Amendment 1 Letter of Agreement So Beach Ocean Parcel Ltd AMENDMENT NO. I TO LETTER AGREEMENT
This Amendment No. 1 to Letter Agreement is executed as of May 2011,
by and between the City of Miami Beach, a Florida municipal corporation, ("City"), and
South Beach Ocean Parcel Ltd., a Florida limited partnership ("SBOP")(Collectively;
the City and SBOP may also be referred to herein as the "Parties," or each individually as
a "Party").
RECITALS
A. City and SBOP entered into that certain letter agreement, dated March 11,
2008 ( the "Letter Agreement), to resolve that certain lawsuit, styled South Beach Ocean
Parcel I1, Ltd. V. City of Miami Beach, Florida; Case No. 08-10129 CA 40.
B. Among other things, the Letter Agreement required SBOP to construct
"Sunrise Plaza," as defined in the Letter Agreement, or to enter into an Escrow
Agreement, as also set forth in the Letter Agreement.
C. "Sunrise Plaza" is now known as "Sunrise Pedestrian Connection"
("Sunrise Pedestrian Connection", or the "Project").
D. The Parties have agreed to amend the Letter Agreement.
NOW, THEREFORE; in consideration of the promises and the mutual covenants
contained herein, the Parties agree to as follows:
1. Incorporation of Recitals. City and SBOP acknowledge and agree that the
Recitals are correct; and they are hereby incorporated into and made a part of this
Amendment.
2. Definitions. As used in this Amendment, capitalized terms shall have the
meanings as defined in the Letter Agreement. To the extent the definition of a term in
this Amendment conflicts with the definition of such term in the Letter Agreement, the
definition contained in this Amendment shall control.
3. Effect of Amendment. This Amendment shall be deemed a part of the
Letter Agreement, but shall take precedence over and supersede any provisions to the
contrary contained in the Letter Agreement. Except as amended hereby, all of the
provisions of the Letter Agreement, which are not in conflict with the terms of this
Amendment, shall remain in full force and effect, and, as amended hereby, the Letter
Agreement is hereby ratified and confirmed in all respects.
4. Replacement of Paragraph 1. Numbered Paragraph 1 of the Letter
Agreement shall be replaced in its entirety with the following:
Sunrise Pedestrian Coruiection. The City has determined that the estimated cost
for construction of the Sunrise Pedestrian Connection ("Project") is three hundred
forty-seven thousand dollars ($347,000). Simultaneously with its execution of
this Amendment. SBOP shall provide the City with three hundred forty-seven
thousand dollars ($347,000) ("SBOP Payment"), to be used by the City
exclusively for all costs of construction (including hard and soft costs) of the
Project including, but not limited to, design, permitting, general conditions,
change orders, and cost overruns. Developer shall provide ten (10) sets of signed
and sealed construction plans, all engineering supporting documentation and
calculations and CAD files at the time of execution of this Amendment. City
shall have absolute control of the SBOP Payment so long as such Payment is used
for construction of the Project. No further payments will be required of SBOP.
The City will be solely responsible for the design, permitting, and construction of
the Sunrise Pedestrian Comiection, and shall have absolute control over the
means, manner, and methods to be used for construction of the Project. Upon
making the SBOP Payment to City; SBOP shall be released from any and all
obligations related to permitting, construction and any additional funding of the
Sunrise Pedestrian Connection.
City shall provide SBOP with such supporting documentation, as City may
determine in its sole and reasonable discretion, regarding completed construction
on portions of the Project (as the Project progresses), prior to malting payments
for such portions from the SBOP Payment. Following completion of construction
of the Project, as evidenced by the issuance of a Final Certificate of Completion
(or Occupancy; as the City determines) for the Project, SBOP shall be permitted,
upon reasonable written notice to the City, and at SBOP's sole cost and expense,
to review all construction documents associated with the Project. Following the
issuance of a Final Certificate of Completion (or Occupancy, as determined by
City) for the Project, City shall return any unused portions of the SBOP Payment,
if any, to SBOP within fifteen (15) days of completion of the Project.
5. Replacement of Paragraph 2. Numbered Paragraph 2 of the Lettei
Agreement shall be replaced in its entirety with the following:
SBOP's Satisfaction of Terms of Letter Agreement & Final Certificate of
Occupancy ("C.O.") for Subphase II(B). The Parties agree that SBOP's
obligations under the Letter Agreement have been satisfied. 'Within two (2)
business days of the execution of this Amendment, and execution of the
Beachwalk Easement, the City shall release all requirements from the
Development Agreement and/or Letter Agreement that are attached to the CO's
for Sub-Phase II(B). The Developer will be immediately eligible to receive
individual CO's for each bay of Sub-Phase II(B), assuming that all applicable
regulatory obligations have been met and/or satisfied for each individual bay.
Mutual Limited Release. Subject to performance of their obligations under this
First Amendment, the Parties hereby release, acquit, satisfy, and forever discharge
each other, of and from all manner of actions, causes of action, suits, debts,
covenants, contracts, controversies, agreements, promises, claims and demands
whatsoever, which the Parties ever had, now have, or which any personal
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representative, successor; heir or assign of the Parties; hereafter can, shall or may
have, against the other party; by reason of any matter, cause or thing whatsoever,
from the beginning of time to the date of this instrument, related to the matters
described and set forth in the Letter Agreement.
6. Deletion of Paragraphs 3, 4 and 5. Subject to SBOP executing and
providing the Beachwalk Easement to the City as required by Paragraph 5 above,
Paragraphs 3, 4 and 5 of the Letter Agreement shall be deleted in their entirety.
7. Notices. Any notice or other communications required or permitted to be
given under this Amendment must be in writing and shall be effective]), given or
delivered if(i) hand delivered to the addresses for City and SBOP stated below, (ii) sent
by certified or registered United States Mail; return receipt requested; to said addresses,
or (iii) sent by nationally recognized overnight courier (such as FedEx, UPS Next-day Air
or Airborne Express), with all delivery charges paid by the sender and signature required
for delivery, to said address. Any notice mailed shall be deemed'to have been given upon
receipt or refusal thereof. Notice effected by hand delivery shall be deemed to have been
given at the time of actual delivery.
To the City:
Jorge Gonzalez
City Manager
1700 Convention Center Drive, 4"' Floor
Miami Beach, FL 33139
With a cop), to:
Jose Smith, Esq.
City Attorney
1700 Convention Center Drive
4°i Floor
Miami Beach, FL 33139
To SBOP:
Ian Bruce Eichner
South Beach Ocean Parcel, Ltd.
590 Madison Ave.
26`x' Floor
New York City, New York 10022
With a cop), to:
Joseph L. Rebak, Esq.
Tew Cardenas LLP
1441 Brickell Ave.
i
15"' Floor
Miami, FL 33131
9. Severability. The invalidity, illegality, or unenforceability of any
provision of this Amendment pursuant to judicial decree shall not affect the validity or
enforceability of any other- provision of this Amendment, all of which shall remain in full
force and effect.
9. Governing Law and Venue. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Florida, both substantive and
remedial, without regard to principles of conflict of laws. The exclusive venue for any
litigation arising out of this Amendment shall be Miami-Dade County; Florida, if in state
court, and the U.S. District Court, Southern District of Florida, if in federal court. BY
ENTERING INTO THIS AGREEMENT, CITY AND SBOP EXPRESSLY WAIVE
ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING.OUT OF THIS AGREEMENT.
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IN WITNESS WHEREOF, City and SBOP have caused this Amendment to Letter
I\fv,-"l
Agreement to be executed and delivered as of�rti ' 2011.
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation of the State of
Florida
By: 4, -f 4W4,
Date'
A EST:
r�
Y:
Date: '
[SBOP signature page follows]
APPROVED AS To
FORM &LANGUAGE
FOR EXECUT9O
Atbrn9 ®at®
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SOUTB B CE ,
LTD.
By:
Ian Bruce Eichner
Managing Member
Date: Mh1 1/0 ., lo<
ATTEST:
By:
Date: ° /
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