1st Amendment to Development Agreement~1cog- zzt~ 4~
This instrument prepared by and
after recording return to:
Adam D. Lustig, Esq.
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 ~U. N L , 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. 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.
C. In March 14, 2007, the City Commission adopted Resolution No. 2007-26494,
approving a Development Agreement between the City and Developer, 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, LLLP, an affiliate 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.
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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 l1/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 %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
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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
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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).
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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]
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
date first written above.
WITNESSES:
STATE OF FLORIDA
)ss:
COUNTY OF MIAMI-DADE )
CITY:
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of
Florida
By:
Name: atti Herr a ower
Title: Mayor
ATTEST:
By: ~ ~~~
Name: Robert Parcher
Title: City Clerk
The foregoing instrument was acknowledged before me this ~~r'"! day of
2009, by Matti Herrera Bower, as Mayor, and Robert Parcher, as City Clerk, of
t 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 P c, State o
My commission expires: "'"~
+K:` : "'•• KEFIRY HERNANDQ
MY COMMISSION # DD 626373
N: a' EXPIRES: May 3, 2011
~~%P n;;~:'~ Bonded Thru Notary Public Underwriters APPROVED AS TO
FORM & LANGUAGE
~ FOR EXECUTION
_____
City A Date
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
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Print Name
By:`
Name: Robert S. Wennett
Title: Managing Member
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DARE )
The foregoing instrument was acknowledged before me this ~f day of Ong ,
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
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROJECT SITE
EXHIBIT "B"
COVENANT