Amendment 1 to Mngmt Agmt with Altos del Mar Sculpture Park, Inc.~~ ~ y_/,~-~~ ~o/o-a~37~
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'~~ AMENDMENT NO. 1 TO THE .MANAGEMENT AGREEMENNT BETWEEN THE CITY ~~.
OF MIAMI BEACH AND ALTOS DEL MAR SCULPTURE. PARK INC. FOR TH'E
ORERATION OF A SCULPTURE PARKIN ALTOS DEL MAR PARK PURSUANT TO
- REQUEST FOR PROPOSALS NO. 02-07/08
'~ ~~This Amendment No. 1, is made and executed as of this ~ day of , '
I
- . 2049, by and between.,the CITY OF MIAML BEACH, a municipal corporation organized
and existing :under the laws of the State of Florida (the "City"), and ALTOS DEL MAR
SCULPTURE PARK, INC., a Florida not-for.-profit. corporation, whose principal office is
located at-7701~~CoClins Avenue,. Miami Beach, Florida 33141 (the "ADMSP"). .
.. - RECITALS: ~ .
WHEREAS, on October 17, 2007., the Mayor and City Commission approved `
the issuance of Request for Proposals No. 02-07/08 to establish a Cultural Arts T,hemed
. and/or Other Passive Recreational Activities Program in Altos Del Mar Park, located on
Collins Avenue, between 76th and 77th Streets (the RFP);.and
WHEREAS, on July 16, 2008, the Mayor and City Commission, accepted the
recommendation of the City Manager and authorized the Administration to enter into
: negotiations with the successful proposer; Altos Del Mar Sculpture Park, Inc, anot-for-
profit Florida corporation (ADMSP); and ~ .
WHEREAS, on June 3, 2009, the City Commission adopted, Resolution No. -
`~ 2009-27100, which approved and authorized the Mayor and City Clerk to execute a
Management Agreement with ADMSP' for .the .establishment, operation, and
maintenance of a .cultural arts themed program., to be known. as the "Altos del Mar
Sculpture Park" (the- Agreement)
- .
WHEREAS, pursuant to the Agreement ADMSP is required to provide the City
with -proof of certain required insurance coverage, including general liability coverage;
.and -
- ~ . ~ WHEREAS, ADMSP is also required ~to commence .maintenance of the '
proposed sculpture- park area (as such site is delineated in the Agreement and
hereinafter referred to as the site) upon commencement of -the .Term. of the Agreement;
which term:" commenced on June 3,2.009; and= -
WHEREAS, subsequent to the parties' execution of the Agreement and
commencement of the Term, ADMSP advised the City that it was not its intention to
assume control of the site,.. and therefore assume the . aforestated insurance and
maintenance requirements, until ADMSP's commencement of construction for the
.~ sculpture park Improvements (as defined in the Agreement); and
. ~ WHEREAS, accordingly, ADMSP has requested that the Agreement be r
amended; notwithstanding, ADMSP has currently obtained the required Liability
insurance (which was reviewed and. approved ~. by the City's Risk Manager) and is
currently providing routine maintenance of the site (as currently required under the
Agreement); and
' ~ - [
- ~ WHEREAS, the Neighborhoods and Communnity Affairs Committee reviewed ,
. . AD'MSP'srequest at its February 16; 2010: meeting, and recommended in favor of the.
requested amendment; and
WHEREAS, the City. and ADMSP have negotiated the following Amendment
No. 1' to the Agreement:
. NOW; THEREFORE, in consideration of the mutual premises, covenants and
agreements herein contained, and other good and valuable consideration,. in receipt and
adequacy of which are hereby acknowledged and intending to be legally bound, the City
and Concessionaire hereby amend the Agreement as follows:
1. ~ 'Section 2 ;of the Agreement, entitled "Term", is amended to add the
- following additional paragraph:
.: Notwithstanding the preceding paragraph, the "Possession Date," as set forth in Section
9.7.5.1 hereof; shall be defined as that certain .date occurring after the. commencement
of. the initial Term, upon which ADMSP is first permitted. by the City, through its City
Manager, to enter upon and .take control.~of the Premises to commence construction of
the Improvements and, .hereafter, to operate, manage, and maintain ..the Premises in -
conformance with purposes .and for the Term stated herein; (and subject to all the terms .
and conditions herein contained).. ~ -
Accordingly; the City and ADMSP acknowledge and agree that ADMSP's obligation with
respect to its required maintenance of the Premises (as .set forth in Section 9 hereof),
and with respect to its obligation to provide the required Liability coverage (pursuant to -
Section 20:1(a hereof), shall not commence-until the Possession Date.
. -. 2. Section 9.7.8.1, of the Agreement, entitled "Construcction
- Commencement/ADMSP's Right to Terminate", is amended as follows:.
9.7.8 Construction Cornmencement/ADMSP's Right .to Terminate/
-. , . ~ Possesion Date. -
.'. .. - .
9.7.8.1 As conditions precedent to ADMSP's commencement of construction of
- ~ ° the. Proposed Improvements, ADMSP. shall obtain a final Fulf Building Permit for the
.-_ .
Proposed 'Improve.ments by not more than one {1) year~from the Commencement Date.,
and failure to do so shall constitute a default under this Agreement.
No later than thirty (30) days after ADMSP receives its final Fuli Building.: Permit
~~ for construction of -the Proposed. Improvements, ADMSP shall provide .evidence,
,~ reasonably satisfactory to the City Manager or his designee (who may be the City's ..
-Chief Financial Officer), regarding ADMSP's sources of funding for. construction of the
. completion of the Proposed Improvements (as approved and permitted by City, and in
suchamount(s) equal to.the anticipated final cost of completion, estimated as of the date
- . of issuance of the Building Permit). ~ ~ .
ADMSP shall not- c®mmence construction of the Proposed Improvements unless.
..
and until (a) ADMSP shall ..:have. obtained, and delivered to City copies of all final. permits .
and approvals required to-commence construction; ~(b) ADMSP shallhave delivered to
City original certificates of the policies of insurance required to be carried by ADMSP's
- contractors} (in accordance with- :the .requirements set forth in Exhibit "J" ,attached
- hereto); and (c) ADMSP shall have obtained and furnished to City a payment and .
..
- performance bond from ADMSP's general.. contractor (the Payment and Performance
. ~ r.
- :i
,` - _ . ~ Bond), in~ a form .reasonably. acceptable to City,. issued by a surety fisted in the most. -
recent U.S. Dept. of Treasury listing of approved sureties, guaranteeing the performance
~~ by the general contractor for construction -of the Proposed Improvements. The City of
_ Miami Beach, Florida, shall be named as a dual. obligee under the Payment and
Performance 'Bond. -
. - - The City (acting solely in its proprietary and not in its regulatory capacity) shall
reasonably cooperate with ADMSP in obtaining the permits and approvals required to
a ~ ~=~ construct the Proposed Improvements; shall sign any application reasonably made by
ADMS'P that is required in order to obtain such permits and approvals; and shall provide
- ~ ADM'SP -with any information and/or documentation not otherwise- ceasonab1y available .
i to ADMSP (if available to City) -that is necessary to procure ,such permits and approvals.
Any such accommodation by City shall be without prejudice to, and shall not constitute a
` ~ .waiver of City's rights to exercise its discretion in connection with its regulatory functions...
Possession Date: Upon AD'MSP's satisfaction of all conditions precedent to
commencement of construction (as set forth 'in this Section 9.7.8.1), within the required ,
time periods as also set forth in this Section 9.7.8.1), ADMSP shall. provide written
- ~ notice of same to the .City Manager, by hand delivery or certified mail, return receipt
requested. No later than sixty (60~ business days after receipt of ADMSP's notice, and
~... ~ ~ x pr=ovided that the. City. Manager determines and is reasonably satisfied that AD.MSP has -
complied with all conditions. precedent to commencement of construction,. the City
Manager sha11 provide ADMSP with-written notice of same (the .City's. Notice) and shall, -
as of the date set forth in the City's Notice (which date shall be referred to as the
. "Possession Date"), permit ADMSP to enter uponand utilize the 'Premises in accordance
with the terms and conditions of the. Agreement {including, .without limitations, .the
_obiectives and approved uses set forth in the Agreement)..
3. No further Modifications.. Except as provided:in this Amendment- No. 1,
the:Agr-eement remains unmodified and in full force and effect.
'- = ~ IN WITNESS WHEREOF, this Agreement has been duly executed by the
_ -- ~ .
parfieshereto as of the day and year first above written.
~~. ~ -
--,:~
. -~.A... EST: CITY OF MIAMI BEA H, FLORIDA
.. ~ ~ (~ Gam. -
:. -
City Clerk. ay
-.
..
-. ~ ~ ..
~~. day of ~ , 2010.
-
. ~O DE AR CULPTU'RE PARK, LNC.
. President ~e' _.
~~ ~
~~ -
~~ Secrets C'1 ~ ,
. t - ~ Print Name .
,. .
,,
e
..
.. ~~ day of: ~t
DROVED As~ TO~.,
\Aprif 14\Regular~AD~MSP Amendment 0318t0.doc FORM & LANGUAGEY
. ~ ,~ T:WGENDA\2010
. ~ ~ tk~-FOR EXECUTION
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. ~ ~ City Attor y ~ Date