Altos Del Mar Management Agreement 7/13/i/ o// - 277
AMENDMENT NO. 2 TO THE MANAGEMENT AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND ALTOS DEL MAR SCULPTURE PARK INC. FOR THE OPERATION OF
A SCULPTURE PARK IN ALTOS DEL MAR PARK PURSUANT TO REQUEST FOR
PROPOSALS NO. 02 -07/08
This Amendment No. 2, is made and executed as of this day of /tA 6 L x2011
(Effective Date), by and between the CITY OF MIAMI 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 Collins 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 Themed 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, a not - 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); and
WHEREAS, on April 14, 2010, the City Commission approved Amendment No. 1 to the
Management Agreement, via Resolution No. 2010- 27371, which defined the "Possession Date,"
and further provided that ADMSP's obligations under the Agreement with respect to
maintenance and general liability coverage would not commence until such Possession Date;
and
WHEREAS, on March 5, 2011, ADMSP requested that the City grant it an extension of
time to obtain a Full Building Permit for the Proposed Improvements (as said term is defined in
the Agreement), from May, 13, 2011, to February 13, 2012, because it had not been able to
secure the necessary architectural and engineering (A/E) services for design of such
improvements on a pro -bono basis, and would therefore have to raise funds to pay for such
services; and
WHEREAS, on May 4, 2011, ADMSP submitted a letter to the City explaining in more
detail the reason for its extension request, and amended its original request (for time to obtain a
Full Building Permit) to March 31, 2012; and
WHEREAS, the Neighborhoods and Community Affairs Committee reviewed ADMSP's
request at its May 5, 2011 meeting, recommended in favor of granting the extension to March
31, 2012, and further recommended that ADMSP provide the City with proof that it had obtained
sufficient funds to pay for the required A/E services by no later than September 14, 2011; and
' _ y
accountants and /or designees review bank statements, financial statements,
and /or other records of ADMSP.
As a further condition precedent to commencement of construction, ADMSP shall
obtain a final Full Building Permit for the Proposal Improvements by March 31,
2012. Failure to do so shall constitute a default under this Agreement. No later
than thirty (30) days after ADMSP receives its final Full 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 sourceisl of funding for
construction of the completion of the Proposed Improvements (as approved and
permitted by City, and in such amount(s) equal to the anticipated final cost of
completion, estimated as of the date of issuance of the Building Permit). Failure
to do so shall constitute a default under this Agreement. Such evidence shall
include, at a minimum, an itemized statement detailing the source and /or sources
(with corresponding amounts) of funds for construction. As in the preceding
paragraph, the City Manager shall have the right to have his /her accountants
and /or other authorized designees review bank statements, financial statements,
and /or other documents of ADMSP in order to verify ADMSP's compliance with
this condition.
In addition to the above, ADMSP shall not commence 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 shall have delivered to City original certificates of the
policies of insurance required to be carried by ADMSP's contractor(s) (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 Bond), in a form reasonably acceptable to City, issued by a surety
listed 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 construct the Proposed Improvements; shall sign any application
reasonably made by ADMSP that is required in order to obtain such permits and
approvals; and shall provide ADMSP with any information and /or documentation
not otherwise reasonably available 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 ADMSP'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, provided that the City Manager determines and is
reasonably satisfied that ADMSP has complied with all conditions precedent to
3
commencement of construction, the City Manager shall provide ADMSP with
h i Notice) n hall of h f
written notice of same (the City's and as the date set forth in the
( tY shall,
City's Notice (which date shall be referred to as the "Possession Date "), permit
ADMSP to enter upon and utilize the Premises in accordance with the terms and
conditions of the Agreement (including, limitation, the objectives ( 9. ectives and 1
a roved uses set forth in the Agreement).
PP 9
3. General Release. By execution hereof, ADMSP for itself and its officers,
directors, shareholders and principals, and Peter Saile and Marlene Saile, each individually (all
of the foregoing "Releasors "), hereby fully and unconditionally release the City of Miami Beach
and its commissioners, employees, administrative executives, staff, and attorneys, and their
respective successors and assigns ( "Releasees ") from any and all manner of actions, causes of
action, contracts, agreements, covenants, controversies, claims, and demands whatsoever,
whether legal or equitable, known or unknown, fixed or contingent, relating to the Agreement
(including any and all amendments thereto) and /or the Premises, from the beginning of the
world until the Effective Date of this Amendment No. 2. The provisions of this Section 2 shall
survive any termination or expiration of the Agreement
4. No Further Modifications. Except as provided in this Amendment No. 2, the
Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
ATT ST: CITY OF MIAMI BEAC , FL • - IDA
44/CAA"— ,Z/);
City lerk May
Y
0 14 day of Ait4 60 T 2011.
ALTOS DEL MAR SCULPTURE PARK, INC.
I TT ,. ti
(200/ President, Marlene Saile, Esq.
Secretary, D Anthony M. Weaver 'C'€. k.
Print Name
--, /A.Ok
tit day of ' �/� ,/kg� - 2011.
F: kATTO\AGURIAGREEMENT\AItos del Mar Sculpture Park - Amendment No 2 (Final 7- 26- 11).doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
4 (j((
ity �t T D a te
OFFICE OF THE CITY ATTORNEY
6:41 e Wald
F L O R I D A
JOSE SMITH �.'. ,h- Telephone: (305) 673 -7470
City Attorney '' Facsimile: (305) 673 -7002
July 26, 2011
Dr. jur Marlene Saile
Altos del Mar Sculpture Park, Inc.
7701 Collins Avenue
Miami Beach, FL 33141
RE: AMENDMENT NO. 2 TO MANAGEMENT AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH, FLORIDA (CITY) AND ALTOS DEL MAR SCULPTURE PARK, INC.
( ADMSP) FOR THE OPERATION OF A SCULPTURE PARK IN ALTOS DEL MAR
PARK PURSUNAT TO REQUEST FOR PROPOSALS NO. 02 -07/08 (THE
AGREEMENT)
Dear Mrs. Saile:
As you know, at its regular meeting on July 13, 2011, the Mayor and City Commission approved
Resolution No. 2011- 277701, which approved the above referenced Amendment No. 2 to the
Agreement (a copy of which is also attached as Exhibit "A" hereto).
The original Amendment No. 2, as presented to the City Commission, included a recital which
had ADMSP acknowledging that, absent the City's approval of the subject Amendment (which,
among other things, granted ADMSP an extension within which to obtain its Full Building Permit
for the Proposed Improvements that it is required to construct under the Agreement), ADMSP
would be in default under its Agreement. At the request of ADMSP that such recital not be
included within the formal language of the Amendment itself, the Commission agreed to delete
such language and, rather, have ADMSP acknowledge same via sidebar letter.
Accordingly, this letter, which also serves to transmit the final version of Amendment No. 2 to
the Agreement, as amended and as approved by the City Commission, contains ADMSP's
acknowledgement, concurrent with acknowledgement of receipt of the final Amendment, that
but for the City's approval of the subject Amendment No. 2, ADMSP would have been in default
of its contractual obligations under the Agreement.
In order to finalize this matter, please print out and execute three (3) original copies of (i) this
sidebar letter, and (ii) the accompanying Amendment No. 2, and return the full packet to my
1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139
. '
attention: upon receipt, 1 . will have the Amerdment e.a.-.t.coed Cy the Mayor Isla City Cleo*
retrn one fay executed original Amertiment {aro sidebar ette‘. back to you, for yr:Arr record
ir the interrn tha rir. yoL. for your anticipated c000eration arxi professional
Very tnily yours,
n
---
Ravi J
Chef Deputy City Atorrey
ADfvfSP horeby admowiedges Mat the facts contained In paragraph 2 of this fetter are truo ari.7
4.,ortu4l, tind tVothor ocknowectgas rr)ceipf of Aitrantkrtelit No 2 in the itbovo fo•I•r,own.
Agra9rofot,
ALTOS DEL MAR...SCULPTURE PARK, INC.
19 4 • •
k kAar(ot r. L
it 1 1 Pres&dent Marlene Sailer, Esq.
\O
Secretary, 16 r AnlIony M Wear
Print Name
I • -
I IN1 clay of 201
cc. Hilda Femsrxiez, Assistant City Manager
Max Sklar. Tourism and Cultural Development Director
orna or THE crry Arromay - 1 roe COPMITION aNnit DRIVE - MIAMI MAH, ROI= 33130
Aguila, Raul
From: Aguila, Raul
Sent: Thursday, July 28, 2011 1:05 PM
To: 'Isaac M. Jaroslawicz'
Cc: Smith, Jose; Gonzalez, Jorge; Fernandez, Hilda; Sklar, Max
Subject: RE: REVISED AMENDMENT NO.2 TO ALTOS DEL MAR SCULPTURE PARK AGREEMENT
(REVISED FOLLOWING 7/13/11 CITY COMMISSION MEETING)
That is acceptable
Raul J. Aguila, Chief Deputy City Attorney
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive — Fourth Floor, Miami Beach, FL 33139
Tel: 305 - 673 -7470 or 305 - 673 -7000 / Fax: 305 - 673 -7002 / www .raulacluila(a�miamibeachfl.gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community.
From: isaacjar @gmail.com [mailto:isaacjar @gmail.com] On Behalf Of Isaac M. Jaroslawicz
Sent: Wednesday, July 27, 2011 6:06 PM
To: Aguila, Raul
Cc: Smith, Jose; Gonzalez, Jorge; Fernandez, Hilda; Sklar, Max
Subject: Re: REVISED AMENDMENT NO.2 TO ALTOS DEL MAR SCULPTURE PARK AGREEMENT (REVISED FOLLO ING
7/13/11 CITY COMMISSION MEETING)
I am told it is extremely difficult to get our two signatories together in one place at the moment.
Can the letter and agreement be signed in counterparts?
Also, it will be a lot faster if we can send you color scans of the signature pages.
Is that acceptable to you these days?
Or do you need wet originals?
(We will be happy to accept scans of your signatures.)
Thank you,
Isaac
On Wed, Jul 27, 2011 at 10:22 AM, Aguila, Raul <RaulAguila @miamibeachfl.gov> wrote:
Thanks to you as well.
MIAMIBEACH
Raul J. Aguila, Chief Deputy City Attorney
1
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive — Fourth Floor, Miami Beach, FL 33139
Tel: 305- 673 -7470 or 305 -673 -7000 / Fax: 305- 673 -7002 / www.raulaguila@miamibeachfl.gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community.
From: isaacjar@,gmail.com [mailto:isaacjar@gmail.com] On Behalf Of Isaac M. Jaroslawicz
Sent: Wednesday, July 27, 2011 1:17 AM
To: Aguila, Raul
Cc: Smith, Jose; Gonzalez, Jorge; Fernandez, Hilda; Sklar, Max
Subject: Re: REVISED AMENDMENT NO.2 TO ALTOS DEL MAR SCULPTURE PARK AGREEMENT
(REVISED FOLLOWING 7/13/11 CITY COMMISSION MEETING)
Thank you, Raul.
I understand. Our client is in the process of having three copies of each executed, which will be delivered to
you.
Thank you for all of your courtesies and consideration.
Isaac
On Tue, Jul 26, 2011 at 4:07 PM, Aguila, Raul <RaulAguila @miamibeachfl.gov> wrote:
Dear Isaac:
The City accepts all of your revisions to our last draft, except for removal of the additional recital, which — although not
discussed by the Commission either way —is something that both I and the City Administration strongly believe needs to
stay in.
Accordingly, I am attaching:
2
1. the "sidebar letter," which I have also drafted to serve as the letter transmitting Amendment No. 2 to ADMSP; and
2. The final version of the Amendment.
Please have your client execute THREE (3) copies of the sidebar letter and Amendment No. 2 and return to my attention.
I will have executed by the Mayor and City Clerk and return one fully executed original Amendment (and sidebar letter)
to your attention.
Again, these are the FINAL changes that the City will accept.
Thanks,
Raul
MIAMIBEACH
Raul J. Aguila, Chief Deputy City Attorney
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive — Fourth Floor, Miami Beach, FL 33139
Tel: 305- 673 -7470 or 305- 673 -7000 / Fax: 305- 673 -7002 / www .raulaguila@u,miamibeachfl.gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community.
From: isaacjar@n,gmail.com [mailto:isaacjar@a,gmail.com] On Behalf Of Isaac M. Jaroslawicz'
Sent: Wednesday, July 20, 2011 2:52 PM
To: Aguila, Raul
Cc: Smith, Jose; Gonzalez, Jorge; Fernandez, Hilda; Sklar, Max
Subject: Re: REVISED AMENDMENT NO.2 TO ALTOS DEL MAR SCULPTURE PARK AGREEMENT
(REVISED FOLLOWING 7/13/11 CITY COMMISSION MEETING)
Dear Raul:
3
•
Thank you for the new draft. You will find our redlined markup attached.
Specifically, our earlier redline to you noted our objection to the paragraph re ADMSP's "acknowledgment." As I noted at the hearing
without response by the Commission, I am not aware of anything else that the City can probably do with the property under its
restricted status, we have heard of no alternative proposals from anyone, and our status to date does not preclude anyone's present use
in any way (volleyball court or otherwise). In any event, the default provisions should certainly be enough without this superfluous
language.
We agree that an AE contract needs to be signed and funds need to be in the ADMSP account to cover it by September 14, but are not
aware of any basis or effect of a "separate" account solely for those payments. I am not aware of any other major expendituresgoing
forward to obtaining the permit.
On page 3, you inadvertently left language re sworn statements.
That's really about it! We await receipt of the "side" letter you were sending.
Thank you for all your help.
Isaac
On Mon, Jul 18, 2011 at 12:02 PM, Aguila, Raul <RaulAguila @miamibeachfl.gov> wrote:
Dear Mr. Jaroslawicz:
Attached is the revised Amendment, as approved by the City Commission and incorporating their comments (including
the revisions from your last redline that they were alright with ). Please advise if alright.
I will also be forwarding a draft shortly of the sidebar letter, acknowledging ADMSP's default (but for the Amendment),
under separate e -mail.
Thanks,
4
Raul Aguila
MIAMIBEACH
Raul J. Aguila, Chief Deputy City Attorney
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive — Fourth Floor, Miami Beach, FL 33139
Tel: 305- 673 -7470 or 305- 673 -7000 / Fax: 305- 673 -7002 / www.raulaguilanmiamibeachfl.gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community.
From: Damien, Elizabeth
Sent: Monday, July 18, 2011 11:57 AM
To: Aguila, Raul
Subject:
MIAM1BEACH
Elizabeth "Liz" Damien, Legal Assistant to
Raul J. Aguila, Chief Deputy City Attorney and
Gary M. Held, First Assistant City Attorney
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Drive — 4 floor, Miami Beach, FL 33139
Tel: 305 -673 -7470 or 305- 673 -7000 ext. 6499 / Fax: 305- 673 -7002 / www. elizabethdamieng,miamibeachfl.gov
We are committed to providing excellent public service and safety to all who live, work and play in our vibrant, tropical, historic community
`4 Please do not print this e-mail unless necessary
5
This e -mail message is subject to the Electronics Communications Privacy Act, 18 U.S.C. §2501, et seq., and the information contained in this e -mail
is confidential information intended only for the use of the individual or entity named above. The information contained in this e -mail, and any
attachments, may also be attorney - client privileged and /or work - product confidential material. If the reader of this message is not the intended
recipient, you are hereby notified that any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this
information by persons or entities other than the intended recipient is strictly prohibited. If you have received this communication in error, please
immediately notify Isaac M. Jaroslawicz by telephone at 305 -532 -5553, or by e -mail at Isaac @MyLawyerIsaac.com, and delete the original
message. Receipt by anyone other than the intended recipient(s) is not a waiver of the attorney - client or other privilege. Thank you.
Isaac M. Jaroslawicz, Esq.
Jaroslawicz Law Offices
1177 Kane Concourse #222
Bay Harbor Islands, Florida 33154
T 305.398.7739 * F 786.206.3575 * C 305.775.7868
Isaac @MyLawyerlsaac.com
www.MyLawyerIsaac.com
Trials Litigation Appeals Legal Counsel
This e-mail message is subject to the Electronics Communications Privacy Act, 18 U.S.C. §2501, et seq., and the information contained
in this e-mail is confidential information intended only for the use of the individual or entity named above. The information contained in
this e-mail, and any attachments, may also be attorney - client privileged and /or work - product confidential material. If the reader of this
message is not the intended recipient, you are hereby notified that any review, retransmission, dissemination or other use of, or taking
of any action in reliance upon, this information by persons or entities other than the intended recipient is strictly prohibited. If you have
received this communication in error, please immediately notify Isaac M. Jaroslawicz by telephone at 305 - 532 -5553, or by e -mail
at Isaac @MyLawyerlsaac.com, and delete the original message. Receipt by anyone other than the intended recipient(s) is not a waiver
of the attorney - client or other privilege. Thank you.
Isaac M. Jaroslawicz, Esq.
Jaroslawicz Law Offices
1177 Kane Concourse #222
Bay Harbor Islands, Florida 33154
T 305.398.7739 * F 786.206.3575 * C 305.775.7868
Isaac @MyLawyerlsaac.com
www.MyLawyerlsaac.com
Trials 1 Litigation 1 Appeals 1 Legal Counsel
6
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