SECOND AMENDMENT TO LEASE AGREEMENT
[Joint Facility Agreement]
THIS SECOND AMENDMENT TO LEASE AGREEMENT ("Amendment") is executed and
entered into effective as of this 7th day of June, 1994, by and between NEW
JERSEY ECONOMIC DEVELOPMENT AUTHORITY ("Landlord"), a public body corporate and
politic duly organized under the laws of the State of New Jersey, and PAVILION
PARTNERS (f/k/a Sony Music/PACE Partnership) ("Tenant"), a Delaware general
partnership.
R E C I T A L S:
A. Landlord and Tenant have executed and entered into that certain Lease
Agreement ("Original Lease") dated February 9, 1994, pursuant to which Landlord
agreed to demise, lease and rent to the Tenant, upon the terms, conditions and
provisions contained therein, a certain tract of land located in Camden, New
Jersey and bounded on the north by Xxxxxxx Park, on the west by the Delaware
River, on the east by Delaware Avenue, and on the south by Clinton Street
(extended).
B. Landlord and Tenant have previously amended the Original Lease pursuant
to (i) that certain First Amendment to Lease dated March 11, 1994 and (ii) those
certain letters provided by Tenant to Landlord and dated, respectively, March
31, 1994, April 15, 1994, April 22, 1994 and April 29,1994 (collectively, the
"Prior Amendments") (as so amended, the Original Lease is herein called the
"Lease").
C. Landlord and Tenant desire to further amend certain provisions
contained in the Lease as more fully set forth below.
AMENDMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties hereto do hereby agree as follows:
Section 1. Defined Terms.
1.1 All capitalized terms used herein which are not specifically
defined pursuant to the provisions hereof shall have the respective
meanings assigned pursuant to the provisions of the Lease.
1.2 The term "Budgeted Soft Cost Amount" appearing in Section 101 of
the Lease is hereby amended to read as follows:
"Budgeted Soft Cost Amount" shall mean $5,500,000, the
aggregate amount of Soft Costs (including previously expended
amounts) which the Tenant budgets for the completion and opening of
the Amphitheater.
1.3 The term "Commencement Date" appearing in Section 101 of the
Lease is hereby amended by adding a new clause (iv) to read as follows:
or (iv) September 15, 1994.
1.4 The term "Hard Costs" appearing in Section 101 of the Lease is
hereby amended in its entirety to read as follows:
"Hard Costs" shall mean all the Costs of the Initial Project
other than Soft Costs. Hard Costs shall include, without limitation,
those types and categories of costs related to the construction of
the Amphitheater which are listed and identified on Exhibit "E=1"
attached hereto.
1.5 The term "SJPAC Proceeds" appearing in Section 101 of the Lease
is hereby amended in its entirety to read as follows:
"SJPAC Proceeds" shall mean the amount, if any, paid by SJPAC
to the Landlord under, pursuant to and in accordance with the SJPAC
Lease. It is anticipated that the SJPAC Proceeds will be $3,940,000.
Section 2. Conditions Precedent. The provisions contained in Section 404
of the Lease are hereby amended as follows:
Section 2.1 The Landlord hereby agrees that its obligations under
the Lease are no longer conditioned upon any of the matters contained in
clauses (e), (f), (g) and (i) of Section 404 of the Lease. Accordingly,
clauses (e), (f), (g) and (i) of Section 404 of the Lease are hereby
deleted in their entirety.
Section 2.2 The Tenant hereby agrees that its obligations under the
Lease are no longer conditioned upon any of the matters contained in
clauses (c) and (o) of Section 404 of the Lease. Accordingly, clauses (c)
and (o) of Section 404 of the Lease are hereby deleted in their entirety.
At such time as the Lease is amended in a manner acceptable to the
Tenant's environmental counsel which delineates the obligations and
responsibilities of the Landlord and the Tenant with respect to any
subsequent environmental remediation which may be required at the Premises
as a result of an amendment to the Environmental Documents hereafter
adopted by DEPE, the Tenant agrees that it will execute with the Landlord
a further amendment to the Lease which will reflect that the condition
contained in clause (k) of Section 404 is deleted.
Section 2.3 The phrase "February 28, 1994" appearing in clause (t)
of Section 404 is hereby amended to be a reference to "June 30, 1994".
Section 2.4 The phrase "in a form and content acceptable to the
Landlord in its sole and absolute discretion" appearing at the end of
Section 404(m)(ii) of the Lease is hereby deleted and replaced with the
following:
in a form and content which contains substantially the same
provisions that affect the Landlord's rights or obligations
thereunder as are contained in the most recent draft of the
SJPAC Three Way Agreement which has been previously provided
to the Landlord.
Section 2.5 A new clause (s) is hereby added at the end of Section
404 of the Lease to read as follows:
(s) The Landlord hereby agrees that it will exercise its
reasonable best efforts to cause each of the conditions precedent
contained in clauses (A), (B), (C), (D), (F), (G) and (I) of Section
404(h) hereof to be satisfied as soon hereafter as is reasonably
practicable.
Section 2.6 Section 404(a)(ii) of the Lease is hereby amended by (x)
inserting the word "and" at the end of clause (A) and before clause (B)
and (y) deleting all of clause (C).
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Section 3. Construction of the Amphitheater. The Landlord has guaranteed
to the Tenant that the Initial Project will be constructed and completed on time
and on budget. In furtherance of this agreement, the provisions of Article V of
the Lease are hereby amended as follows:
Section 3.1 Sections 501 and 502 of the Lease are hereby amended in
their entirety to read as follows:
Section 501. Design of the Project. The Landlord and the
Tenant hereby agree that the current design ("Base Design") of the
Initial Project is described in the November Plans and
Specifications (as such term is defined in Section 511 hereof), with
the additions and deletions thereto indicated in Exhibit "P"
attached hereto. To avoid any ambiguity or uncertainty, it is
recognized and acknowledged that the Base Design (i) includes in it
all of the Rejected Recommended Deletion Items (herein defined) and
(ii) excludes all of the Rejected Recommended Addition Items (herein
defined). The Tenant has advised the Landlord that the Tenant will
be effecting certain design changes ("Pre-GMP Design Changes") to
the Base Design prior to the determination of the Final GMP Amount.
On or before July 8, 1994 ("70% Plan Delivery Deadline"), the Tenant
shall cause the Architect to prepare and deliver a set of 70% Plans
(as such term is defined in Section 511 hereof) which are consistent
with the Agreed Plans. As used herein, the following terms shall
have the meanings indicated:
(a) "Agreed Plans" shall mean the November Plans and
Specifications, as modified by (i) the additions and deletions
in Exhibit "P" and (ii) the Pre-GMP Design Changes.
(b) "Pre-GMP Design Change Cost Amount" shall mean the
amount (if any), as determined in good faith by the Acceptable
Construction Company that enters into the Master Construction
Contract with the Tenant, by which the Final GMP Amount
exceeds what the Final GMP Amount would have been without the
Pre-GMP Design Changes, taking into account all additional
costs and all cost savings related to, arising out of or
effected by the Pre-GMP Design Changes. The Pre-GMP Design
Change Cost Amount shall be deemed to equal $0.00 for all
purposes hereof if the Final GMP Amount is equal to or less
than what the Final GMP Amount would have been without the
Pre-GMP Design Changes.
(c) "Pre-GMP Design Change Savings Amount" shall mean
the amount (if any), as determined in good faith by the
Acceptable Construction Company that enters into the Master
Construction Contract with the Tenant, by which the Final GMP
Amount is less than what the Final GMP Amount would have been
without the Pre-GMP Design Changes, taking into account all
additional costs and all cost savings related to, arising out
of or effected by the Pre-GMP Design Changes. The Pre-GMP
Design Change Savings Amount shall be deemed to be $0.00 for
all purposes hereof if the Final GMP Amount is equal to or
more than what the Final GMP Amount would have been without
the Pre-GMP Design Changes.
(d) "Non-Special Savings Amount" shall mean that portion
of the Pre-GMP Design Change Savings Amount that is allocable
or attributable to the Pre-GMP Design Changes that do not
relate to the Special Extra Cost Items.
(e) "Rejected Recommended Deletion Items" shall mean
those design elements of the Initial Project contained in the
November Plans and Specifications which (i) were recommended
to be deleted from the design of the Initial Project in
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the Suggested Cost Reductions ("SCR's") or Budget Control
Report #3 ("BCR's") and (ii) are not included in the list of
items to be deleted from the design of the Initial Project in
Exhibit "P" attached hereto. The "Rejected Recommended
Deletion Items" shall include, without limitation, the Special
Extra Cost Items.
(f) "Rejected Recommended Addition Items" shall mean
those design elements that (i) were recommended to be added to
the design of the Initial Project in the SCR's or the BCR's
and (ii) are not included in the list of items to be added to
the design of the Initial Project in Exhibit "P" attached
hereto.
Section 502. Construction of the Project.
(a) Guaranteed Maximum Price Contract. The Landlord and
the Tenant shall hereafter work together and cooperate in a
concerted effort to cause an Acceptable Construction Company
to enter into, as soon after the date hereof as is reasonably
practicable, a Guaranteed Maximum Price Construction Contract
(herein called the "Master Construction Contract") with the
Tenant in a form reasonably acceptable to the Tenant pursuant
to which such Acceptable Construction Company shall (a) be
obligated to construct and complete the Initial Project in
accordance with the set of 70% Plans prepared and delivered
pursuant to the provisions of Section 501 hereof by the
Architect and (b) guarantee that the total sum of all Hard
Costs will not exceed a specified amount (such amount being
herein called the "guaranteed maximum price" or "GMP"). In
furtherance of the foregoing, the Landlord shall have the
right to participate in negotiations with such Acceptable
Construction Company with respect to (i) the amount of the GMP
to be included in the Master Construction Contract, (ii) the
payment by such Acceptable Construction Company of liquidated
damages to the Tenant in the event that Substantial Completion
does not occur on or before the Completion Deadline and (iii)
such other provisions, to the extent reasonably acceptable to
the Tenant, which may be necessary to provide reasonable
checks and protections to the Landlord in relation to the
risks undertaken by it pursuant to the contractual provisions
of Section 520 hereof. It is hereby understood, recognized and
acknowledged that such Acceptable Construction Contractor has
the ultimate right to propose the amount of the GMP in its
sole discretion and neither the Landlord nor the Tenant can
control the amount so proposed. Amounts may be included in the
GMP by such Acceptable Construction Company, in its
discretion, for (i) substitution of scarce or otherwise
difficult to obtain materials or (ii) acceleration of the work
schedule to meet the completion deadline. Any such amounts so
included as a part of the GMP shall not be treated as being
caused by any Pre-GMP Design Changes, unless, and only to the
extent that, such amounts are directly attributable to the
existence of a design element added by the Pre-GMP Design
Changes. The GMP ultimately contained in the Master
Construction Contract shall be herein referred to as the
"Final GMP Amount." The Master Construction Contract shall
give the Landlord the right, but not the obligation, to assume
the Tenant's obligations and rights thereunder if the Tenant
should default. Construction should be designed to avoid to
the extent possible any material impact on the ingress and
egress of the South Jersey Port Corporation.
(b) Consultation with the Landlord. The Tenant hereby
grants to the Landlord the right and authority to consult with
the Tenant in connection with all construction decisions and
processes. In that connection, the following provisions shall
apply,
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(1) The Tenant will, at the Landlord's request,
provided at any time or from time to time during the
construction phase of the Initial Project, accelerate
the construction process by ordering the general
contractor to place additional personnel at the
construction site, to add additional construction shifts
or to work overtime. If the Landlord requests that the
Tenant cause the general contractor to accelerate its
work schedule, then the Landlord shall be required to
deposit in the Construction Fund an amount of funds
equal to the general contractor's agreed upon additional
price for such accelerated work schedule.
(2) No change order which (i) would cause the
Final GMP Amount to increase or (ii) would cause the
general contractor's completion deadline provided for in
the Master Construction Contract ("Contractor's
Deadline") to be extended shall be approved or
authorized by the Tenant without the prior approval of
the Landlord. Notwithstanding the foregoing, the Tenant
may unilaterally authorize and approve any change order
otherwise prohibited pursuant to the provisions hereof
so long as the Tenant (x) deposits into the Construction
Fund an amount of money equal to the increase in the
Final GMP Amount which is attributable to such change
order at such time as that amount is determined and (y)
agrees, in writing, for the benefit of the Landlord that
the Completion Deadline is extended by the amount of
time, if any, that the Contractor's deadline is
extended.
(3) The Landlord shall have the right to
participate and consult with the Tenant in connection
with the submission of draw requests made pursuant to
the provisions of Section 510 hereof.
(4) Pursuant to the critical path schedule for
construction of the Amphitheater which has been, or soon
hereafter will be, finalized, certain construction
materials must be ordered and purchased before the
Commencement Date. The Landlord and the Tenant shall
each pay one-half of all costs and expenses related to
such construction material purchases which become due
and payable prior to the Commencement Date.
(c) As Built Plans and Warranties. Upon completion of
construction of the Amphitheater the Tenant shall deliver to
the Landlord (i) a detailed "as built" survey which shows in
detail the footprint of the Amphitheater and the related
improvements such as utilities, easements, landscaping, roads,
location of ingress and egress to and from the Amphitheater,
curbs, gutters, lighting and location of signs and (ii) copies
of all warranties, service and maintenance agreements and
equipment manuals related to the Amphitheater.
(d) Affirmative Action. The Tenant agrees to commit to
an affirmative action policy with respect to the construction
of the Amphitheater i.e., a goal of 25% of Minority Business
Enterprise contracts and 25% of minority man-hours in the
construction trade.
(e) Construction Services. All construction work shall
be done in a good and workmanlike manner and in compliance
with all applicable laws, ordinances, codes, rules,
regulations and requirements, and in accordance with the
standard if any, of the Board of Fire Underwriters, or other
organizations exercising
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the functions of a Board of Fire Underwriters whose
jurisdiction include the Premises.
(f) Construction Quality. All materials and workmanship
shall be of good quality, and upon completion of construction,
the Initial Project will be structurally safe and sound, and
all parts thereof and all mechanical equipment therein and all
utilities serving the Initial Project will be in good and
working order and will have been properly installed, tested,
and paid for, and in case of repairs, restoration, changes,
additions, alterations, or improvements, shall be at least
equal to the original.
(g) [Intentionally left blank]
(h) Commencement of Construction.
(1) The Tenant shall forthwith commence
construction of the Amphitheater on the Leasehold Tract
in accordance with the requirements of the critical path
schedule for construction of the Amphitheater which has
been, or soon hereafter will be, finalized. All
construction work shall be conducted subject to and in
compliance with all applicable Legal Requirements.
(2) The Landlord and the Tenant shall each pay
one-half of the Hard Costs payable on account of
construction activities performed prior to the
Commencement Date as such Hard Costs become due.
(i) Construction Funds.
(1) If Bonds are to be issued by the Landlord on
the Commencement Date, then, on the Commencement Date,
(i) the Landlord shall deliver, pay and deposit the
Proceeds, the SJPAC Proceeds and an amount of money
equal to the Landlord Construction Cost Amount (as such
term is defined in Section 511 hereof) to the Trustee
for subsequent disbursement by the Trustee in accordance
with the terms of the Indenture and Section 510 hereof
and (ii) the Tenant shall deliver, pay and deposit an
amount of money equal to the Tenant Construction Cost
Amount (as such term is defined in Section 511 hereof)
to the Trustee for subsequent disbursement by the
Trustee in accordance with the terms of the indenture
and Section 510 hereof. If the Tenant Construction Cost
Amount is less than $0.00, then the following provisions
shall apply:
(i) The Tenant shall have no obligation to
deliver, pay or deposit any amount of money to the
Trustee on the Commencement Date pursuant to the
provisions of clause (ii) of this Section
502(i)(1).
(ii) The Trustee shall disburse to the
Tenant on the Commencement Date, out of the
Construction Fund, a sum equal to the amount by
which the Tenant Construction Cost Amount is less
than $0.00.
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(2) If no Bonds are to be issued by the Landlord
on the Commencement Date, then, on the Commencement
Date, (i) the Landlord and the Tenant shall either (A)
select a mutually acceptable financial institution to
act as an escrow agent ("Escrow Agent") to fulfill the
responsibilities and duties of the Trustee specified in
Section 510 hereof with respect to the Construction Fund
or (B) open a joint account ("Escrow Account") at a
mutually acceptable financial institution into which all
funds required to be deposited into the Construction
Fund pursuant to the provisions hereof shall be
deposited (the Escrow Agent or the Escrow Account, as
applicable, shall be herein called the "Escrow
Arrangement"), (ii) the Landlord shall, subject to the
provisions contained in clause (3) of this Section
502(i), deliver, pay and deposit the SJPAC Proceeds and
an amount of money equal to the Landlord Construction
Cost Amount to the Escrow Arrangement for subsequent
disbursement in accordance with the terms of Section 510
hereof and (iii) the Tenant shall, subject to the
provisions contained in clause (4) of this Section
502(i), deliver, pay and deposit an amount of money
equal to the Tenant Construction Cost Amount to the
Escrow Arrangement for subsequent disbursement in
accordance with the terms of Section 510 hereof.
(3) If no Bonds are to be issued by the Landlord
on the Commencement Date, then the Landlord shall have
the right and option, exercisable in its sole
discretion, to fulfill the obligation ("Landlord
Contribution Obligation") to deliver, pay and deposit an
amount of money equal to the Landlord Construction Cost
Amount to the Escrow Arrangement pursuant to clause (ii)
of Section 502(i)(2) hereof in installment payments as
follows:
(I) On the date of each draw request made
pursuant to Section 510 hereof after the time that
the SJPAC Proceeds have been disbursed in full
from the Construction Fund the Landlord shall
deliver, pay and deposit, as an installment
against the Landlord Contribution Obligation, an
amount equal to 25% of the amount of such draw
request.
(II) Subject to the provisions of Section
509(c) hereof, the Landlord shall not be obligated
to deliver, pay or deposit, pursuant to the
Landlord Contribution Obligation, an installment
in amount greater than an amount which would cause
the aggregate amount of installments delivered,
paid and deposited pursuant to the Landlord
Contribution Obligation to exceed the Landlord
Construction Cost Amount.
(III) The Landlord shall pay, deliver and
deposit the entire unfunded portion, if any, of
the Landlord Contribution Obligation upon Final
Payment (as such term is defined in Section
1510(c) of this Lease).
If the Initial Bonds are issued after the Commencement
Date, then the Landlord shall deposit, or cause to be
deposited, into the Construction Fund on the date of
such issuance an amount equal to the then unfunded
amount of the Landlord Contribution Obligation.
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(4) If no Bonds are to be issued by the Landlord
on the Commencement Date, then the Tenant shall have the
right and option, exercisable in its sole discretion, to
fulfill the obligation ("Tenant Contribution
Obligation") described in clause (iii) of Section
502(i)(2) hereof in installment payments as follows:
(I) Before making any draw requests pursuant
to Section 510 hereof, the Tenant shall deliver,
pay and deposit, as an Installment against the
Tenant Contribution Obligation, an amount equal to
75% of the amount of such draw request.
(II) Subject to the provisions of Section
509(c) hereof, in no event shall the Tenant be
obligated to deliver, pay or deposit, pursuant to
the Tenant Contribution Obligation, an installment
in amount greater than an amount which would cause
the aggregate amount of installments delivered,
paid and deposited pursuant to the Tenant
Contribution Obligation to exceed the Tenant
Construction Cost Amount.
(III) The Tenant shall deliver, pay and
deposit the entire unfunded portion, if any, of
the Tenant Contribution Obligation upon Final
Payment (as such term is defined in Section 510(c)
of this Lease).
If the Initial Bonds are issued after the Commencement
Date, then the Proceeds, net of capitalized interest (if
any) and the Costs of Issuance, shall be (i) first, to
the extent of the unfunded amount of the Tenant
Contribution Obligation, added to the Construction Fund,
as an offset against the Tenant Contribution Obligation
and (ii) second, disbursed to the Tenant.
(j) No Representations. Except as may be expressly set
forth herein, the Landlord makes no warranties or
representations and accepts no liabilities or responsibilities
with respect to or for the adequacy, sufficiency or
suitability of or defects in or with respect to the design,
construction, renovation or installation of any Project.
(k) SJPAC's Design Requirements. Notwithstanding any
conflicting provision contained in this Lease, if the SJPAC
Proceeds have been delivered and paid to the Trustee or the
Escrow Agent pursuant to the provisions of Section 502(i)
hereof, then no remodeling, additions, modifications or other
changes may be made to the Plans and Specifications or to the
Project in such a manner which would result in the
Amphitheater being constructed in a manner which does not
satisfy the design requirements of SJPAC as specified in, and
required by, the SJPAC Three-Way Agreement.
Section 3.2 Section 509 of the Lease is hereby amended in its
entirety to read as follows:
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Section 509. Project Costs: Payment.
(a) To ensure that monies sufficient to pay all of the
Hard Costs shall be available when required, upon the date of
authentication, execution and delivery of the Initial Bonds,
the Landlord shall deposit or cause to be deposited with the
Trustee the Proceeds of the sale of the Initial Bonds in
accordance with the terms of the Indenture. Such moneys shall
be deposited in the Applicable Funds created pursuant to the
Indenture in the amounts prescribed in the Indenture. In
addition, all of the SJPAC Proceeds and the amount of money
equal to the Landlord Construction Cost Amount and the Tenant
Construction Cost Amount which are each required to be
deposited pursuant to the provisions of Section 502(i) hereof
shall be deposited in the Construction Fund.
(b) The moneys on hand from time to time in the
Construction Fund held by the Trustee, or as a part of the
Escrow Arrangement, shall be made available for payment of the
Hard Costs in the manner provided for in the Indenture (if
any) and this Lease. To avoid any ambiguity or uncertainty, it
is hereby specifically agreed and acknowledged that all fees
and other payments payable to the general contractor under the
Master Construction Contract, including any payment related to
actual cost savings realized below the Final GMP Amount, shall
be Hard Costs which shall be paid out of the Construction
Fund.
(c) If a construction cost overrun ("Cost Overrun")
occurs which results in the amount of moneys in the
Construction Fund not being sufficient to pay any of the Hard
Costs as they become due, then, as between the Landlord and
the Tenant, the obligation ("Cost Overrun Funding Obligation")
to pay, deliver and deposit additional moneys into the
Construction Fund at such times and in such amounts as may be
necessary to provide sufficient moneys in the Construction
Fund to pay all of the Hard Costs as and when they become due
shall be determined in accordance with the following
provisions:
(1) To the extent that such Cost Overrun arises
out of, relates to or is otherwise attributable to those
matters described in Section 4.3.6 of AIA Document A201
- General Conditions of the Contract for Construction
which will be a part of the Master Construction Contract
(i.e. subsurface or otherwise concealed physical
conditions related to the Subject Tracts or any other
unknown physical conditions of an unusual nature), then
the Cost Overrun Funding Obligation shall be the sole
responsibility of the Landlord.
(2) To the extent that such Cost Overrun arises
out of, relates to or is otherwise attributable to (i)
the failure of the Tenant to timely fulfill any of its
obligations under this Lease or (ii) the fault of the
Architect, then the Cost Overrun Funding Obligation
shall be the sole responsibility of the Tenant.
(3) To the extent that such Cost Overrun arises
out of, relates to or is otherwise attributable to the
failure of the Landlord to timely fulfill any of its
obligations under this Lease, then the Cost Overrun
Funding Obligation shall be the sole responsibility of
the Landlord.
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Nothing contained in this Section 509(c) shall be read
to imply that the Tenant or the Landlord has released,
or is required to release, any claim or cause of action
which either may have under any other contractual
relationship, including the Master Construction Contract
and any contract with the Architect, for reimbursement
or recovery of all or any portion of any amounts paid
into the Construction Fund pursuant to a Cost Overrun
Funding Obligation. To the extent that either party may
own any such claim or cause of action with respect to a
Cost Overrun which was funded, in whole or in part, by
the other party hereto, it will assign to the other
party the appropriate portion of such claim or cause of
action and thereafter reasonably cooperate in the
pursuit of such claim or cause of action. The Landlord
shall not commence litigation or other proceedings (or
otherwise assert any such claim or cause of action)
against the Contractor prior to Final Payment (as such
term is defined in Section 510(c) of this Lease).
(d) Nothing contained herein or implied hereby,
including, without limitation, the fact that the
Non-Bond Funds shall be included in the Construction
Fund, shall imply that any of the Non-Bond Funds are a
part of the Proceeds of the Initial Bonds, that the
Non-Bond Funds are repayable by the Tenant or that the
Non-Bond Funds are subject to the lien of the Indenture.
(e) Notwithstanding the other provisions hereof,
(i) the Tenant is solely responsible for the payment of
any and all Regular Soft Costs, (ii) the Tenant will not
be entitled to receive reimbursement or payment from the
Construction Fund pursuant to the provisions hereof with
respect to any of the Regular Soft Costs and (iii) the
Landlord shall be obligated to pay, when due, any and
all Special Soft Costs with no right of reimbursement
from the Construction Fund. At the request of the
Landlord, the Tenant will provide to the Landlord an
accounting of any and all Regular Soft Costs which have
been paid by the Tenant through the date of such request
with such reasonable detail and back-up as may be
specified in such request.
Section 3.3 Clause (c) of Section 510 of the Lease is hereby deleted
and replaced with the following:
(c) If, upon the full and final payment ("Final Payment") to
the general contractor under the Master Construction Contract any
surplus funds shall remain in the Construction Fund which are not
required to provide for the payment of any of the Hard Costs, such
funds shall be disbursed to the Landlord.
Section 3.4 Section 511 of the Lease is hereby amended in its
entirety to read as follows:
Section 511. Certain Definitions. As used in this Lease, the
following terms shall have the respective meanings indicated below:
(a) "Tenant Construction Cost Amount" shall mean a
pecuniary amount determined in accordance with the following
provisions:
(1) If the Initial Bonds are being issued on the
Commencement Date, then the "Tenant Construction Cost
Amount" shall mean a pecuniary amount equal to (A) the
sum of $31,000,000, the Special Extra Cost Amount and
the Pre-GMP Design Change Cost Amount minus (B) the
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amount of the Net Bond Proceeds minus (C) the Budgeted
Soft Cost Amount minus (D) the certified amount of all
Hard Costs actually paid by the Tenant at any time on or
before the Commencement Date minus (E) the Bond Related
Cost Amount.
(2) If the Initial Bonds are not being issued on
the Commencement Date, then the "Tenant Construction
Cost Amount" shall mean a pecuniary amount equal to (A)
the sum of $31,000,000, the Special Extra Cost Amount
and the Pre-GMP Design Change Cost Amount minus (B) the
Bond Related Cost Amount minus (C) the Budgeted Soft
Cost Amount minus (D) the certified amount of all Hard
Costs actually paid by the Tenant at any time on or
before the Commencement Date.
As used herein, the term "Net Bond Proceeds" shall mean a
pecuniary amount equal to (i) the amount of the Proceeds minus
(ii) the portion of the Proceeds which are actually applied
towards the Costs of Issuance or capitalized interest. The
examples contained in Exhibit "Q" attached hereto are intended
to illustrate the practical application of the definition of
the term "Tenant's Construction Cost Amount" based upon
certain assumptions set forth therein. The amounts and
assumptions set forth in Exhibit "Q" are for illustrative
purposes only and shall have no substantive bearing on this
Lease other than to illustrate the mechanics of making the
mathematical determination of the Tenant Construction Cost
Amount.
(b) "Landlord Construction Cost Amount" shall mean a
pecuniary amount equal to (A) the sum of the Final GMP Amount,
the Budgeted Soft Cost Amount and the Bond Related Cost Amount
minus (B) the amount of the SJPAC Proceeds minus (C) the
certified amount of all Hard Costs actually paid by the
Landlord at any time on or before the Commencement Date
pursuant to the provisions of clauses (b)(4) or (h)(2) of
Section 502 hereof (to the extent not paid out of the SJPAC
Proceeds) minus (D) the sum of $31,000,000, the Special Extra
Cost Amount and the Pre-GMP Design Change Cost Amount. The
examples contained in Exhibit "Q" attached hereto are intended
to illustrate the practical application of the definition of
the term "Landlord Construction Cost Amount" based upon
certain assumptions set forth therein. The amounts and
assumptions set forth in Exhibit "Q" are for illustrative
purposes only and shall have no substantive bearing on this
Lease other than to illustrate the mechanics of making the
mathematical determination of the Landlord Construction Cost
Amount.
(c) "Non-Bond Funds" shall collectively refer to (i) the
SJPAC Proceeds, (ii) the funds deposited into the Construction
Fund by the Landlord in the amount of the Landlord
Construction Cost Amount and (iii) the funds deposited into
the Construction Fund by the Tenant in the amount of the
Tenant Construction Cost Amount.
(d) "Substantial Completion" shall mean the occurrence
of a certificate of occupancy, whether temporary or permanent,
having been issued which permits the Tenant to lawfully use
and operate the Amphitheater for its intended purpose of
presenting live entertainment events to paying patrons in its
"outdoor configuration"; provided, however, if "Substantial
Completion" should occur due to the issuance of a temporary
certificate of occupancy and thereafter the Amphitheater may
not be lawfully used and operated for its intended purpose of
presenting live entertainment events to paying patrons in its
"outdoor configuration" due to the
11
expiration of such temporary certificate of occupancy, or
otherwise, then Substantial Completion shall be deemed to have
not occurred at such time.
(e) "Completion Deadline" shall mean (i) May 15, 1995 or
(ii) if the set of 70% Plans which are required to be
delivered pursuant to Section 501 hereof are not delivered on
or before the 70% Plan Delivery Deadline, the date which is
the same number of days after May 15, 1995 as the date on
which such set of 70% Plans are actually delivered is after
the 70% Plan Delivery Deadline.
(f) "Bond Related Cost Amount" shall mean a pecuniary
amount equal to $3,000,000.
(g) "70% Plans" shall mean a set of plans and drawings
for the Amphitheater which meets the requirements described in
Exhibit "R" attached hereto.
(h) "Special Extra Cost Amount" shall mean a pecuniary
amount equal to the sum of (i) 50% of the amount, if any, by
which the line item costs designated in the GMP budget for the
Special Extra Cost Items (to the extent that any one or more,
or any portion, of the Special Extra Cost Items are
incorporated into the design of the Amphitheater) exceeds the
Special Threshold Amount up to the Special Ceiling Amount and
(ii) and 100% of the amount, if any, by which the line item
costs designated in the GMP budget for the Special Extra Cost
Items exceeds the Special Ceiling Amount.
(i) "Special Extra Cost Items" shall mean the
construction and design elements of the Amphitheater
identified below which were recommended to be removed from the
design and construction of the Amphitheater in the Suggested
Cost Reductions ("SCR") dated December 1, 1993 and prepared by
Xxxxxx Construction Company:
(1) SCR #73, #93 and #131 (relating to the
redesign of the size of the lobbies).
(2) SCR #84 and #85 (relating to use of block
instead of brick on lobbies and site buildings).
(3) SCR #60 (relating to the reduction of the size
of the backstage area).
(4) SCR #31 and #32 (relating to the redesign of
the restrooms and plumbing).
(j) "Regular Soft Costs" shall mean all Soft Costs other
than Special Soft Costs.
(k) "Special Soft Costs" shall mean any Soft Costs, or
any portion thereof, which are incurred at the special
instance or request of the Landlord and which would not have
been incurred if not for such special instance and request of
the Landlord.
12
(l) "Special Threshold Amount" shall mean a pecuniary
amount equal to the sum of $500,000 and the Non-Special
Savings Amount.
(m) "Special Ceiling Amount" shall mean a pecuniary
amount equal to the sum of $2,000,000 and the Non-Special
Savings Amount.
(n) "November Plans and Specifications" shall
collectively refer to each and all of the following plans and
drawings relating to the Amphitheater:
(1) Civil engineering plans and drawings issued by
Xxxxxx, Xxxxxxxxxx and Xxxxxx and dated November 12,
1993.
(2) Architectural plans and drawings issued by the
Architect and dated November 6, 1993.
(3) Structural plans and drawings issued by
Xxxxxxx Xxxxx Associates (SCA) and dated November 8,
1993.
(4) Theatrical plans and drawings issued by Dall
Xxxxx and dated November 6, 1993.
(5) Mechanical, electrical and plumbing plans and
drawings issued by Day, Xxxxx and Rice and dated
November 6, 1993.
Section 3.5 The Landlord hereby agrees that (i) it will forthwith
commence such actions as may be necessary to fulfill its obligations
described in Section 515(b) of the Lease and (ii) it will thereafter
diligently pursue the completion of such obligations in accordance with
the critical path schedule for construction of the Amphitheater which has
been, or soon hereafter will be, finalized. Notwithstanding anything to
the contrary contained in the Lease, the obligation of the Landlord
contained in Section 515(b) of the Lease is a current and binding
obligation of the Landlord and is not subject to the fulfillment of any
prior condition.
Section 3.6 Section 515(c) of the Lease is hereby deleted in its
entirety and replaced with the following:
(c) The Landlord shall forthwith commence, or cause to
be commenced, the delivery to the Leasehold Tract of 375,000
cubic yards (truck measure) of construction fill of a quality
and of a type to meet the specifications in a contract between
the Landlord and Xxxxxx, Xxxxxxxxxx & Xxxxxx, Inc., dated
July, 1993 and thereafter diligently pursue the completion of
such obligation in accordance with the critical path schedule
for construction of the Amphitheater which has been, or soon
hereafter will be, finalized. Notwithstanding anything to the
contrary contained in this Lease, the obligation of the
Landlord contained in this Section 515(c) is a current and
binding obligation of the Landlord and is not subject to the
fulfillment of any prior condition.
Section 3.7 Section 515(d) of the Lease is hereby amended by (x)
inserting the word "and" at the end of clause (i) and before clause (ii)
and (y) deleting all of clause (iii). Additionally, Section 515(d) of the
Lease is hereby amended by adding at the end of the first sentence thereof
the following:
13
provided, however, in no event shall the Initial Bonds be in
an amount which would cause the Tenant Construction Cost
Amount to be less than $0.00 by more than the certified amount
of all Costs of the Initial Project (including both Hard Costs
and Soft Costs) actually paid by the Tenant at any time on or
before the Commencement Date.
Section 3.8 Clause (b) of Section 517 of the Lease is hereby deleted
in its entirety.
Section 3.9 At the end of Article V of the Lease, a new Section 520
is hereby added to read as follows:
Section 520. Landlord's Construction Guaranties.
(a) Completion Guaranty. The Landlord guarantees
("Completion Guaranty") to the Tenant that Substantial
Completion will occur on or before the Completion Deadline.
Notwithstanding anything to the contrary contained herein, if
the set of 70% Plans which are required to be delivered
pursuant to Section 501 hereof are not delivered on or before
August 8, 1994, then (i) the Landlord's guarantee contained in
the immediately preceding sentence shall be of no further
force or effect and (ii) the Landlord shall not be liable or
responsible for any liquidated damages hereunder. In
furtherance of the foregoing, the following provisions shall
apply:
(1) The Landlord acknowledges that the Tenant will
be substantially and significantly damaged in amounts
that will be difficult to ascertain and quantify if
Substantial Completion has not occurred on or before the
Completion Deadline. The Landlord agrees that it will
pay to the Tenant on the earlier to occur of Substantial
Completion or August 15, 1995, as liquidated damages and
not as a penalty, the sum determined in accordance with
the following provisions:
(I) if Substantial Completion occurs the
Threshold Number of Days or less after the
Completion Deadline, then the total amount of
liquidated damages payable pursuant to this
provision shall be $0.00.
(II) If Substantial Completion occurs less
than the Back End Number of Days, but more than
the Threshold Number of Days, after the Completion
Deadline, then the total amount of liquidated
damages payable pursuant to this provision shall
be equal to the product of $38,000 multiplied by
the number of days between the date which is the
Threshold Number of Days after the Completion
Deadline and the date on which Substantial
Completion occurs.
(III) If Substantial Completion is the Back
End Number of Days or more after the Completion
Deadline, then the total amount of liquidated
damages payable pursuant to this provision shall
be $950,000, reduced by the amount (if any) of
funds contributed to the Construction Fund by the
Landlord pursuant to clause (3) of this Section
520(a).
14
(2) Subject to the adjustments set forth in the
next succeeding sentence, (i) the term "Threshold Number
of Days" shall mean 50 days and (ii) the term "Back End
Number of Days" shall mean 75 days. The Threshold Number
of Days and the Back End Number of Days shall be
adjusted in accordance with the following provisions:
(I) If Substantial Completion is delayed
beyond the Completion Deadline due to the
occurrence or existence of any one or more
Landlord Controlled Events (herein defined), then
the Threshold Number of Days and the Back End
Number of Days shall each be reduced by the number
of days of delay which are attributable to the
existence or occurrence of such Landlord
Controlled Events. As used in the immediately
preceding sentence, the term "Landlord Controlled
Event" shall mean (i) the failure of the Landlord
to timely fulfill any of its obligations under
this Lease or (ii) those matters described in
Section 4.3.6 of AIA Document A201 - General
Conditions of the Contract for Construction (i.e.
subsurface or otherwise concealed physical
conditions related to the Subject Tracts or any
other unknown physical conditions of an unusual
nature).
(II) If Substantial Completion is delayed
beyond the Completion Deadline by 30 days or more
due to weather conditions, then the Threshold
Number of Days and the Back End Number of Days
shall each be reduced by nineteen (19) days.
(III) If the Landlord is required to
contribute to the Construction Fund any amounts
pursuant to the provisions of clause (3) of this
Section 520(a), then the Back End Number of Days
shall be reduced by a number of days equal to (x)
the amount so contributed to the Construction Fund
by Landlord divided by (y) $38,000, rounded to the
nearest integer.
(3) To the extent that construction of the
Amphitheater should, at any time, be behind schedule,
for any reason other than (x) the failure of Tenant to
timely fulfill any of its obligations under this Lease
or (y) the fault of the Architect, then the Tenant may,
at its option and discretion, accelerate the
construction process in such a manner as may be
necessary to bring the construction of the Amphitheater
back on schedule. If the Tenant so elects to accelerate
the construction process, then (i) the Landlord shall be
required to deposit into the Construction Fund the first
$250,000 of the additional costs attributable to such
accelerated work schedule and (ii) the Tenant shall be
required to deposit into the Construction Fund the
balance, if any, of such additional costs. In order to
reduce the total amount of liquidated damages payable by
the Landlord to the Tenant pursuant to the provisions of
Section 520(a)(1) hereof by an amount equal to any sums
contributed to the Construction Fund by the Landlord
pursuant to the requirements of the immediately
preceding sentence, the Back End Number of Days shall be
reduced by the amount specified in clause (III) of
Section 520(a)(2) hereof.
15
The rights and remedies afforded the Tenant pursuant to
clauses (1), (2) and (3) of this Section 520(a) shall be (i)
the sole and exclusive remedies for any breach of the
Completion Guaranty by the Landlord and (ii) exercisable by,
and available to, the Tenant upon a breach of the Completion
Guaranty, on and subject to the provisions of this Section
520(a), without the requirement of providing any notice or
opportunity to cure pursuant to the provisions of Section 1305
of this Lease or otherwise satisfying any conditions precedent
to the occurrence of a "Landlord Event of Default" under this
Lease. The exclusivity of the Tenant's rights and remedies
with respect to a breach by the Landlord of the Completion
Guaranty shall not be construed as a waiver or release by the
Tenant of any other rights or remedies which it may have under
this Lease with respect to any other breach or failure of the
Landlord to fulfill any of its other obligations hereunder.
(b) Contractor's Completion Guaranty. The Tenant's
obligations under this Lease are conditioned upon the Tenant
obtaining an agreement from the general contractor under the
Master Construction Contract, in form, content and substance
acceptable to the Tenant, pursuant to which such general
contractor agrees to pay an amount of liquidated damages
determined as follows:
(1) If Substantial Completion occurs 12 days or
less after the Completion Deadline, then a total amount
of liquidated damages of $0.00.
(2) If Substantial Completion occurs 30 days or
less but more than 12 days after the Completion
Deadline, then a total amount of liquidated damages of
$500,000.
(3) If Substantial Completion occurs 50 days or
less but more than 30 days after the Completion
Deadline, then a total amount of liquidated damages
equal to the sum of (i) $500,000 and (ii) $25,000
multiplied by the number of days that Substantial
Completion occurs beyond the 30th day following the
Completion Deadline.
(4) If Substantial Completion occurs more than 50
days after the Completion Deadline, then a total amount
of liquidated damages of $1,000,000.
If the condition to the Tenant's obligations hereunder
contained in this Section 520(b) is not satisfied to the full
and complete satisfaction of the Tenant on or before May 31,
1994, then, at any time before execution of the Master
Construction Contract, the Tenant may, subject to the
provisions of clause (e) of this Section 520, terminate this
Lease by providing notice thereof to the Landlord.
(c) Indoor Buildout. To assist in causing Substantial
Completion to occur on or before the Completion Deadline, it
is agreed that the Landlord and the Tenant shall each have the
right and authority to require that the "indoor buildout"
requirements of SJPAC not be completed until after the end of
the 1995 Open Air Season; provided, however, that the Tenant
may not exercise such right unless it determines that
completion of the "indoor buildout" requirements of SJPAC will
delay or hinder its use, enjoyment or operation of the
Amphitheater during the 1995 Open Air Season. If either the
Landlord or the Tenant should exercise such right contained in
the immediately preceding sentence, then (i) the Landlord
shall be required to cause the "indoor buildout" requirements
of SJPAC to be completed on
16
or before March 31, 1996 and (ii) the Landlord shall be
required to pay all of Tenant's overhead and carrying costs
related to the use and operation of the Amphitheater in its
indoor configuration (including any and all Rent hereunder)
which accrue during the portion of the 1995-96 Enclosed Season
for which the Amphitheater is not available for use by the
Tenant; provided, however, that the Landlord shall not be
obligated to make any payment to the Tenant pursuant to the
provisions of clause (ii) of this Section 520(c) if both of
the following conditions are satisfied:
(1) The Amphitheater may be lawfully and properly
used by the Tenant for its purposes in the indoor
configuration during the 1995-96 Enclosed Season even
though the "indoor buildout" requirements for SJPAC have
not been completed; and
(2) Either (A) SJPAC agrees that, notwithstanding
the provisions of the SJPAC Three Way Agreement, (i) the
Tenant may use the Amphitheater exclusively for the
first 110 days of the 1995-96 Enclosed Season and (ii)
the completion of the "indoor buildout" requirements for
SJPAC may be done during the second 110 days of such
Enclosed Season in lieu of SJPAC's possessory rights in
and to the Amphitheater under the terms of the SJPAC
Lease for the 1995-96 Enclosed Season or (B) the
Landlord presents a plan for completing the "indoor
buildout" requirements for SJPAC over the entire 1995-96
Enclosed Season which (i) will not interfere, delay or
impair the Tenant's use of the Amphitheater during the
1995-96 Enclosed Season and (ii) the Tenant approves, in
its sole discretion.
(d) Landlord's Special Termination Option. If the
Landlord and the Tenant have been unable to obtain, prior to
August 31, 1994, a Master Construction Contract with an
Acceptable Construction Company containing a Final GMP Amount
equal to or less than the Maximum Permitted Amount (herein
defined), then the Landlord shall have the right to terminate,
subject to the provisions of clause (e) of this Section 520,
this Lease by written notice to the Tenant at any time after
August 31, 1994 but before September 30, 1994. As used in the
immediately preceding sentence, the term "Maximum Permitted
Amount" shall mean a pecuniary amount equal to the lesser of
(i) $34,500,000 or (ii) the sum of (x) $33,000,000 and (y) two
times the Special Extra Cost Amount.
(e) Outdoor Option. If (i) the Landlord should exercise
the right and option contained in clause (d) of this Section
520 to terminate this Lease or (ii) the Tenant should exercise
the right and option contained in clause (b) of this Section
520 to terminate this Lease, then the Tenant shall have the
right, exercisable at anytime within 30 days after such
termination, by providing notice thereof to the Landlord, to
fulfill all of its construction obligations contained herein
by constructing the Amphitheater as a Summer Facility. If the
Tenant should timely exercise such right to construct the
Amphitheater as a Summer Facility, then (i) the termination of
this Lease shall be deemed to have never occurred or been
effective and (ii) the parties hereto shall immediately
thereafter (A) each execute and deliver to the other a First
Amendment to Lease in the form attached hereto as Exhibit
"L-1" and (B) each negotiate in good faith with the other to
revise the per ticket surcharge amounts specified in Exhibit
"H" attached hereto to attempt to provide similar projected
levels of revenues from the Surcharge Revenue notwithstanding
that
17
fewer shows will be presented at the Amphitheater as a result
of there being no Enclosed Season; provided, however, that
failure to reach an agreement as to how the per ticket
surcharge amounts specified in Exhibit "H" are to be so
revised shall not, in any way, affect the continuing
effectiveness of this Lease, the continuing obligations of the
parties hereunder (including the Tenant's obligation to charge
and collect the per ticket surcharge pursuant to the
provisions of Section 304 hereof in the amounts and in the
years specified in the column headed "Projected Surcharge Per
Ticket" in Exhibit "H" attached hereto) or the effectiveness
of the Tenant's exercise of the option to construct the
Amphitheater as a Summer Facility.
Section 4. Modification of Exhibits. Exhibit "E-1" and Exhibit "E-2"
currently attached to the Lease are hereby amended in their entirety to read as
the exhibits attached to this Amendment marked as Exhibit "E-1" and Exhibit
"E-2", respectively. The Exhibits attached to this Amendment marked as Exhibit
"P", as Exhibit "Q" and as Exhibit "R", respectively, are hereby deemed to be
attached to the Lease as Exhibit "P", as Exhibit "Q" and as Exhibit "R",
respectively.
Section 5. Modification of Exhibit "L-1". Exhibit "L-1" attached to the
Lease is amended as follows:
5.1 Such provisions are hereby added to Exhibit "L-1" as may be
necessary to reflect that it is a complete amendment and restatement of
this Amendment and that it supersedes, replaces and nullifies all of the
provisions contained in this Amendment other than the provisions of
Sections 2, 5 and 6 of this Amendment. In that connection, all references
in Exhibit "L-1" to a "First Amendment to Lease" shall be changed to
references to an "Amended and Restated Second Amendment to Lease".
5.2 Such provisions are hereby added to Exhibit "L-1" as may be
necessary to reflect that the Amphitheater to be constructed by the Tenant
pursuant to the Original Lease, as amended by the Prior Amendments and the
provisions of Exhibit "L-1" shall not be completed until the 1996 Open Air
Season, including, without limitation, a provision that all of the
applicable dates contained in the Original Lease (as amended by the Prior
Amendments) which relate to the conditions benefitting the Tenant and the
deadlines for satisfying those conditions shall be extended by one year
each.
Section 6. Modification of "Proceeds". The phrase "to the Trustee"
appearing in the second line of the defined term "Proceeds" in Section 101 of
the Lease is hereby replaced with the phrase "to the Landlord".
Section 7. Ratification and Confirmation. Except as expressly amended
hereby, the Lease is hereby ratified, confirmed and carried forward in all
respects.
WITNESS the execution hereof effective as of the date and year first above
written.
ATTEST: NEW JERSEY ECONOMIC DEVELOPMENT
[SEAL] AUTHORITY, the Landlord
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------
Assistant Deputy Director Executive Director
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
18
WITNESS:
PAVILION PARTNERS, a Delaware general
partnership, the Tenant
By: SM/PACE, Inc., its general partner
/s/ [ILLEGIBLE] By: /s/ Xxxxx X. Xxxxxx
---------------------------------- ------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
19
EXHIBIT E-1: COSTS TO BE INCLUDED IN XXXXXX GMP
1. All items included in the Xxxxxx Construction Company budget dated
November 22, 1993 consisting of ninety pages.
2. SJPAC Facilities including administration office, classrooms and black box
(exclusive of furniture, fixtures and equipment).
3. Electronic Architecture
4. Graphic Lighting - Exterior
5. Orchestra Shell
6. Seating:
a. Standard
b. Theatrical upgrade
c. Aisle Lighting
7. Stage Lighting Fixtures
8. Stage System (Wenger)
9. Orchestra Pit
10. Stage Showdeck
11. Sales Tax Exemption
12. General Conditions
13. General Liability Insurance
14. Builder's Risk Insurance
15. General Contractor's Fees
16. Pre-Construction Costs
17. Direct and Indirect Cost Associated with Acceleration of Project Schedule
EXHIBIT E-2: COSTS OUTSIDE THE GMP
Cost Item
1. TENANT'S EQUIPMENT REQUIREMENTS:
Audio Equipment
Rigging
Spotlights
Video
Communication - other
Computers
Concessionaire Equipment
Drop boxes
Furniture & Equipment - Dressing Rooms
Furniture & Equipment - Office
Patio Tables and Chairs
Signage - facility
Seating: Box Seating Equipment
Telephone System
Tents
2. OVERHEAD FEES AND COSTS INCURRED OR PAID BY TENANT FOR THE FOLLOWING TYPES
OF SERVICES AND ITEMS:
Architectural Design
Civil Engineering
M.E.P. Engineering
Structural Engineering
Acoustical Engineering
Landscape Design
Construction Testing
Permit Expenses
CCMUA - Review
CCMUA - Connection Fee
CCMUA - User Fee
CC Plan Review - RV
Construction Permit
Miscellaneous Permits
Xxxxxxxx
Geotechnical Engineering (Partial-shared with Landlord)
Construction Consultant
Project Manager
Survey (Onsite)
Theatrical Consultants:
Xxxxx
Xxxxx
Other Consultants - Xxxxxx
A & E Contingency
3. START-UP COSTS INCURRED OR PAID BY TENANT FOR THE FOLLOWING TYPES OF
SERVICES AND ITEMS:
Consultants (Real Estate)
Electrical Connections
Liquor License
G & A, Marketing
Legal
Market Study
Relocation - GM & key executives
Project Travel Expense
4. OFFSITE/OTHER COSTS INCURRED OR PAID BY TENANT FOR THE FOLLOWING ITEMS:
Tenant's Contingency
Expenditures to Date by Tenant
Interim Interest
NOTE: Soft Costs do not include any equipment, overhead, design services,
start-up costs or other expenditures required to meet the specifications
of SJPAC. All such costs shall be the sole and exclusive cost of SJPAC.
EXHIBIT E-2
Page 2 of 2
Exhibit "P"
DESCRIPTION OF MODIFICATIONS TO THE
FACILITY DESIGN
The reference to SCR in this Exhibit "P" shall refer to the Suggested Cost
Reductions dated December 1, 1993 and prepared by Xxxxxx Construction Company
which sets forth a list of various design and construction changes and additions
to the November Plans and Specifications. The following is the list of agreed
upon changes and deletions by reference to the item numbers out of the SCR:
A. Deletions
SCR Item No. Description
2 Reduce number of test piles
3 Change concrete paving to asphalt
5 Reduce interior movable partition allowance
13 Eliminate GWB on interior faces of pavilion
14 Delete parapet wall at loading dock
15 Reduce wick allowance to $30,000
16 Reduce HVAC tonnage to 650 based on enclosed
October-March
20 Delete double footings at interior walls
22 Revise emergency power distribution
limit to pavilion building only
27 Change automatic gates to manual
29 Change plaza retaining walls to Hilfiker system
30 Change pavilion walls to precast and delete lateral
beam support
34 Reduce boiler room one-third
36 Delete sheet piling
50 Delete screen wail theatrical allowance
51 Reduce kiosks
52 Reduce lawn seating 40 feet north
53 Reduce Clinton retaining wall height
63 Removable rear wall - change to fixed panels
64 Reduce rear of pavilion structure by 10'
65 Incorporate EIFS facia at the rear wall
67 Delete all incandescent light fixtures double
quantity of FA fixtures
72 Delete brick piers on site fencing
74 Delete piles under backstage area
79 Delete dimmer room
86 Delete insulation on concession buildings
99 Reconfigure lawn seating stairs to mid-lawn
102 Reduce square footage of administration building
107 Incorporate effects of building volume reduction
in HVAC-AHU's, chillers, duct work, piping
120 Redesign HVAC system for gas fired rooftop units
121 No C/Score on CMU
123 Change concrete foundation walls to CMU
124 Specify cheaper light fixtures
126 Delete remaining two-thirds of boiler room
128 Delete aluminum soffit on restrooms
129 Delete heat way piping
130 Delete Hilfiker wall on Clinton Street and plazas
B. Additions
SCR Item No. Description
119 Add pumping station and equipment
132 Add showdeck stage
133 Increase sound system allowance
134 Add sound trap curtain
EXHIBIT "P"
Page 2 of 3
135 Catwalk dimmer rooms
136 Add doghouse on lobby roof
137 Add bench seating
138 Add asphalt paving under bench seating
139 Add retaining wall at cross aisle
140 Electronic architecture
141 Graphic lighting exteriors
000 Xxxxxxxxx shell
143 Seating
144 Theatrical upgraded seating
145 Seat mounted aisle lights
146 Stage system
EXHIBIT "P"
Page 3 of 3
Exhibit "Q"
EXAMPLE ONE: Bonds Issued with capitalized interest included
A. Assumptions
1. Proceeds = $26,100,000
2. Net Bond Proceeds = $23,100,000 [assume: $500,000 of Costs of
Issuance and $2,500,000 capitalized interest]
3. Final GMP Amount = $31,500,000
4. Tenant's Hard Costs before Commencement Date = $750,000
5. Landlord's Hard Costs before Commencement Date = $750,000
6. Projected interest for 730 days exceeds capitalized interest = $0.00
7. Special Extra Cost Amount = $0.00
8. Pre-GMP Design Change Cost Amount = $0.00
9. SJPAC Proceeds = $3,940,000
B. Calculation of Tenant Construction Cost Amount ("TCCA") per Section 511
(a)(1)
TCCA = (A) $31,000,OO0 + $0.00 + $0.00; minus
(B) $23,100,000; minus
(C) $5,500,000; minus
(D) $750,000; minus
(E) $3,000,000.
TCCA = ($1,350,000). Thus, $1,350,000 will be disbursed to
Tenant on the Commencement Date from the Construction
Fund pursuant to Section 502(i)(1)(II).
C. Calculation of Landlord Construction Cost Amount ("LCCA") per Section
511(b)
LCCA = (A) $31,500,000 + $5,500,000 + $3,000,000; minus
(B) $3,940,000; minus
(C) $750,000; minus
(D) $31,000,000 + $0.00 + $0.00.
LCCA = $4,310,000
==========
D. Sources and Uses Summary
Sources Uses
------- ----
$26,100,000 - Bond Proceeds $31,500,000 - Final GMP
$ 3,940,000 - SJPAC Proceeds $ 3,000,000 - Costs of Issuance and
Capitalized interest
$ 4,310,000 - LCCA $ 1,350,000 - Negative TCCA
$ 750,000 - Tenant Pre-Commencement
Date Contribution.
$ 750,000 - Landlord Pre-Commencement
Date Contribution
$35,850,000 - TOTAL SOURCES $35,850,000 - TOTAL USES
=========== ===========
EXAMPLE TWO: Bonds issued without capitalized interest included
A. Assumptions
1. Proceeds = $23,600,000
2. Net Bond Proceeds = $23,150,000 [assume: $450,000 of Costs of
Issuance and $0.00 of capitalized interest]
3. Final GMP Amount = $31,500,000
4. Tenant's Hard Costs before Commencement Date = $750,000
5. Landlord's Hard Costs before Commencement Date = $750,000
6. Special Extra Cost Amount = $0.00
7. Pre-GMP Design Change Cost Amount = $0.00
8. SJPAC Proceeds = $3,940,000
B. Calculation of Tenant Construction Cost Amount ("TCCA") per Section
511(a)(1)
TCCA = (A) $31,000,000 + $0.00 + $0.00; minus
(B) $23,150,000; minus
(C) $5,500,000; minus
(D) $750,000; minus
(E) $3,000,000.
Exhibit "Q"
Page 2 of 5
TCCA = ($1,400,000). Thus, $1,400,000 will be disbursed to the
Tenant on the Commencement Date from the Construction Fund
pursuant to Section 502(i)(1)(II).
C. Calculation of Landlord Construction Cost Amount ("LCCA") per Section
511(b)
LCCA = (A) $31,500,000 + $5,500,000 + $3,000,000; minus
(B) $3,940,000; minus
(C) $750,000; minus
(D) $31,000,000 + $0.00 + $0.00
LCCA = $4,310,000
==========
D. Sources and Uses Summary
Sources Uses
------- ----
$23,600,000 - Bond Proceeds $31,500,000 - Final GMP
$ 3,940,000 - SJPAC Proceeds $ 450,000 - Costs of Issuance
[Note: capitalized interest is now "off
budget"]
$ 4,310,000 - LCCA $1,400,000 - Negative TCCA
$ 750,000 - Tenant Pre-Commencement
Date Contribution
$ 750,000 - Landlord Pre-Commencement
Date Contribution
$33,350,000 - TOTAL SOURCES $33,350,000 - TOTAL USES
=========== ===========
Exhibit "Q"
Page 3 of 5
EXAMPLE THREE: No Bonds issued
A. Assumptions
1. Proceeds = $0.00
2. Final GMP Amount = $31,500,000
3. Tenant's Hard Costs before Commencement Date = $750,000
4. Landlord's Hard Costs before Commencement Date = $750,000
5. Special Extra Cost Amount = $0.00
6. Pre-GMP Design Change Cost Amount = $0.00
7. SJPAC Proceeds = $3,940,000
B. Calculation of Tenant Construction Cost Amount ("TCCA") per Section
511(a)(2)
TCCA = (A) $31,000,000 + $0.00 + $0.00; minus
(B) $3,000,000; minus
(C) $5,500,000; minus
(D) $750,000.
TCCA = 21,750,000
==========
C. Calculation of Landlord Construction Cost Amount ("LCCA") per Section
511(b)
LCCA = (A) $31,500,000 + $5,500,000 + $3,000,000; minus
(B) $3,940,000; minus
(C) $750,000; minus
(D) $31,000,000 + $0.00 + $0.00.
LCCA = $4,310,000
==========
Exhibit "Q"
Page 4 of 5
D. Sources and Uses Summary
Sources Uses
------- ----
$21,750,000 - TCCA $31,500,000 - Final GMP
$ 3,940,000 - SJPAC Proceeds $ 0.00 - Bond Costs [Note: all
financing costs are "off
budget" in this example]
$ 4,310,000 - LCCA
$ 750,000 - Tenant Pre-Commencement
Date Contribution
$ 750,000 - Landlord Pre-Commencement
Date Contribution
$31,500,000 - TOTAL SOURCES $31,500,000 - TOTAL USES
=========== ===========
Exhibit "Q"
Page 5 of 5
Camden Amphitheater
EXHIBIT "R"
DEFINITION OF 70% PLANS
--------------------------------------------------------------------------------
The following descriptions outline the minimum requirements for documentation at
each level. Where this is less than the requirements of the AIA Building Design
Section 2.5 (Document B141), the AIA requirements shall take precedence. In
general, all 70% documents should contain enough information and coordination to
solicit lump sum bids from trade contractors.
All items contained in the project are assumed to be non proprietary and we will
be able to solicit at least three manufacturers' bids for each item.
1. Surcharge Documents - 70%/100%
Civil drawings showing location and scope of surcharge. Specification for
soil placement/compaction with all necessary monitoring/measuring
equipment referenced.
2. Civil Documents - 70%
All civil documents showing sufficient information for bidding the bulk
fill, excavation and xxxxx. This should include rough site grades and
elevations. The scope of the xxxxx should be fully designed and shown. All
specifications for these items should be included. Any slope
stabilization/reinforcing should be fully designed and specified. Utility
sizes and locations should be shown, along with preliminary landscaping
and irrigation. All relevant specifications should be included.
3. Structural - 70%
All piles should be shown and detailed with top and bottom elevations
listed. Reinforcing and other details should also be shown. The test piles
should be fully designed and specifications included. All pile caps and
grade beams/spread footings should be shown, sized and details referenced.
Anchor bolts footing elevations should be shown and located. All
structural plans/elevations should be included showing member sizes and
weights with noted lengths and dimensions. Horizontal and vertical
sections through each element should be included. Specifications for steel
grade, finishes, connections information, etc. should be included. The
plans should contain a column schedule and show all member
forces/reactions. Spray-on fireproofing requirements and specifications
should be indicated and included. Plan drawings showing all slab on grade
and subgrade requirements should be included. These should reference
details and specifications. All reinforcement, vapor
barrier/waterproofing, finishes and thicknesses should be shown.
Page 1 of 5 5/4/94
Camden Amphitheater
Exhibit "R"
Definition of 70% Plans - Continued
--------------------------------------------------------------------------------
4. Architectural Precast - 70%/100%
Plans, elevations and sections of precast concrete walls showing all
details, connections and interfaces should be included. Fully coordinated
specifications should also be included designating all required finishes,
thicknesses, surface treatments and perimeter treatments.
5. Architectural Drawings - 70%
The architectural plans should at minimum show and locate all buildings,
kiosks, gazebo's, sheds and other structures including reference to
established x-y grid system and finished floor heights. All specifications
should be project specific.
1. Floor plans, 1/8" scale minimum, showing layouts of all partitions
(types clearly marked on the drawing), locations of all doors with
all doors and rooms numbered to a system.
2. Partition schedule, heights, and specifications including fire/sound
rating
3. Door, frame, and hardware schedule with specifications
4. Finish schedule/specifications for flooring, walls, base, and
ceilings referenced to the room numbering. Ceiling heights also to
be defined
5. Reflected ceiling plan showing all bulkheads, soffits, and coffers
6. Sections for each type of wall partition
7. Exterior wall elevations, minimum 1/8" scale, and window schedule
showing size and type of window. Elevations to show any window
operation
8. Sections through building showing floor heights, ceiling heights,
and any special conditions
9. Sections and details for each type of exterior wall system including
details at window hand/jamb/sill. All connection details to
structural frame should be shown
10. Details of all special items
11. Roof layout including size and location of all equipment and
skylights
12. Sections, details, and specifications at each type of roof and all
curbs, copings, parapets
13. Description, specification, and extent of all dampproofing and
waterproofing
14. Locations, sizes, and specifications of all special doors
15. Specifications and sufficient information to establish the scope and
quality of items such as:
a. Lockers
b. Shelving
c. Cabinets
d. Draperies and blinds
e. Grilles, screens, and enclosures
f. Casework
g. Toilet room partitions and accessories
h. Directories
i. Graphics and signage
j. Wall and corner guards
k. All other fit-out items
Page 2 of 5 5/4/94
Camden Amphitheater
Exhibit "R"
Definition of 70% Plans - Continued
--------------------------------------------------------------------------------
5. Architectural Drawings - 70% - Continued
16. Details, elevations and specifications for the Pavilion rear
removable wall system including all finishes, seals, insulation and
substructure.
17. Details, elevations and specifications for the interior moveable
wall system including all finishes, ancillary equipment, doors,
hardware and track.
18. All storefront and masonry elevations should be included and
detailed (minimum size 1" = 8') showing all interfaces, corners,
heads, jambs, and xxxxx.
19. The site sound wall should be shown and fully detailed including
elevations and specifications. All finishes, surface treatments and
structure should be fully designed.
20. All site stairs and paving should be shown and detailed including
enlarged plans and structural plans/details to show grades,
thicknesses, materials and specifications.
6. Mechanical - 70%
Equipment schedule listing number and capacity of all fans, pumps,
compressors, diffusers, etc. including manufacturers names, model numbers
and electrical/gas/water feeds.
Size, location, make and model of gas-fired roof top units including ATC
piping, controls, utility requirements, valving and connections in
accordance with TCCo Cost Reduction narrative. Coordination with lobby
structure curb to roof details and vibration isolation and sound
attenuation is also required.
Plan showing all duct/pipe sizes and locations including dampers, louvers,
diffusers, valves and insulation. Plan location and layouts for all
equipment.
Specification of all devices, requirements and sequence of operation for
ATC and/or BMS systems.
All details, connections, specifications and valving arrangement for
piping, ductwork and equipment.
All piping, valves, sizes and locations required for all kitchen equipment
including concession equipment by Xxxxx Services.
7. Plumbing - 70%
Single line layout showing all sizes and locations for stacks, risers,
water lines and sanitary drainage, including valving & insulation.
Plumbing fixture type, including manufacturer name and model number,
specifications, quantity and location for all buildings.
Page 3 of 5 5/4/94
Camden Amphitheater
Exhibit "R"
Definition of 70% Plans - Continued
--------------------------------------------------------------------------------
7. Plumbing - 70% - Continued
Hot water heating systems for all buildings, showing all sizes and
locations for hot water heaters, piping, valving and insulation.
Drawings and specifications for the water pumping station including all
sizes and location for equipment, piping, tie-in valving, vibration
isolation and insulation.
Valve sizes and locations required for all kitchen equipment including
concession equipment by Xxxxx Services.
8. Fire Protection - 70%
Single line layout showing all sizes and locations for risers, branches
and connections to domestic water system including all valving or plan
layout of each system and coverage required.
Specifications on head type(s) and locations including acceptable
manufacturers.
Make and model of fire pump including pipe sizes and electrical feed
requirements.
Valve sizes and locations required for all kitchen equipment (hoods)
including concession equipment by Xxxxx Services.
9. Electrical - 70%
All lighting, power and control systems should be designed and specified
including, but not limited to, the following:
1. Single line diagrams and layout showing incoming service, location
and size of switchgear, main feeders, meters, and panels
2. Equipment schedule including all panel sizes, feeders, etc.
3. Sizes and locations of all switches, breakers, etc.
4. Detailed power and lighting layout showing all circuit references
5. Description, extent and layout for all special systems including
a. Fire alarm showing the site loop layout
b. Telephone
c. Control system requirements (computer)
d. Security system
6. Specification and size of emergency generator
Page 4 of 5 5/4/94
Camden Amphitheater
Exhibit "R"
Definition of 70% Plans - Continued
--------------------------------------------------------------------------------
10. Equipment - 70%
All required equipment should be shown on the plans and specified. The
site benches, if required, should reference a type, model number and total
LF of bench required.
11. Theatrical - 70%
All theatrical equipment, furnishings and interfaces should be designed,
coordinated and specified. This should include but not be limited to:
o Stage
o Showdeck stage
o Sound system/speaker system
o Curtains
o Dimmer equipment
o Lighting
o ERES
o Orchestra shell
o Seating
o Portal legs
o Rigging, counterweights and line sets
o Draperies
o Intercom/Paging system
o Outlet devices
Page 5 of 5 5/4/94
