First Amendment to Development Agreement with UIA Management LLCThis instrument prepared by and
after recording return to:
Adam D. Lustig, EsG.
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33131-5340
' (For Recorder's Use Only)
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this "Amendment")
is entered into as of the day of , 2009, by and between the CITY OF
MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida (the "City") and
UTA MANAGEMENT, LLC, a Delaware limited liability company ("Developer").
RECITALS:
A. The City of Miami Beach, Florida, a municipal corporation of the State of Florida
(the "City"), is the owner of certain land located on Lincoln Road between Lenox Avenue and
Alton Road, in Miami Beach, Florida, more particularly described in the attached Exhibit "A"
(the "Project Site").
B. In December 6, 2006, the City Commission adopted Resolution No. 200 -26422,
approving a conceptual plan for the closure of Lincoln Road to vehicles between Leno Avenue
and Alton Road and construction of a pedestrian mall.
C. In March 14, 2007, the City Commission adopted Resolution No. 007-26494,
approving a Development Agreement between the City and Developer, f the design,
development, and construction of certain improvements to the 1100 Block o~Lincoln Road, in
conjunction with the project being developed by MBeachl, LLLP, an affi~fate of Developer, at
1111 Lincoln Road, Miami Beach, Florida (the "MBeachl Property").
D. The City and Developer entered into a Development Agreement dated April 11,
2007 and recorded in Official Records Book 25537, Page 1882 of the Public Records of Miami-
Dade County, Florida (the "Development Agreement").
E. Under Section 52.1 of the Development Agreement, the Developer agreed to
match the City's Art in Public Places ("AiPP"} contribution and the City agreed that Developer's
AiPP contribution would be utilized solely on the 1100 block of Lincoln Road between Lenox
Avenue and Alton Road and that the art and artists shall be reviewed and selected pursuant to the
City's established AIPP procedures, as set forth in the City of Miami Beach Code, as same may
be amended from time to time.
F. At its regular meeting on April 12, 2007, and in conjunction with its established
criteria, the AIPP Committee passed a motion establishing a Professional Advisory Committee
("PAC") for the selection of the public artwork to be sited on Lincoln Road, between Lenox
Avenue and Alton Road.
G. At the November 27, 2007, PAC meeting, the members of the AIPP Committee
spoke with Dan Graham (the "Artist"), who discussed his concept for the public artwork to be
sited on Lincoln Road, between Lenox Avenue and Alton Road; the PAC unanimously agreed to
proceed with a direct selection, and recommended the Artist for the AIPP project (hereinafter,
Artist's proposal for the public artwork to be sited on Lincoln Road between Lenox Avenue and
Alton Road, may also be referred to as the "AIPP Project") .
H. At its meeting on June 17, 2008, the AIPP Committee unanimously selected the
preliminary proposal for the AIPP Project.
I. On July 30, 2008, the Neighborhoods/Community Affairs Committee reviewed
and recommended approval of the AIPP Project.
J. On August 20, 2008, a presentation was made to the Lincoln Road Merchants'
Association Board of Directors and the Lincoln Road Merchants' Association voted unanimously
in support of the AIPP Project.
K. On September 2, 2008, a presentation was made to the City's Design Review
Board and the Design Review Board unanimously approved the AIPP Project.
L. On October 7, 2008, the Mayor of the City and City Commission approved the
AIPP Project pursuant to Resolution No. 2008-26924 (the "Resolution").
M. The Resolution authorizes the City Manager to negotiate an agreement with
Developer for the design, fabrication, installation and certain ongoing maintenance of the AIPP
Project.
N. The City and Developer desire to amend the Development Agreement, as more
particularly set forth in this Amendment, to set forth the terms and conditions of the design,
fabrication, installation and maintenance of the AIPP Project.
NOW THEREFORE, in consideration of the foregoing, the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Recitals. The foregoing recitals are hereby incorporated herein and made a part
hereof by this reference. Capitalized terms not otherwise defined herein have the meanings
given to such terms in the Development Agreement.
2
2. Correction. Recital K in the Development Agreement is modified by deleting
the reference to "Resolution No. 2007-26493" and replacing it with "Resolution No. 2007-
26494".
3. AiPP Project.
(a) Design, Fabrication and Installation. Developer shall contract with the
Artist for the design, fabrication and installation of the proposed artwork to be created by the
Artist (the "Artwork") for the AiPP Project on the Project Site, in accordance with the Approved
Artwork Design Drawings (as defined below). The current working title of the Artwork is
"Pavilion". The City has approved the conceptual plan for the Artwork. Developer shall work
with the Artist to complete the design development of the Artwork. The City shall not be
responsible for any feasibility costs in connection with the design development of the Artwork.
Upon completion of the design development phase, Developer shall submit the following to the
Contract Administrator for its approval in accordance with the terms of the Agreement: (i) final
design drawings for fabrication, (ii) Artist proofs, (iii) material samples, (iv) Artwork and
Artwork support specifications for inclusion in site construction documents, (v) verified cost
estimate, (vi) subcontractor list, (vii) building permits, and (viii) a fabrication and installation
schedule (collectively, the "Artwork Design Development Deliveries"). The final design
drawings, upon approval from the Contract Administrator, shall be referred to as the "Approved
Artwork Design Drawings". Based on the requirements of the approved Artwork conceptual
design, the Contract Administrator has the right, in his/her discretion, to waive the submittal of
any unnecessary Artwork Design Development Deliveries or postpone the submittal of any such
items to the fabrication and installation phase of the Artwork for the AiPP Project on the Project
Site. If the total cost of the design, fabrication and installation of the Artwork, as reflected in the
verified cost estimate, exceeds $150,000, Developer shall have the right to either pay the excess
or terminate its agreement with the Artist for the design, fabrication and installation of the
Artwork, in which case the terms of this Section 3 shall automatically be null and void and
Developer shall automatically be released from all obligations under this Section 3. However,
Developer shall continue to have the obligation to match the City's 1 %z% of the Contract Sum for
AIPP in accordance with the terms of Section 52.1 of the Development Agreement. Developer
shall obtain all necessary permits required by the City for the fabrication and installation of the
Artwork and shall provide such permits to the Contract Administrator for review and approval
prior to fabrication. The City shall be responsible for payment of any permit fees. Upon its
approval of the permits and Artwork Design Development Deliveries and completion of an
architectural coordination review, Contract Administrator shall instruct Developer to cause the
Artist to commence the fabrication of the Artwork by written instructions in the form of a Notice
to Proceed issued by Contract Administrator. Developer shall use reasonable efforts to cause
the Artist to complete the installation of the Artwork on the Project Site on or before Final
Completion of the Work under the Development Agreement.
(b) Payment. Upon completion of the design and fabrication of the
Artwork and presentation of an invoice by the Developer to the City, the City shall contribute 1/2
of the total costs of the design and fabrication of the Artwork, but not to exceed $75,000 (the
"City's AiPP Contribution"). Notwithstanding the preceding sentence in this subsection 3(b), or
any other term of this Amendment, Developer shall be responsible for the supervision and
3
administration of the Artwork from inception to installation on the Project Site and final
acceptance by the City.
(c) Final Acceptance. Upon completion of installation of the Artwork on the
Project Site, Developer shall obtain final acceptance of the Artwork by the Contract
Administrator. Upon final acceptance of the Artwork by the Contract Administrator (as provided
herein), (i) the Artwork shall be owned by the City and be a part of the City's permanent AiPP
collection and, accordingly, Developer shall convey title in the Artwork to the City through a
Bill of Sale or such other instrument as is acceptable to the City Attorney; and (ii) Developer
shall submit copies to the City of all photographic documentation and completed cataloguing
forms received from the Artist and the Artist's architect that are in Developer's possession. If
Developer utilizes computer technology in the fabrication of the Artwork, Developer shall
submit electronic copies of any computer files that will support on-going operations or future
repairs and conservation of the Artwork.
Upon final acceptance of the Artwork by the City and receipt of the Bill of
Sale (or such other instrument acceptable to the City Attorney), the City shall thereafter be
responsible for insuring the Artwork. The Artwork shall be insured: by (A) including the
Artwork in the City's Fine Arts insurance policy (if available and provided the insurer accepts
coverage) which, as of the date hereof, currently covers the works of art in the Bass Museum and
the public art in the City's Art in Public Places (AiPP); or, (B) if the City's insurer either does not
accept coverage of the Artwork or the amount for such coverage (if obtained) becomes
commercially unreasonable at any time after the initial procurement of same, then the City may
satisfy the insurance requirement by self insuring the Artwork. The determination that the cost
of the coverage to insure the Artwork in the City's Fine Arts policy is commercially
unreasonable (and, accordingly, the decision to self insure the Artwork), shall be made by and at
all times remain within the sole discretion and determination of the City Manager. If (at any
time) the City elects to cover the Artwork under option (A) (and provided the insurer accepts
coverage), such coverage shall cover the replacement cost of the Artwork (as determined by the
last appraised value of the Work for insurance purposes). If (at any time) the City elects the
option to self insure the Artwork under option (B), the amount that the City shall be responsible
for shall be at least equal to the sum of $150,000 (which amount represents the estimated total
cost for the design, fabrication, and installation of the Artwork as contemplated by the parties
under the Development Agreement); provided however, that the City's obligation under option
(B) shall be further subject to and contingent upon the availability of such City funds.
In the event that the Artwork is damaged, destroyed, and/or otherwise lost
during any time when it is self insured by the City, and the City (after having made reasonable
good faith efforts) does not have adequate funds to cover the minimum amount set forth in
option (B), then the City Manager shall present his/her recommendation and findings, justifying
non-availability of funds, to the City's AiPP Committee (or its successor City board or
committee) and, thereafter, to the City Commission which, in its sole discretion and
determination, may either accept the City Manager's recommendation (that funding is not
available), or take such other action as it deems advisable. Notwithstanding anything contained
herein to the contrary, upon any such action by the City Commission (i.e. on whether to accept
the City Manager's recommendation or other action), the City shall have complied with the
4
requirements under option (B) hereof, and shall be discharged from any further liability under
the insurance requirements of this subsection 3(c).
(d) Cleaning and Maintenance. Developer shall be responsible for ensuring
that the glass component of the Artwork is designed to meet the requirements of the Florida
Building Code. Developer shall be responsible for cleaning and maintenance of the Artwork as
follows: (i) cleaning the Artwork as frequently as MBeachl, LLLP ("MBeachl") cleans the
storefront glass on the MBeachl Property; (ii) using reasonable efforts to remove any graffiti
from the Artwork, but to the extent such graffiti cannot be removed and any glass needs to be
replaced, Developer shall not be responsible for the replacement of such glass, except in
accordance with the Maintenance Agreement described below; and (iii) developing an annual
maintenance program for the Artwork, with the City being responsible for carrying out the
maintenance of the Artwork (other than cleaning and graffiti removal, as set forth in
subparagraphs (i) and (ii) above) (collectively, the "Maintenance Obligations"). The
Maintenance Obligations in subsection (c)(i) - (iii) shall be further memorialized in the covenant
running with the MBeachl Property and executed by MBeachl, and attached and incorporated as
Exhibit "B" hereto (the "Covenant").
Notwithstanding the foregoing, the City has requested that Developer
maintain, and Developer has agreed to maintain, the Artwork in accordance with the annual
maintenance program for a period often (10) years following final acceptance of the Artwork by
the City (the "Maintenance Agreement"). The City shall reimburse Developer for the
maintenance costs as and when incurred by Developer in accordance with the annual
maintenance program (other than cleaning and graffiti removal, as set forth in subparagraphs (i)
and (ii) above), plus a fee of fifteen percent (15%) of the maintenance costs for management,
supervision and overhead. For so long as the Maintenance Agreement is in effect, Developer
shall provide the City with three (3) extra sections of glass (one section of each type of glass in
the Artwork), at no additional cost to the City, and shall cause such glass to be stored at the
MBeachl Property. Developer shall coordinate the installation of such extra glass, when needed,
and the City shall reimburse Developer for any labor costs incurred by Developer in connection
therewith. If the extra sections of glass are used and the City needs additional glass, the City
shall promptly reimburse Developer for the costs of purchasing such additional glass and for the
labor costs in connection with the installation, plus a fee of fifteen percent (15%) for
management, supervision and overhead. In the event the Artwork is removed from the Project
Site, the Maintenance Agreement and the Maintenance Obligations shall automatically
terminate. In the event MBeachl sells the MBeachl Property, the Maintenance Obligations shall
continue in full force and effect against subsequent owners of the MBeachl Property pursuant to
the Covenant (unless said Covenant is released and or otherwise terminated pursuant to the
terms therein). Developer shall have the right to either (A) assign Developer's Maintenance
Obligations and the Maintenance Agreement to the purchaser of the MBeachl Property or to an
affiliate of such purchaser or (B) terminate Developer's Maintenance Obligations and the
Maintenance Agreement, and, in either case, Developer shall thereafter be released from its
obligations for cleaning, graffiti removal and maintenance of the Artwork in accordance with this
subparagraph (c).
5
4. Miscellaneous.
(a) Entire Agreement. The Development Agreement, as modified by this
Amendment, contains the entire understanding between the City and Developer with respect to
the subject matter thereof and hereof, and there are no other agreements or understandings
relative to the transaction evidenced by such instruments not contained in this Amendment and
the Development Agreement.
(b) Modification. No purported modification of this Amendment or the
Development Agreement as amended hereby shall be valid unless the same is in writing and
signed by the City and Developer. All terms, covenants and conditions of the Development
Agreement not expressly modified herein are hereby confirmed and ratified and remain in full
force and effect, and, as further amended hereby, constitute valid and binding obligations of the
City and Developer, enforceable according to the terms thereof.
(c) Severability. If any provision of this Amendment or the application of a
provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Amendment and the application of the invalid or unenforceable provision to
persons or circumstances other than those as to which it is invalid or unenforceable shall not be
affected, and the remainder of this Amendment shall otherwise remain in full force and effect.
Moreover, the invalid or unenforceable provision shall be reformed, if possible, so as to
accomplish most closely the intent of the parties consistent with applicable law.
(d) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall constitute one and
the same amendment.
(e) Facsimile. A facsimile or electronically transmitted copy of this
Amendment shall be deemed for all purposes to be an original.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
6
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
date first written above.
WITNESSES: CITY:
Sign
Print Name
Sign
Print Name
STATE OF FLORIDA
)ss:
COUNTY OF MIAMI-DADE )
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of
Florida
By:
Name: Matti Herrera Bower
Title: Mayor
ATTEST:
By: _
Name:
Title:
Robert Parcher
City Clerk
The foregoing instrument was acknowledged before me this day of
2009, by Matti Herrera Bower, as Mayor, and Robert Parcher, as City Clerk, of
the City OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on
behalf of such municipal corporation. They are personally known to me or produced valid
Florida driver's licenses as identification.
Notary Public, State of Florida
My commission expires:
APPROVED AS TO
FORM & LANGUAGE
t~ FOR EXECUTION
`f ~ ~
~~......___ - i m D to
DEVELOPER:
UTA MANAGEMENT, LLC, a Delaware
limited liability company
By: Urban Investments Advisors, LLC, a
Delaware limited liability company,
its Managing Member
By: Wellspring Investments
Management I, LLC, a
Delaware limited liability
company, its Managing
Member
Sign
By:
Name: Robert S. Wennett
Title: Managing Member
Print Name
Sign
Print Name
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DARE )
The foregoing instrument was acknowledged before me this day of ,
2009, by Robert S. Wennett, the Managing Member of Wellspring Investments Management I,
LLC, a Delaware limited liability company, the Managing Member of Urban Investments
Advisors, LLC, a Delaware limited liability company, the Managing Member of UTA
Management, LLC, a Delaware limited liability company, on behalf of such limited liability
companies. He is personally known to me or produced valid Florida driver's licenses as
identification.
Notary Public, State of Florida
My commission expires:
EXHIBIT "A"
LEGAL DESCRIPTION OF PROJECT SITE
EXHIBIT "B"
COVENANT
This instrument prepared by
and after recording return to:
Adam D. Lustig, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Boulevard, Suite 2500
Miami, Florida 33131
COVENANT RUNNING WITH THE LAND
KNOW ALL BY THESE PRESENTS THAT MBEACHI, LLLP, a Delaware limited
liability limited partnership ("MBeachl") hereby makes, declares and imposes on the land herein
described, covenants running with the title to the land, which shall be binding on MBeachl, its
heirs, successors in interest and assigns, personal representatives, mortgagees, lessees, and
against all persons claiming by, through or under them;
WHEREAS, MBeachl is the fee simple owner of the property located at 1111 Lincoln
Road and 1666 Lenox Avenue in Miami Beach, Florida, as more particularly described on the
attached Exhibit "A" (the "MBeachl Property");
WHEREA, the City of Miami Beach, Florida, a municipal corporation of the State of
Florida (the "City"), is the owner of that certain land located on Lincoln Road between Lenox
Avenue and Alton Road, in Miami Beach, Florida, as more particularly described in the attached
Exhibit "B" (the "Project Site");
WHEREAS, in December 6, 2006, the City Commission adopted Resolution No. 2006-
26422, approving a conceptual plan for the closure of Lincoln Road to vehicles between Lenox
Avenue and Alton Road and construction of a pedestrian mall;
WHEREAS, in March 14, 2007, the City Commission adopted Resolution No. 2007-
26494, approving a Development Agreement between the City and UTA Management, LLC
("UTA"), for the design, development, and construction of certain improvements to the 1100
block of Lincoln Road, in conjunction with the project being developed by MBeachl, an affiliate
of UTA, at 1111 Lincoln Road, Miami Beach, Florida;
WHEREAS, the City and UTA entered into a Development Agreement dated April 11,
2007 and recorded in Official Records Book 25537, Page 1882 of the Public Records of Miami-
Dade County, Florida, as amended by a First Amendment to Development Agreement dated of
even date herewith (collectively, the "Development Agreement");
WHEREAS, as part of its obligation under the Development Agreement, UTA agreed to
match the City's Art in Public Places ("AiPP") contribution for a public artwork project on the
1100 block of Lincoln Road between Lenox Avenue and Alton Road;
MIAMI 1776067.5 7713726901
WHEREAS, at its regular meeting on April 12, 2007, and in conjunction with its
established criteria, the AiPP Committee passed a motion establishing a Professional Advisory
Committee ("PAC") for the selection of the public artwork to be sited on Lincoln Road, between
Lenox Avenue and Alton Road;
WHEREAS, at the November 27, 2007, PAC meeting, the members of the AiPP
Committee spoke with Dan Graham (the "Artist"), who discussed his concept for the public
artwork to be sited on Lincoln Road, between Lenox Avenue and Alton Road; the PAC
unanimously agreed to proceed with a direct selection, and recommended the Artist for the
project (hereinafter, Artist's proposal for the public artwork to be sited on Lincoln Road between
Lenox Avenue and Alton Road, may also be referred to as the "AiPP Project");
WHEREAS, at its meeting on June 17, 2008, the AiPP Committee unanimously selected
the preliminary proposal for the AiPP Project;
WHEREAS, on July 30, 2008, the Neighborhoods/Community Affairs Committee
reviewed and recommended approval of the AiPP Project; and
WHEREAS, on August 20, 2008, a presentation was made to the Lincoln Road
Merchants' Association Board of Directors and the Lincoln Road Merchants' Association voted
unanimously in support of the AiPP Project;
WHEREAS, on September 2, 2008, a presentation was made to the City's Design Review
Board and the Design Review Board unanimously approved the AiPP Project;
WHEREAS, on October 7, 2008, the Mayor of the City and City Commission approved
the AiPP Project, pursuant to Resolution No. 2008-26924 (the "Resolution");
WHEREAS, the Resolution provides that certain maintenance obligations relating to the
AiPP Project be added as a covenant running with the land on the MBeachl Property; and
WHEREAS, MBeachl will derive a benefit from the AiPP Project being located on the
1100 block of Lincoln Road adjacent to the MBeachl Property.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, MBeachl agrees as follows:
1. The foregoing WHEREAS clauses are true and correct and incorporated herein by
reference.
2. As a material inducement for the City to locate the AiPP Project on the 1100
block of Lincoln Road adjacent to the MBeachl Property, MBeachl agrees to the following with
respect to the cleaning and maintenance of the proposed artwork to be created by the Artist (the
"Artwork") for the AiPP Project: (a) MBeachl shall be responsible for cleaning, or causing to be
cleaned, the Artwork as frequently as MBeachl cleans the storefront glass on the MBeachl
Property; (b) MBeachl shall be responsible for using reasonable efforts to remove, or cause to be
removed, any graffiti from the Artwork, but to the extent such graffiti cannot be removed and
MIAMI 1776067.5 7713726901
any glass needs to be replaced, MBeachl shall not be responsible for the replacement of such
glass; and (c) MBeachl shall develop, or cause to be developed, an annual maintenance program
for the Artwork, with the City being responsible for carrying out the maintenance of the Artwork
(other than cleaning and graffiti removal as provided in subparagraphs (a) and (b) above).
3. The provisions of this Covenant Running with the Land (this "Covenant") shall
become effective upon their recordation in the public records of Miami-Dade County, Florida,
and shall continue in effect and be binding upon MBeach 1, its successors in interest and assigns,
for a period of thirty (30) years after the date of such recordation, after which time they shall be
extended automatically for successive periods of ten (10) years each, unless released in writing
by the then owners of the MBeachl Property and the City Manager, acting for and on behalf of
the City of Miami Beach, Florida, upon the demonstration and affirmative finding that the same
is no longer necessary to preserve and protect the Artwork and/or AiPP Project for the purposes
herein intended.
4. The provisions of this Covenant may only be amended, modified or released by a
written instrument executed by the then owner or owners of the MBeachl Property, with joinders
by all mortgagees, if any. Should this Covenant be so modified, amended or released, and the
City Manager, approves, then the City Manager shall forthwith execute a written instrument
effectuating and acknowledging such amendment, modification or release.
5. No modification, amendment, or release shall be effective without the City
Manager's, prior written approval.
6. An action to enforce the terms and conditions of this Covenant may be brought by
the City and may be by an action at law or in equity against any parties or persons violating or
attempting to violate any provisions of this Covenant. The prevailing party to any action or suit
pertaining to or arising out of this Covenant shall be entitled to recover, in addition to costs and
disbursements, allowed by law, such sum as the Court may adjudge to be reasonable for the
services of his attorney. This enforcement provision shall be in addition to any other remedies
available at law, in equity or both.
7. Invalidation of any of these covenants by judgment of a Court of competent
jurisdiction shall not affect any of the other provisions, which shall remain in full force and
effect.
8. This Covenant shall be recorded in the public records of Miami-Dade County at
MBeachl's expense.
9. All rights, remedies and privileges granted herein shall be deemed to be
cumulative and the exercise of any one or more shall neither be deemed to constitute an election
of remedies, nor shall it preclude the party exercising the same from exercising such other
additional rights, remedies or privileges.
10. Upon written request from MBeachl, the City shall provide MBeachl with an
estoppel certificate regarding MBeachl's compliance with the terms of this Covenant.
MIAMI 1776067.5 7713726901
11. Notwithstanding anything contained herein to the contrary, in the event (a) the
total cost of the design, fabrication and installation of the Artwork, as reflected in the verified
cost estimate provided by UTA to the City, exceeds $150,000, and UTA elects to terminate its
agreement with the City to contract for the design, fabrication and installation of the Artwork, in
accordance with the terms of the Development Agreement, or (b) the Artwork is fabricated and
installed but later removed from the Project Site, in either case, this Covenant shall automatically
terminate upon the occurrence of such event and MBeachl shall be permitted to record a notice
of termination of this Covenant in the Public Records of Miami-Dade County, Florida.
12. Notices. Any and all notices required or desired to be given hereunder shall be in writing
and shall be deemed to have been duly given when delivered by hand (including recognized overnight
courier services, such as Federal Express) or three (3) business days after deposit in the United States
mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the
recipient at the address for MBeach 1 at 1111 Lincoln Road, Suite 760, Miami Beach, Florida 33139, or
to the City at 1700 Convention Center Drive, Miami Beach, Florida 33139 (Attn: City Manager) (or to
such other address as any party shall hereafter specify to the other in writing).
13. Venue/Governing Law. This Covenant shall be construed in accordance with, and
governed by, the laws of the State of Florida. Venue for all actions under this Covenant shall be in
Miami-Dade County, Florida.
2009.
Signed, witnessed, executed and acknowledged on this day of
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney
Date
City Planning Director Date
[SIGNATURES CONTINUE ON NEXT PAGE)
.~ APPROVED AS TO
FORM ~ LANGUAGE
Witnesses: MBEACHI, LLLP, a Delaware limited
liability limited partnership
By: MBEACH 1 GP, LLC, a Delaware limited liability
company, its General Partner
By: Urban Investments Advisors, LLC, a
Delaware limited liability company, its Sole
Member
By: Wellspring Investments Management
I, LLC, a Delaware limited liability
company, its Managing Member
Sign:
Print Name:
Sign:
Print Name:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
By:_
Name
Title:
Robert S. Wennett
Managing Member
The foregoing instrument was acknowledged before me by Robert S. Wennett, the
Managing Member of Wellspring Investments Management I, LLC, a Delaware limited liability
company, the Managing Member of Urban Investments Advisors, LLC, a Delaware limited
liability company, the Sole Member of MBEACHI GP, LLC, a Delaware limited liability
company, the General Partner of MBEACHI, LLLP, a Delaware limited liability limited
partnership. He is personally known to me or has produced a driver's license as identification.
Witness my signature and official seal this day of , 2009, in the
County and State aforesaid.
Notary Public-State of Florida
Print Name
My Commission Expires:
MIAMI 1776067.5 7713726901
JOINDER BY MORTGAGEE
CORPORATION
Mellon United National Bank, a national banking association, being the holder of that
certain Renewal Mortgage, Notice of Future Advance, Assignment of Leases and Rents, Security
Agreement and Fixture Filing executed by MBEACHI, LLLP, a Delaware limited liability
limited partnership, to Mellon United National Bank, a national banking association, dated June
26, 2008, filed June 27, 2008, in Official Records Book 26455, at Page 344, Public Records of
Miami-Dade County, Florida (the "Mortgage"), hereby consents to the filing of, and agrees that
the Mortgage shall be subject and subordinate to the terms of, the foregoing Covenant Running
with the Land.
Signed, Sealed and Delivered Mellon United National Bank, a national
in the presence of: banking association
Sign
Print Name
Sign
Print Name
By: _
Name:
Title:
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
2009, by as Vice President of Mellon United
National Bank, a national bank association, on behalf of said bank. He/She is personally known
to me or has produced a Florida driver's license as identification.
Notary Public, State of Florida
My Commission Expires:
MIAMI 1776067.5 7713726901
EXIIIBIT "A"
LEGAL DESCRIPTION OF MBEACHI PROPERTY
Lots 1, 2, 3, 4, 5 and 6, Block 39, COMMERCIAL SUBDIVISION, according to the Plat
thereof, as recorded in Plat Book 6, at Page 5, of the Public Records of Miami-Dade County,
Florida,
Together with:
Lots 7 and 8, Block 39, PALM VIEW SUBDIVISION, according to the Plat thereof, as recorded
in Plat Book 6, at Page 29, of the Public Records of Miami-Dade County, Florida,
Less and except:
A portion of Lot 7, Block 39, PALM VIEW SUBDIVISION, according to the Plat thereof, as
recorded in Plat Book 6, at Page 29, of the Public Records of Miami-Dade County, Florida,
being more particularly described as follows:
Begin at the Northwest corner of said Lot 7;
Thence South 00°48'26" East along the West line of said Lot 7, a distance of 22.02 feet to a point
on a tangent curve concave to the Northeast;
Thence Southeasterly along the arc of said curve, having a radius of 8.00 feet, a central angle of
90°02'39" and an arc distance of 12.57 feet;
Thence North 89°08'55" East along the South line of said Lot 7, a distance of 22.02 feet to a
point on a tangent curve concave to the Northeast;
Thence Northwesterly along the arc of said curve, having a radius of 30.00 feet, a central angle
of 90°02'39" and an arc distance of 47.15 feet to the Point of Beginning.
Said land situate, lying and being in the City of Miami Beach, Miami-Dade County, Florida;
containing 180 square feet, more or less.
MIAMI 1776067.5 7713726901
EXHIBIT "B"
LEGAL DESCRIPTION OF PROJECT SITE
[attached]
MIAMI 1776067.E 7713726901
t~E T Ftt3 ~ ST~-TE
p~ WEDNESDAY, MAY 6, 200 9,,,.1__56
.CITY OF MIAMI BEACH
NOTICE OF A PUBLIC HEA~iNG
NOTICE IS HEREBY given that a First.Reading and Public Hearing will be held by
the City Commission of the City of Miami Beach, in the Commission Chambers, 3rd
floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on
Wednesday, May 13, 2009 at 11:50 A.M., To Consider approving a First
Amendment to that certain Development Agreement between the City of Miami
Beach, Florida, and UTA Management, LLC (Developer), dated April 11; 2007,, as
required pursuant to Sect[ons 163.3220-163.3243, Florida Statutes (the "Florida
Local Government Development Agreement Act"); said Amendment pertaining to
the Developer's Art in Public Places (AiPP) contribution and prescribing further
terms and conditions for the design, fabric, installation, and maintenance of the
Artwork; approving a Covenant Running With the Land which requires MBeachl
LLLP :(an affiliate of Developer). to undertake certain Maintenance Obligations with
respect to the ongoing cleaning and maintenance of the Artwork; and further setting
the second reading :and second public hearing for the First Amendment to the
Development Agreement for the City Commission Meeting of June 3, 2009.
INQUIRIES may be directed to the Tourism and Cultural. Development Department
at (305) 673-7577.
INTERESTED PARTIES are invited tc appear at this meeting, or be represented by
an agent, or to express their views in writing addressed to the City Commission, c/o
the City Clerk,. 1700 Convention Center Drive, 1st Floor; City- Hall, Miami Beach,
.Florida 33139. This meeting may be opened and continued and, under such
circumstances additional legal notice would not be provided.
Robert E. Parcher
City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if
a person decides to appeal any decision made by the City Commission with
respect to any matter considered at its meeting or its hearing, such person must
ensure that a verbatim record of the proceedings is made, which record includes
the testimony and evidence upon which the appeal is to be based. This notice
does not constitute consent by the City for the introduction or admission of
otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals
not otherwise allowed by law.
To request this material in accessible format, sign language interpreters,
information on access for persons with disabilities, and/or any accommodation to
review any document or participate in any city-sponsored proceeding, please
contact (305) .604-2489 (voice), (305) 673-7218(TTY) five days in advance to
initiate your request. TTY users may also call 711 (Florida Relay Service).
(Ad #536)
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