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FIRST AMENDMENT
TO THE DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
AR&J SOBE, LLC
DATED MAY 18, 2005
Thi First A ndmen to the Development Agreement made and entered this
~ ~~ day of , 2007, by and between the CITY OF MIAMI BEACH, a
IVlunicipal Corporation existing under the laws of the State of Florida, having its
principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139
(hereinafter referred to as CITY), and AR&J SOBE, LLC., a Florida limited liability
company having offices at 2665 South Bayshore Drive, Suite 1200, Coconut
Grove, FL 33133 (hereinafter referred to as DEVELOPER).
RECITALS
A. AR&J Sobe, LLC (Developer) anticipates constructing a
project on the land bordered by 5th Street, 6th Street, Alton
Road and Lenox Avenue, (which includes the Alley, as
defined below) containing a grocery store and other retail,
commercial, office and/or restaurant uses and parking
garage (the Project).
B. On February 23, 2005, in consideration of the public
benefits provided by Developer, the Mayor and City
Commission adopted Resolution No. 2005-25827,
approving and authorizing the vacation of the City's rights
to an alley located within to the proposed Project (the
Alley).
C. Developer and City agreed to the terms and conditions for
vacating the Alley; Resolution No. 2005-25827 also
approved and authorized the parties to execute a Vacation
Agreement.
D. On May 18, 2005, in consideration of the public benefits
provided by Developer, the Mayor and City Commission
adopted Resolution No. 2005-25899, approving and
authorizing a Development Agreement for the Project by
and between the City and Developer.
E. On July 12, 2006, the Mayor and City Commission
approved Amendment No. 1 to the Alley Vacation
Agreement, said amendment providing for uniformity of
dates in the Vacation Agreement to coincide with the dates
in the Development Agreement, with respect to the
Developer's deadline within which to execute a
supermarket lease for the Project and for commencement
of construction of the Project.
F. City and Developer now wish to hereby amend the terms
of the Development Agreement to extend certain dates in
said Agreement for Developer's obligations with respect to
entering into the supermarket lease, commencement of
construction and completion of the Project, and also dates
affecting the parties' respective rights and obligations with
respect to the default and termination provisions therein.
G. On February 14, 2007, the Mayor and City Commission
approved Amendment No. 2 to the Vacation Agreement,
said amendmentfurther providing forfurtherextensions in
the Vacation Agreement to coincide with the dates in the
Development Agreement, with respect to the Developer's
deadline within which to execute the supermarket lease
and for commencement of construction of the Project.
H. Developer has obtained cone-year extension to obtain a
building permit from the Historic Preservation and Design
Review Boards, said extension expiring on February 17,
2007.
NOW, THEREFORE, the parties hereto, and in consideration of the mutual
promises, covenants, agreements, terms, and conditions herein contained, and
other good and valuable consideration, the respect and adequacy are hereby
acknowledged, do agree as follows:
ABOVE RECITALS.
The above recitals are true and correct and are incorporated as a part of
this Amendment No. 1.
2. MODIFICATIONS.
A. The following terms in Article 1, entitled "Definitions," of the
Development Agreement is amended as follows:
"Completion Deadline" means December 4. 2009,
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2999;-f3et# subject to a day for day extension by reason of
Unavoidable Delays.
"Construction Commencement Date" has the meaning provided in
Section 2.7, and which date shall, in no event. be later than
December 4, 2007.
"Default Date" means the date that is twenty-four (24) months and
one day after the Construction Commencement Date or AAa~-~
298 December 5. 2009, whichever occurs first, but subject to a
day for day extension +~~sasb-s~ase for delays due to Unavoidable
Delays.
"Ou~t{,si,,de~uDat~e`"^means 4he rl.+4o uih inF, is oi.. h4ce,-, /4 Q\ .,,nn+h c~ ~#or
ttil: EM e6LtYl: rl • i+r the /~~nc.4r~ ~n4ir~n ~i+mmennomon4 I'l~~o
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December 4, 2007.
B. Article 2, Section 2.7, entitled "Commencement and Completion of
Construction of the Project", of the Development Agreement is amended
as follows:
Developer shall at its expense {a3 Commence Construction on or
before December 4, 2007, by which date si~~y-(~s a#tef ##e-later e#
(i) all Permits and Approvals necessary for the Commencement of
Construction shall have been issued and Developer's construction loan
has been closed (all of which Developer shall pursue diligently and in
good faith), and (ii) all conditions precedent set forth in Section 2.6 shall
have been satisfied;_ (~} tThereafter, (i) Developer shall continue to
prosecute Construction of the Project with diligence and continuity to
completion; and (sii) achieve Substantial Completion of the entire Project
on or before the Completion Deadline. Promptly after Commencement of
Construction, City and Developer shall enter into an agreement
acknowledging the date upon which Commencement of Construction
occurred (the "Construction Commencement Date"). Subject to any right
of Developer to terminate this Development Agreement as herein
provided, if, after Developer has Commenced Construction, Developer
fails to diligently prosecute Construction of the Project (subject to
Unavoidable Delays), and such failure continues (subject to Unavoidable
Delays) for thirty (30) consecutive days after Developer's receipt of notice
of such failure, City shall, in addition to all of its other remedies under this
Agreement or at law or in equity, have the right to seek such equitable
relief (either mandatory or injunctive in nature, including specific
performance) as may be necessary to cause diligent and continuous
prosecution of Construction of the Project (subject to Unavoidable Delays)
by Developer.
C. Article 2, Section 2.12, entitled "Developer's Right of Termination,"
of the Development Agreement is amended as follows:
Section 2.12 City's Right of Termination.
Notwithstanding anything to the contrary contained herein, City shall
have the right to be released from its liability and obligations and
to terminate this Development Agreement if for any reason; (a)
Developer has not obtained a Building Permit for the Project on or
before February 17, 2007; or (b) Developer has
not Commenced Construction of the Project on or before AAa~sq--'~
~A9~7 December 4, 2007;
Agfee~ea~;-or (~c) Developer has not obtained the fully executed
Grocery Lease required by Article 15 of this Agreement and
delivered a copy thereof to City on or before December 4, 2007t~e
est.
3. OTHER PROVISIONS.
All other provisions of the Agreement, as amended, are unchanged.
4. DEFINED TERMS.
Capitalized terms shall have the same meaning as set forth in the
Agreement unless otherwise defined herein.
5. RATIFICATION.
The City and Developer ratify the terms of the Development Agreement,
as amended by this First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed in their nam~by their duly authorized officials
as of the date first set forth above.
ATTEST: CITY F IA B ACH
V ~ ~~ B
ity Clerk o
Robert Parcher David Dermer
ATTEST: DEVELOPER:
AR&J SOBE
a Florida lir
Berkowitz I~in
by Berko l ,
BY~
S n ture Jeffrey
y~S ~--~ , ~ S . ~ L ~~
Print Name/Title
'NERS, LLC
liability company, by
artnership, its manager
its general partner
Manager
F:~attoWGURWGREEMNT~Sth and Alton (Potamkin) - First Amendment to Dev. Agreement (Redline 2-5-07).doc
APPROVED AS TO
FORM & LANGUAGE
& FOR E~CUTION