Loading...
HomeMy WebLinkAboutAgenda Item Summary Form",A1' UF..4y AGENDA ITEM SUMMARY FORM File ID: #5195 Date: 11/27/2018 Requesting Department: Department of Real Estate and Asset Management Commission Meeting Date: 12/13/2018 Sponsored By: District Impacted: District 2 Type: Resolution Subject: Amendment No. 1 - Grove Bay Parking Facilities Agreement Purpose of Item: A Resolution of the Miami City Commission, authorizing the City Manager to execute the First Amendment to the Grove Bay Parking Facilities Agreement ("Parking Agreement"), in substantially the attached form, between the City of Miami ("City"), Grove Bay Investment Group, LLC ("Grove Bay") and the Department of Off Street Parking d/b/a The Miami Parking Authority ("MPA"), amending the Parking Agreement to reduce the size of the garage and retail areas, change critical dates to coincide with the current construction schedule of the garage, and an abatement of rent in the amount of Fifty Eight Thousand Three Hundred Thirty Three Dollars and Thirty Three Cents ($58,333.33) per month for Twenty Four (24) months, with additional terms and conditions as more particularly set forth in the First Amendment. Background of Item: The City, MPA, and Grove Bay entered into that certain Grove Bay Parking Facilities Agreement, dated effective as of February 8, 2016 (the "Parking Agreement"). The Parking Agreement amended that certain Lease between the City and Grove Bay, dated October 24, 2013, related to that certain property owned by the City and located at 3385 Pan American Drive and 51 Chart House Drive, Miami, Florida (the "Lease"). The amendments to the Lease incorporated into the Parking Agreement were intended, to among other matters, set forth the understanding between the Parties related to the Parking Property and the Parking Facilities to be constructed thereon, including, without limitation: (i) the MPA's obligations in connection with the construction of the Parking Facilities, (ii) the respective obligations of the Parties with respect to the operation of the Parking Facilities, including, without limitation, the Parking Facilities Retail Area, and (iii) the rights and corresponding duties of Grove Bay and its Permittees to use the Parking Facilities. The MPA sought bids for the construction of the Parking Facilities soon after the execution of the Parking Agreement; however, such bids exceeded the MPA's budget for the construction of the Parking Facilities, which the MPA determined necessitated the value engineering of the Parking Facilities. The additional time needed to value engineer the Parking Facilities caused critical dates within the Lease to be missed by the City which would call for the return of the Initial Parking Trust Fund Contribution in the amount of One Million Two Hundred Forty Two Thousand Five Hundred Dollars ($1,242,500.00) to Grove Bay and release Grove Bay of their obligation to pay the entire Parking Trust Fund Contribution totaling Four Million Dollars ($4,000,000.00). The Parties desire to make changes to the Parking Agreement to incorporate the design changes resulting from the value engineering process and to, among other matters, amend the deadlines for the commencement and completion of the construction of the Parking Facilities and reinstate Grove Bay's commitment to make the Parking Trust Fund Contribution. The changes requested in this Amendment are being presented because certain conditions subsequent, such as the commencement date of construction of the Parking Facilities by the date specified in the Agreement did not occur within the time stipulated and required in the Agreement. Various authorities have recognized and allowed modifications and amendments to a competitively procured Agreement which are within the scope of the original competitive procurement and have recognized the "cardinal change doctrine" that allows changes to a competitively procured Agreement which are not materially different from the Agreement entered as a result of such competitive procurement process. Budget Impact Analysis Item is Related to Revenue Item is NOT funded by Bonds Total Fiscal Impact: $ 1,400,000.00 Reviewed By Real Estate and Asset Management Daniel Rotenberg Office of Management and Budget Everton Garvis Office of Management and Budget Christopher M Rose Department of Risk Management Ann -Marie Sharpe City Manager's Office Fernando Casamayor City Manager's Office Nikolas Pascual Legislative Division Valentin J Alvarez Office of the City Attorney Valentin J Alvarez Office of the City Attorney Victoria Mendez City Commission Maricarmen Lopez Office of the Mayor Mayor's Office Office of the City Clerk City Clerk's Office Office of the City Clerk City Clerk's Office Department Head Review Completed 11/27/2018 2:33 PM Budget Analyst Review Completed 11/27/2018 3:49 PM Budget Review Completed 11/28/2018 10:44 AM Risk Review Completed 11/30/2018 11:01 AM Assistant City Manager Review Completed 12/03/2018 9:20 AM City Manager Review Completed 12/03/2018 11:52 AM Legislative Division Review Completed 12/04/2018 8:57 AM Deputy City Attorney Review Skipped 11/29/2018 1:36 PM Approved Form and Correctness Completed 12/04/2018 4:47 PM Meeting Completed 12/13/2018 9:00 AM Signed by the Mayor Completed 12/21/2018 4:08 PM Signed and Attested by the City Clerk Completed 12/21/2018 4:46 PM Rendered Completed 12/21/2018 4:46 PM A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE THE FIRST AMENDMENT TO THE GROVE BAY PARKING FACILITIES AGREEMENT ("PARKING AGREEMENT"), IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI ("CITY"), GROVE BAY INVESTMENT GROUP, LLC ("GROVE BAY") AND THE DEPARTMENT OF OFF STREET PARKING D/B/A THE MIAMI PARKING AUTHORITY ("MPA"), AMENDING THE PARKING AGREEMENT TO REDUCE THE SIZE OF THE PARKING FACILITIES AND THE PARKING FACILITIES RETAIL AREA, CHANGE CRITICAL DATES TO COINCIDE WITH THE CURRENT CONSTRUCTION SCHEDULE OF THE PARKING FACILITIES, ENABLING THE REINSTATEMENT OF THE PARKING TRUST FUND CONTRIBUTION, AND A TEMPORARY REDUCTION OF RENT IN THE AMOUNT OF FIFTY EIGHT THOUSAND THREE HUNDRED THIRTY THREE DOLLARS AND THIRTY THREE CENTS ($58,333.33) PER MONTH FOR TWENTY FOUR (24) MONTHS, WITH ADDITIONAL TERMS AND CONDITIONS AS MORE PARTICULARLY SET FORTH IN THE FIRST AMENDMENT. WHEREAS, the City of Miami ("City"), Grove Bay Investment Group, LLC ("Grove Bay"), and the Department of Off Street Parking d/b/a Miami Parking Authority ("MPA") entered into that certain Grove Bay Parking Facilities Agreement, dated effective as of February 8, 2016 ("Parking Agreement"); and WHEREAS, the Parking Agreement amended that certain Lease between the City and Grove Bay, dated October 24, 2013, related to that certain property owned by the City and located at 3385 Pan American Drive and 51 Chart House Drive, Miami, Florida ("Lease"); and WHEREAS, the amendments to the Lease incorporated into the Parking Agreement were intended, to among other matters, set forth the understanding between the Parties related to the Parking Property and the Parking Facilities to be constructed thereon, including, without limitation: (i) the MPA's obligations in connection with the construction of the Parking Facilities, (ii) the respective obligations of the Parties with respect to the operation of the Parking Facilities, including, without limitation, the Parking Facilities Retail Area, and (iii) the rights and corresponding duties of Grove Bay and its Permittees to use the Parking Facilities; and WHEREAS, the MPA sought bids for the construction of the Parking Facilities soon after the execution of the Parking Agreement; however, such bids exceeded the MPA's budget for the construction of the Parking Facilities, which the MPA determined necessitated the value engineering of the Parking Facilities; and WHEREAS, the additional time needed to value engineer the Parking Facilities caused critical dates within the Lease to be missed by the City and MPA which would call, under the terms of the Parking Agreement, for the return of the Initial Parking Trust Fund Contribution in the amount of One Million Two Hundred Forty Two Thousand Five Hundred Dollars -,IV ov . City of Miami City Hall isS ill it A4to �. � „ ,a Legislation 3500 Pan American Drive r Miami, FL 33133 �—R � _- Resolution www.miamigov.com Enactment Number: R-18-0570 File Number: 5195 Final Action Date:12/13/2018 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE THE FIRST AMENDMENT TO THE GROVE BAY PARKING FACILITIES AGREEMENT ("PARKING AGREEMENT"), IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI ("CITY"), GROVE BAY INVESTMENT GROUP, LLC ("GROVE BAY") AND THE DEPARTMENT OF OFF STREET PARKING D/B/A THE MIAMI PARKING AUTHORITY ("MPA"), AMENDING THE PARKING AGREEMENT TO REDUCE THE SIZE OF THE PARKING FACILITIES AND THE PARKING FACILITIES RETAIL AREA, CHANGE CRITICAL DATES TO COINCIDE WITH THE CURRENT CONSTRUCTION SCHEDULE OF THE PARKING FACILITIES, ENABLING THE REINSTATEMENT OF THE PARKING TRUST FUND CONTRIBUTION, AND A TEMPORARY REDUCTION OF RENT IN THE AMOUNT OF FIFTY EIGHT THOUSAND THREE HUNDRED THIRTY THREE DOLLARS AND THIRTY THREE CENTS ($58,333.33) PER MONTH FOR TWENTY FOUR (24) MONTHS, WITH ADDITIONAL TERMS AND CONDITIONS AS MORE PARTICULARLY SET FORTH IN THE FIRST AMENDMENT. WHEREAS, the City of Miami ("City"), Grove Bay Investment Group, LLC ("Grove Bay"), and the Department of Off Street Parking d/b/a Miami Parking Authority ("MPA") entered into that certain Grove Bay Parking Facilities Agreement, dated effective as of February 8, 2016 ("Parking Agreement"); and WHEREAS, the Parking Agreement amended that certain Lease between the City and Grove Bay, dated October 24, 2013, related to that certain property owned by the City and located at 3385 Pan American Drive and 51 Chart House Drive, Miami, Florida ("Lease"); and WHEREAS, the amendments to the Lease incorporated into the Parking Agreement were intended, to among other matters, set forth the understanding between the Parties related to the Parking Property and the Parking Facilities to be constructed thereon, including, without limitation: (i) the MPA's obligations in connection with the construction of the Parking Facilities, (ii) the respective obligations of the Parties with respect to the operation of the Parking Facilities, including, without limitation, the Parking Facilities Retail Area, and (iii) the rights and corresponding duties of Grove Bay and its Permittees to use the Parking Facilities; and WHEREAS, the MPA sought bids for the construction of the Parking Facilities soon after the execution of the Parking Agreement; however, such bids exceeded the MPA's budget for the construction of the Parking Facilities, which the MPA determined necessitated the value engineering of the Parking Facilities; and WHEREAS, the additional time needed to value engineer the Parking Facilities caused critical dates within the Lease to be missed by the City and MPA which would call, under the terms of the Parking Agreement, for the return of the Initial Parking Trust Fund Contribution in the amount of One Million Two Hundred Forty Two Thousand Five Hundred Dollars ($1,242,500.00) to Grove Bay and release Grove Bay of their obligation to pay the entire Parking Trust Fund Contribution totaling Four Million Dollars ($4,000,000.00); and WHEREAS, the Parties desire to make changes to the Parking Agreement to incorporate the design changes resulting from the value engineering process and to, among other matters, amend the deadlines for the commencement and completion of the construction of the Parking Facilities and reinstate and reaffirm Grove Bay's contractual commitment to make the Parking Trust Fund Contribution despite the delay in the construction of the Parking Facilities; and WHEREAS, the changes requested in this proposed Amendment are being presented because certain conditions subsequent, such as the commencement date of construction of the Parking Facilities by the date specified in the Parking Agreement, did not occur within the time stipulated and required in the Parking Agreement; and WHEREAS, under the "cardinal change doctrine," certain cases have recognized and allowed modifications and amendments to a competitively procured Agreement which are within the scope of the original competitive procurement; and WHEREAS, the cardinal change doctrine that has been referenced in public procurement asks or inquires whether a modification to the contract exceeds the scope of the contract's change order clause in the contract, see AT & T Communications, Inc,. v. Wiltel, Inc., 1 F. 3rd 1201 (1993); and WHEREAS, under the cardinal change analysis, the reviewing court, in the event of an appeal, examines whether the contract as modified materially departs from the scope of the original procurement which has also been expressed as whether there is a material difference between the contract, as modified, and the scope of the entire original procurement; and WHEREAS, as indicated in the December memo to the Board of the MPA, the bids for the garage for this project came in considerably over budget necessitating value engineering and a reduction in scope of the parking garage; and WHEREAS, this delay in the parking garage construction was not the fault of the Developer, yet this First Amendment is required to maintain and reaffirm the Developers' written commitments to pay the parking trust fund which are related to certain parking garage construction milestones that were not attained; and WHEREAS, various authorities have recognized the "cardinal change doctrine" that allows changes to a competitively procured Parking Agreement which are not materially different from the Agreement entered into as a result of such competitive procurement process; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized' to execute the First Amendment to the Parking Agreement, in substantially the attached form, between the City, Grove Bay, and the ' The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to, those prescribed by applicable City Charter and City Code provisions. MPA, amending the Parking Agreement to reduce the size of the garage and retail areas, change critical dates to coincide with the current construction schedule of the garage enabling the reinstatement of the Parking Trust Fund Contribution, and a temporary reduction of rent from $166,666.67 to $58,333.33 per month for Twenty Four (24) months, with additional terms and conditions as more particularly set forth in the First Amendment. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2 APPROVED AS TO FORM AND CORRECTNESS: l &ir de��z, City Alttor e 12/4/2018 2 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission.