Response To Mayor Suggested Revisions AV Comments

Response To Mayor Suggested Revisions AV Comments

Timing:  We are pleased to know that you, like us, are anxiously awaiting the opening of the Center.  We thank you.  [love this]

In furtherance of the foregoing, and to directly respond to the concerns you first expressed at the August 22nd meeting, TCA&I again compromised and unilaterally cut two and one-half (2.5) years off the overall timeline for both fundraising and approvals for this Center. These two and one-half (2.5) years were cut directly from areas completely under the TCA&I’s control. In undertaking such reduction efforts, TCA&I realized that the City, as opposed to TCA&I, controls the process under the Ground Lease and Pre-Construction and Development Agreement (collectively, “Agreements”) for any further desired reduction in the overall timeline. If the City desires to so further expedite the overall timeline, there are many sections under the Agreements that are within the City’s sole control to effectuate such result.  For example, the City has six (6) months to review the landlord plans, which it can shorten by expeditiously reviewing and responding to such landlord plans.  This holds true throughout the IDA and building permit approval processes. You have heard me at the podium and on countless phone calls expressing my frustration for how long the staff review process takes. I will refer? back to Camino Square – a project that took four (4) years to secure IDA approval. This is not news to you.  Under these Agreements, TCA&I has committed to diligently pursue approvals, all within these now reduced timeframes. Timely and expeditious review by the City is within the City’s control. If the City desires to so expedite its review and approval process, then the City, and the City alone, can do so, and, in turn, further reduce the overall timeline – above and beyond the 2.5 years TCA&I has unilaterally reduced.

Construction Estimate: Candidly, the City had the opportunity at any time throughout this 2-year negotiation process to secure any and all third-party analyses that it deemed reasonable or necessary.  This includes, and is not limited to, at the time TCA&I provided the City with the initial construction estimate over two (2) years ago, or at any time thereafter. Further, your request at the August 22 meeting was merely to provide an updated construction estimate. TCA&I, again in direct response to your August request, secured such updated construction estimate from Moss Construction, a leading general contractor in the field (recently rated the number one general contractor in the SE region of the United States) who also provided the initial construction estimate in 2020. While TCA&I supports and expects the City to undertake its due diligence in connection with this process, neither at the August 22 meeting nor at any time during this lengthy negotiation process did the City indicate that any additional third-party analysis was either incomplete or required. Referring back to your concerns on timelines and your anxious anticipation of the opening of the Center, these last-minute unnecessary requests only serve to further delay and expand the timeline, not expedite same.

Revisions to Agreements: Regarding the first two (2) whereas clauses in your suggested revisions to the WHEREAS clauses in the Agreements, we have no objection to inclusion of same in the Agreements.  These two (2) whereas clauses are merely a recitation of facts. (already stated above that we have no objection).

However, while we are sure this was not your intent, the balance of your suggested revisions to the Agreements (i.e. final WHEREAS clause and revisions to Section 1) (collectively, “Objectionable Revisions”) provide for potential implications and uncustomary risk that we cannot accept, and, therefore, do not agree to the inclusion of same.

From the outset, your suggested Objectionable Revisions undermine the Agreements that TCA&I and City Staff have spent the better part of 2 years negotiating, resulting in significant confusion between the rights, remedies and liabilities memorialized in the Agreements. The consideration (or, as you state, reliance) of the parties entering into the Agreements are the negotiated terms, conditions, agreements and undertakings currently under the Agreements.

For instance, and, again, as discussed and negotiated at length with the City Staff throughout this process, it is those very negotiated terms, conditions, agreements and undertakings that (a) impose the obligations and respective outside dates for TCA&I to “provide” (or, stated in the Agreements, raise) the required funding and (b) provide the roadmap for the rights and remedies of the parties in the event such required funding is not raised. Specifically, as to the latter point, and as you are aware, the Agreements provide that if TCA&I has not raised 75% of the hard construction costs for the entire Project within 3 years from the Effective Date of the Pre-Construction and Development Agreement, or if TCA&I has not raised the balance of the hard and soft construction costs for the entire Project (or phase thereof) prior to issuance of the applicable building permit for the Project (or phase thereof), respectively, the Agreements automatically terminate (as opposed to such constituting an event of default under the Agreements and thereby subjecting TCA&I to potential claims for specific performance or damages). This is not a new concept, but, instead, a specifically negotiated and carved out event of non-default, all which results in (i) protecting the City from tying up the lands on which the Project would be constructed for a protracted period of time if funding goals are not achieved and (ii) protect TCA&I from the customary risks inherent in any party (whether public, private or non-profit) securing necessary funds to develop and operate a commercial project (e.g., pandemics, national and international fiscal and political matters, financial markets, change in financial institution/donor missions). TCA&I is a not-for-profit organization dedicated to providing culture and economic benefit to the City of Boca Raton.  As TCA&I has previously communicated to you, fundraising has been as successful as it can be to date without the Agreements being approved and executed, and TCA&I expects significant interim fundraising goals to be achieved once such Agreements are so approved and executed. While TCA&I is confident in its ability to raise the funds necessary to construct this state-of-the-art facility here in its hometown, at no time was it ever discussed, or would it ever be considered (as such is simply beyond all customs, norms and reason), that TCA&I and/or any of its officers, directors, representatives, professionals and/or agents would be subject to claims, liabilities and/or damages by reason of an unexpected failure to achieve such fundraising thresholds.

Furthermore, the balance of your suggested revisions attempts to handcuff future parties.  For example, lets say, to use your words, in “10, 20, 50, or 100 years down the line” TCA&I, the future CRA and City Council desire to expand the Center to provide for a children’s art camp.  The future CRA and City Council wish to either fund same or assist with the funding of same.  These clauses not only prohibit the future CRA and City Council from doing so, but also prohibits TCA&I from even asking.   We do not believe it was your intent that if in 60 years TCA&I brings an idea to the CRA and City Council, that TCA&I would be in breach by merely making the request for City funding. However, that is the potential implication of such  Objectionable Revisions. Please note that we are in agreement with, and none of this takes away from the current “intention” of the parties, as so outlined in your first two (2) suggested revisions to the WHEREAS clauses in the Agreements, but why handcuff the future of the CRA, City, TCA&I and/or this Center?  This is a partnership between TCA&I and the City.  This partnership will survive me and you. We cannot handcuff our future.

Again, as I am sure none of the foregoing was your intent, nonetheless we disagree with the Objectional Revisions and request that you retract them from the documents.

 

Love this sentence. Especially the word “anxious” 🙂

 

Following the October 2020 presentation, the City Council (without remembering they needed an RFP process to negotiate) authorized Staff to commence negotiations on the lease with BRADEC. That process was halted in March 2021 when they realized they needed to go through the RFP process and negotiations recommenced in May 2021. So in total 2 years, and 1.5 years since the official selection of our proposal.

 

Should we also include the following: “Or perhaps if TCA&I, like nearly every other cultural organization in Boca Raton has for years, were to submit for a marketing grant  and a future City Council desired to award such a grant.”

 

Do we have to “request”? Or just simply say that we object?