the City upon termination of the Lease,
Commissioner Steinberg was concerned with how to address any encumbrances that
may exist at the time of termination. The other issue pertained to the quality of the
exterior screen and its ability to be programmed for day and night time viewing. The City
Manager advised that there is a specific provision in the Development Agreement to
negotiate a programming and use agreement for the screen, prior to issuance of the
building permit for the Campus Expansion Proejct. Michael Tilson Thomas assured the
Commission that the NWS and its design team have put significant thought into the
design of the screen.
Conclusion
In order to allow the Garage, the Park and the Additional Improvements to proceed, the
Administration recommends adopting the proposed First Addendum to the Development
Agreement upon Second and Final reading.
JMGTH/K~
Attachment
T:\AGENDA\2007\Feb 14\Regular\NWS Amendment memo (2) Feb 20.doc
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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 Agreell1tmt
January 5,2004, pursuant to which Owner leased to Dev~!t:lper:certain
Exhibit "A" attached hereto and made a part hereof (the"Laiid~').
("Lease") dated as of
described in
B. Concurrently therewith, Owner andI.t>eveloperalso entered int6<:ll)evelopment
Agreement ("Development Agreement") dated as ofJa~J,l;;lry ?,"~OQ4, setting forth; among other
things, the Owner's and Developer's respective responsi5j!jtjes and agreement to coordinate and
cooperate in the planning, scheduling and approval of the d~~~lopment, design and construction
of an automobile parking garage (the to be locatedoij.1and adjacent to the Land, and a
performance, educational and internet together with certain related amenities,
facilities and other infrastructure ("Developer's Improvements"), as
set forth in the Development Agreement.
C. The De:y~lop1i'i~i'1:~.Agreement provided that Owner would develop certain
unspecified "Infrastrtl~ti.tre Improvements" as a Condition of Developer's obligation to construct
the Developer's ImprO:~~1'!1ents, .~~d that speci~g Infrastructure Improvements would be
identified in the future, sii1:)j~S!tQ.!~~@:'rXl'l~r obt,<:lining the City Commission's approval. The
Infrastructur~!r!!P~()::Y~lIlentsha~~nowbeeIiig~iltified, subject to the required approvals.
-'..N-~"__.C
1); The Develg~1'!1ent A~~~~~J:1t also contemplated that Owner might develop a park
("Park:'~)Qr another simili3l",.public3,.lIlenity on real property defined in the Development
AgreemeIitasJhe "Adjacentl?roperty" and re-defined herein as the "Park Project Zone." A Park
has been for the Pa.rk Project Zone for some time, and is a part of the City's District
Master Plan.
E. Followi!,!g.the execution of the Lease and Development Agreement, the Parties
have worked togethe~to define the processes and refine the scope for implementing the
Developer's plans forthe Developer's Improvements on the Land and the City's overall vision
for enhancing the development of the Park and the areas surrounding the Park and the Land, for
the use and enjoyment by all residents of and visitors to the City of Miami Beach and by all
visitors to the Project (as that term is re-defined herein). The Parties now wish to enter into this
First Addendum in order to memorialize their agreements regarding their respective obligations
for implementing the foregoing.
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreement {Clean 2-15-07).doc
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NOW THEREFORE, it is hereby 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.
1. Capitalized Terms: Recitals. All capitalized terms not defined herein shall have
the meanings given to them in the Development Agreement. For convenience, the original
Article 1, 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 A<!<!efHium, unless the context
indicates otherwise. The Recitals are incorporated herein by reference.
" is amended
2. Additional and Revised Definitions.
by adding or revising the following definitions:
(a) "Additional Improvements" n:leans certain improveriiijnts;. to City owned
real property planned for and included only withig~~ge 1 and Zone 2, as describ~Clin. subsection
(cc) herein (but excluding Developer's Improveil;iijnts and the Garage). Tl:1e Additional
Improvements may include streetscaping, 1andscaping,utjljtjs:~;graphics, lighting; adjustments to
curb1ines, sidewalks, hardscape, streets~~pe furniture, andt~~gesign, development, engineering
and construction of such improvements;;l,llas may be determigt;:.ci for each Zone in accordance
with the applicable approval process and apP~Q~~Clbudget. Aso:t'tl1edate hereof, the parties
acknowledge and agree that the City has bUcigetedl:itl:'!n:lount noftQexceed $6.4 million for the
Additional Improvements. Notwithstanding!he precedi!!gsegt~nce, in the event that the final
cost for design, development....'!I1d construction of the Additii:lnal Improvements is less than the
not to exceed amount o(~6.4mItli()n, then the Parties agree that such additional amount(s) shall
be applied toward ~~s,i~g, deve[i:l!l!llent and coIi~![Uction of the Park Project and, accordingly,
shall be added to the Fin~t~ark Pr2ject Budget. Th~.t\.:dditional Improvements in Zones 1 and 2,
and the improvementsp~~gn~.~~.::f2E.....~2nes 4 and 5 are, together, the "Infrastructure
Improvements;~0.'!cici~essed iIi~~~le 23oftl1C:;.E)~-velopment Agreement.
(b) "~~~pe" mc:;~s~ny proposed or approved material addition, deletion, or
Work, oran;;l,djustmeJ:l.!in the Guaranteed Maximum Price, or the Completion
tii'l1~tab1e, issued on or after the Guaranteed Maximum Price has been
"Chagge Order" means a document which is signed by Developer,
Contractor, Owner,anci:theArchitect (if required), and authorizes a Change.
(d) "Development Site" is amended to mean Zones 1 and 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 and soft construction costs, anticipated as of the date hereof, to be incurred in
connection with the design, development and construction of the Park Project. As of the date
hereof, the parties acknowledge and agree that the City has budgeted an amount not to exceed
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreement1=lean 2-15-07).doc
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$13,810,000 for Zones 3.1, 3.2 and 3.3, and an additional $1,150,000 for Zone 3.4, for a total of
$14,960,000 for the entire Park Project.
(f) "Final Completion" means the date when all Work has been fully
completed in accordance with the GMP Contract, the approved Final Plans and Specifications,
the Development Agreement and this First Addendum, and a final Certificate for Payment
approved by the Owner has been issued by the Architect; all further subject to Developer's
compliance with the provisions of Section 14(b).
(g) "Final Garage Budget" means the final bUclget, as mutually agreed to by
the Parties, and as approved by the City Commission prior to ~~;ta~~i~hment between Developer
and its Contractor of the Guaranteed Maximum Price, and rlS13resentmg the final hard and soft
construction costs approved in connection with the desigIl, de,-,:elopmeritand construction of the
Garage, as reflected in the Preliminary Garage Budget.
(h) "Final Park Project Budget'..'Ill(;jans the final budget, as mijtijallY agreed to
by the Parties, and as approved by the CitY Cominission..13Bpr to establislitnent between
Developer and its Contractor of the Guaranteed MaxiniumP.rice, arid representing the final hard
and soft construction costs approved in connection\'yith.. the desigIl, development and
construction of the Park Project. the precem~g.sentence, in the event that the
Additional Improvements are desigIled, and constructed for less than the "not to
exceed $6,400,000" amount, then any be applied by the Parties toward the
desigIl, development and construction of the accordingly, shall be added to the
Final Park Project Budget.
(i) "GMP
Maximum Price") executed
means the guaranteed maximum pnce ("Guaranteed
and the Contractor.
Q.) ...... "Garag~~~!i1eans:t1i~p':l~li(3niunicipal parking garage comprising Zone 1.1
to be desi~ed;de'V'~!gg~? and~~:l'l:~tructedbyDeveloper for Owner and funded as set forth in
Sectio~!3 hereof, and~~~~~ted o~~;.vne~ at its sole cost and expense on City-owned property
adjacenttp the Land, legal~j}'descrio~,~in Exhibit "C." It is anticipated that the Garage will
have six(Q!~!ories, includiil~pve (5) stories of covered parking plus open rooftop parking, and
ground-fl06rr~~il space alongl ih Street and Pennsylvania Avenue. Owner shall be responsible
for operation an4~manageme1itof the Garage, including the leasing and management operations
of the retail portiongfthe Gj}fage.
,-=
(k) ':(5arage DesigIl Costs" shall include but not limited to all costs, fees and
expenses associated with the preparation, desigIl, engineering, planning, work, input and analysis
by Developer and all of its agents, employees, contractors, consultants and professionals,
including but not limited to the Architectural Consultant, with respect to the overall desigIl,
management and construction administration for the Garage.
(1) "Park" means the public park facility that is proposed to be developed
within the Park Project Zone pursuant to this First Addendum.
F:\alto\AGUR\AGREEMNTlNWS (First Addendum to Dev Agreement~lean 2-15-07).doc
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(m) "Park Project" means all of the improvements to be designed, developed
and constructed within Zone 3- 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 10 and the Program described in Exhibit "D" hereof.
(0) "Park Project Costs" means all costs, fe.es~mdexpenses incurred in
connection with the design, development and construction ofthy]?i~k..Project, all of which costs,
fees and expenses are and shall be at the sole cost and expensy9f thee~.Iler.
(p) "Park Project Design" means thef1:n.al.design ofthe:g':l!"k Project approved
by the Design Review Board ("DRB"), and based uB.~iithe approved Park Proj~~~Concept Plan,
to be submitted to the City Commission pursuant t()thy provisi()Ils of Section 1 Oand.the Pro gram
described in Exhibit "D" hereof. ... ..
(q) "Park Project Design Costs" shall ihel~<ie but not limited to all costs, fees
and expenses associated with the prepar~tion, design, engin.~~!ing, planning, work, input and
analysis by Developer and all of its ageIit~;~l.'I1p10yees, consultants.alld professionals, including
but not limited to the Architectural Consu1tani,wi!hry.~pect to: (iJtllePark Project Concept Plan
and any modifications thereof including, (1) the!I!odifi~ationsto the draft Basis of Design
Report, as may be requeste<i1.JY the City, in ac.~ordancewitlltlle Program described in Exhibit
"D," and (2) the Final B.~sisof~~sign Report;(iP the "Design-to" Park Project Budget; (iii) the
Preliminary Park Proj~<?t Budget;.~iy) Owner's apJlroval process, all subject to Sections 10(t) and
(g)hereof; and (v) allcoii~tructionidministration all.dlUanagement fees.
,(!)........ "PretiiTIi~~fy~d~!tioIl~l.lp1provements Budget" means the total costs
budgeted~~ihe€it~~~!"~he Ad~i~ional Improvements, as mutually agreed to by the Parties and
as appr~Y'ed by the .€it~<;omniis~i911' which is the preliminary estimate of costs, including
estil11~t~~hard and soft con~truction~Osts ("Additional Improvements Costs"), anticipated as of
the date'h~~<:?9fto be incurre(l!!1 conn~ction with the design, development and construction of the
AdditionarIij),P!9vements. A~~fthe date hereof, the Parties acknowledge and agree that the €ity
has budgeted an~Q:l.ount not toiexceed $6,400,000 for the Additional Improvements.
(s)~~]?XeJiininary Garage Budget" means the total costs budgeted by the City
for the Garage, as muffially agreed to by the Parties and as approved by the Oty €ommission,
which is 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 and construction of the Garage. As of the date hereof, the Parties acknowledge and
agree that 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 Commission concurrently with the approval of the Park Project Concept Plan (pursuant to
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreement.!Flean 2-15-07).doc
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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 thereofto be incurred in connection with the design, development and construction of
the Park Project, including the sound system. The Parties acknowledge and agree that the
Preliminary Park Project Budget shall be established in accordance with the dollar amounts set
forth in the "Design to" Park Project Budget, in the amount of$14,960,000.
(u) "Program" means the procedure the Parties shall follow in connection with
obtaining City approval of the Park Project Design, as described on Exhibit "D," attached hereto.
(v) "Project" means the Developer'sgtlp~{):gements, the Additional
Improvements proposed to be designed and constructed inz,onesl and 2, and the Garage; in
other words, all improvements of every kind to be locatedin Zopes 1
(w) "Project Site" means Zones 1 <:1Jjd 2.
(x) "Substantial Completion" ..meai1~the dat~.\Vhen the W orkoi designated
portion thereof (which the Owner agrees to accept$~p;.\~~telyris sufficiently complete in
accordance with the applicable portions of the GMP Contmct...and the approved Final Plans and
Specifications, the Development Agreement and this First Adg~p<:lum, so the Owner can occupy
or utilize the Work for its intended use, further toD~y~loper's compliance with the
provisions of Section 14( q).
(y) "Unav()idable Delays" strikes, slowdowns, lockouts,
acts of God, inability to obfa.mla.aor or material$teasonably~ithin the originally contracted for
price range, war, en!;aiy actiOn;cjvil commotion, fire, casualty, severe weather conditions,
eminent domain, aco~.~rder wllich actually call~.(;:~ a delay (unless resulting from disputes
between or among the P~~~s all~~!ge ~n Unavoidable Delay, present or former employees,
officers, melIl~.(;:I~Lpartners{)~:c~hareholg;~~~<:lf~uch alleging Party or Affiliates, or present or
former employe~s,.Qf!!~~rs, partncers, members Or shareholders of such Affiliates of such alleging
Party),tJ:le applicatiotig~;.\ny Reg~irement, or another cause beyond such Party's control or
which.if:susceptible toaq~!~ol byC~lj911>Party, shall be beyond the reasonable control of such
Party. SucIgcgarty shall use~~~sonablegood faith efforts to notify the other Party not later than
twenty (20r~~I~ndar Days <i:tl:er such Party knows of the occurrence of an Unavoidable Delay.
Failure to provi~~timely not!ge, as set forth herein, shall not be deemed a waiver by the Party
alleging an Unavoi~~~le D(;:lay. In no event shall (i) any Party's financial condition other than
due to a material incr~~~(;:iiithe 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 is not caused by Developer) with respect to such Party, (ii) nor shall any
delay arising from a Party's default under this Development Agreement or any of the
Construction Agreements, constitute an "Unavoidable Delay" with respect 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) shall be extended to the extent
performance is delayed by Unavoidable Delay.
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(z) "Work" means the construction and services required by the applicable
portion of the GMP Contract for the Garage, the Additional Improvements, and the Park Project,
and includes all other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill 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
(including, without limitation, the proposed Additional Improvements and Infrastructure
Improvements) within each geographical area. The Zones are general!lYhllt not legally described
below and are identified on the sketch attached hereto as Exhibit "E;~~
(i) Zone 1 - Parking Garage ZOll~~whicll1l:leans the real property
owned by Owner and generally described as th~lanQ boundeQ~~ the North by 1 ih
Street, on the East by the Land, on the SoutghYLincoln Lane:il1Q on the West by
Pennsylvania Avenue.
(ii) Zone 2 - Symphony Camipus ZOl1i~:which means the real property
owned by Owner and generally described astli~J:il,"idboimded on the North by 17th
Street, on the East by the realigned Drexel A venue;()~the South by Lincoln Lane and on
the West by the Garage Property:
(iii) Zone 3 - Park:PfoJe~tZQne, whichflIeans the two parcels of real
property owned by Owner and genet~lly des9ri15i:::Q:i~ follows: (A) the land bounded on
the North by 1 ih on the Eastby!\",ashingt()~~venue, on the South by Lincoln
Lane and on the realigned E>l"exel Avenue (Zones 3.1,3.2 and 3.3); and (B) a
portion of of the City's Theater of Performing Arts ("TOP A") and
bounded on the soyth15Y 1 ih Street, on the east by Washington
Avenue and on (Zone3A).
Improvement Zone, which means the real
generally described as that portion of Lincoln Lane
A venue and on the East to W ashington Avenue.
the
- Pennsylvania Avenue Improvement Zone, which means
by Owner and generally described as that portion of
on the North by 1 ih Street and on the South by Lincoln
Lane.
3. Amendment or Replacement of Certain Sections of Development Agreement.
(a) The following section or subsections in the Development Agreement are
deleted in their entirety and replaced with the following:
(b) Section 2.9, "Confirmation of Land Development Regulations," IS
amended by deleting it in its entirety and replacing it with the following:
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"The zoning district classification of Zones 1, 2 and 3 is CCC, as defined
in the Land Development Regulations."
( c) Section 2.1 O(b), "Required Development Permits," is deleted in its entirety
and replaced with the following:
"To the 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 Developmen~.t!greement."
(d) Section 2.11, "Developer's Right of Terminiiti()n," is amended as follows:
(e) Notwithstanding anything to the contrarycontained~erein, Developer shall
have the right to be released from its liability and to teflJ:1ina-!e this Development Agreement and
the Ground Lease prior to the Possession Date becau~e(a) changes to the P'[Qj~l:(t Design and/or
Preliminary Plans and Specifications required:~ythe DRI3, or any othe~i<=!gvernmental
Authority (including the City, acting solely in it~'fs:gulatoecapacity), rend~r the Project
economically unfeasible in the reasonable business jiiaw~ntofbeveloper, or(b) the Project
cannot meet concurrency requirements under Section 163;~!~0, Florida Statutes (1997), or the
costs of concurrency mitigation and/or El1.y!ronmental Remedi~ti(m on the Project Site are, in the
reasonable business judgment of DeveloJl~r;~~Qnomically unfeasible, or (c) Developer, after
good faith efforts, has been unable to obtaina~~i!clillg Permit fQfthe Project pursuant to the
Plans and Specifications submitted by Developer, 6r~a)()~l1er and Developer cannot come to a
mutual agreement regardingtg~~arties' respe~tiy~shareso~~osts and other obligations relative
to , Environmental Relllediatiol1()f the Project Site, if required, or (e) the City Commission,
acting on behalf of C?~er solelY~!l.its proprieta~. capacity (and not in its regulatory capacity or
on behalf of any other <=!gyernme!l.!al Authority),i!J1poses requirements or restrictions upon the
Project and/or the Park Pr(:jj~~t w.lli9.ll,.il1 Developer's reasonable business judgment, impose an
undue burdel1.gl1r::>eveloper~~~refider!.ll~g!~ject economically unfeasible, or (f) the City
CommissiQl1.doesnQi~p'provetE:eGrant, assefTorth in Section 12 hereof, and the Parties do not
execut~!lGrant Agreefii~I'i!~ In theey~nt of termination of this Development Agreement and the
GrOlUlaE~ase pursuantt6Wsubsectiol1.~(a) through (d) of this Section 2.12, Developer shall
reimburseC?~ner all Garagj Costs, Additional Improvements Costs and Park Project Costs
incurred throygn the terminatic:m date and, following Owner's receipt of payment in cleared
funds of all SUfl1.~clue hereul1.Cler, each Party shall bear its own costs and expenses incurred in
connection withtl1i~J:)evelQJlh1ent Agreement and First Addendum and the Ground Lease, and
neither Party shalllia~.eafiy further liability to the other. Notwithstanding the preceding
sentence, Developer snall have no duty to reimburse Owner for Owner's share of Garage Costs,
Additional Improvements Costs, and Park Project Costs, as referenced above, in the event
Developer terminates the Development Agreement and the Ground Lease pursuant to
subsections (e) or (f) hereof. Section 6.1 "Developer's Contributions" is deleted in 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 (i) all
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improvements within Zone 1, including the Garage and the Additional Improvements to be
located in Zones 1.2 and 1.3 of the Parking Garage Zone, and (ii) the Additional Improvements
in Zones 2.2 and 2.3, subject to the other provisions of the Development Agreement and this
First Addendum. 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 of the Garage, including the retail portion of the Garage.
(f) Section 6.2 "Fees" is deleted in its entin:t.Yatld replaced with the
following:
Permit Fees. Developer assumes pay:rnent respgnsibility for any and all
Permits, now or hereafter, required to be obtained froIll.theCity or~iny other Governmental
Authority for the construction of Developer's Impro"\,ementsin Zone 2kl,jncluding without
limitation, building permit applications, inspection, serlification, impact and~bllIl~ction fees that
the City may levy by or through its Public W or1<:~:Qepartment (including, witl1t.'llltlimitation,
water and sewer fees) and those fees, to the extent apI'lic;able, Ji8t(;:9 in the City or Miami Beach
Building Department Fee Schedule, or the most curreIit~9Hi<:5Ii ad<:5pted by the City, which fee
schedule is hereby incorporated by refer(;:nce and made a parlt.'lfthis Agreement (collectively, the
"Fees"). Owner shall be responsible Fees associated-with the Garage, the Additional
Improvements, the Park Project, and the Improveijf<mt~; the amounts of all such
Fees will be included in the applicable budgets.
(g)
Property" and "Park,"
this First
Agreement, entitled "Adjacent
with the pertinent provisions of
(h)
and replaced with the following:
senior in lien
be recognized as
Recognized. Mortgagees
Mortgage isjunior in lien to
than Mortgagee, only the three (3) most
the exclusion of all other Recognized Mortgagees, shall
Article 10, unless one of such senior priority
in writing to Owner a Recognized Mortgagee whose
such right.
4. City!sObligati6ns Regarding Infrastructure Improvements. The City has refined
its plans for the Cafi~!!t!stiafi and development of certain public improvements to City-owned
property located within.:Zones 1,2,3,4 and 5.
(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 within Zone 2.1 - the Symphony Campus), together with the improvements to City-
owned property in Zones 4 and 5 are designated to be the "Infrastructure Improvements" referred
to 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 23.1 of the original Development Agreement.
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(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
Development Agreement and designated in this Addendum. The City's planned improvements
within Zones 4 and 5 are not included within the definition of "Additional Improvements" but
are included within the definition of "Infrastructure Improvements."
(c) Because the coordinated construction, development and use of the Project
and the Additional Improvements will provide mutual benefits to both parties by enhancing the
availability and use of all of the Developer's Improvements as well..ll.~()tl1er property owned by
the City, Owner has requested, and Developer has agreed, that.~eveloper shall cause to be
designed, developed and constructed, at Owner's sole costaiJ:~....expense, the Additional
Improvements in accordance with the Plans and SpecificatiQ];is andtij~Preliminary Additional
Improvements Budget.
5. Zones 1 and 2. Sections 23.2.2
deleted in their entirety and replaced with the
of the Developnietit.Agreement are
(a) Garage Costs; Additional Improvements Costs. Owner's obligation to
fund the design, development and construction of the public;jmprovements within Zone 1 and
Zones 2.2 and 2.3 is described below, to the provisionS'~~~ection 13 herein:
(i) Owner willfunda];i(iillQunt not $15,210,135 for the
Garage Costs, as reflected in the Preii!ninarY~~~g~J3udget. Owner will fund an amount
not to exceed $6,4Q9,QOO for the Ad<!itignal rmpt~~~fuents Costs, as reflected in the
Preliminary Adcl!ti()na~~;lrr1provementsBudget. Tne Garage Costs and Additional
Improvements.~psts shall~~ inclusive of~but not be limited to, the City's total funding
contributionsIor;~Qncurr~];is;y Requireme];its,the City's Prevailing Wage Ordinance, if
applicable, and aii~Qsts itijI~QJ11}~ction within zoning, permit matters, and requirements
impos~"d~bY.......00verrimental"'A:uth~tities,....s.. ubject to the other terms of the Development
AgI:~~ifi~fiti~~B@Y perthfnto Zone; 1:2.2 and 2.3.
(ii) . The Paft!~sagree that the design, development and construction of
ihe~clditional Impr~~ementsplanned for Zones 1.2, 1.3, 2.2 and 2.3, shall be included
witnil!~tlle definitionp~"Project" and "Project Site", respectively, and therefore included
withintliil scope ofIDwner's obligation to fund and Developer's submissions and
performanc~Qf its obligations pertaining to design, development and construction, under
the originaljj~~~lQpifient Agreement.
(iii) Owner shall pay to Developer the Garage Costs and the Additional
Improvements Costs in the manner set forth in Section 13 herein.
(b) Zone 2.2. The construction of the Developer's Improvements within Zone
2.1 of the Symphony Campus Zone will require the displacement, re-routing and rebuilding
(such work, collectively, "Realignment") of that portion of Drexel Avenue that is between
Lincoln Lane and 17th Street in Miami Beach ("Drexel") in Zone 2.2. Owner has agreed that the
Drexel Avenue Realignment is part of the Additional Improvements for which Owner is
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responsible, and that such work constitutes the public improvements within Zone 2.2, and
Developer has agreed to perform such Drexel Avenue 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 of all 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 in this First
Addendum, and the Parties agree to coordinate, cooperate and con~lJlfwith one another in the
planning, design, development and construction (including, withgytlimitalion, commencement
of construction) of all Zone 4 improvements.
7. Zone 5 - the Pennsylvania Avenue Improvement Zone. Tl1edesign, development
and construction of all improvements planned for Zon~.5;ahg all costs il1cqnnection therewith,
including, but not limited to fees due to Architecturi.llConsultant, are solelytlier~sponsibility of
Owner. Zone 5 is a part of the aesthetically.it'i:.t~grated prgject contemplafegpy this First
Addendum, and the Parties agree to coordinate, cooi>~~~te and:c~;msult with one another in the
planning, design, development and construction (including,:WithOlit limitation, commencement
of construction) of all Zone 5 improvements. ............ ..
8. Development of Park Project;
(a) Owner has determined~o develop~ll.~,park Project as contemplated herein,
and the Parties hereby agre~!hi.l:t Developer will ~.~fVe as (feveloper of the Park Project on behalf
of Owner and shall cau~~tlieJ!i~!k:.Project to b~designed, deVeloped and constructed on behalf
of the Owner and at !ll.~~.sole cost~~g expense of!he Owner, subject to the terms and conditions
as set forth herein:D~v~loper vYiH select, at its.sgle discretion, all contractors, including a
general contractor, and~1i.~l!bco];jj!!;i.l:(.;!grs, consultants and other Persons (each a "Contractor"
and collecti~?~~~"~?~trad5~~j;~Devel()I5~~~~~ms necessary to complete the Park Project in
accordanc~withtheprg:yisionso~!his First Addendum and the Development Agreement.
(b) De~~1gper's oij~i~ations pertaining to the Park Project are limited to the
and c<:5];jj~tructionof the improvements located or to be located within the
Park Project~BQe, subject tq!lie provisions of Section 13 herein, and specifically exclude any
obligation orF~~Jjl5msibilitygr liability whatsoever for any other property or Zone, unless
otherwise provideqinthe D~velopment Agreement, or agreed to in writing by the Parties.
9. Park Project Design.
(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 and consultants who Gehry Partners, LLC requires to complete the Park Project
Design, including but not limited to specialists and consultants in the areas of acoustics,
performance venues, architecture and engineering, shall be referred to hereafter as "Architectural
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Consultant." Owner further acknowledges that Developer has selected, with Owner's consent,
Hines Interests Limited Partnership to act on behalf of Developer as the Project and Park Project
construction manager.
(b) Owner and Developer acknowledge and agree that the design,
development and construction of the Project and the Park Project as an aesthetically integrated
project in accordance with the single design vision of the Architectural Consultant will maximize
the benefits of the Project and the Park Project to the City of Miami Beach. Accordingly, Owner
and Developer further acknowledge and agree that the completion oftl"ledf':sign, construction and
development of the Park Project pursuant to the terms and provisi()J,1,softhisFirst Addendum and
in accordance with the Park Project Design is integral to theciii:"Ji~nt design, construction and
development of the Project and that the Owner's election nottQProce~g:with the Park Project (as
further described in Sections 10(c) and 10(d) and Sectionll(a) belo~).may materially and
adversely affect Developer's ability to meet its project~(ftime frames fOf<:iesign, construction
and development of the Project.
(c) Any delays in Developer's the Schedule and/or the
Construction Commencement Date and/or the the Project, a.nd/or any other
deadline for the Project, which delays arise from Owner's:e~e(;tion not to proceed with the Park
Project, shall be treated as an "Unavoida15!t':l!?elay" pursuant fotll~ Development Agreement and
this First Addendum, and shall be further sUojectto subsection 15(Q)(jiD hereof.
10. Procedure for Park Proiect Design Aptll'ovaL
(a) Tllf':app!fQ~c::g Park Project's Final Basis of Design Report to be obtained
pursuant to the ProgI~ descril:5e~!n Exhibit "I)" shall be the approved Park Project Concept
Plan referred to herein.: .
~g.J. The'[)~g~!OpeFsH~lll:l:~~the Design-to Park Project Budget as the cost
basis as ~~~<5ribea~~i~~Rroveij~~~he Park Project Concept Plan. The costs, fees and expenses
for such <:iesign and prel?~!(;ltion wQ!~shall not exceed the dollar amount allotted for such work
as s~t~f~!!~ in the Design-'~() Park~~()ject Budget. Following approval of the Park Project
Conceptl?l~,g pursuant to ;tll~ Program described in Exhibit "D," Developer and the City
Manager, onEQ~half of the O~Eer, acting in a proprietary and not regulatory capacity, shall meet
to commencetli,~:preliminarYreview process. Developer shall comply with the schedule of
approvals outlineaiit1..the Pn)gram described in Exhibit "D."
(c) In the event the City Commission does not select and approve a Park
Project Concept Plan, or it elects not to proceed with the Park Project, immediately thereafter the
Owner shall notify the Developer in writing in accordance with Article 20 of the Development
Agreement, of the Owner's intent to terminate those portions of this First Addendum which
relate 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 to an increase in writing)and which amount is deemed and agreed by the Parties
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to be the total allowable reimbursement to Developer 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
the City not to proceed with the Park Project. Following Developer's receipt of payment in
cleared 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
shall have any further rights or obligations to the other pertaining to the Park Project under the
Development Agreement and this First Addendum except as set forth herein.
(d) Notwithstanding Owner's election not to selec!~d.a.pprove a Park Project
Concept Plan, or not to proceed with the Park Project, Owner'sfunding obligations associated
with Zones 1 and 2 will remain in full force and effect in ac~pi"dauce with the Development
Agreement and this First Addendum. Termination of suchportion~Qf this First Addendum
regarding the Park Project shall not in any respect operat~.!o telTIlinate~1"iJ:gqify, amend or affect
any other of the respective rights and obligations of the Parties under this];1!l'st Addendum, the
Development Agreement or the Ground Lease, all o~which shall continue to be in full force and
effect.
(e) Upon the City Commission's a Park Project Concept Plan, the
Developer and the Architectural Consultant shall detailed design, during the
course of which design process the Owriij~;;.Q.Feloper and Archit~ctural Consultant shall consult
together as often as necessary. Within r~(J:c;al~ndar Days fol1Q~ing the City Commission's
approval of the Park Project Concept Plafl,. tI1.~Ai-<5hitectural CoIisultant and Developer shall
submit a more fully developed project desigrito the<Jwri~rf()l'Eevlew and approval. This further
developed project design~~~M~~~lude, but not<g~limitedtPi:"ltil1y detailed landscape drawings,
detailed sidewalk and s!l'eetscap~illlprovements;. public walkways, entertainment venue details,
projection and soundeijuipmenf<fetails and speci;fications, utility improvements and any other
improvement relatedtot~ePark PtQJect (the "Preli1"iJ:inary Plans and Specifications").
(1): The Pre!i!'!iinaryPlans:andSpecifications submitted to the Owner within
the 150 C:a.le11dar>[ja~<~t3~ign peEQd shall be reviewed by the Owner's City Manager within 60
Calen~~Days fromre~~~gt ofsa:iqErsliminary Plans and Specifications. If the originally
subJ;Uitted:preliminary Plaus.:and Spe9ifications are consistent with the approved Park Project
ConceptE~~, but Owner~~jects the Preliminary Plans and Specifications and requires the
Architectura:1..gQ.Ilsultant to r~~ise or redesign the Preliminary Plans and Specifications, then, in
the event Owrie~i~t3lects notI~o proceed with the Park Project, Owner shall be obligated to
reimburse Develope~f2r t~t3:cost(s) of such revision(s) and/or redesign(s) and said costs shall be
in addition to the "cap"ori the Park Project Design Costs as referenced in subsection W(c)
hereof.
(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 ofthe application to the DRB
with the assistance of the 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
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and Specifications for construction of the Park Project consistent with the approved Park Project
Design. The Final Plans and Specifications shall be submitted to the Owner within 180 Calendar
Days 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 thepark Project Design, but
Owner rejects the Final Plans and Specifications and requires DeveloQerlo;revise or redesign the
Final Plans and Specifications, then, in the event Owner elects..I1ot to proceed with the Park
Project, Owner shall be obligated to reimburse Developer of such revision(s)
and/or redesign(s) and said costs shall be in addition to Park Project Design
Costs as referenced in subsection 1 O( c) hereof.
11. Final Park Proiect Budget. Prior to Developer's execution oflb.:eGMP Contract
for construction of the Park Project, Developer s~an:~~!:>mit to€?"""ner's City Mafl~g~r, who shall
submit same for review and approval by the City CQmDlissiQF;a proposed Final Park Project
Budget. If such proposed Final Park Project Budgeti~materially inconsistent with the
Preliminary Park Project Budget, th<;:D the proposed Fil1~!.... Park Project Budget shall be
accompanied by a memorandum in wri~!Dg.in sufficient detail to explain all such material
inconsistencies. Approval or disapproval o~m().g!gc~tion of theF'i~~lPark Project Budget shall
be governed by the provisions governing the..Plans.all<lSpecificatiQns, as applicable, as set forth
in Section 10 above. Informational copies of any DlaferialmQdifications to the Final Park Project
Budget shall be promptly to Owner's!;;i~yManag~l'"
(a) anything;:to the contrary contained herein, if, upon
review, but prior Final Par!<,.Project Budget, Owner, through its City
Commission, determines, Owner's reasonable discretion and judgment, that
the Park Project Design and16~~lie Specifications, exceed the budget acceptable
to the Ci.~~sOftheP~E~~roje6tB(;':sign Final Plans and Specifications (as approved by
the Ci!~)~ender the Park;~!,C?ject e601l2Dli(;ally unfeasible, Owner and Developer shall first make
reasoflab!t:l~..:good faith eff()~. to vcillieengineer the Park Project Design so that the cost to
constructa.~~\.'ised Park Proj~~t desigii acceptable to Owner does not exceed a budgeted amount
that is also acc~.H!able to Ow~~r. If, after value engineering the Park Project Design, Owner, in
its reasonable dis~~~!ion and3udgment, elects not to approve a revised design that is within a
budgeted amount th~~;il; ac(;~ptable to Owner, then Owner shall not be deemed to have approved
a Final Park Projea~!ldget and may, accordingly, terminate those portions of this First
Addendum pertaining..lo the Park Project. Within thirty (30) Calendar Days after Developer's
receipt of the Owner's notice of intent to terminate the Park Project pursuant to this subsection,
the Owner shall reimburse Developer in full for all Park Project Costs incurred by Developer up
to the date of termination, including without limitation those Park Project Design Costs
associated with the "cap" of $1,110,000, as referenced in subsection 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(f) and (h) hereof. Notwithstanding the preceding
sentence, however, Owner shall have no obligation to reimburse Developer for any additional
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costs incurred by Developer as a result of value engineering the Park Project Design and/or such
other revisions necessitated and/or undertaken by the Parties pursuant to this subsection 11(a).
Following Developer's receipt of payment in cleared 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 shall have any further rights or obligations to the
other pertaining to the Park Project under the Development Agreement and this First Addendum.
(b) Notwithstanding anything contained in this First Addendum or the
Development Agreement, the Parties acknowledge and agree that, iL~d\Vhen approved by the
City Commission, (i) the Final Park Project Budget shall represelltthe total amount of funding
which the Owner has determined to make available for"tnijg~velopment, design, and
construction of the Park Project and, accordingly, the Fin<!:lPark PrQj~~t Budget shall not be
exceeded and/or increased without the express authorizatioh, of th~gi!y Commission. The
Developer shall not be liable to Owner or any ContractQrorother third part~for payment of any
portion of the costs, fees or expenses properly in~l.J.ITed by Developer on benalf of Owner in
connection with the Park Project provided sU9hi(:2~ts, fees or expenses are within, and in
accordance with, the Final Park Project Budget. More9yer, q~vel()per shall haveho obligation
or duty whatsoever to incur costs or expenses which woulu~aiise the Park Project Design Costs
to exceed the Final Park Project Budget.
(c) Except as otherwises~f;r~,~l1, in this Adderiq~~,!Q the contrary, the general
procedures and requirements set forth ill, theqe,v:elopment i\:greement pertaining to the
construction of the Garage and Developer2$ Improvijm~t~~l1all apply to construction by
Developer of the Additio~~l~grovements a~~the ParkP~Qject, including but not limited to
Sections 2.5(e), (f) and<(g);ra'~fi<~ion 3.3] ; Ai'ticle 4; Sections 5.3 and 5.4; and as otherwise
applicable to constru9!iQ.p in gen~t~l, [Trish: Please note my references. There is no Section
3.2.1 in D.A. and ldoli~~!bink 3.~applies]
12'~~<l,~~::I~~Ai(ER.~i~btii's~fii~f1t~greement. The Parties agree that it is in the best
interests~~t1ie CitY;!!~!Fsident~~~e Owner and the Developer for the Project to be built and
operatc:c.li3s envisionedil!:!l1:c: GroiingLease and the Development Agreement. Consequently, in
full uI'i~~~~!anding and a2~~\Vledgem~pr that each Party's agreement to perform its respective
obligationsl~,expressly coriUI~ioned upon the other Party's agreement to perform its obligations,
and the obliga!~()p of each toj;ierform is mutually contingent upon the other's performance, and
that but for thea,grc:ement anc.lperformance of each, this First Addendum could not succeed, the
Parties agree as fol1Q~~:
(a) hereby grants to Developer and agrees to pay to Developer a grant-
in-aid ("Grant") in the aggregate sum of $15,000,000 in accordance with the general terms and
conditions described in Exhibit "G" attached hereto, and subject further to execution of a Grant
Agreement memorializing said term and specifying the manner and timelines for payment of the
Grant. Receipt of the Grant is critical to the success of the Project. The Grant is made and shall
be used for the sole purpose of defraying a portion of the Developer's capital expenses of
developing and constructing the Developer's Improvements. The Grant and all sums paid or to
be paid thereunder are not and shall not be deemed to be part of or included within, but are
separate and apart and in addition to, any and all other financial obligations of Owner
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contemplated in the Ground Lease or the Development Agreement as amended by this First
Addendum.
13. Funding. Owner's funding of costs of the Garage, the Additional Improvements
and the Park Project, as applicable, shall be in accordance with the terms of this First Addendum
and the approved final budgets for said improvements, and shall be made as follows:
(a) All costs and fees attributable to work performed by Developer on behalf
of Owner shall be identified, tracked, accounted for, invoiced "!n4paid separately from
Developer's Improvements costs, in a manner that clearly distil'lgUtshesOwner's costs from
Developer's Improvements costs. Owner shall have the right tomltlct':payment by check or wire
transfer to the Developer.
(b) Within thirty (30) Calendar Days after the Parties 'execution of this First
Addendum, Owner shall fund directly to Developer il'lCl. lump sum paymenraUQf the costs, fees
and expenses incurred through and including tht':~;)(:ecutionQate of this Fifst~QQendum by
Developer on the Owner's behalf in connection\vithflC>l'les 1 as detailed ohExhibit "H"
attached hereto.
(c) Section 23.2.2(V)9f.Jl:1e original Deveto~l11ent Agreement isdeleted in its
entirety and replaced with the following pf()vt~i()l'l' which shallgQVern the funding, appropriation
and disbursement process for the Garage, ParkProJ~()t,..,md Additi6nalTmprovements.
Following approval of this First Addendum D~ tl:1~.City(0oi'1l1nission, and execution thereof by
the Parties, Owner shalll;!ppropl'!~!e (or cause to.:be appropriated) funds for the respective design,
development and con~ttUEtion 6f'tl!~aforestated improvements as follows:
Park
(i) the funding process associated with design costs for the Garage,
and Additional Improvel11ents, respectively, shall be appropriated and
thirty (30) Calendar Days after the Parties' execution of this First
process associated with construction of the Garage
commence no earlier than October 1, 2008;
funding process associated with construction of the Park
and commence no earlier than October 1, 2009;
the funding process associated with construction of the Additional
Improvements shall be appropriated and commence no earlier than October 1, 2007; and
(v) the funding process for the Grant-in-Aid (if said Grant is approved
by the City Commission) shall commence and be appropriated no earlier than October 1,
2009.
Except for the funding disbursements for the Grant (which shall be governed separately),
Developer shall be entitled to be paid by the Owner periodic progress payments ("partial
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payments"), not more frequently than once per month, for the following portions of the Work
(for the Garage, Additional Improvements, and Park Project, respectively) completed and
acceptable to the Owner:
(i) For soft costs associated with the design, development and
construction of the Garage, the Additional Improvements and the Park Project, including
but not limited to the Work of the Architectural Consultant and other consultants and
professionals, and associated with the Work under the applica~le budget then in effect,
and
(ii) For hard costs associated with~ij~gesign, development and
construction of the Garage, the Additional Improvem~t;its, arid~h~Park Project, including
but not limited to the portions of the W ork perfol1l;'l~dffi1der the~pp1icable budget then in
effect.
(iii) Partial payments sh.:.:l:~!1:>e in an alllount equal totlieamounts paid
by Developer for such portions of the Wark.
(iv) Such partial
against the GMP Contract until
approved nor made shall
accordance with the approved
budgets.
costs shall constitute advances
accepted. No partial payment
Work completed not in
the Final approved
(~)C ::I:'~~Developer~ay make for periodic progress
payments duri!!gconstruct!Q!l by submitting to the Owner on or before the fifth (5th) day
of each montn~lJt not more often thanpnce a month) an itemized application for
payment ("Requisition") (orthQse items prQperly payable hereunder. Each Requisition
shall ~;~~~~itted iri~;afiriac;cC:ftJt~R~~to both Parties, and shall be accompanied by
evi~~GeofJ?[g~~.: appli~~tion of ~11 prior payments, including without limitation, as to
~~rd costs, an 11t:l~g~~itional~~rialwaiver of lien, from the General Contractor and each
~lJl:>contractor, in fQl2l1l and sUQ~~ance satisfactory to the Owner, covering the full amount
d~~ll:past payments:"~f)! direct construction costs through the date of such waiver of lien,
andaijl.l!lconditionalf~al waiver of lien in form and substance satisfactory to the Owner,
from eac~subcontractor who, as of the most recent payment, had completed the work
covered by:!t~ subQQntract, covering the full amount due each subcontractor, and a
consent of slii'~~y:~.B:eveloper shall also furnish such other supporting evidence as Owner
may reasonabl)"require to establish the cost or value of the improvements and equipment
for which each hard costs payment is to be and has been made.
(vi) Each Requisition for hard costs shall be based upon the most
recent schedule of values submitted by the General Contractor. The schedule of values
shall allocate the entire Guaranteed Maximum Price among the various portions of the
Work. The schedule of values shall be prepared in such form and supported by such data
to substantiate its accuracy as the Owner may reasonably require. This schedule, unless
objected to by the Owner, shall be used as a basis for reviewing the Developer's
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Requisition. Requisitions shall show the percentage completion of each portion of the
Work as of the end of the period covered by the Requisition.
(d) The Owner, within thirty (30) Calendar days after receipt of the
Requisition, will pay an approved Requisition to the Developer for such amount as the Owner
determines to be properly due, and if it objects to and withholds funding for any item or amount,
shall state in writing the reasons for such action. The Developer, after receipt of an objection to
funding, shall disprove or cure such objection or the Parties shall otherwise work in good faith to
resolve such objection. Each claim, question, difficulty or dispute \.Yllich.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 of individual
improvements within a Zone or other portion of the Garage or Additional!tnprovements or the
Park Project may go forward and be completed in accordance with differeIlt~~ll~dules, Permits
and Approvals. Therefore, the portions of W ot~~ithin a ZQpe or portion of the Garage, or
Additional Improvements, or the Park Project Whi2li~~ye be~l:1.permitted by different Permits
and Approvals shall be deemed to have been complc.'Jt~<::l.in substantial accordance with the
approved Final Plans and Specificationsthereof, as they may~e modified from time to time upon
mutual agreement of the Parties, notwitli~tfl.Qding that minai-adjustments may be required by
Developer or minor errors or omissions mf:ly~~g!1:ite correction;p!Qyided that such adjustments
and corrections are made within a reasomibleamomiof time aft~rdiscovery of same. Owner
shall be solely responsible for all costs, fee~.and~~peR~~li!PIQperly incurred by Developer in
connection with this Secti.<>~,~s such portion.ofWorkuIlg~rsuch Permits and Approvals is
completed, Developer~llal1si.i~iilit to Owneitpe final "as built" approved Final Plans and
Specifications for Sl,l,CllPortionsQf Work withitl a Zone or other portion of the Garage or
Additional Improvemei'it~.or Project, andauy additional costs properly incurred by
Developer which may beaue shall b~paid in full by Owner to Developer within
thirty (30) All payments shall be made in cleared U.S.
funds.
Dev~lQper determines that there has been achieved Substantial
Work a portion of the Work for the Garage or the Additional
the Park P~Qject, which the Owner agrees to accept separately, the Developer
for O~er's acceptance and approval:
shall submit
A Temporary Certificate of Occupancy (TCO) or Temporary
Certificate of (TCC), as applicable, for the Work duly issued by the
Governmental 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 or the Park Project, as applicable) has been substantially
completed in accordance with the applicable contract documents and the approved Final
Plans and Specifications in all material respects; stating the responsibilities of Owner and
Developer (if any) for security, maintenance, utilities, damage to the Work, and
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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
Agreement and this First Addendum; and
(iii) A Requisition for payment for such Wark.
Upon receipt of the foregoing, and Owner's ap),)foval of the Certificate of
Substantial Completion, Owner shall pay the Requisition in a990~t:l!lnce with the provisions of
this Addendum.
(b) When the Developer has rec~ivet:lfrom theCQntractor: a Final
Contractor's Affidavit and Final Lien Waivers in accofdance with Chapter 71:3;..florida Statutes;
a written notice that the Work is ready for final insp~9tion and !lcceptance; and annal application
for payment, Developer and Architect will promptlY-make sucliillspection, and Wilen Developer
determines that Final Completion of the Work has beenilc;lli~,y:ed,the Developer shall submit to
Owner, for Owner's acceptance and approval: W
(i) A Final Ceninc;a,te of Occupancy (CO) or Final Certificate of
Completion (CC), as applicable, foi-!1ie~Qrl\.duly issued by the Governmental Authority
having jurisdiction thereof;
(ii) w.~Il~ Architect's Certificate Completion, approved by the
Developer, statillgthat5~ii!lle basis of obs~rvations and inspections, the referenced Work
(for the Ganlg~~I"the Ad~!~ional Improv~ll1ents or the Park Project, as applicable) has
been fully perIoaned and all such Work~llas been completed in accordance with the
applicable contracf~~~HHiejjt~(;!'ll~...Jl1~ a,pproved Final Plans and Specifications in all
and <tllat the eritirebaJance found to be due the Contractor and noted in
duell.I1t:l payable;
final R..equisition for payment;
of all agreements, Permits, and Licenses, and all insurance
any, pertaining to the completed Work;
All manufacturers,' suppliers' and subcontractors' warranties duly
assigned to (the "Warranties), and all maintenance and operating instructions
if any, pertaining to the completed Work.
(c) Upon 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.
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(d) Following Substantial Completion, Owner's entry into possession of any
portion of the Garage or the Additional Improvements or the Park Project, as evidenced by the
use thereof 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
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 m;].y,haye against Contractors
pursuant to subsection l4( e) hereof.
(e) Notwithstanding anything contained I)eyelopment Agreement or
this First Addendum, the making of final payment shaU.pofconstituteawaiver of claims by
Owner for: (i) faulty or defective Work appearing,afterDwner's approyal of Architect's
Certificate of Final Completion; (b) failure of theW ork to be in strict accQrgance with the
requirements of the GMP Contract, the appf(::>:Ye~", Final I?l<ms and Specifieli!!ons, or the
Development Agreement and this First Addendum, dis~Qyered~fter: completion of the Work; and
(c) terms of all Warranties required by the applicable colitl:;].erdocuments. Notwithstanding the
preceding sentence, however, Owner agrees that in the even!'.9f discovering any defective Work
in construction from the approved Fin~~~~~lls and Specific~!~gns, including latent defects.
Developer shall have no liability for anyg~fe~!!Yt::,:W ork, and O~e~acknowledges and agrees
that it will look solely to the Contractors, subcoiitract9ts",and suppliers and/or the Warranties for
relief in connection with any claim arising f1"(~m all)'defectsi Accordingly, Developer hereby
acknowledges and agreesthl:l!:Q.~ner is intend~gto be a tliirgparty beneficiary to Developer's
agreement(s) with Cont!actorsan~other aforest~ted parties and shall, accordingly, comply with
the provisions of Section,.! 9 hereof;
(f) Developer shall cause its construction manager, Hines Interests Limited
Partnership, to full)' cooperate with and assist Owner in resolution of any issues with regard to
Owner's claims for defects, Warranty issues, and/or other post-construction issues contemplated
in subsection l4( e) above,(ls they may arise. Construction manager's fees and costs shall be
bourne by Owner, provided however that construction manager shall continue to charge Owner
the same rates and fees that it charged to Developer for construction management of the Project
and Park Project.
:Warranties shall commence on the date of Final Completion of the
Work or designated po~!Qiithereof, unless otherwise provided in the CO or CC.
15. Changes to Work: Change Orders: Owner Consent. The Parties understand that
during the construction phase of the Garage, the Additional Improvements and the Park Project,
situations may arise that would require Changes to be made to the Work, the approved Final
Plans and Specifications, the completion date, the Final Park Project Budget, the Final Garage
Budget, the Final Additional Improvements Budget, or other similar matters ("Changes").
Changes shall be dealt with in the following two (2) ways.
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(a) Draw Against Contingency. The Final Park Project Budget, the Final
Garage Budget and the Final Additional Improvements Budget each will include a construction
contingency reserve ("Owner's Contingency"), which shall be in addition to any construction
contingency reserve included within the Guaranteed Maximum Price ("Contractor's
Contingency"). The Owner's Contingency amount will not be disclosed to third parties. The
proposed Contractor's Contingency shall be in an amount which the Developer believes, in its
best judgment, is reasonable to cover construction-related costs which were not specifically
foreseeable or quantifiable as of the date the Guaranteed Maximunl Price was established,
including but not limited to the following: correction of minor defects or omissions in the Work
not caused by the Developer's negligence; cost overruns due to tb~defau1t of any subcontractor
or supplier; minor changes caused by unforeseen or conc~i!led;~ite conditions; and minor
changes in the Work not involving adjustment in the Guarant~~d Ma)(:~1lm Price or extension of
the completion date and not inconsistent with the approv~g. Final Plans. and Specifications and
the Development Agreement, as amended by this First~tldendum.
(i) Draws may be chm:ge4:igainst the.. Contractor's Contingency only
with the Owner's written consent, which shan~E>!be lU.1J'easonably withh~ld or delayed.
The Contractor's Contingency excludes, and sh.all.not be used for, costs incurred to
demobilize and remobilize due... to suspensions by the Owner, or for Owner-
requested Changes to the Work, all are to be treated only by
Change Order.
(ii) Upon making a either the Owner's or the
Contractor's Contil}g~l}cy? the relevant budgeted line items
by the amoun~of<th(;i~~aw, and ......... the respective Contingency line item
accordingly. Ib~;pevelop~l:)hall maintain records satisfactory to the Owner to document
each draw agaln~!~:ich Coijtlngency.
~g~~~hallj:~~~:~ers.As~~~~J:'ial site issues and/or Unavoidable Delays arise,
the Develgpeid shallcgg~<iinate~~processing of Change Orders and will negotiate, for final
appro~~land executiOIFQ~<::)wner;:a;ll~~~nge Orders with Contractor. Developer shall submit a
proposeg.;~.range Order to~~ner witbin a reasonable period of time prior to commencement of
Work relat!gg... to any prop(ls.~d Change that is not properly eligible for payment from the
Contingency;~.~.guests foraily Change Order shall be submitted on a change order form
acceptable to O~g.~~, signedgy Developer, the General Contractor, and, if required by Owner,
also by the Archite~tllral~ohsu1tant, and shall include a written description of the proposed
Change, the justificail~~:therefore, and supporting documentation. At its option, Owner may
require Developer to provide additional evidence satisfactory to Owner of the cost and time
necessary to complete. the proposed Change. The appropriate budget and/or Project Schedule, as
applicable, will be revised, as necessary, to reflect approved Change Orders.
(i) In 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 an acceleration or resequencing of Work; or
the Owner requires scope changes to be made to the Park Project, the Additional
Improvements or the Garage after the Guaranteed Maximum Price has been established,
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all costs pertammg to or associated with making such Changes shall be the sole
responsibility of Owner and may not and shall not be funded from the Contractor's
Contingency (with the exception of Changes due to delays, including without limitation
Unavoidable Delays, which shall not require Owner to approve, 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 times for performance set forth in the Development Agreement
and this First Addendum; all as further set forth in subsection 15(b )(iii) hereof).
(ii) Change Orders submitted to Ownet:jnaccordance with this
Section 15 shall be reviewed and approved by Owner in a tiineIy and reasonable manner.
Developer shall at all times maintain, for inspection 1J:YC)'\"\'l1er, a full set of working
drawings of the Improvements.
(iii) No Damages for Delay. ~oclai.mfor damages or any claim, other
than for an extension of time, shall be made(jf asserted against Ownei'by reason of any
delay including, without limitation, Unav(litiable Delays. and/or any dela:y~il1the design,
development and construction of the Projea.~.l1ich ~ay.arise as a restilt of Owner's
election not to proceed with the Park Projecf.IJeveloper (and including without
limitation its Contractor and. all of Developer?~.ilgents, employees, contractors,
consultants and professionals, inCluding without lim~!l:ttion Architectural Consultant)
shall not be entitled to claim, nor~hl:tILQFner have an:Y.01J:ligation to fund, a Change
Order, and/or other claims(s) or reqtiest(S)t()~iln increase tofhe Final Budgets, or other
payment or compensation of any kin~. fro~:(jw~~t:,f(lI...direct, indirect, consequential,
impact or other c(l~!~,expenses ornaJ:Iiages, arising because of delay, disruption,
interference or ...J.1ifldfan~~from any cai,ise whatsoever, including but not limited to
UnavoidableI;)~l~ys and/or~y delays in the design, development and construction of the
Project whichinayarise asia result of O'\"\'l1~r's election not to proceed with the Park
Project. Provided;hQFev:~r;thatthis sub~eaion shall not include recovery of damages
by D~\,~l~lp~rJor acifii~~~Ia:ysdfies9t~lyto fraud, bad faith or active interference on the
parfofUwn~fi2ther\VI~~,Developer shall be entitled only to extensions of time for
~~rformance asth~~~le ana~~~~g~ive remedy for delay(s), in accordance with and to the
e'l(;t~nt specifically PIQyided abQy:e.
16. Gasualty Damage/Destruction of Park Proiect/Park Proiect Zone.
Followingtij~park rpoject Zone Possession Date, in the event the Park Project and/or the
Park Project Zone sfl.al!1J:~aamaged or destroyed, in whole or in any material way, as determined
by Owner, by fire, huwcane, 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
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(ii) Developer gives written notice to Owner within sixty (60)
Calendar Days of the casualty that Developer is willing to repair/restore the damaged
property with its own funds; and
(iii) 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 reasonable discretion,
agree within sixty (60) Calendar Days after Owner..ueems that Developer has
demonstrated that it has adequate funds to effect the repairlre~Joration, to the conditions,
timing, plans, procedures, contractors, subcontractQ:r~, disb~r~~ment mechanisms and
other matters with respect to the repair/restoration,
Developer shall be entitled to effect the repairlrestoration with its oWn~tlnds. Developer
shall commence and complete such repair/restorati2nwithin a r~.asonable period of time.
(b) Further, in the event neither O~~L.Jior Developer elects to repair or
restore the damaged property, as set forth above, OWilf:.L. shall remove all above-ground
improvements and debris from the Zone, and refu:rn...the Park Project Zone to a safe
and sightly condition with a reasonably within a reasQnableperiod oftime.
17. Miscellaneous.
(a) Complia.nce with Comprehensive Plan. The Owner has adopted and
implemented the Compr~hensl?~~lan. The Owner hereby finds and declares that the provisions
of this First Addel!dtiiti~~.~d the .[;)~velopment Agreement dealing with the Land and the Park
Project Zone and the app~9:g<:lJ of~yPark Projectl;>esign shall be consistent with the Owner's
adopted Comp:r~h~l!sive PlaIJ..ilna~Land:Developinent Regulations, subject to all applicable
Req uirem~l!tsi.Pei:liiit~.ill!d App~QX.<lls.
(b) Cou~!~l1Jarts:'l:'8facilitate execution, the Parties hereto agree that this
FirsfAd~~Ji<:lum may bee:5Ce:cuted iJicounterparts as may be required and it shall not be
necessarytli~~!p.e signature9fi. or on behalf of, each Party, or that the signatures of all persons
required to biii~:~y Party, appear on each counterpart; it shall be sufficient that the signature of,
or on behalf of,e~fi:p. Party, or that the signatures of the persons required to bind any Party,
appear on one or more Qfsuch 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
and this First Addendum, then the terms of this First Addendum shall control. Facsimile
signatures appearing hereon shall be deemed an original.
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(d) Effect of First Addendum. Except as modified herein, the Development
Agreement remains in full force and effect. In the event of any conflict or ambiguity between
the Development Agreement and this First Addendum, this First Addendum shall control.
18. Exhibits. The following exhibits are attached to this 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 of the Garage,A;ggitional Improvements,
and the Park Project, Owner is an intended third party beneficiaryiii any contract entered into
between 1) Developer and Architect (but excluding Architectllfa!c:gnsultant); 2) Developer
and Contractors, including without limitation the GMP COlltract ari(i/gr any contracts entered
into with any respective subcontractors and/or subconsgltai"lts of Arcfiitect and Contractors
(excluding Architectural Consultant). Accordingly, De-veloperherein repr~~~nts to Owner that
its agreement(s) with 1) Architect, 2) Contractor, and 3) with any respective subcontractors
and/or sub consultants of Architects and ContractQr~(~xcludingArchitectural ed~sll1tant), shall
incorporate the terms and conditions of the Developfiif:l'lt Agrf:f:fiient, as amended by this First
Addendum, and Developer shall assume sole and absolut~.l"esponsibility for binding Architect,
Contractor, and their applicable subconsultarits.. and subcontractors (excluding
Architectural Consultant) to same as if a party tOtl)QSe agreements.
[Signatures
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EXECUTION BY OWNER
IN WITNESS WHEREOF, Owner and Developer intending to be legally bound have
executed this First Addendum to Development Agreement as of the day and year first above
written.
WITNESSES:
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporationgfthe State of Florida
Print Name:
[SEAL]
Print Name:
City
of Florida,
produced
acknowledged before me this day of
:Qy as Mayor, and , as
CITY OF~IAMrBEACH, FLORIDA, a municipal corporation of the State
of su~~ municipal corporation. They are personally known to me or
driver's licenses as identification
My commission
Notary Public, State of Florida
Print Name:
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EXECUTION BY DEVELOPER
WITNESSES:
THE NEW WORLD SYMPHONY, a not-for-
profit Florida corporation
Print Name:
By:
Howard Hegirig, President and CEO
Print Name:
ATTEST:
Secretary
[CORPORATE SEAL]
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)ss:
)
corporation.
The
acknowledged before me this _ day of
as Presideriland CEO, and , as Secretary,
a not-for-p~()fit Florida corporation, on behalf of such
valid Florida driver's licenses as
MycomiUission expires:
Notary Public, State of Florida
Print Name:
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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 "D" Procedure for Obtaining Park Project Approval
Exhibit "E" Sketch of Improvement Zones
Exhibit "F" Definition of V anilla Shell Retail Space
Exhibit "G" Terms of Payment of Grant-in-Aid
Exhibit "H" Costs, Fees and Expenseslncurred by DevelQ~~rThrough
2007, in connection with fl1e;F>Clrk Project and tfi((Q;:lrage Project
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Exhibit "I" Dispute Resolution Procedures
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Exhibit "P"
Definition of Vanilla Shell Retail Space
V anilla Shell Retail Space" shall mean a construction space prepared by the Developer for the
Owner which shall include (i) concrete slab floor broom swept, (ii)weathertight space including
all storefront, glass windows, insulated exterior walls and concre!~(Seiling slab, (iii) no demising
walls between retail spaces or interior partitions shall be in~!alleQ;(iv) one exterior door per
retail space, (v) central electrical room with one retail electricalsei'"Vice (vi) one 3" empty
electrical conduit from the demising line of each retai!~pace to thec~ntral electrical room,
(vii) one 2" empty electrical conduit from the deminsingliiie of each retailsp<l,ce to the central
fire alarm room, (viii) fire protection main line installed aboye the typical cei1iIlg elevation of
each retail space and capped, (ix) a 2" diameter <;lom~stic waterline with shut oII'\i'alve installed
above the typical ceiling elevation of each retail space;()()~ 4"capped sanitary sewer stub out in
one location to each retail space capped, (xii) retaili~~~nts' HV AC condenser units and
installation of HV AC piping for this equimnent, (xii) no gass~~ice shall be brought to any retail
space, (xiii) no grease trap shall be pr6'\i'!Q.~c!....Jor any retail space, (xiv) normal fresh air and
exhaust air grilles shall be designed for eacftre!~i!~pace withblihkoff plates, (xv) no large
kitchen exhaust duct or path shall be provided fromati}T~etail space 16 the exterior of the garage.
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreemen~~f1ean 2-15-07).doc
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Exhibit "G"
General Terms and Conditions for Grant-in-Aid (Grant)
(Note: These terms and conditions are subject to execution by the Parties of a Grant Agreement)
Owner shall pay the Grant to Developer, by check or wire transfeE3.l.s.follows:
· Owner will provide $15 million in supplemental fundiIig.Jor the NWS Campus
Expansion Project as it is needed.
.
Developer must expend $135
obligated to release any Grant
towargs the Proj ectbefore . Owner IS
.
Qualifying expenditures
Architectural Consultant
construction manager,
Approvals; related Project
Project construction costs.
for Grant include fees for Architect,
and their respeCtive subconsultants; fees for the
Limited Pai?!iIerships'; fees for Permits and
borings~and fees for Contractors and
.
DeveloPS5iiiiistT~elllonstrate evig.ence, to reasonable satisfaction, that
the Projec:::t is fully..!ypded and in halance before Owner is obligated to release any
GrantRlfi~~ (i.e., i;~the Project ccistexceeds $150 million, then Developer will
need to sho~tlle sgli:t:c.e:..pf the funding above the $150 million).
.
available no earlier than October 1, 2009, and will be
basis.
split, fifty/fifty, any unspent Grant funds (if any).
· IJ~~eloper provide Owner with 180 Calendar Days advanced notice of
DeYeIQper'sjj1tent to draw funds on the Grant. Developer will follow-up with a
second~9Calendar Days advanced notice so Owner may institute its internal
disburs~ment process in a timely manner.
· 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 31, 2007.
F:\alto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreemen~lean 2-15-07).doc
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. 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 is also pursuing a grant-in-aid, in the aggregCite sum of $30,000,000,
from Miami-Dade County ("the County Grant") fo~...:tl1epurpose of defraying a
portion of the Developer's capital expenses of d~:Y::~!oping and constructing the
Developer's Improvements. Receipt of the COl.lJ1t5'Q~a..nt is critical to the success
of the Project. Developer agrees that in th~evenCiti~.not able to obtain the
County Grant, which commitment is rea~~J1(l,lJ1ysatisfact()~~to Developer and to
Owner, and such inability to obtaiu.the County Grantcl:ll.1~es Developer to
terminate the Ground Lease and I)eve1opment Agreement pursuant to Section
2.11 of the Development Agreemeni~.!l1en Dev~!2per shall becom~6b1igated to
and shall promptly reimburse Owner Tor its share of costs through the date of
termination, as provided in this First Addendum.
· In the event the County agrees to timely 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 2.11 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 costs through the date of
termination, without demand by Owner.
· Owner's obligCi!igti!Qfm'l<t.all o~iany portion of the Grant is subject to and
upo~J~l.lch fiiiidiiig.~()l1tinuing to be allowed and permissible pursuant
F1afl.~l:l.Jaw, as same may be amended from time to time. In the
p~~~oxmance and obligation to Developer with respect to the
impossible by applicability of 1aw(s), then the Parties agree that
oblig~tion shall be extinguished, and that neither Party shall have any
liabi1it5'to the other with respect to this Grant.
· Thef?~E:iesCigree that Owner shall be entitled to place and maintain a dedicatory
plaque Qii>the exterior portion of the NWS Campus Expansion building, which
p1aque.Shall acknowledge the City of Miami Beach's contribution to the facility
and the Project; provided, however, that in no event shall such dedicatory plaque
be placed (i) without the mutual agreement of the Parties as to the location, and
size, 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 of a non-City of Miami Beach
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreemen~g]ean 2-15-07).doc
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affiliated third parties; and (iii) Owner shall be solely responsible for all costs
related to the design, development, fabrication, installation, and maintenance of
said plaque, including replacement of same (due to damage or otherwise).
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreemeng<(jlean 2-15-07).doc
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Exhibit "I"
Resalution afDisputes:
1) To. prevent all disputes and litigatian, 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 af whatever nature
which may arise relative to. the technical interpretation of tll;~ approved Final Plans and
Specifications and fulfillment af the applicable partions ofthe~M"P Cantract, as to. the
character, quality, am aunt and value af any Wark done andmaterials!grnished, ar propased to
be dane ar furnished under ar, by reasan af, the GMP CQlltract, and Architect's estimates and
decisians upon all claims, questians, difficulties and disputes shall be firiar~lld binding to. the
extent provided in Paragraph 2 below. Any claim,guestion, difficulty ar dispti~e.which cannot
be resalved by mutual agreement af Owner andf>~'\t.e10per shaJl be submittedtcrArchitect in
writing within twenty-ane (21) Calendar Days. Unless.a different periad af time is set farth
herein, Architect shall natify Owner and Developer in~fing of Architect's decisian within
twenty-one (21) Calendar Days fram the date af the submissiQn.Of the claim, questian, difficulty
ar dispute, unless Architect requires additiQIl.alJime to. gather irifc)flnation ar allaw the parties to
provide additional infarmatian. All nant~chniGil14dministrative.<iisr>utes shall be determined
mutually by representatives of the Owner arid Deve1QPer..pursuantfo the time periods provided
herein. During the pendency af any dispute. .at1daft~!,~determination thereaf, Owner,
Developer, and Architect~!!~n4ct in gaad faitllta mitigate any patential damages including
utilization af canstructi()fischedi.il~fhanges and alternate means af constructian.
2) In the evef!~!ll;e detei1nination af a dispute under this Exhibit "I" is unacceptable
to either Party hereto., the~~)(0t"lji;@!llg..!()the;determinatian must notify the ather Party in
writing wi!~i.t1t~i1(lo~)Ealerida~:,Qays offeceipf of the written determinatian. The notice must
state th~:l:5asis of theol:5~~c::tion an~~.~st be accampanied by a statement that any contract price
adju~.!~~~~ claimed is tlie~p:tire adju~~ent to. which the abjecting Party has reason to. believe it
is entitled:j9 as a result oJ:Jtl:1e detel:11iinatian. Within sixty (60) Calendar Days after Final
CompletiariQtthe Work, thePi::u1:ies shall participate in mediatian to address all objectians to. any
determinatiaIisll~r.eunder and. to. attempt to prevent litigatian. The mediatar shall be mutually
agreed upan by th~iJ:?;lrties.~hauld any abjection nat be resolved in mediatian, the parties retain
all their legal rightsaii<i.Eelriedies pravided under State law. A Party abjecting to. a determination
specifically waives all Qfits rights provided hereunder, including its rights and remedies under
State law, if said Partyfails to. camply in strict accardance with the requirements of this Exhibit
"I" .
F:\atto\AGUR\AGREEMNT\NWS (First Addendum to Dev Agreemeng(fIean 2- I 5-07).doc
Attornevs
Raul Aguila 6475
Jeffrey Donner 6898
Gary Held 6532
Rhonda Montoya - Hasan 6731
Jean Olin 6485
Donald Papy 6459
Steven Rothstein 6514
Jose Smith 6425
6426
6441
6463)
Debora Turner
(Judith 1. Weinstein
Support Staff
Brett Becker 6409
Sandra Caba 6561
Elizabeth Damien 6499
Gloria Dieguez 6537
Amada Gonzalez 6607
Miriam Merino 6550
Yamilex Morales 6555
Maria Moya Posas 6530
Lupita Ramos 6176
Sheila Taft 6575
******
Legal Dept. 7470
Legal Dept. fax 7002
Reception Desk 6537
Large Conf. Room 6244
Small Conf. Room 6212
Copy Room 6181
Kitchen 6166
Intern Office 6277
Library 6321
I.T. Help Desk 7042
Luis (Building Main!.) 305-841-0231
Revised: 02 / 2007