Grant-In-Aid Agreementa o07 2 ~ U7S~
GRANT-IN-AID AGREEMENT
This Grant-in-Aid Agreement is made as of this ~3 ~ y of ~~.L~`" _, 2008 (the
"Agreement") by and between the City of Miami Beach, Florida, a municipal corporation duly
organized and existing under the laws of the State of Florida (the "City") and the New World
Symphony, a Florida not-for-profit corporation (the "Developer") (the City and Developer each,
a "Party" and collectively, the "Parties").
RECITALS
A. The City and Developer entered into an Agreement of Lease ("Lease") dated as of
January 5, 2004, pursuant to which Owner leased to Developer certain real property described in
Exhibit "A" attached hereto and made a part hereof (the "Land").
B. Concurrently therewith, City and Developer also entered into a Development
Agreement dated as of January 5, 2004, setting forth, among other things, the Owner's and
Developer's respective responsibilities and agreement to coordinate and cooperate in the
planning, scheduling and approval of the development, design and construction of (i) an
automobile parking garage to be owned by the City and located on land adjacent to the Land; and
(ii) a performance, educational and Internet broadcast facility, together with certain related
amenities, facilities and other infrastructure improvements to be owned by the Developer and
located on the Land ("Developer's Improvements").
C. With the concurrence of the City, as set forth in the Development Agreement,
Developer has engaged the world-renowned architect and designer Frank Gehry as its
Architectural Consultant to design Developer's Improvements, and, as agent for the City, Gehry
Associates LLP has agreed to also design the City's Garage, Infrastructure Improvements and
City Park. The Parties agree that the resulting world-class facilities designed by the
Architectural Consultant will greatly enhance the national and international reputations of the
Developer and the City.
D. The City and Developer entered into a First Addendum to Development
Agreement dated February 20, 2007 ("First Addendum"), in which, among other things, the
Parties recognized and agreed that the cost of the design, development and construction of the
Developer's Improvements is so substantial that receipt of supplemental funding is critical to
Developer's ability to successfully complete Developer's Improvements; and that it is in the best
interests of the City, its residents, the Owner and the Developer for the Developer's
Improvements and the Project as a whole to be built and operated as envisioned in the Ground
Lease and the Development Agreement.
E. Consequently, as part of the First Addendum, the City granted to Developer a
grant-in-aid ("Grant") in the aggregate sum of $15,000,000.00 in accordance with general terms
and conditions contained in the First Addendum and Exhibit "G" thereto. The Parties now wish
to enter into this Agreement in order to memorialize with more specificity their agreements and
respective obligations in implementing the payment and receipt of the Grant.
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NOW THEREFORE, it is hereby mutually covenanted and agreed by and between the
Parties hereto that this Agreement is made in consideration of the terms, covenants and
conditions hereinafter set forth.
ARTICLE 1 -- THE GRANT
1.1 Capitalized Terms; Recitals. All capitalized terms not defined herein shall have the
meanings given to them in the Development Agreement. Hereafter, all references to the
Development Agreement shall mean the Development Agreement as modified and
augmented by the First Addendum, unless the context indicates otherwise. The Recitals
are incorporated herein by reference.
1.2 The City hereby ratifies and restates its grant-in-aid and grants and agrees to pay to
Developer the aggregate sum of $15,000,000.00 (the total $15,000,000.00, the "Grant,"
and any portion of such sum, "Grant Monies") for the sole purpose of defraying a portion
of the Developer's capital expenses incurred and to be incurred in designing, developing
and constructing the Developer's Improvements, as further set forth herein.
1.3 Developer hereby ratifies and restates its agreement to request and use all Grant Monies
solely for the purpose of defraying a portion of the Developer's capital expenses incurred
and to be incurred in designing, developing and constructing the Developer's
Improvements, as further set forth herein.
1.4 The City's obligation to pay the Grant monies to Developer is not and shall not be
deemed to be part of or included within any or all other financial obligations of the City
contemplated in the Ground Lease or the Development Agreement, but its obligations
hereunder are separate and apart and in addition to such other financial obligations.
1.5 The City herein provides to Developer notice of and information regarding all legal,
financial and reporting requirements (similar to those applicable to the City's grants of
matching funds to a third party) in effect as of the effective date, and with which the
Developer may be expected to comply in connection with its receipt of Grant Monies
from the City, attached and incorporated as Exhibit "A" to this Agreement.
Notwithstanding the preceding, in the event the City amends or supplements such legal,
financial and reporting requirements that apply in general to the City's grants of matching
funds to a third party, the City reserves the right, at any time during the term of this
Agreement, in its sole and reasonable discretion, to revise Exhibit "A" hereto to impose
such amended and/or supplemented requirements.
ARTICLE 2 -- INITIAL FUNDING
2.1 Commencing October 1, 2009, the City shall make available to Developer, on an "as-
needed" basis, the Grant, and shall disburse Grant Monies pursuant to draw requests
submitted by Developer in accordance with the applicable procedures set forth in Section
13 of the First Addendum.
2.2 Developer shall provide the City a minimum of 180 calendar days' advance written
notice ("initial notice") of the Developer's intent to begin drawing funds from the Grant.
Developer shall provide to the City a second written notice a minimum of 60 calendar
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days in advance of Developer's submittal of its first draw request, pursuant to the
applicable procedures set forth in Section 13 of the First Addendum.
2.3 Developer's initial notice shall include, in a form reasonably acceptable to the City,
Developer's statement that the final cost of completion of the Developer's Improvements
is anticipated to exceed $135,000,000, and evidence reasonably substantiating
Developer's expenditure or anticipated expenditure within the 180 days prior to submittal
of Developer's first draw request, of at least $135,000,000 in hard and soft costs in
connection with the design, development and construction of the Developer's
Improvements.
2.4 No later than thirty (30) days after the City receives Developer's initial notice of its intent
to begin drawing funds from the Grant, the City shall provide Developer, if applicable,
updated information (to Exhibit "A" hereto) regarding all legal, financial and reporting
requirements (similar to those applicable to the City's grants of matching funds to a third
party) in effect or reasonably anticipated to become in effect as of 150 days after the
City's receipt of the initial notice, and with which the Developer may or shall be expected
to comply in connection with its receipt of Grant Monies from the City. Notwithstanding
the preceding, in the event the City amends or supplements such legal, financial and
reporting requirements that apply in general to the City's grants of matching funds to a
third party, the City reserves the right, at any time during the term of this Agreement, in
its sole and reasonable discretion, to revise Exhibit "A" hereto to impose such amended
and/or supplemented requirements.
2.5 In the event that at any time after Developer provides the City with its initial notice, the
anticipated final cost of completion of the Developer's Improvements is determined to
exceed $150,000,000 (the sum of the Developer's $135,000,000 plus the $15,000,000
Grant), Developer shall provide immediate notice of same to the City, along with
evidence reasonably satisfactory to the City regarding the Developer's sources of funding
for all final completion costs in excess of $150,000,000.
ARTICLE 3 -- DRAW REQUESTS, PAYMENTS AND REPORTING
3.1 The submission of draw requests by Developer, and the approval and funding of such
draw requests by the City, shall be made pursuant to the procedures set forth in Section
13 of the First Addendum.
3.2 The Developer's requests for funding shall reference "NWS Grant-in-Aid" and shall be
sent to the following address:
City of Miami Beach
ATTN: Tim Hemstreet, Assistant City Manager
1700 Convention Center Drive
Miami Beach, FL 33139
3.3 The purpose of the Grant is to defray a portion of the Developer's capital expenses
incurred and to be incurred for hard costs and soft costs in designing, developing and
constructing the Developer's Improvements. Examples of some of the types of costs that
qualify for funding with Grant Monies ("qualified costs") include, but are not limited to:
A. Hard costs for labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation, and other facilities and services
necessary for proper execution and completion of the construction, whether
temporary or permanent and whether or not incorporated or to be incorporated in
the Developer's Improvements.
B. Soft costs for, among other things, the following:
(1) Debt service and other financing costs associated with any indebtedness
incurred by the Developer in connection with the design, development,
construction, completion, and start-up operations of Developer's
Improvements;
(2) fees and costs incurred for and in connection with services and work
products of architects, engineers, architectural consultants and their
respective subcontractors and subconsultants;
(3) fees and costs incurred for and in connection with services, materials,
work products and labor of construction managers, consultants, and their
respective subcontractors and subconsultants;
(4) fees and costs incurred for and in connection with applying for and
obtaining permits and approvals, including fees and costs associated with
the preparation of applications therefor;
(5) fees and costs incurred for and in connection with field and site
engineering and related tests, borings and reports, including all materials
and labor or other related expenses; and
(6) fees and costs incurred for and in connection with any or all services,
materials and labor or other expenses which may be permitted under the
Community Redevelopment Act of 1969, as same may be amended from
time to time (the "CRA").
3.4 The City, within thirty (30) Calendar days after receipt of the draw request, will pay an
approved request to the Developer for such amount as the City determines to be properly
due. However, the City Manager may, in the exercise of his or her reasonable discretion
and judgment, and on a case-by-case basis, deny and withhold funding of certain
qualified costs for which funding has been requested. Should the City Manager deny and
withhold funding for any qualified costs included in a draw request, the City Manager
shall provide Developer with a written denial thereof within thirty (30) business days of
the request, stating the reasons for such action.
Developer shall then have fifteen (15) business days to demonstrate to the City Manager
why the denied funding should be approved and paid, and the Parties shall cooperate and
negotiate in good faith to resolve the disputed non-payment. If the Parties cannot reach a
resolution of the dispute within that fifteen (15) business day period, the Developer may
submit the City Manager's decision to non-binding mediation pursuant to subsection 4.7
hereof; provided, however, that notwithstanding the parties' election to submit to
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mediation, the City Manager shall have the final authority with regard to decision(s) on
whether or not to deny funding for all, or any portion of, a draw request made hereunder.
Notwithstanding the denial and withholding of a portion of Developer's draw request, the
City shall timely fund, in accordance with Section 13 of the First Addendum, those
portions of the request which are approved. The City shall make payment to Developer
by wire transfer or by City check, as the Parties shall agree from time to time.
3.5 In the event that by a date that is 180 days after the date Developer receives its Certificate
of Occupancy for 100% of the Developer's Improvements, 100% of the Grant Monies
have not been requested and paid, or are not the subject of a proposed or pending draw
request, upon Developer's certification that all qualifying costs have been identified, and
that no more draw requests (except those proposed or pending requests specified in
Developer's certification) will be submitted against the Grant, then the Parties shall be
entitled to split equally between them any Grant Monies that remain after all qualified
costs have been requested and funded. No later than sixty (60) calendar days after receipt
of Developer's certification, the Parties shall agree upon the calculation of each Party's
share, the City shall pay to the Developer the Developer's fifty percent (50%) share of
such remaining Grant Monies, and shall pay to the City its fifty percent (50%) share of
such remaining Grant Monies, and the Parties shall execute an agreement confirming
their concurrence with the calculation of each Party's share of such remaining Grant
Monies and acknowledging their receipt of such funds pursuant to this provision.
ARTICLE 4 -- GENERAL PROVISIONS
4.1 Failures or waivers to insist on strict performance of any covenant, condition, or
provision of this Agreement by the Parties, their successors and assigns shall not be
deemed a waiver of any of its rights or remedies, nor shall it relieve the other Party from
performing any subsequent obligations strictly in accordance with the terms of this
Agreement. No waiver shall be effective unless in writing and signed by the Party against
whom enforcement is sought. Such waiver shall be limited to provisions of this
Agreement specifically referred to therein and shall not be deemed a waiver of any other
provision. No waiver shall constitute a continuing waiver unless the writing states
otherwise.
4.2 Should any term or provision of this Agreement be held, to any extent, invalid or
unenforceable, as against any person, entity or circumstance during the term hereof, by
force of any statute, law or ruling of any forum of competent jurisdiction, such invalidity
shall not affect any other term or provision of this Agreement, to the extent the
Agreement shall remain operable, enforceable and in full force and effect to the extent
permitted by law.
4.3 This Agreement maybe amended only with the written approval of the Parties.
4.4 This Agreement states the entire understanding and Agreement between the Parties and
supersedes any and all written or oral representations, statements, negotiations or
Agreements previously existing between the Parties with respect to the subject matter of
this Agreement.
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4.5 The Parties agree that time is of the essence in the performance of each and every
obligation under this Agreement.
4.6 By providing funding hereunder, the City does not make any warranty, guaranty or any
representation whatsoever regarding any of the work performed hereunder, including but
not limited to, the adequacy or sufficiency of all or any part of work described in the
Development Agreement.
4.7 In the event a dispute arises that the Parties cannot resolve between themselves, the
Parties shall have the option to submit their dispute to non-binding mediation. The
mediator or mediators shall be impartial, shall be selected by the Parties, and the cost of
the mediation shall be borne equally by the Parties.
4.8 The City's obligation to fund all or any portion of the Grant is subject to and contingent
upon such funding continuing to be allowed and permissible pursuant to applicable
Florida law, as same may be amended from time to time. In the event that City's
performance and obligation to Developer with respect to the Grant is rendered impossible
by applicability of law(s), then the Parties agree that City's obligation shall be
extinguished, and that neither Party shall have any further liability to the other with
respect to this Grant.
4.9 The Developer shall maintain records and the City shall have inspection and audit rights
as follows:
A. Maintenance of Records. The Developer shall maintain all financial and non-
financial records and reports directly or indirectly related to the performance of
this Agreement, including supporting documentation for any service rates,
expenses, research or reports. Such records shall be maintained and made
available for inspection for a period of three (3) years from completing
performance and receiving final payment under this Agreement.
B. Examination of Records. Within three (3) years from the expiration date of this
Agreement, but no more often than once a year, the City or designated agent may
examine, in accordance with generally accepted governmental auditing standards,
all records directly or indirectly related to this Agreement, but only upon prior
written notice to Developer and at a time or times during which such inspection
shall not unduly interfere with the operation of the Developer's business.
C. Extended Availability of Records for Le ag 1 Disputes. In the event the City should
become involved in a legal dispute with a third party arising in connection with
this Agreement, the Developer shall extend the period of maintenance for all
records relating to this Agreement until the final disposition of the legal dispute or
such other time as the Parties may agree. Examination thereof shall be in
accordance with the provisions of Section 5.1 B above.
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IN WITNESS WHEREOF, the Parties or their duly authorized representatives hereby
execute this Grant-In-Aid Agreement on the date written below.
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation of the State of Florida
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADS )
The foregoing instrument was acknowledged before me thisd~ day of ,
..{ rnawt
~Do~ by~r M• a~.1eL, as~4 ar~id~ ~o~at'-rT~ r-c.1,¢~, as City Clerk fth ITY OF
MIAMI BEAC , FLORIDA, a municipal corporation of the State of Florida, on behalf of such
municipal corporation. They are personally known to me o~roduced valid Florida driver's
licenses as identification.
My commission expires: ~~~'
N tart' Public tate of Florida
" ~; , LILLIAN BEAUCHAMP Print Name:. ~~//i C /1/ /.~~j G /
"~ ~ '~'.~ A4Y COMb115SI0N # DD 530416
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• r3c EXPIRES: April 29, 2010
.~'%'~,~~ ~a~°,e`~ Bonded Thru Notary Public Underwriters
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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Print Name: C~B~~" ~ 64RC N c~12
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IN WITNESS WHEREOF, the Parties or their duly authorized representatives hereby
execute this Grant-In-Aid Agreement on the date written below.
WITNESSES:
THE NEW WORLD SYMPHONY, anot-
for-profit corporation ,
By:
oward Herring, President and EO
ATTEST:
By: [Seal]
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this ~~ day of~Y ,
_ ~ by Howard Hemng, as President and CEO, and , as Secretary, of
THE NEW WORLD SYMPHONY, anot-for-profit Florida corporation, on behalf of such
corporation. They are personally known to me o produced yalid Florid river's licen~ as
identification.
My commission expires: ~.t C. ~~ ~p (/
Notary Public, Sate of Florida
Print Name: ~~YVt ~~+~ D~- _
~j
„...u„ TOM SNOOK
~~4PQY P~~~i~
;?o ~ ~;-; Notary Public -State of Florida
- My Commission Expires Apr 24, 2011
". A•c Commission q DD 635788
''%;~' of F~~p..
~n.,~u~ ~ Bonded Through National Notary Assn.
EXHIBIT "A"
See Attached.
Exhibit A
1.1 Payment shall be made on a reimbursement basis. The Developer shall complete,
sign and submit to the City the appropriate reimbursement request forms (Exhibit
A-1 through A-8) accompanied by supporting documentation, as necessary.
(a) Exhibit A-1: Authorized Signature Fonn provides signature of
Developer's representatives authorized to approve reimbursement requests
and verification statements.
(b) Exhibit A-2: Reimbursement Request Cover Letter to be signed by
authorized representative for the Developer and attached to each
reimbursement request.
(c) Exhibits A-3 and A-4: Reimbursement Request Forms to be submitted
with appropriate backup (Standard AIA form, copies of invoices, canceled
checks, etc.) for each reimbursement request.
(d) Exhibit A-5: Reimbursement Request Fonn for furniture, fixtures and
equipment to be submitted with appropriate backup (Standard AIA form,
copies of invoices, canceled checks, etc.) .
1.2 The Developer is responsible for reporting, on a continuous, on-going basis any
contractual relationship established to perform work on the project, start dates,
progress payments, completion dates, etc., as required in the Monthly Status
Report. Additional reports maybe required upon the request of the City Manager.
(a) Exhibit A-6: Monthly Status Report to be submitted to the City's
representative on the 30th day of each month, to cover expenditures and
progress for the preceding month. The Monthly .Status Reports should be
delivered to the City commencing 180 days prior to the Developer
submitting the first draw request through completion of the project.
1.3 The Developer shall produce documentation verifying that $135,000,000 has been
previously expended on the project. This documentation shall be provided to the
City prior to submitting the first draw request for grant funds.
(a) Exhibit A-7: Verification of Expenditure of Matching Funds Statement.
1.4 In the event the total project cost exceeds $150,000,000, the Developer shall
provide immediate notice of same to the City, along with evidence reasonably
satisfactory to the City regarding the Developer's sources of funding for all final
costs in excess of $150,000,000 needed to complete the project. The Developer
shall also include a revised cost estimate for total project cost, including
breakdown detail of costs needed to complete the Project.
(a) Exhibit A-8: Verification of Supplemental Funds Statement.
Developer shall maintain an accounting system which meets generally accepted
accounting principles and shall maintain all required financial records to properly account
for all City funds used for the Project. The Developer shall at all times maintain a
separate accounting of all City funds.
CITY OF MIAMI BEACH
AUTHORIZED SIGNATURE FORM FOR NEW WORLD SYMPHONY REIMBRUSEMENT REQUESTS
form certifies the names, titles and signatures of individuals authorized by the Developer to sign reimbursements requests and and
requests that may be required by the City of Miami Beach for the disbursement of funds. These signature authorizations arE
ned by the City of Miami Beach for auditing purposes. Entities are required to submit updates to this list as they become necessary.
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