HomeMy WebLinkAboutDecember 1, 2010 Special City Council Meeting Agenda
Special City Council Agenda December 1, 2010 Page 1 CITY OF MIAMI GARDENS SPECIAL CITY COUNCIL MEETING AGENDA Meeting Date: December 1, 2010 1515 NW 167th St., Bldg. 5, Suite 200 Miami
Gardens, Florida 33169 Next Regular Meeting Date: December 8, 2010 Phone: (305) 622-8000 Fax: (305) 622-8001 Website: www.miamigardens-fl.gov Time: 5:00 p.m. Mayor Shirley Gibson Vice
Mayor Aaron Campbell Jr. Councilwoman Lisa Davis Councilman André Williams Councilwoman Felicia Robinson Councilwoman Sharon Pritchett Councilman Oliver G. Gilbert III City Manager Dr.
Danny O. Crew City Attorney Sonja K. Dickens, Esq. City Clerk Ronetta Taylor, MMC City of Miami Gardens Ordinance No. 2007-09-115 requires all lobbyists before engaging in any lobbying
activities to register with the City Clerk and pay an annual fee of $250.00. This applies to all persons who are retained (whether paid or not) to represent a business entity or organization
to influence “City” action. “City” action is broadly described to include the ranking and selection of professional consultants, and virtually all-legislative, quasi-judicial and administrative
action. All not-for-profit organizations, local chamber and merchant groups, homeowner associations, or trade associations and unions must also register however an annual fee is not
required. (A) CALL TO ORDER/ROLL CALL (B) INVOCATION (C) PLEDGE OF ALLEGIANCE (D) PRESENTATION D-1) Architectural Renderings of Proposed City Hall/Police Department Complex By James
Brennan, URS Corporation Page 1 of 40
Special City Council Agenda December 1, 2010 Page 2 (E) ORDINANCE(S)/FIRST READING E-1) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE BORROWING
OF THREE MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($3,375,000); AUTHORIZING THE ISSUANCE OF CITY OF MIAMI GARDENS, FLORIDA CAPITAL IMPROVEMENT REVENUE BONDS OR THE DELIVERY
OF A LEASE OBLIGATION NOT TO EXCEED THREE MILLION THREE HUNDRED SEVENTYFIVE THOUSAND DOLLARS ($3,375,000); PROVIDING FOR SUPPLEMENTAL RESOLUTION SETTING FORTH THE DETAILS OF SAID BONDS
OR LEASE OBLIGATION; PROVIDING FOR ADOPTION OF REPRESENTATIONS; REPEALING ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE. (SPONSORED BY THE
CITY MANAGER) (F) RESOLUTION(S) F-1) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE AND ATTEST RESPECTIVELY,
THAT CERTAIN DEVELOPMENT SERVICES AGREEMENT WITH MIAMI GARDENS TOWN CENTER LLC, AND LT ENTERPRISES, LLC; PROVIDING FOR THE ADOPTION OF REPRESENTATIONS; PROVIDING AN EFFECTIVE DATE. (SPONSORED
BY THE CITY MANAGER) (G) ADJOURNMENT IN ACCORDANCE WITH THE AMERICAN WITH DISABILITIES ACT OF 1990, ALL PERSONS WHO ARE DISABLED AND WHO NEED SPECIAL ACCOMMODATIONS TO PARTICIPATE IN
THIS MEETING BECAUSE OF THAT DISABILITY SHOULD CONTACT RONETTA TAYLOR, MMC, CITY CLERK (305) 622-8000 EXT./2750, NO LATER THAN 48 HOURS PRIOR TO SUCH PROCEEDINGS. TDD NUMBER 1-800-955-8771.
ANYONE WISHING TO OBTAIN A COPY OF ANY AGENDA ITEM MAY CONTACT RONETTA TAYLOR, MMC, CITY CLERK (305) 622-8000 EXT. 2750. THE ENTIRE AGENDA PACKET CAN ALSO BE FOUND ON THE CITY’S WEBSITE
AT www.miamigardens-fl.gov. ANYONE WISHING TO APPEAL ANY DECISION MADE BY THE CITY OF MIAMI GARDENS WITH RESPECT TO ANY MATTER CONSIDERED AT SUCH MEETING OR HEARING WILL NEED A RECORD
OF THE PROCEEDINGS AND, FOR SUCH PURPOSE, MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL
IS IS TO BE BASED. Page 2 of 40
1515 NW 167 Street, Building 5 Suite 200 Miami Gardens, Florida 33169 City of Miami Gardens Agenda Cover Memo Council Meeting Date: December 1, 2012 Item Type: (Enter X in box) Resolution
Ordinance Other x Fiscal Impact: (Enter X in box) Yes No Ordinance Reading: (Enter X in box) 1st Reading 2nd Reading x Public Hearing: (Enter X in box) Yes No Yes No x Funding Source:
Lease-Purchase Agreement Advertising Requirement: (Enter X in box) Yes No x Contract/P.O. Required: (Enter X in box) Yes No RFP/RFQ/Bid #: x x (Enter #) Sponsor Name Dr. Danny Crew,
City Manager Department: City Manager’s Office Short Title: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE BORROWING OF THREE MILLION THREE HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS ($3,375,000); AUTHORIZING THE ISSUANCE OF CITY OF MIAMI GARDENS, FLORIDA CAPITAL IMPROVEMENT REVENUE BONDS OR THE DELIVERY OF A LEASE OBLIGATION NOT TO
EXCEED THREE MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($3,375,000); PROVIDING FOR SUPPLEMENTAL RESOLUTION SETTING FORTH THE DETAILS OF SAID BONDS OR LEASE OBLIGATION; PROVIDING
FOR ADOPTION OF REPRESENTATIONS; REPEALING ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE. Staff Summary: The City’s red light camera provider
(ATS) has approached the City with a request for the City to purchase the physical assets (cameras, poles, etc) of ATS under a lease-purchase agreement. They are planning to take their
company public and this would assist in that effort. They are willing to pay all costs associated with the financing agreement including all fees for bond counsel, issuance costs, principal
payments and interest payments. This would make it a no-cost deal for the City. In addition to covering all costs, ATS would also pay the City $105,000 per year in addition for doing
the financing agreement. The first year’s payment would be an ITEM E-1) ORDINANCE/FIRST READING Capital Improvement Revenue Bond Page 3 of 40
1515 NW 167 Street, Building 5 Suite 200 Miami Gardens, Florida 33169 up-front cash payment. Future payments would be recognized as a reduction in our payment to them for our monthly
processing charges. In order to complete the transaction, Council would have to adopt a financing ordinance (Attached). This would require a first reading on December 1st and a second
reading on December 8th. At the second reading, there will be an additional resolution outlining the details of the transaction. SunTrust bank has been working with ATS on these agreements
and has agreed to work with Miami Gardens as well. A key component of being able to take advantage of this opportunity for the City to realize additional revenue under the new financing
structure, was being able to complete the financing by the end of the calendar year. Due to the time constraints, Jeffery DeCarlo was asked to serve as the City’s bond Counsel as he
has knowledge of the agency and has served the City before in such a financing agreement. All bond bond counsel fees will be paid by ATS. The complete terms of the Sun Trust financing
will be set forth in the financing resolution presented at second reading. City is researching which method will be most appropriate. Generally, financing will consist of a no more than
a six year term with either a tax-exempt rate of 2.19% or a taxable rate of 3.44%. The actual rate is set at closing. ATS has agreed to pay all debt service and associated costs. Proposed
Action: Recommend that City council approve the proposed bond-financing ordinance on first reading. Attachment: Attachment A: Draft ATS Contract – Amendment 2 Page 4 of 40
{M1935175_1} ORDINANCE NO. 2010-___ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE BORROWING OF THREE MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND
DOLLARS ($3,375,000); AUTHORIZING THE ISSUANCE OF CITY OF MIAMI GARDENS, FLORIDA CAPITAL IMPROVEMENT REVENUE BONDS OR THE DELIVERY OF A LEASE OBLIGATION NOT TO EXCEED THREE MILLION THREE
HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($3,375,000); PROVIDING FOR SUPPLEMENTAL RESOLUTION SETTING FORTH THE DETAILS OF SAID BONDS OR LEASE OBLIGATION; PROVIDING FOR ADOPTION OF REPRESENTATIONS;
REPEALING ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City desires to authorize the borrowing of Three Million Three Hundred
Seventy-Five Thousand Dollars ($3,375,000), and to authorize the issuance of bonds or the delivery of a lease obligation, which may be taxable or tax-exempt, not exceeding Three Million
Three Hundred Seventy-Five Thousand Dollars ($3,375,000) for the purpose of financing the costs of a traffic safety camera system, and paying costs of issuance of the bonds or lease
obligation, and WHEREAS, pursuant to Section 4.3 of the City’s Charter, an ordinance must be adopted in order to authorize the borrowing of money, and WHEREAS, the Council desires that
the bonds or lease obligation be secured by a covenant to budget and appropriate sufficient available funds in each fiscal year, as further specified by subsequent resolution of the
Council, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AS FOLLOWS: SECTION 1. ADOPTION OF REPRESENTATIONS: The foregoing Whereas Clauses are
hereby ratified and confirmed as being true, and the same are hereby made a specific part of this Ordinance. SECTION 2. AUTHORIZATION: In accordance with the provisions of the Charter
of the City of Miami Gardens, Florida and Chapter 166, Florida Statutes, the City Council of the City of Miami Gardens hereby authorizes the borrowing of Three Million Three Hundred
Seventy-Seventy-Five Thousand Dollars ($3,375,000). The City Council further authorizes Capital Improvement Revenue Bonds (the “Bonds”) of the City, or a lease financing for the equipment
(the “Lease”), which may be taxable or tax-exempt, in an aggregate principal amount not to exceed Three Million Three Hundred Seventy-Five Thousand Dollars ($3,375,000), in one or more
series, for the purpose of financing the costs of a traffic safety camera system, and paying costs of issuance of the Bonds or Lease. If Bonds are issued, the Bonds shall be designated
as “City of Miami Gardens, Florida Capital Improvement Revenue Bonds, Series 2010”or such other designation as may be approved by supplemental resolution, and if a Lease is entered into,
the Lease obligation shall be designated and specified by supplemental resolution, and both shall be dated such date, shall have a term or maturity not later than six (6) years from
the date Page 5 of 40
{M1935175_1} 2 of issuance of the Bonds or the date of execution of the Lease, shall bear interest or have an interest component from their dated date at a rate or rates not exceeding
the maximum rate permitted by law at the time of issuance of the Bonds or the date of execution of the Lease, and shall have such other details, all as shall hereafter be determined
by the Council by supplemental resolution.. The supplemental resolution may be adopted, and the Bonds may be issued or the Lease may be executed, at any time after the effective date
of this Ordinance. SECTION 3. AUTHORIZATION: The City Manager and the City Finance Director are each hereby authorized to negotiate with banks and other financial institutions for the
purchase of and terms of the Bonds or the terms of the Lease. The City Attorney and Bond Counsel to the City are hereby authorized to draft documents and to do all other things necessary
to accomplish the issuance and sale of the Bonds or the execution of the Lease. SECTION 4. CONFLICT: All ordinances or Code provisions in conflict herewith are hereby repealed. SECTION
5. SEVERABILITY: If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Ordinance. SECTION 6. EFFECTIVE
DATE: This Ordinance will become effective immediately upon its final passage. PASSED ON FIRST READING THE _____ DAY OF __________, 2010. PASSED ON SECOND READING THE _____ DAY OF __________,
2010. ADOPTED AND PASSED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS AT ITS REGULAR MEETING HELD ON THE _____ DAY OF _______, 2010. SHIRLEY GIBSON, MAYOR ATTEST: RONETTA TAYLOR,
CMC, CITY CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Page 6 of 40
{M1935175_1} 3 CITY ATTORNEY Prepared by YOSS, LLP, Bond Counsel SPONSORED BY: DANNY O. CREW, CITY MANAGER MOVED BY: VOTE: Mayor Shirley Gibson ____(Yes) ____(No) Vice Mayor Aaron Campbell
____(Yes) ____(No) Councilwoman Lisa Davis ____(Yes) ____(No) Councilwoman Felicia Robinson ____(Yes) ____(No) Councilman Oliver Gilbert III ____(Yes) ____(No) Councilwoman Sharon Pritchett
____(Yes) ____(No) Councilman Andre L. Williams ____(Yes) ____(No) Page 7 of 40
_________________________________________________________________________________________________ Confidential Page 1 of 5 Miami Gardens_2nd Amendment_2010.11.17 City of Miami Gardens,
FL DRAFT AMENDMENT NO. 2 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI GARDENS AND AMERICAN TRAFFIC SOLUTIONS This Amendment No. 2 (the “Amendment”) to the Professional Services Agreement
between the City of Miami Gardens and American Traffic Solutions, Inc. (the “Agreement”) dated as of December 12, 2007 is made and effective as of this ____ day of December, 2010 by
and between the City of Miami Gardens, Florida, a municipal corporation (herein “Customer” or “City”) and American Traffic Solutions, Inc. (herein “ATS” or “Contractor”). Recitals WHEREAS,
on or about November 14, 2007, the City adopted Ordinance No. 2007-26-132, which provides for the enforcement of red light violations using traffic infraction detectors (the “Ordinance”);
and WHEREAS, on or about December 12, 2007, the City and Contractor entered into the Agreement, whereby the City and Contractor agreed to the provision by Contractor of services to the
City in connection with the enforcement of the Ordinance, subject to the terms and conditions stated in the Agreement; and WHEREAS, the Agreement provides that “the parties hereby agree
to that certain Professional Services Agreement attached hereto as Exhibit ‘A’ plus all Exhibits,” subject to certain amendments to said Exhibit “A” made in the Agreement, such Professional
Services Agreement being referred to herein as the “PSA”; and WHEREAS, on or about April 22, 2010, the City and Contractor entered into that certain Agreement Regarding Allocation of
Costs and Responsibilities in Connection with Resolution of Claims by AS Ventures, Inc. (the “Costs Agreement”), which modified the Agreement in limited respects and provided for certain
payments between the City and Contractor; and WHEREAS, on or about May 13, 2010, the Governor of the State of Florida signed CS/CS/HB325 into law, resulting in the Law of Florida 2010-80
taking effect on July 1, 2010; and WHEREAS, the Agreement was amended on July 1, 2010 to align the provision of services by Contractor with the provisions and requirements of the Law
of Florida 2010-80; and WHEREAS, the City and Contractor wish to modify the Agreement a second time by this Second Amendment to reflect the sale and leaseback of those traffic safety
camera systems by the City pursuant to a lease agreement between the City and Suntrust Equipment Finance & Leasing Corp.; NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor and City agree that the Agreement shall be
and hereby is amended and modified on the terms provided herein: Formatted: Font color: Red Page 8 of 40
_________________________________________________________________________________________________ Confidential Page 2 of 5 Miami Gardens_2nd Amendment_2010.11.17 City of Miami Gardens,
FL 1. Recitals. The preceding recitals are true and correct and are incorporated into this Amendment by reference. 2. Ownership of System. Exhibit A, Section 10 (“Ownership of System”)
is hereby amended to include the following language: ATS agrees to sell the City twenty-five (25) installed traffic safety camera systems (the “Leased Systems”) for $3,375,000 and to
the sale and leaseback of those traffic safety camera systems by the City pursuant to a lease agreement between City and Suntrust Equipment Finance & Leasing Corp. dated December ___,
2010 (the “Lease”) ATS agrees to maintain and operate the Leased Systems on behalf of the City during the term of the Lease on the same basis as if they were owned by ATS, and The City
of Miami Gardens agrees to sell the Leased Systems back to ATS for one dollar ($1.00) at the end of their seven year depreciable life lease term if and when such Leased Systems revert
back to the City at the end of the Lease. ATS and the City understand that ATS’ right to repurchase the Leased Systems is subject to all the terms of the Lease agreement and to Suntrust
Equipment Finance & Leasing Corp. rights under the Lease and that ATS’ right to repurchase the Leased Systems shall not apply if the City is unable to reacquire the Leased Systems at
the end of the Lease term. 3. Service Fee Schedule. Section 1.0 of Exhibit A, Schedule 1 is hereby deleted in its entirety and replaced with the following: 1.0 Description of Pricing
Fees are based on per Camera and are as follows: Fee Upfront Payment from Contractor to City Within 30 days of the later of the signing of this Amendment, the sale of the Leased Systems
by the Contractor to the City and the execution of the Lease, Contractor shall pay the City an amount equal to $105,000, which equals the $350 per camera per month fee reduction times
12 months times 25 cameras, and in effect equals an upfront payment of the $350 fee reduction on all cameras for 2011. $105,000 + out of pocket City expenses Flat Fees in 2011 Flat Fee
per Camera per Month, plus certified mail processing surcharge of $4 per piece metered (no return receipt) $5,150.00* *estimated fee as the new flat fee per camera shall equal $7,550
minus the actual lease payment per camera, estimated here Page 9 of 40
_________________________________________________________________________________________________ Confidential Page 3 of 5 Miami Gardens_2nd Amendment_2010.11.17 City of Miami Gardens,
FL to be $2,400 Flat Fees in 2012 and beyond Flat Fee per Camera per Month, plus certified mail processing surcharge of $4 per piece metered (no return receipt) $4,800.00* *estimated
fee as the new flat fee per camera shall equal $7,550 minus $350 minus the actual lease payment per camera, estimated here to be $2,400 If Customer violations should decline by 2040%,
Customer and ATS, in good faith will renegotiate Service Fee Schedule. If the certified mail processing fee exceeds $4 per piece metered, no return receipt Customer and ATS in good faith
will renegotiate the surcharge amount. The $2,400 fee for the lease payment shall be in addition to any negotiated reduction in the monthly flat fee. Service Fees Include: Fee includes
all costs required and associated with camera system installation, maintenance and on-going field and back-office operations. Includes red-light camera equipment for a 4-lane approach
with up to two (2) signal phases, installation, maintenance, violation processing services, DMV records access, mailing of Notice of Violation in color with return envelope, lockbox
and epayment processing services, call center support for general program questions and public awareness program support. 4. Lease. The Lease between City and Suntrust Equipment Finance
& Leasing Corp. is hereby incorporated into the Agreement as Exhibit B and is attached to the Amendment hereto below. 5. Performance Bond. Contractor agrees to pay for and post a performance
bond in the amount of $1 million to protect the City in the event Contractor is unable to perform its services to the City under this Agreement.5. INSERT Surety Bond Language discussed
with the City Manger Formatted: Font color: Green Formatted: Not Highlight Formatted: Highlight Page 10 of 40
_________________________________________________________________________________________________ Confidential Page 4 of 5 Miami Gardens_2nd Amendment_2010.11.17 City of Miami Gardens,
FL [Remainder of Page Intentionally Left Blank] IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day and year first written above. ATTEST: CITY OF MIAMI GARDENS,
FLORIDA By: By: Ronetta Taylor City Clerk Date Dr. Danny O. Crew City Manager Date APPROVED AS TO FORM By: Sonya Dickens City Attorney Date WITNESS: AMERICAN TRAFFIC SOLUTIONS, INC.
By: Date Adam E. Tuton Chief Operating Officer Date Date Page 11 of 40
_________________________________________________________________________________________________ Confidential Page 5 of 5 Miami Gardens_2nd Amendment_2010.11.17 City of Miami Gardens,
FL EXHIBIT B LEASE Page 12 of 40
1515 NW 167 Street, Building 5 Suite 200 Miami Gardens, Florida 33169 City of Miami Gardens Agenda Cover Memo Council Meeting Date: December 1, 2010 Item Type: (Enter X in box) Resolution
Ordinance Other x Fiscal Impact: (Enter X in box) Yes No Ordinance Reading: (Enter X in box) 1st Reading 2nd Reading x Public Hearing: (Enter X in box) Yes No Yes No x Funding Source:
Bond Financing Advertising Requirement: (Enter X in box) Yes No x Contract/P.O. Required: (Enter X in box) Yes No RFP/RFQ/Bid #: X RFPCN 09-10-063 Sponsor Name Dr. Danny Crew, City Manager
Department: City Manager’s Office Short Title: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE AND ATTEST
RESPECTIVELY, THAT CERTAIN DEVELOPMENT SERVICES AGREEMENT WITH MIAMI GARDENS TOWN CENTER LLC, AND LT ENTERPRISES, LLC; PROVIDING FOR THE ADOPTION OF REPRESENTATIONS; PROVIDING AN EFFECTIVE
DATE. Staff Summary: The “Development Services Agreement” has been negotiated in conformance with the guidelines established in RFPCN 09-10-063 for a public-private initiative for the
City’s established goal of revitalizing the “Town Center Area”. The agreement is with a joint venture of two qualified entities – Miami Gardens Town Center LLC (“MGTC”) and LT Enterprises
(“LTE”); as part of the ‘services’ to be provided, the a general contractor (Coastal Construction Company and HA Construction, Inc) will be retained to build the City Hall Complex under
a Guaranteed Maximum Price (“GMP”) contract. The principle public purpose of the agreement is to induce new private development, adjacent to and as part of the City’s investment in the
new City Hall Complex. The collateral objective is to leverage private sector resources to construct the new City Hall Complex in a timely and cost-effective manner. There are two main
financial aspects of the agreement. The first is fee payments for ‘development’ services to be rendered by MGTC associated with the construction of the City Hall Complex, and an ‘incentive’
fee associated with the construction of the 1st phase of private development (minimum of 40,000 sf, including a performing arts center component). The second is the GMP construction
contract. The terms of each of these are: Development Fee: Pre-construction $ 525,000 Paid monthly, with 10% retainage until construction ITEM F-1) RESOLUTION Development Services
Agreement w/Miami Gardens Town Center LLC. Page 13 of 40
1515 NW 167 Street, Building 5 Suite 200 Miami Gardens, Florida 33169 phase. Construction $ 825,000 Paid monthly, with 10% retainage until completion/closeout. Commissioning/Close-out
$ 150,000 Paid monthly, with 10% retainage until completion/closeout. Total $1,500,000 Incentive Fee: Phase 1 Private Development $1,000,000 Paid in 1/3performance increments: commencement
of construction/shell completion/CO. Construction Contract: Contract runs through MGTC, subject to City approval of final terms and form. Fully bonded and to include all the City’s
standard provisions for construction contracts. GMP set at permit Construction Documents, with pre-negotiated fees/profit. 16-19 month construction period; final schedule set at
Design Development, subject to City approval. Full compliance with LEED Platinum protocols. GC fees. Overhead, and General Conditions at 4.5%, 3% and 5.5% respectively. Contingency
at 3.25%. 10% retention of monthly payments. 20% MWBE effort per City’s goal. The agreement also includes 3 non monetary inducements for private development: 1) the ability to pursue
a Special Assessment District; 2) an opportunity to negotiate a ‘shared parking’ arrangement, and 3) a generalize statement on preferred location for new hotel development. The agreement
provides for controls and protections for the City. Specifically: the agreement is not go ‘live’ until MGTC/LTE file proof insurance and MGTE submits a schedule and staffing for approval;
further, LTE has until January 15, 2011 to close on the adjacent shopping center, and no payments are to be made until closing; and if the construction contract is not approved by the
City within 65 days of the effective date of the City, the City may opt out of using Coastal/HA as the GC’s. Proposed Action: That City Council approve the attached agreement. Attachment:
Attachment A: Agreement Page 14 of 40
RESOLUTION NO. 2010____ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE AND ATTEST RESPECTIVELY, THAT CERTAIN
DEVELOPMENT SERVICES AGREEMENT WITH MIAMI GARDENS TOWN CENTER LLC, AND LT ENTERPRISES, LLC; PROVIDING FOR THE ADOPTION OF REPRESENTATIONS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City
of Miami Gardens previously issued a Request for Proposals for Competitive Negotiations for Public/Private Development Opportunity (“RFPCN”) in accordance with RFPCN #09-10-063, and
WHEREAS, the Miami Gardens Town Center LLC and LT Enterprises, LLC as a joint venture (“Developer”), responded to the RFPCN on August 16, 2010 with supplemental responses submitted on
September 2 and 3, 2010, and WHEREAS, the City Council previously instructed the City Manager and City Attorney to negotiate an agreement with the Developer, and WHEREAS, the attached
Development Services Agreement memorializes the parties’ intention with respect to the development development of property owned by the City of Miami Gardens, as more particularly described
in the agreement, as well as property owned by the Developer, as more particularly described in the agreement, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MIAMI
GARDENS, FLORIDA AS FOLLOWS: Section 1: ADOPTION OF REPRESENTATIONS: The foregoing Whereas paragraphs are hereby ratified and confirmed as being true, and the same are hereby made a
specific part of this Resolution. Section 2: AUTHORIZATION: The City Council of the City of Miami Gardens hereby authorizes the City Manager and City Clerk to execute and attest respectively,
Page 15 of 40
2 that certain Development Services Agreement with Miami Gardens Town Center LLC and LT Enterprises, LLC. Section 3: INSTRUCTIONS TO THE CLERK: The City Clerk is hereby authorized to
obtain three (3) fully executed copies of the subject Agreement with one to be maintained by the City, and one to be delivered to Miami Gardens Town Center LLC and LT Enterprises, LLC.
Section 4: EFFECTIVE DATE: This Resolution shall take effect immediately upon its final passage. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS AT ITS SPECIAL MEETING
HELD ON ____________, 2010. ___________________________________ SHIRLEY GIBSON, MAYOR ATTEST: __________________________________ RONETTA TAYLOR, CMC, CITY CLERK PREPARED BY: SONJA KNIGHTON
DICKENS, ESQ., CITY ATTORNEY SPONSORED BY: DR. DANNY CREW Moved by: __________________ VOTE: _________ Mayor Shirley Gibson ____ (Yes) ____ (No) Vice Mayor Aaron Campbell ____ (Yes)
____ (No) Councilwoman Lisa Davis ____ (Yes) ____ (No) Councilman Oliver Gilbert,III ____ (Yes) Yes) ____ (No) Page 16 of 40
3 Councilwoman Sharon Pritchett ____ (Yes) ____ (No) Councilwoman Felicia Robinson ____ (Yes) ____ (No) Councilman Andre’ Williams ____ (Yes) ____ (No) Page 17 of 40
Page 1 Revised 11/23/2010 – 9:29 a.m. THIS DEVELOPMENT SERVICES AGREEMENT (the “Agreement”) is made and entered into this ___ day of November, 2010, by and among the City of Miami Gardens
(hereinafter called “City”), Miami Gardens Town Center LLC, a Florida limited liability company (“MGTC”) and LT Enterprises, LLC a Florida limited liability company (“LTE”), as a joint
venture(hereinafter collectively called “Developer”). DEVELOPMENT SERVICES AGREEMENT W I T N E S S E T H: WHEREAS, the City is the owner of certain real property consisting of approximately
4.9 acres located in Miami Gardens, Florida, as more particularly described in Exhibit "A," attached to this
Agreement, together with a right-of-way for Northwest 127th Avenue, (the "City Property”), and WHEREAS, the Developer is the owner of or has contractual control over the acquisition
of approximately 10 acres, located in the City of Miami Gardens and contiguous to the City Property, as more particularly described in Exhibit “B,” attached to this Agreement (“Developer
Property”), and WHEREAS, City and Developer desire to cooperatively develop their respective properties as a combined signature town center, with integrated common infrastructure, as
well as pedestrian and vehicular trafficways, a common architectural vernacular, landscaping and streetscaping, with governmental, commercial and residential improvements (“the Town
Center”), and WHEREAS, the City issued a Request For Proposals For Competitive Negotiations for Public/Private Development Opportunity (“RFPCN”), under RFPCN #09-10-063, and WHEREAS,
Developer submitted its response on August 16, 2010, which was supplemented on September 2 WHEREAS, the City desires to engage Developer as the City Complex’s exclusive Developer for
compensation, to perform the development services described in this Agreement including the retention and oversight of a general contractor to construct the City Complex, as generally
described herein, on the City Property and Developer accepts such engagement and agrees to use commercially reasonable efforts to coordinate development of the City Complex and Project
in an expeditious and economical manner, consistent with the City’s interests, and 3, 2010 (“Response”), the terms of RFPCN #09-10-063 and such Response being incorporated herein, by
reference, and Page 18 of 40
Page 2 Revised 11/23/2010 – 9:29 a.m. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the
receipt and legal sufficiency of which are acknowledged, the parties to this Agreement, intending to be legally bound, do covenant and agree as follows: ARTICLE I. INCORPORATION OF REPRESENTATIONS
The foregoing representations made in the WHEREAS paragraphs hereinabove stated are hereby deemed true and correct and the same are hereby incorporated herein, as if set forth verbatim.
ARTICLE II. DEFINITIONS 2. Definitions. When used in this Agreement, the following terms shall have the following meanings: 2.1. “Architect” means URS Architects, which is the primary
design professional engaged for the building improvements, contracted directly to the City for all entitlement, design, permitting, construction documentation, and construction administration
activity on the City Complex, the cost of which will be paid by the City, according to the terms of the separate agreement between them. 2.2. “Change Order Delay” has the meaning given
that term in Section 7.5 hereof. 2.3. “City Complex” means the development of City Property to include a city hall, police station and parking garage. 2.4. “Construction Contract” shall
be a negotiated Guaranteed Maximum Price (“GMP”) construction contract with the contractor, with all customary provisions included 2.5. “Construction Contract Amount” is the total amount
of construction costs, materials, labor, contractor fee, general conditions (including permitting and insurance), as priced by the Contractor and stated in the Construction Contract.
2.6. “Contractor” means Coastal Construction Company and H.A. Contracting, Inc., as selected by Developer for the construction of the City Complex. 2.7. “Developer’s Compensation” means
the amount to be paid to Developer for the services provided to the City Complex, pursuant to Article XI hereof. 2.8. “Developer Default” means the Developer’s failure to perform or
fulfill any of its obligations under this Agreement and which continues uncured for more Page 19 of 40
Page 3 Revised 11/23/2010 – 9:29 a.m. than twenty (20) days after written notice thereof by City to Developer specifying such default, provided, however, if Developer has not completed
such cure after diligent good faith efforts during such time period, the Developer, at the City’s option, can be terminated and paid by the City through date of termination. 2.9. “Developer’s
Expenses” means all costs incurred by the Developer in the performance of the services contemplated herein, such as, but not limited to, general overhead, travel, office related expenses,
insurance and personnel, all of which are included in the base and Incentive Compensations. 2.10. “Final Completion Date” means the later of the date that the City Complex receives a
final certificate of occupancy and all final punch list items are completed and accepted by the Architect and City or the initial LEED Commissioning is completed. 2.11. “Force Majeure
Delay” means the meaning ascribed to such term in the Construction Contract. 2.12. “Incentive Compensation” means the additional compensation to be paid to Developer by City pursuant
to Article IX hereof. 2.13. “LEED” means Leadership In Energy & Environmental Design developed by the U.S. Green Building Council and intended to provide building owners and operators
a concise framework for identifying and implementing practical and measurable green building design, construction, operation and maintenance solutions, consisting of four levels of certification,
certified, silver, gold and platinum. 2.14. “LEED Commissioning” means the process by which the Architect’s LEED Commissioning Consultants determine the applicable rating category among
a suite of nine rating systems for the design, construction and operation of buildings, homes and neighborhoods, five overreaching categories of which correspond to the specialties available
under the LEED Accredited Professional Program and distributed across major credit categories such as Sustainable Sites, Water Efficiency, Energy and Atmosphere, Materials and Resources,
and Indoor Environmental Quality. 2.15. “Plans and Specifications” means the plans and the detailed specifications provided by the Architect for the City Complex. 2.16. ““Private Development”
means the development of adjacent Developer’s Property to the City Property by the Developer for a mixed-use development consisting of performing arts center, banquet facilities, restaurants,
offices, retail space and entertainment uses. 2.17. “Town Center Description” means the description of the development, inclusive of both City Property and Developer Property, as described
in Article III. Page 20 of 40
Page 4 Revised 11/23/2010 – 9:29 a.m. 2.18. “Town Center Representatives” means the following persons, each of whom, respectively, shall serve for the parties, as named. ENTITY NAME
PHONE NUMBER City of Miami Gardens Dr. Danny Crew 305-622-8000 Miami Gardens Towncenter, LLC Kent Gregory 770-356-7800 2.19. “Substantial Completion” means the date on which a temporary
certificate of occupancy is issued and all improvements required to be installed by the Plans and Specifications for the City Complex have been completed and installed in substantial
accordance with the Plans and Specifications, except for final “punch list items” which individually or in the aggregate do not materially interfere with the full use and enjoyment of
the City Complex for its intended purchase, as certified to the City by the certificate from the Architect. 2.20. “Trustee” means the organization selected by the City to hold bond proceeds
and utilized to distribute payments for City Complex Project Costs. ARTICLE III. OVERALL TOWN CENTER DESCRIPTION 3.1. The overall Town Center development shall consist of two phases,
as follows: Phase I -City Property shall consist of that portion of the Project consisting of the City Property Exhibit “A” and more fully expressed here. City Property of the Project
shall include, but not be limited to, a 3-story, approximately 65,000 square foot town hall facility, comprised of the city hall, commission chambers, meeting rooms, and public spaces,
a 3-story, approximately 58,000 square foot police station, and an approximately 500-space, 5-story parking garage, pedestrian and vehicular ways, sidewalks, crossovers, entryways and
courtyards, generally within the footprint described in Exhibit “C,” attached to this Agreement (the “Concept Plan”). 3.2. Phase II -Developer Property shall consist of that portion
of the Town Center consisting of Developer Property and more graphically depicted on the Concept Plan to be improved as a mixed-use development consisting of no less than 40,000 square
feet of performing arts center, banquet facilities, retail, office, restaurant or entertainment spaces. ARTICLE IV. APPOINTMENT AND GENERAL SERVICES 4.1. City engages Developer as the
City Complex's exclusive developer for compensation, to perform the development services described in this Agreement. Developer accepts such engagement and agrees to use commercially
reasonable efforts to coordinate development of the City Complex in an expeditious and economical manner consistent with the interests of City. Prior to the commencement of Page 21 of
40
Page 5 Revised 11/23/2010 – 9:29 a.m. Development Services, the Developer shall submit to the City for its approval, a staffing plan, personnel to be assigned (with an experience statement)
and a master-scheduling plan. 4.2. Developer shall prepare the schedule reflecting the final construction schedule for the City Complex which shall integrate the current schedule of
the Architect and the proposed schedule of the Contractor, as approved by the City. 4.3. Developer, in consultation with City, shall provide general oversight of the entitlement, design
and construction activities and administer the draw accounting in connection with the construction of the City Complex, subject to the terms and conditions of this Agreement. 4.4. The
Developer is providing a compensation-based service and shall not be obligated to spend its own funds for project cost items. 4.5. Developer's services hereunder shall be rendered in
a manner consistent with the level of skill and care ordinarily exercised by developers of first class Platinum LEED office buildings. City acknowledges that the services and work product
provided by consultants, design professionals and construction professionals retained with respect to the City Complex as contemplated hereby are the responsibility of such consultants,
design professionals and construction professionals. Developer does not warrant or guarantee their performances. However, Developer shall promptly notify and advise the City on a recommended
direction if Developer recognizes that the work product of the Architect or other professional consultants is at variance with applicable laws, codes, or regulations and shall use commercially
reasonable to assure compliance by the City Complex consultants, design professionals and construction professionals with the City Complex Schedule, and all other requirements of their
respective contracts. 4.6. Developer is an independent contractor and not an agent of City, and Developer has no authority to make commitments on behalf of, or to legally bind City.
City shall be financially responsible for payment of all fees and contract sums earned and properly invoiced as required herein. 4.7. Unless sooner terminated as provided in Article
XII hereof, this Agreement shall be for a term commencing on the Effective Date of this Agreement and ending on the Final Completion Date including LEED Commissioning, and date the final
payments are made. ARTICLE V. DEVELOPER’S RESPONSIBILITY FOR RETENTION AND OVERSIGHT OF CONTRACTOR 5. The Developer shall have the following duties relative to the Contractor and the
Construction Contract and shall provide for the following respectively: Page 22 of 40
Page 6 Revised 11/23/2010 – 9:29 a.m. 5.1. Contractor is a qualified general contractor, authorized to do business in the general construction trade, with no limits, in the State of
Florida. 5.2. Contractor shall be employed by Developer, (but compensated by City) pursuant to a construction contract, providing for construction manager at risk, guaranteed maximum
price (“GMP”), pursuant to an industry-standard contract form which includes all of the City’s customary provisions for construction contracts and which shall specifically provide for
the following: 5.2.1. Contractor shall provide pre-construction services for scheduling and constructability analyses, costing and value engineering, at a compensation not to exceed
One Hundred Thousand ($100,000.00) Dollars. 5.2.2. The basis for arriving at a final GMP, including an agreed upon contingency amount, will be determined based upon the Plans and Specifications,
and associated construction documents, delivered for permitting. 5.2.3. The allocation and distribution of any cost savings shall be made at 60% to the Contractor and 40% to the City
in the event that the Final Project Cost for the City Complex is less than the GMP. 5.2.4. A construction and delivery schedule, which will not exceed sixteen (16) months to substantial
completion, provided that all component elements will be started within one month of issuance of the Notice to Proceed, but in no event longer than nineteen (19) months from the issuance
of the Notice to Proceed; the schedule for construction of the City Complex shall be established by the Developer in concert with the Contractor, with the City’s reasonable approval,
at the time of completion of the architect’s design development work. 5.2.5. Contractor shall, with in-house personnel or through a qualified LEED Consultant, provide for a Platinum-rated
LEED Design for the City Complex. 5.2.6. The GMP shall provide for a contingency of 3.25%. 5.2.7. A provision for Contractor incentive compensation of One Hundred Twenty-Five Thousand
($125,000.00) Dollars for an on-time completion, with full compliance to LEED Platinum protocols involving the Contractor’s work. 5.2.8. Provision for owner direct-purchasing plan, with
all sales tax savings to be credited against the GMP or, alternatively, at the City’s sole option, the Contractor shall establish an estimate of projected tax savings and shall guarantee
to the City 70% of such projected savings, to be credited against the GMP. 5.2.9. A liquidated damages provision. 5.2.10. Open-book accounting and review procedures. Page 23 of 40
Page 7 Revised 11/23/2010 – 9:29 a.m. 5.2.11. Payment and performance bond security for the full Contract amount, in favor of the City, premium fully paid, by a surety having an AA rating
or better by A.M. Best. 5.2.12. Contractor overhead at 3%, general conditions at 5.5% and profit at 4.5%. 5.2.13. Invoicing and payment procedures/authorizations. 5.2.14. The amount
of retainage which shall not be less than the retainage applied to Developer herein, but in no event less than 10%. 5.2.15. An acknowledgement that the City is a third-party beneficiary
and contingency assignee of Construction Contract, and Developer’s Contractor’s obligations to the third-party beneficiary supersede those to the Developer. 5.2.16. An acknowledgment
that the Contractor will try to achieve the City’s local business preference with 20% participation for the Minority Women Black Enterprises in accordance with established City policy.
5.3. The final form and terms of Construction Contract shall be subject to the reasonable approval approval of the City. If the City and the Developer have not agreed upon the form and
terms of the Construction Contract within sixty-five (65) days of the effective date of this Agreement, then the City, at its option, may pursue bid proposals from other qualified construction
companies. 5.4. A representation that Contractor has inspected the City Property and has satisfied itself as to the condition of the City Property and the scope of the City Complex Work
to be performed in connection therewith and that the GMP is just and reasonable compensation for all City Complex Work, including all foreseen or foreseeable risks, hazards, and difficulties
in connection with the City Complex Work; provided, however, such representation shall exclude subsurface conditions, unless such conditions have been revealed to Contractor in third-party
engineers’ reports. 5.5. Contractor shall be employed by Developer and compensated by the City, pursuant to a representation that Contractor has made a full and complete examination
of the Design Documents and the Construction Documents and has determined that the same comport with all laws, rules and regulations, including specifically, the latest, prevailing edition
of the Florida Building Code, with respect to the undertakings indicated in the Construction Documents. 5.6. Contractor will acknowledge and agree that the City Property is owned by
the City and is excluded from the definition of "real property" upon which liens may be placed as set forth in Section 713.01(24), Florida Statues. Contractor will further acknowledge
and agree that the Work to be performed under this Agreement is for the construction of, among other things, a public building, and that the Contractor shall comply with the requirements
of Section 255.05, Florida Statues, including but not limited to, the provision of bonds and payment of claims. The Contractor will waive, Page 24 of 40
Page 8 Revised 11/23/2010 – 9:29 a.m. release, and relinquish any right to claim or file a mechanic's or materialmen's lien against the City Property or City Complex Work or any portion
of the City Complex Work including, but not limited to, any rights the Contractor may have under Chapter 713, Florida Statutes. This waiver and relinquishment of Contractor’s rights
to claim a mechanic's lien is made for good and valuable consideration and in recognition that City would not enter into this Agreement without such waiver and relinquishment. The Contractor
shall, if the Project is subject to the foregoing conditions, include a provision substantially the same as this Section 5.6 in each of its subcontractor contracts and purchase orders,
requiring subcontractors, materialmen, vendors and suppliers to waive any claim or entitlement to a mechanic's or materialmen's lien on the City Property and to look solely to the credit
of the Developer, its Contractor or the Contractor’s surety for payment of any sums due on the City Complex Work. 5.7. The Contractor will agree that it shall not voluntarily permit
any laborer's, materialmen's, mechanic's, or other similar liens to be filed or otherwise imposed on any part of the City Complex Work or the City's Property. If any laborer's, materialmen's,
mechanic's, or other similar lien or claim is filed and if the Contractor does not cause such lien to be released and discharged, or file a bond in lieu of such lien, Contractor shall
agree the City shall have the right to pay all sums necessary to obtain such release and discharge and deduct all amounts so paid from the next payment due the Developer’s Contractor
under this Agreement. Contractor shall agree if any such lien is filed or otherwise imposed, at the request of the City, the Contractor shall cause such lien to be released and otherwise
discharged. The Contractor will agree to indemnify and hold harmless the City from all claims, losses, demands, causes of action, expenses including attorneys' fees, or suits of whatever
whatever nature arising out of any such lien. 5.8. Contractor shall be responsible for all cost overruns, as it relates to Contractor’s Construction Contract, unless the GMP has been
increased pursuant to formal, written Change Order, only as a result of an additional scope of work determined by the City, in no wise shall the GMP be increased because of price overruns,
errors or omissions. ARTICLE VI. PRE-CONSTRUCTION PHASE 6.1. The signing of this Development Services Agreement begins the pre-construction phase. Developer shall provide the following
pre-construction services: 6.2. Prepare a coordinated, integrated schedule for timely commencement of construction; weekly coordination and maintenance of scheduling for design completion,
bidding, and all requisite permits or regulatory approvals; the schedule shall respect the existing Architect schedule for Design Services, unless modified and approved by the City.
6.3. Coordinate and review all site preparation activities for commencement of construction (geotech, civil, environmental etc). Page 25 of 40
Page 9 Revised 11/23/2010 – 9:29 a.m. 6.4. Hold regular review meetings with Architect as provided in its Design Services contract or more frequently, as needed. 6.5. Review and comment
on Schematic Design, Design Development and Construction Documents relative to completeness, construction cost implications and constructability. 6.6. Provide advice and recommendations
for improving LEED scoring as prepared by Architect on behalf of the City as well cost-score trade-offs that warrant consideration by the City and Architect during the Schematic and
Design Development phases. 6.7. Assure the making of a Guaranteed Maximum Price, open-book, Construction Contract for the City Complex with the Contractor. 6.8. Prior to commencing negotiations,
Developer shall affirm to the City that there are no business conflict of interests between Developer and Contractor regarding a common ownership or financial interest between them,
other than the Construction Agreement. 6.9. Secure all required regulatory permits and approvals to commence construction of the City Complex no later than November 1, 2011. 6.10. Manage
and oversee the Architects’ and Contractors’ preparation of bid packages. 6.11. Work with the City’s Purchasing Department to “pre-qualify” local and MWBE firms for potential subcontracting
work or services during construction. ARTICLE VII. CONSTRUCTION PHASE 7.1. Developer shall provide construction oversight and administration of the Construction Contract on behalf of
the City during construction through close-out of the Construction Contract, as well as oversight and coordination through initial LEED Commissioning. 7.2. Promptly after the necessary
design work is completed, the required permits and approvals obtained and the Construction Contract executed by City and the Contractor, upon City’s prior written approval, Developer
shall cause the Contractor to commence and diligently pursue construction of the City Complex, in accordance with the Plans and Specifications and the terms of the Construction Contract.
Contract. 7.3. During construction of the City Complex, with due reliance upon and assistance from the Architect and other consultants, Developer shall exercise general oversight of
the Architect and Contractor team and in connection therewith shall perform the following duties: Page 26 of 40
Page 10 Revised 11/23/2010 – 9:29 a.m. 7.3.1. Prepare and provide Notice to Proceed to the Contractor when authorized by the City; 7.3.2. Review and approve major subcontractors; 7.3.3.
Monitor and assist the Contractor in achieving established MWBE goals; 7.3.4. Provide the City with a complete progress reports on a weekly basis; 7.3.5. Establish and maintain a financial
reporting system and associated compliance processes for Contractor invoicing, review and payment, including: budget to draw monitoring, review of all invoicing, review-verification
of pay application versus field conditions, collection/release of all lien waivers; 7.3.6. Submit certified invoicing to the City or Trustee as directed by the City and monitor payments
to applicable parties; 7.3.7. Schedule and hold construction review meetings with the Contractor and Architect, not less than weekly during construction; 7.3.8. Monitor compliance with
Construction Documents; 7.3.9. Secure and monitor construction materials testing: soils, concrete, asphalt, steel connections, roofing; 7.3.10. Manage and maintain the Construction Schedule;
7.3.11. Review and evaluate all change order requests from the Contractor or project architect; secure City approval for any change order in excess of $10,000.; 7.3.12. Secure City approval
for changes to the construction budget involving application of funds from the ‘contingency’ line item and reallocation of funds between items; 7.3.13. Provide or procure quality control
inspections and monitoring throughout the construction period; 7.3.14. Manage and provide oversight for all inspections; 7.3.15. Provide prompt resolution to red-tagged inspections;
7.3.16. Professionally resolve conflicts between the Architect and Contractor; Page 27 of 40
Page 11 Revised 11/23/2010 – 9:29 a.m. 7.3.17. Identify and resolve error and omission issues by the Architect or Contractor; 7.3.18. Actively monitor and process LEED compliance/scoring
protocols of the Contractor, on a weekly basis, and provide compliance resolution where needed; 7.3.19. Coordinate installation of contract fixturing, data-voice systems and operations
set-up; 7.3.20. Coordinate and compile the initial through final punch list; 7.3.21. Verify punch list completion; 7.3.22. Manage the process and secure final inspections and certificates
of occupancy; and 7.3.23. Manage the process of final LEED’s Commissioning for Platinum LEED certification. 7.4. In the event any agreement is required in connection with the construction
of the Project that requires execution by City as the owner of the City Property (including, by way of example, easements and agreements with utility companies), Developer shall submit
such agreement, with Developer's recommendations, to City for its approval and execution. execution. City agrees to approve or disapprove any instrument submitted to it as expeditiously
as possible following receipt by City of the proposed agreement and all information reasonably required to evaluate the proposed agreement, including, as applicable, land surveys, engineering
data or other items. 7.5. Developer shall not approve any Change Order without City's express prior written approval. To reduce the possibility of delay, Developer shall promptly forward
and advise the City on all Plans and Specifications, Change Orders and other items requiring City's approval. City shall use diligent efforts to respond to each request for approval
within the time specified for the requested item in Developer's transmittal of such item to City. However, City reserves the right to take not more than five (5) business days to respond
to any request, notwithstanding any shorter response time specified in Developer's transmittal. Any delays incurred which are attributable to affecting a Change Order or the determination
of whether or not a Change Order will be affected are herein called “Change Order Delays”. For all change orders the Developer will review the need for the change, discuss with Contractor
alternative solutions and then recommend to the City the best course of action. 7.6. When Developer considers the Project to be Substantially Complete, Developer shall so notify City.
Promptly after such notice Developer and, if City desires, a representative of City, shall inspect the improvements with the Architect for purposes of preparing a “punch-list” of unfinished
items for submission to the Page 28 of 40
Page 12 Revised 11/23/2010 – 9:29 a.m. Contractor. Developer shall use diligent efforts to manage the Contractor’s completion of all items on the punch-list based on an agreed upon schedule
with the City. ARTICLE VIII. COMMISSIONING & CLOSE-OUT Developer shall provide the following services: 8.1. Coordinate and support as requested the City’s or Architect’s LEED Commissioning
Agent. 8.2. Manage the resolution of all Contractor-related issues identified by the LEED Commissioning Agent. 8.3. Coordinate the LEED Commissioning Agent to provide testing, verification
and documentation that all building systems (security, fire, life safety, HVAC, lighting, emergency power, electrical) are installed and operational in accordance with their specifications.
The Developer will be responsible, working with the Contractor and Architect to complete LEED Commissioning on all major system items not cover under the responsibility of the LEED Commissioning
Agent. 8.4. Coordinate start-up training as needed for all building systems and transfer operations/maintenance manuals. 8.5. Assist the City in establishing required maintenance schedules
for all major systems. 8.6. Advise the City on timing and requirements for transfer of temporary construction utility service accounts to permanent accounts. 8.7. Assist the City in
organizing and compiling all design documentation, including record drawings and specifications. 8.8. Organize and transfer all warranty documentation to the City. 8.9. Conduct a warranty
review one year after building occupancy.
8.10. Verify completion of all warranty punch list items. ARTICLE IX. DEVELOPER COMPENSATION AND PAYMENT 9.1. Developer’s Compensation. For its services in connection with the development
of the City Complex, Developer shall be compensated (the Base Developer Compensation”) of One Million Five Hundred Thousand ($1,500,000.00) Dollars payable in monthly installments based
on an estimated percentage of work completed included on the standard industry draw sheets to the City for payment along with other City Complex Costs during each phase as follows: Page
29 of 40
Page 13 Revised 11/23/2010 – 9:29 a.m. 9.1.1. Pre-Development $525,000 9.1.2. Construction $825,000 9.1.3. Commission/Close-out $150,000 9.1.4. 10% of each category billing will be set
aside by the City as retainage on the City Complex. The Pre-Development retainage will be available to the Developer once that section is complete and signed off by the City. The Construction
and Commission/Close-out retainage will be paid upon close out of City Complex and sign-off by the City. 9.2. The Developer shall receive up to One Million ($1,000,000.00) Dollars, the
Incentive Compensation, if the Developer shall have: 9.2.1. Produced within one hundred twenty (120) days after full execution of this Agreement, a master site plan encompassing the
City Hall Complex and Developer’s Property, addressing therein, interior roadways, public features, landscaping and a common set of design features and principles, employing a coordinated
architectural vernacular and design guidelines, subject to the City’s review as part of the overall development framework, and 9.2.2. Commenced construction on the Developer Property
of not less than 40,000 square feet of building area, within nine (9) months of commencement of the foundations of the City Complex. The commencement of substantial construction on the
Developer Property may be deferred without penalty for three (3) thirty (30) day extension periods, provided at each extension period Developer can demonstrate to the City that the delays
are attributed to valid reasons and that measurable progress is being made to expedite the commencement of construction schedule. For each month of delay in the commencement of substantial
construction on the Developer Property, the Incentive Compensation shall be reduced by Thirty-five Thousand ($35,000.00) Dollars. The Incentive Compensation will be earned in three equal
segments: 1) at completion of foundations, 2) at completion of the shell building and 3) at issuance of temporary certificate of occupancy. The Incentive Compensation shall be payable
by the City, within thirty (30) days upon proper invoicing from the Developer. 9.3. Base Compensation and Incentive Compensation fees are all inclusive of overhead, travel, office related
expenses, insurance and personnel. Any third-party costs or services shall be approved in advance by the City. Developer shall not substitute a third-party vendor to perform its services
under this agreement. ARTICLE X. INSURANCE 10.1. During the construction of the City Complex, the Developer will carry general liability to the limits identified in RFPCN 09-10-063.
In addition, the City Page 30 of 40
Page 14 Revised 11/23/2010 – 9:29 a.m. shall carry reasonable property and project insurance for the duration of this Project. The insurance policies obtained by the Developer pursuant
hereto, shall be endorsed to provide that City and tenant are named as additional insureds. Such insurance policies will be primary, without right of contribution from other insurance
maintained by City. Each joint venture entity shall submit certificates to the City within five (5) days of the execution of this Agreement, and such submission by the developer and
approval thereof by the City shall be a prerequisite to the effectiveness of this Agreement. ARTICLE XI. REPRESENTATION AND WARRANTIES 11.1. To induce City to execute, deliver and perform
this Agreement, Developer hereby represents and warrants to City as follows: 11.1.1. Developer is a joint venture composed of MGTC, LLC, a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Florida and L.T. Enterprises LLC, LLC, a Florida limited liability company, have the full right, power and authority to enter
into this Agreement, and to perform all of the obligations and liabilities of Developer required to be performed hereunder. 11.1.2. This Agreement has been duly and validly executed
and delivered by and on behalf of Developer and, assuming the due authorization, execution and delivery thereof by and on behalf of City, constitutes a valid, binding and enforceable
obligation of Developer enforceable in accordance with its terms. The aforesaid representation and warranty is qualified to the extent the enforceability of this Agreement may be limited
by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws of general application affecting the rights of creditors in general. 11.1.3. Neither the execution
and delivery hereof, nor the taking of any actions contemplated hereby, will conflict with or result in a breach of any of the provisions of, or constitute a default, event of default
or event event creating a right of acceleration, termination or cancellation of any obligation under any instrument, note, mortgage, contract, judgment, order, award, decree or other
agreement or restriction to which Developer is a party. 11.1.4. Developer has all the required staff and professional resources to perform the services herein. 11.1.5. MGTC and LTE have
the financial capabilities to perform as proposed on the private, collateral development. MGTC shall maintain adequate working capital of not less Two Hundred Thousand ($200,000.00)
Dollars throughout the period of its services to the City, as provided herein. In addition, LTE represents that it has adequate financial capacity to undertake and provide all required
funding for the construction of not less than 40,000 square feet on the Developer Property. Page 31 of 40
Page 15 Revised 11/23/2010 – 9:29 a.m. 11.1.6. MGTC and LTE have and shall have no conflicts of interest that would impair their ability to perform. 11.1.7. There are no legal actions
currently pending against the entities or the “key” employees/agents/independent contractors of the entities which will interfere with their respective performances. 11.2. To induce
Developer to execute, deliver and perform this Agreement, City hereby represents and warrants to Developer as follows: 11.2.1. City is a municipal corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, with full right, power and authority to enter into this Agreement, and to perform all of the obligations and liabilities
of City required to be performed hereunder. 11.2.2. This Agreement has been duly and validly executed and delivered by and on behalf of City, and, assuming the due authorization, execution
and delivery thereof by and on behalf of Developer, constitutes a valid, binding and enforceable obligation of City enforceable in accordance with its terms. 11.2.3. The aforesaid representation
and warranty is qualified to the extent the enforceability of this Agreement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws of
general application affecting the rights of creditors in general. 11.2.4. Neither the execution and delivery hereof, nor the taking of any actions contemplated hereby, will conflict
with or result in a breach of any of the provisions of, or constitute a default, event of default or event creating a right of acceleration, termination or cancellation of any obligation
under any instrument, note, mortgage, contract, judgment, order, award, decree or other agreement or restriction to which City is a party or by which City, or the Project, is otherwise
bound 11.2.5. City has the funds or has made provision for the funds to pay the Developer’s Compensation, Incentive Compensation and GMP. ARTICLE XII. DEFAULT; TERMINATION 12.1. If a
Developer Defaults occurs, City shall have, without prejudice to any other right or remedy and after giving Developer five (5) business days' written notice, the right to exercise any
one or more of the following remedies: 12.1.1. terminate this Agreement, under the provisions outlined in Section 2.8 hereof and designate another firm to assume the role of Developer
of the City Complex; or 12.1.2. exercise any other remedies at law or equity available to City. Page 32 of 40
Page 16 Revised 11/23/2010 – 9:29 a.m. 12.2. Developer may terminate this Agreement if construction of the City Complex is stopped for a period of sixty (60) days through no act or fault
of Developer and Contractor for any of the following reasons: 12.2.1. issuance of an order of a court or other public authority having jurisdiction; 12.2.2. an act of government, such
as a declaration of national emergency, making material unavailable; 12.2.3. because City has unjustifiably not approved or disapproved an Application for Payment by the Contractor in
accordance with the Construction Contract as required herein; 12.2.4. because City has unjustifiably failed to give or withhold consent to or approval to any change order or any other
matter requiring consent or approval of City and such failure continues for twenty (20) days after Developer gives City written notice thereof; or 12.2.5. because City has unjustifiably
failed to make payment to Developer in the manner and within the time provided herein and such failure continues for twenty (20) days after Developer gives City written notice thereof.
12.3. If Developer terminates this Agreement pursuant to this Section 12.2, City shall pay Developer through the date of termination. ARTICLE XIII. ADDITIONAL DEVELOPMENT INCENTIVES
In order to further the realization of their mutual goals to create a signature Town Center, the City shall: 13.1. Support and provide reasonable, nonmonetary assistance to Developer
in the formation of a Special Assessment District (“SAD”) or equivalent agency, the jurisdictional limits of which shall encompass the Developers Property. If the Developer, in its sole
discretion, shall initiate appropriate procedures to establish the SAD, the City shall take such actions as shall be reasonably necessary and appropriate to reflect the City’s approval.
The purpose of the SAD will include but not be limited to, creating a funding mechanism for the payment of various infrastructure components, including utilities, streets, sidewalks,
lighting, parking, landscaping and associated design and engineering costs. In every event, the cost associated with the processing of the necessary and appropriate application as well
as the burden of processing the application shall be the responsibility of the Developer. 13.2. The City will provide Developer with an opportunity to negotiate a shared-parking arrangement
in the City garage to be built on the City Property, in order to support the performing arts center to be built on the Developer Property. Page 33 of 40
Page 17 Revised 11/23/2010 – 9:29 a.m. 13.3. The City acknowledges that the Developer or one of Developer's joint venture members intends to pursue the development of a hotel facility
within the designated Towncenter Area. If and when a candidate site is identified and provided that the hotel use is permissible under the applicable Development of Regional Impact and
the applicable Comprehensive Land Use Plan, the City shall takes such steps as shall be necessary and proper to reflect that the development of a hotel facility, in such area, is consistent
with the City's adopted economic policies. ARTICLE XIV. GENERAL PROVISIONS 14.1. Prior to the commencement of or during construction of City Property, the City intends, but shall not
be required to, transfer title to the City Property to a not-for-profit Florida corporation. In the event the City transfers title to the City Property, the transferee shall be deemed
a third-party beneficiary of this Agreement, entitled to enforce the same as if and to the extent that the City could enforce the same against Developer. Developer shall be entitled
to notice of the transfer in no less than five (5) days after the same has been made. Therefore, the City, in its discretion, may enter into a lease with the transferee under such terms
and for such time, for all or portion of the City Property, as it shall deem appropriate. The City’s rights and obligations herein set forth shall not change on account of such transfer
or lease. 14.2. Developer shall be responsible to correct any delays or errors with respect to the City Complex caused by its actions, at Developer’s cost, and the City shall be responsible
to correct any delays or errors with respect to the City Complex caused by its actions, at City’s cost. 14.3. This Agreement or any memorandum hereof shall not be recorded in the Public
Records of any county in the State of Florida. 14.4. Prerequisite to the City’s obligation to make any payment toward the Developer’s Compensation under Article IX hereof, the Developer
or one of Developer’s joint venture members shall provide satisfactory evidence to the City that the title to the Developer’s property is in Developer or in the name of a member of the
joint venture. In the event the Developer or one of its joint venture members fail to acquire title by January 15, 2011, at the City’s election, this Agreement shall be declared null
and void and of no further force or effect and, thereupon, each of the parties shall be relieved from any further obligation hereunder. 14.5. Each of the joint venture partners of the
Developer shall have joint and several liability with respect to the obligations and undertakings herein, without regard to any attribution of responsibility for or to the City Complex
or Project Work. 14.6. This Agreement embodies the entire agreement and understanding among the parties relating to the subject matter hereof and supersedes all prior agreements and
understandings related to such subject matter, and it is agreed that Page 34 of 40
Page 18 Revised 11/23/2010 – 9:29 a.m. there are no terms, understandings, representations or warranties, express or implied, relating to such subject matter other than those set forth
herein. 14.7. The descriptive headings of the sections of this Agreement are inserted for convenience only. They are not intended to and shall not be construed to limit, enlarge or affect
the scope or intent of this Agreement or the meaning of any provision hereof. 14.8. All notices, consents, waivers, directions, requests or communications shall be in writing, signed
by the party giving the same and shall be deemed properly given only if hand delivered or sent by reputable overnight courier, or by registered or certified U.S. mail, return receipt
requested, postage prepaid, addressed as follows: If to Developer: Miami Gardens Town Center LLC NW 12 Street -Suite 1 Doral, FL 33172 Attn: Mr. Kent Gregory Phone: 770.356.7800 Fax:
305-591-9630 LT Enterprises, LLC NW 154th Street Miami Lakes, FL 33016 Attn: Mr. Ted Lucas Phone: 305-535-7595 Fax: 786-230-8860 With a copy to: If to City: City of Miami Gardens 1515
NW 167th Building 5, Suite 200 Street Miami Gardens, Florida 33169 Attn: Dr. Danny Crew, City Manager Phone: 305-622-2710 or to such other address as a party may from time to time designate
in writing to the other party as provided above. Notices shall be deemed given upon receipt or refusal of delivery. 14.9. Time is of the essence in all aspects of the performance of
the obligations hereunder. Page 35 of 40
Page 19 Revised 11/23/2010 – 9:29 a.m. 14.10. No failure by City or Developer to insist on the strict performance of any obligation, covenant, agreement, term or condition of this Agreement,
or to exercise any right or remedy available upon a breach of this Agreement, will constitute a waiver, and no breach will be waived, altered or modified, except by written instrument.
14.11. This Agreement and the rights and obligations of the parties hereto shall be governed by, construed and enforced in accordance with the laws of the State of Florida. 14.12. Each
of the parties hereto consents to the jurisdiction of any Federal or State court in Miami-Dade County, Florida for any action arising out of matters related to this Agreement. 14.13.
In the event of any controversy, claim or dispute between the parties affecting or relating to the purposes or subject matter of this Agreement, the prevailing party shall be entitled
to recover from the other party all of its reasonable expenses, including reasonable attorneys' fees, paralegal fees and accountants’ fees, including in any bankruptcy or appellate proceeding.
14.14. This Agreement may be executed in multiple counterparts, each of which is an original and all of which together constitute one and the same document. IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date and year first above written. Developer: MIAMI GARDENS TOWN CENTER, LLC, a Florida limited liability company By:__________________________________
Name: Kent Gregory Title: Manager LT Enterprises, LLC, a Florida limited liability company By:____________________ Name: Ted Lucas Title: Manager CITY OF MIAMI GARDENS By:____________________________
_______ Name:________________________________ Title:__________________________ Page 36 of 40
Page 20 Revised 11/23/2010 – 9:29 a.m. SCHEDULE OF EXHIBITS Exhibit “A” City Property Exhibit “B” Developer Property Exhibit “C” Concept Plan 9306103.2 9306103.2 9306103.2 Page 37 of
40
Exhibit “A” Tract “A,” of CITIZENS NATIONAL TRACT, according to the Plat thereof, as recorded in Plat book 84, at Page(s) 8, of the Public Records of Miami-Dade County, Florida Page
38 of 40
Exhibit “B” Property Address: 18335 NW 27 Avenue Tax Folio Numbers: 34-2103-012-0010; 34-2103-014-0040; 34-2103-014-0050 Page 39 of 40
Page 40 of 40 EXHIBIT "C"