2009-27054 ResoRESOLUTION NO. 2009-27054
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, DENYING AN APPEAL REQUEST
BY 1100 WEST PROPERTIES, LLC OF A DESIGN REVIEW BOARD
DECISION PERTAINING TO DRB FILE NO. 20181, THE MONDRIAN
HOTEL.
WHEREAS, a process for review by the Mayor and City Commission of decisions
rendered by the Design Review Board when requested by an applicant or any affected
person has been established under Section 118-262 of the Miami Beach City Code; and
WHEREAS, 1100 West Properties, LLC is requesting a review of the Design
Review Board decision rendered on November 6, 2008, (DRB File No. 9024) pertaining
to an amendment to the original Final Order for the development project at 1100 West
Avenue (DRB File No. 20181), which has been timely filed for such review; and
WHEREAS, on November 4, 2008, the Design Review Board approved a
request for a modification to the original June 5, 2007 Final Order for the project; and
WHEREAS, pursuant to City Code Section 118-262, the applicant timely filed an
appeal of the Design Review Board decision rendered on November 6, 2008; and
WHEREAS, such Code section allows the applicant, or the city manager on
behalf of the city administration, or an affected person, Miami Design Preservation
League or Dade Heritage Trust to seek a review of any Design Review Board Order by
the City Commission; and
WHEREAS, pursuant to Section 118-262, the review by the City Commission is
not a "de novo" hearing; it must be based upon the record of the hearing before the
Design Review Board. Furthermore, Section 118-262 (b) provides: In order to reverse,
or remand for amendment, modification or rehearing any decision of the Design Review
Board, the City Commission shall find that the Design Review Board did not do one of
the following: 1) provide procedural due process; 2) observe essential requirements of
law, or 3) base its decision upon substantial, competent evidence; and
WHEREAS, in order to reverse or remand a decision of the Design Review
Board, a 5/7th vote of the City Commission is required; and
WHEREAS, Section 118-262(a) requires the appellants to file with the City Clerk
a written transcript of the hearing before the Design Review Board two weeks before the
scheduled public hearing on the appeal; the transcript and associated material were
transmitted to the Mayor and City Commission via LTC; and
WHEREAS, on January 28, 2009, the City Commission set the hearing for this
appeal to be held on February 25, 2009, and the City Clerk was directed and did notice
such hearing; and
WHEREAS, on February 25, 2009, the City Commission opened and continued
the hearing for this appeal to be held on April 22, 2009, and the City Clerk was directed
and did notice such hearing; and
WHEREAS, on April 22, 2009 the City Commission heard the parties, and
pursuant to the argument given, the written materials submitted, and having been duly
advised in the premises determined that the November 4, 2008 decision of the Design
Review Board did not result in, respectively, 1) a denial of due process, 2) a departure
from the essential requirements of law, nor 3) a decision that was not based upon
substantial, competent evidence; and
WHEREAS, on April 22, 2009 a motion was made by the City Commission to
deny the appeal by 1100 West Properties, LLC of the November 4, 2008 decision of the
Design Review Board pertaining to DRB File No. 20181; and
WHEREAS, the motion to affirm the decision of the Design Review Board was
made and seconded, and approved by a vote of 7R.
NOW THEREFORE BE IT RESOLVED THAT the Mayor and City Commission
hereby deny the appeal filed by 1100 West Properties, LLC and affirm the November 4,
2008 decision of the Design Review Board in file No. 20181.
PASSED AND ADOPTED, this 22nd day of April , 2009.
ATTEST:
CI CLERK
Robert Parcher
APPROVED AS TO FORM
UAGE 1;OR EXECUTION
,,,....
..
A N EY
MAY R
Matti Herrera Bower
y 2, Dq
DATED
T:WGENDA\2009\April 22\Regular\DRB File No. 20181- RESO denial.doc
2
COMMISSION ITEM SUMMARY
Condensed Title:
Pursuant to Miami Beach City Code Section 118-262, to review a Design Review Board decision
(DRB File No. 20181) rendered on November 6, 2008, requested by 1100 West Properties, LLC.
Ke Intended Outcome Su orted:
Not Applicable
Issue:
Pursuant to Miami Beach City Code Section 118-262, the Appellant, 1100 West Properties, LLC, is
requesting that the Mayor and City Commission review a decision of the Design Review Board pertaining
to DRB File No. 20181.
item Summary~rtecommenaation:
The Administration recommends that City Commission deny the appeal.
4dvisory Board Recommendation:
The Design Review Board approved the subject application on November 4, 2008.
Financial Information:
Source of Amount Account Approved
Funds: ~
2
3
4
OBPI Total
Financial Impact Summary:
The proposed Resolution is not expected to have any fiscal impact.
Ci Clerk's Office Le islative Trackin
Jorge Gomez or Tom Mooney
T:\AGENDA\2009Wpril 22\Regular\DRB File No. 20181- SUM.doc
I ~ I ~ ~~~ H AGENDA ITEM R7A
~ DATE ~~Z-Z--'O~
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
To: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: April 22, 2009
SUBJECT: A REQUEST BY 1100 WEST PROPERTIES, LLC TO REVIEW A DESIGN
REVIEW BOARD DECISION PERTAINING TO DRB FILE NO. 20181.
ADMINISTRATION RECOMMENDATION
Deny the Appeal.
BACKGROUND
Pursuant to City Code Section 118-262, 1100 West Properties, LLC, is requesting a review
of the Design Review Board (DRB) decision rendered on November 6, 2008 (DRB File No.
20181) pertaining to a modification to the Consolidated Final Order for the development
project at 1100 West Avenue.
The Design Review Section of the Miami Beach Code allows the applicant, or the City
Manager on behalf of the City administration, or an affected person, Miami Design
Preservation League or Dade Heritage Trust to seek a review of any Design Review Board
Order by the City Commission. For purposes of this section, "affected person" shall mean
either (i) a person owning property within 375 feet of the applicant's project reviewed by the
board, or (ii) a person that appeared before the Design Review Board (directly or
represented by counsel), and whose appearance is confirmed in the record of the Design
Review Board's public hearing(s) for such project.
Pursuant to Section 118-262 of the Miami Beach Code, the review by the City Commission
is not a "de novo" hearing. It must be based upon the record of the hearing before the
Design Review Board. Furthermore, Section 118-262 (b) states the following:
In order to reverse, or remand for amendment, modification or rehearing any decision of the
Design Review Board, the City Commission must find that the Design Review Board failed
to:
1) provide procedural due process; or
2) observe essential requirements of law; or
3) base its decision upon substantial, competent evidence.
In order to reverse or remand a decision of the DRB, a 5/7th vote of the City Commission
is required.
Apri122, 2009
Commission Memorandum
Appeal of DRB File No. 20181
Page2of3
Section 118-262(a) requires the appellant to file with the City Clerk a written transcript of the
hearing before the Design Review Board two weeks before the scheduled public hearing on
the appeal. The transcript and associated material were transmitted to the Mayor and City
Commission.
ANALYSIS
On June 5, 2007, the applicant received final approval for a series of exterior modifications
to an existing multi-family residential structure in conjunction with the conversion to a hotel
use, including a comprehensive public bay walk condition. The public bay walk was
voluntarily proffered by the applicant, in conjunction with a proposed dock expansion.
Through discussions with City staff, the applicant agreed to alternatives to the bay walk as
part of the dock expansion, if the dock expansion was not approved. These alternatives
included a public baywalk immediately east of the property's seawall, and if that were not
possible, improvements to the immediately adjacent 10th Street street end. This
comprehensive public baywalk condition, and the alternatives, were confirmed in a recorded
covenant, signed by the property owner and related parties, on November 29, 2007.
The project was issued permits in accordance with the June 5, 2007 Order of the Board and
construction commenced. On November 4, 2008, the DRB considered a request by the
applicant to amend its obligation to post a letter of credit, performance bond or similar
instrument if it had not completed the public baywalk by the time it was ready for a TCO,
partial CO or final CO for any work approved by the Board. The Board approved the
reduction of the bond from 1 'h times the cost of the public baywalk, plus design and
permitting costs, to $800,000, which was also allowed to be posted into escrow with counsel
for the applicant. This November 4, 2008 hearing solely considered this request to reduce
or eliminate the bond requirement from the June 5, 2007 Order. These funds were posted
pursuant to an escrow agreement executed November 24, 2008, in which the original DRB
approval, as well as the applicant's agreement and obligation in the comprehensive baywalk
condition, were reaffirmed.
The appellant now seeks to challenge the portion of the original baywalk condition approved
June 5, 2007, obligating it to fund improvements to the 10th Street street end if both the
baywalk as part of the dock expansion, and the baywalk immediately east of the seawall are
not built.
The DRB's review of the original project and amendment were based upon the information
and voluntary proffer submitted by the applicant, and the Board had before it the
recommendations for approval with proposed conditions presented by its professional staff
in the form of a comprehensive staff report.
A review of the transcripts for the November 4, 2008 Design Review Board hearing on this
matter indicates that the DRB observed the essential requirements of law, made its
determinations based on substantial and competent evidence, and afforded all parties
involved due process. Additionally, the Board held a public hearing during which members of
the public were afforded the opportunity to testify and present evidence.
Apri122, 2009
Commission Memorandum
Appeal of DRB File No. 20181
Page 3 of 3
Finally, as indicated in the City Attorney's separate memorandum on this. appeal, the
applicant did not make a request to be relieved of the original 10th Street improvements
condition as part of the amendment considered by the DRB on November 4, 2008. This
condition was not further modified by the Board on November 4, 2008. Therefore, any
appeal of this condition is not properly part of this appeal.
Based upon all of the evidence submitted, the Board determined that the proposed
amendment, as revised by the Board, would continue to meet the Criteria for Design Review
Approval, if the conditions enumerated in the original Final Order are met and, therefore,
approved the request for a modification to the original Consolidated Final Order.
CONCLUSION
Based upon the foregoing, and the recommendation of the City Attorney, under separate
cover, the Administration recommends that the Mayor and City Commission deny the subject
appeal.
T:IAGENDA120091April 221RegularlDRB File No 20181- MEM.doc
m MIAMIBEACH
City of Miami Beath, 1700 Convention Center Drive, Miami Beach, Florida 33139, voww.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jose Smith, City Attorne
CC: Jorge M. Gonzalez, ag
DATE: April 22, 2009
SUBJECT: A RESOLUTION [GRANTING OR DENYING] AN APPEAL REQUEST BY 1100
WEST PROPERTIES, LLC OF A DESIGN REVIEW BOARD DECISION
PERTAINING TO DRB FILE NO. 20181, THE MONDRIAN HOTEL.
CITY ATTORNEY'S RECOMMENDATION
Deny the Appeal.
SUMMARY
On November 26, 2008, 1100 West Properties, LLC ("1100 West") filed an appeal of a
decision of the Design Review Board ("DRB") on November 4, 2008 on the Mondrian Hotel.
According to the "Appellant's Pre-Hearing Statement" the decision allegedly denied requests
by 1100 West to (1) extend the time by which it must build a baywalk until either it or the City
obtains permits; and (2) remove a requirement in the DRB order to build a "city park" on the
10th Street street end.
The appeal is without merit -- neither of these alleged denials occurred. The appeal
should be dismissed on numerous grounds.
FACTUAL BACKGROUND
On June 5, 2007, the DRB granted 1100 West approval for a series of exterior modifications
to an existing multi-family residential structure for its conversion to a hotel use. The final
order included a public bay walk condition. The public bay walk was voluntarily proffered by
1100 West, in conjunction with its proposed marina/dock expansion. Through discussions
with City staff, the applicant agreed to alternatives to the bay walk if the dock expansion and
overwater baywalk were not approved. These alternatives included a public baywalk
immediately east of the property's seawall (on the pool deck), and if that were not possible (it
was subject to the adjacent condominium associations' approval), 1100 West would fund
improvements to the adjacent 10th Street street end.'
This public baywalk condition, including the stated alternatives, were confirmed in a
recorded covenant, signed by the property owner and related parties, on November 29,
2007. Exhibit A.
~ While the street end was not immediately adjacent to the Mondrian at 1100 West Avenue,
the three properties consisting of 1000, 1100 and 1200 West Avenue, formerly Forte
Towers, are considered as a combined development -- one parcel -- for zoning purposes.
Therefore, the 10th Street street end immediately abuts the combined development on the
south.
Commission Memorandum
Appeal of DRB File No. 20181
April 22, 2009
Page 2 of 3
The project was issued permits in accordance with the DRB's June 5, 2007 Order and
construction commenced. On November 4, 2008, the DRB considered a request by 1100
West to amend its obligation to post a letter of credit, performance bond or similar
instrument because it had not completed the public baywalk by the time it was ready for a
TCO, partial CO or final CO as required in the Order. The Board approved the reduction of
the bond from 1 '/2 times the cost of the public baywalk, plus design and permitting costs, to
$800,000, which was allowed to be posted into escrow with counsel for the applicant. This
November 4, 2008 hearing considered this request to reduce or eliminate the bond
requirement from the June 5, 2007 Order. These funds were posted pursuant to an escrow
agreement executed November 24, 2008, in which the original DRB approval, as well as the
applicant's agreement to the comprehensive baywalk condition, were reaffirmed. Exhibit B.
The transcript submitted by 1100 West in connection with this appeal confirms this factual
review:
At p. 5: [by Alex Tachmes (Tasman)]:
The only two items we are seeking to amend are, A, the time frame within
which we have to complete - we have to get it permitted and built, and, two,
the issue of the posting of a letter of credit.
After discussion with the Board, 1100 West then dropped the request for the amendment to
the time frame.
At p. 64: [by Alex Tachmes (Tasman)]:
All we want to do is reduce the financial security for one and a half times for
the bond or LC [Letter of Credit] down to $600,000 in cash. We are not
going to change our obligation to do the bay walk, and we are not going to
change our obligation to do the park in the event we can't do the baywalk.
We are not going to change the two-year deadline underthe order. That is it.
At p. 77: [by Mr. Held]:
You are posting $800,000 in an escrow agreement to substitute for the letter
of credit or similar instrument that is provided prior to CO?
Mr. Galbut: Right.
Mr. Held: And then every other provision [in the 2007 Order] remains the
same?
Mr. Galbut: Yes.
ANALYSIS
The appeal is an improper attempt, and a year and a half late, to challenge a decision of the
DRB on July 5, 2007, which accepted 1100 West's proffer of a public baywalk to be
constructed as part of a marina behind the new Mondrian Hotel, specifically, the alternative
that if 1100 West did not receive permits for the marina and baywalk, then 1100 West would
fund improvements to the 10th Street street end. This condition was accepted and not
challenged.
In approximately October 2008, when 1100 West sought a final certificate of occupancy for
its hotel project, a condition of the 2007 approval required that if the baywalk were not
complete, 1100 West would have to post a bond or letter of credit to guarantee the baywalk
would be completed. 1100 West sought a modification of that condition because due to
Commission Memorandum
Appeal of DRB File No. 20181
Apri122, 2009
Page 3 of 3
economic conditions a bond or letter of credit would be too costly.
The quotes that counsel for 1100 West cites to in its Pre-Hearing Statement from the
October 2008 hearing transcript are taken out of context. It is clear from numerous
discussions in the transcript that 1100 West was not seeking to amend the street end
condition. What it was objecting to was staff's proposed modification, NOT adopted by the
Board, that as consideration for the reduction in the bond amount, 1100 West should
contribute funds to the street end improvements now (not later IF the baywalk could not be
permitted).
Any challenge now to the original street end condition (that 1100 West fund the 10tH
Street street end if the baywalk cannot be constructed) must be denied because:
1. The appeal is untimely as to the condition in the July 7, 2007 approval, which
became final 20 days after the July 7, 2007, when that original Order was signed
and filed with the clerk of the DRB.
City Code section 118-262(a): "The request shall be in writing, include all applicable fees,
shall be by or on behalf of a named appellant(s), shall state the factual bases and legal
argument in support of the appeal, and shall be submitted to the city clerk on or before the
20th day after the date of rendition of the board's order."
2. The appeal fails to exhaust administrative remedies, because 1100 West did
not seek from the DRB the relief it seeks now from the City Commission.
3. 1100 West is estopped from challenging these conditions because it voluntarily
accepted them in a publicly recorded covenant.
Serra Canyon Co., Ltd. v. California Coastal Commission, 120 Cal.App.4th 663 (Ca.
2004)(developercnuld not challenge its recorded offer to dedicate land required as condition
of mobile home park approval after development completed).
4. 1100 West is estopped from challenging these conditions because it
voluntarily accepted them in the escrow agreement to implement the DRB's
November 6, 2008 approval to reduce the bond and allow the funds to be
posted in escrow.
5. 1100 West is estopped from challenging these conditions because it has
obtained the benefit of such approval through construction of the
project approved.
It is widely held that a property owner cannot challenge a development approval after
accepting its benefits. New Testament Baptist Church Inc. of Miami v. DOT, 993 So.2d 112
(Fla. 4th DCA 2008)(church could not challenge plat dedication as alleged illegal exaction 13
years after plat recorded and development completed); Wilson v. Board of County
Commissioners of Teton, 153 P.2d 917 (Wyo. 2007)(developer of subdivision could not
challenge subdivision approval's 10% open space requirement after lots were subdivided
and sold).
CONCLUSION
The City Attorney recommends that the Mayor and City Commission deny the appeal.
F:\alto\HELG\LITIGATI\MondrianWppeal to City Commission\DRB File No 20181- CAO MEM.doc
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. RECQRDED 11~34~2447 11:57:5b
.HARVEY R11VIHr GLERY QF Ct3URT
This instrument prepared ~by
t1IAtlI-DAQE COUhETYe F~ORI€kA '~
ctnd after reCOICIlAg T@tllrll t0:
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Alexander I. Tachmes, Esq.
Shutts & Bowen LLP
201 South Biscayne Boulevard
1500 Miami Center
Miami, Florida 33131 ~ j
DECLARATION OF RESTRICTIVE COVENANTS
T,~HIS DECLARATION OF RESTRICTIVE COVENANTS (this "Covenant', is made
this ay of November, 2007, by 1100 West Properties, LLC, a Delaware limited liability
company (the "Owner").
WITNESSETH
WHEREAS, the Owner holds fee-simple title to certain property located in the City of
Miami Beach, Florida at 1100 West Avenue, Miami Beach, Florida 33139 and legally described
in Exhibit "A" attached hereto and incorporated into this Covenant by. this reference (the•
"Pro '); and
WHEREAS, the Owner filed an application with The City of Miami Beach Design
Review Board (the "Design Review Board") for design review approval for its proposed
alterations to the entire 1100 West Avenue property (the "Design Review Application"); aid _
WHEREAS, the Design Review Boazd approved the Design Review Application, .as
indicated in that certain Consolidated Order from the Design Review Boazd executed on June 8,
.2007, a copy of which ~is attached hereto as Exhibit "B" and incorporated into this Covenant by
this reference~(the "Order'; and
WHEREAS, the Property is a portion of the above-referenced 1100 West Avenue
Y~ and
~,~,, REAS, as part of the review process of the Design Review Application, -0wner
un proffered and agreed that, subject to the provisions of the Order, it would construct a
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~~ public baywalk ("Public Baulk") along the rear of the Property, and the immediately abutting
properties to the north and south, extending from 10th St. to the northern property line of 1200
West Avenue; and
WHEREAS, the original proffer was to construct a Public Baywallc westward of the
seawall running the length of these properties, either attached or detached, and if such were not
possible, it would seek to construct a Public Baywalk eastward of the seawall, and if neither were
possible it would make a voluntary contribution for right-of--way and park improvements at the
western terminus of 10th Street, according to the more specific terms of the Order; and
WHEREAS, that even after such a contribution, if a marina expansion were ever
constructed westward of the Property, a Public Baywalk would be constructed west of the
seawall along the rear of the Property and the immediately abutting properties to the north and
south, extending from 10th Street to the northern property line of 1200 West Avenue; and
WHEREAS, the Order contains certain further provisions regarding the construction of
the Public Baywalk, and as required by Paragraph B(1)(j) of the Order, the Owner is entering
into and recording this Covenant regarding the Public Baywalk.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the Owner, the Owner voluntarily covenants and agrees as
follows:
1: Recitals. The recitals set forth in the preamble of this Covenant are true and
correct and incorporated into this Covenant by this reference.
2. ~ ~ Covenants. The Owner hereby establishes the following covenants running with
the land upon the Property:
a. The Owner hereby confirms its voluntary proffer to design, permit, construct, and
maintain the Public Baywalk, as set forth in the Order; and
b. ~ Upon completion of construction of the Public Baywalk, the Owner shall permit
.public access in perpetuity to and on the Public Baywalk, pursuant and subject to the conditions
of the Order.
3: Effective Date. Upon its recordation in the Public Records of Miami-Dade
County, Florida, this Covenant shall constitute a restrictive covenant concerning the use,
enjoyment, and title to the Property and shall constitute a covenant running with the land that is
binding upon the Owner, its successors and assigns, its tenants, and all subsequent owners of the
Property. The provisions of this Covenant shall be for the benefit of, and a limitation upon, all
present and future owners and tenants of the Property and for the benefit of the public welfare.
4. Full. Force and Effect. This voluntary Declaration shall remain in full force and
effect and shall be binding upon the Owner of the Property, their successors in interest and
MTADOCS 2396934 5 ~
,.
assigns for an initial period of thirty (30) years from the date this instrument is recorded in the
public records, and shall be automatically extended for successive periods of ten (10) years,
unless modified, amended or released.
5. Modification/Release. This Covenant may be modified, amended or released as
to any portion of the Property by a written instrument executed by the then owner of .the
fee-simple title to the Property providing that same has been approved by the City of Miami
Beach City Commission, or such other board with jurisdiction over the matter, at a public
hearing, which public hearing shall be applied for by and at the expense of the Owner. Should
this instrument be so modified, amended, or released, the City Manager of the City of Miami
Beach, or his successor, or other administrative ,officer with jurisdiction over the matter, shall
.execute promptly a written instrument in recordable form effectuating and acknowledging such
modification, amendment or release.
6. Effect of Partial Invalidity: Invalidation of any provision of this Covenant by
judgment of a court of appropriate jurisdiction shall not affect any of the other provisions of this
Covenant, which shall remain in full force and effect.
7. Recording. This Covenant shall be recorded in the Public Records of Miami-
Dade County, Florida, at the cost of the Owner.
8. Access Rights of the City. It is understood and agreed that any official of the City
of Miami Beach (the "City's has the right at any time during normal business hours of entering
and investigating the use of the Public Baywalk, to determine whether the conditions of this
Covenant and the requirements of the City's building, zoning and land development regulations
are being complied with.
~ 9. Enforcement Rights of the City. An action to enforce the terms and conditions of
this Covenant maybe brought by the City and may be, at law or in equity, against any party or
person violating or attempting to violate any provision of this Covenant, either to restrain
violations or to recover damages. The prevailing party in the action shall be entitled to recover
costs and reasonable attorneys' fees, at all levels of trial and appeal. This enforcement provision
shall be in addition to any other remedies available under the law.
10. Effect on Adiacent Property of Owner. To the extent that fulfillment of the
..obligations of this Covenant requires access to and on commercial units on the western portions
of the properties located in the City at 1000 West Avenue and 1200 West Avenue, including the
riparian rights thereof, owned in whole or part by Owner, its principals, or affiliated entities, the
obligations hereunder shall extend to such commercial units.
11. Limitation of Liability. The Owner, its principals, affiliated entities, successors
and assigns, hereby covenant not to sue the City for, and agree to indemnify and hold the City
harmless from, any action arising out of this Covenant; provided, however, that the provisions of
this paragraph shall not apply to the following:
MIADOC$ 2396934 5 3
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a. any violations of this Covenant by the City or its departments, or
b. the gross negligence or willful misconduct by the City or any of its departments,
employees, or independent contractors.
.12. Authori Owner represents and warrants that it, its Managing Member, 1100
West Holdings, LLC, a Delaware limited liability company (the "Managing Member"), and the
entities signing on behalf of the Managing Member, have the full right, power, and lawful
authority to enter into and execute this Covenant in order to subject Owner to the provisions of
this Covenant, and that such actions do not violate any other agreement, covenant, or restriction
placed upon such entities. The persons executing this Covenant on behalf of Owner, the
Managing Member, and related entities represent and warrant that they have the authority to
execute this Covenant on behalf of and bind the entities for which they are signing.
13. Counterparts. This Covenant may be executed in counterparts, each of which
shall be an original and all of which shall constitute one and the same instrument. Any signature
delivered by facsimile or other forms of electronic transmission, such as a PDF, shall be
considered an original signature.
IN WITNESS WHEREOF, the Owner has executed this Covenant through its duly
authorized representatives on the date set forth above.
~-
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WITNESSES: OWNER:
1100 WEST PROPERTIES, LLC,
Print Name: a Delaware Iirnited liability company
By: 1100 West Holdings, LLC,
Print Name: a Delaware limited liability company,
its Managing Member
By: Sanctuary West Avenue, LLC,
a Delaware limited liability company,
Member
By: Sanctuary West Holdings, LLC,
a Delaware limited liability company,
its Sole Member
By: Sanctuary West Management, LLC,
. a Delaware limited liability
company, its Manager
By: '
Name: Abraham Galbut
Title: Manager
By: Mondrian Miami Investment LLC,
Print Name: a Delaware limited liability company,
Member
Print Name: By: 1Vlorgaus Group LLC,
a Delaware limited liability company,
its Managing Member
By: ~ Morgans Hotel Group Co.,
a Delaware corporation,
its Managing Member
By:
Name: Marc Gordon
Title: Chief Investment Officer
MUIDOCS 2396934 5 S
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WITNESSES: /~ OWNER:
S~/ ~"k--- 1100 WEST PROPERTIES, LLC,
Print Name: d,~ a Delaware limited liability company
~~- By: 1100 West Holdings, LLC,
Print Name: L I~'~- ~ V4S a Delaware limited liability company, .
its Managing Member
By: Sanctuary West Avenue, LLC,
a Delaware limited liability company,
Member
By: Sanctuary West Holdings, LLC,
a Delaware limited liability company,
its Sole Member
By: Sanctuary West Mara ement, LLC,
a Delaware limited liab 'ty
co its r
By
Name: Abraham Galbut
Title: Manager
Print Name:
Print Name:
MIADOCS 2396934 5
By: Mondrian Miami Investment LLC,
a Delaware limited liability company,
Member
By: Morgans Group LLC,
a Delaware limited liability company,
its Managing Member
By: Morgans Hotel Group Co.,
a Delaware corporation,
its Managing Member
WITNESSES: OWNER:
1100 WEST PROPERTIES, LLC,
Print Name: a Delaware limited liability company
By: 1100 West Holdings, LLC,
Print Name:. a Delaware limited liability company,
' its Managing Member
By: Sanctuary West Avenue, LLC,
a Delaware limited liability company,
Member
By: Sanctuary West Holdings, LLC,
a Delaware limited liability company, li
its Sole Member
By: Sanctuary West Management, LLC,
a Delaware limited liability
company, its Manager
By:
Name: Abraham Galbut
Title: Manager
By: Mondrian Miami Investment LLC,
Print Name: a Delaware limited liability company,
Member
Print Name: By: Morgans Group LLC,
a Delaware limited liability company,
its;Managing Member
By: Morgans Hotel Group ¢o.,
a Delaware cornora~ti
STATE OF FLORIDA
COUNTY OF MIAMI-DARE
sd'
The foregoing instrument was acknowledged before me this ,'~ day of AIA~~It4~,L
2007, by Abraham Galbut, as Manager of SANCTUARY WEST MANAGEMENT, LLC, a
Delawaze limited liability company, the Manager of SANCTUARY WEST HOLDINGS, LLC, a
Delaware limited liability company, the Sole Member of SANCTUARY WEST AVENUE, LLC,
a Delaware limited liability company, a Member of 1100 WEST HOLDINGS, LLC, a Delaware
limited liability company, the Managing Member of 1100 WEST PROPERTIES, LLC, a
Delaware limited liability company. He or she is (check one) [~ personally known to me or [
WITNESS my hand and official seal in the county and state named above this 2~~r
day of N_~b~ , A.D., 2007.
NOTARY PUBLIC, State of Florida
Print Name: ('~~ ~ ~' ~~
CoTriInls$lon No.: r OTA1tY PL'Ht-t('sTeT~ ng FLORIDA
Commission Expires: •''~~~"~''• Chantal DeVos
„"ssion DD308022
., r~ EXp~res; APR. 01, 2008
SOND~D T8RtJ ATLANTIC DCNGWG CO., INC
STATE OF ~~D~..~ U <,JL~-- )
COUNTY OF ~^~ vt ~ )
I
~ The foregoing instrument was acknowledged before me this 2]S~day of
2007, by Mazc Gordon, as Chief Investment Officer of MORGANS HOTEL• GROUP CO., a
Delaware corporation, the Managing Member of MORGANS GROUP LLC, a' Delawaze limited
liability company, the Managing Member of MONDRIAN MIAMI INVESTMENT LLC, a
Delaware Limited liability company, a Member of 1100 WEST HOLDINGS; LLC, a Delaware
-I limited liability company, the Managing Member of 1100 WEST PROPERTIES, LLC, a
~ Delaware limited liability company. He or she is (check one) j~"personally known to me or [
] has produced as identification. ~
WI SS my hand and official seal in the county and state named above this ~ (Sfi
~~ day of 0 ~!~/~ , A.D., 2007.
,,~,..,~ ~,. ~.::i1EN NOTARY PUBLIC, State of~ls~ida. 0~.> ~(+~~-
NO'raF•~: ~~~ ~ ~rati • S'E~iTE t7~ NEW YORK Print Name: ~ ~ C1~
i ~ ~!?. 01-('.H6056883 Commission No.: e - o ~' 8'
"'~~ ~~`~~'"~`~~~~ Commission Expires: <~ az
MY `v'°.:...:..,:,~~:+tv ru'1FtES O4-Q2-ZO
GRACE G. GHEN
NuaDOCS 2396934 5 NOTARY PUBLIC . STATE OF NEW Y0~1C
-,~:: ~: • ... - ~ N0, 01-CEi8056883
k4: ,vi ~ :" z`:t~:Pc ~~ QUAI.I~IFD IN BENS COUNTY
I'• ~`_ ~:~~'°~ ~ X11' COMMiCSION EXPIRE8 04-02-2Q l _~
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before ine this day of ,
2007, by Abraham Galbut, as Manager of SANCTUARY WEST MANAGEMENT, LLC, a
Delaware limited liability company, the Manager of SANCTUARY WEST HOLDINGS, LLC, a
Delaware limited liability company, the Sole Member of SANCTUARY WEST AVENUE, LLC,
a Delaware limited liability company, a Member of 1100 WEST HOLDINGS, LLC, a Delaware
limited liability company, the Managing Member of 1100 WEST PROPERTIES, LLC, a
Delaware limited liability company. He or she is (check one) [ ]personally lrnown to me or [
] has produced ~ as identification.
WITNESS my hand and official seal in the county and state named above this
day of , A.D., 2007.
NOTARY PUBLIC, State of Florida ,
Print Name:
Commission No.:
Commission Expires:
STATE OF )
COUNTY.OF 1
..The foregoing instrument was acknowledged before me this day of ,
2007, by Marc Gordon, as Chief Investment Officer of MORGANS HOTEL GROUP CO., a
Delaware corporation, the Managing Member of MORGANS GROUP LLC, a Delaware limited
liability company, the Managing Member of MONDRIAN MIAlVII INVESTMENT LLC, a
Delaware limited liability company, a Member of 1100 WEST HOLDINGS, LLC, a Delaware
~ limited liability company, the Managing Member of 1100 WEST PROPERTIES, LLC, a
~ Delaware limited liability company. He or she is (check one) [ ]personally known to me or [
] has produced as identification.,
i WITNESS my hand and official seal in the county and state named above this
day of A.D., 2007.
NOTARY PUBLIC, State of Florida
Print Name•
Commission No.:
Commission Expires:
i bIIADOCS 2396934 5 6
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R ~.. [`: ram ,.h1s~'s r..,,-: Kr, ~,_..
V ••
JOINDER OF CONDOMINIUM ASSOCIATION
1100 WEST CONDOMIlVICTM ASSOCIATION, INC., a Florida not-for-profit
' corporation (the "Association"), hereby joins in the .execution of this .Covenant for the sole
purpose of agreeing that the Association will take no action, including, but not limited ta, passing
a rule or regulation or entering into any agreement, that would prevent the performance of the
obligations required under this Covenant and/or the Order.
Witnessed by:
Name:
Name:
STATE OF FLORIDA )
COUNTY OF MIAIVII-DADS )
1100 WEST CONDOMINIUM ASSOCIATION, INC.,
a Florida not-for~profit corporation
By: _
Name:
Title:
The foregoing instrument was acknowledged before me this day of ,
2007, by as of 1100 WEST CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-profit corporation. He or she is (check one) [ ]
personally known to me or [ ]has produced as identification.
WITNESS my hand and official seal in the county and state named above this
day of ~ A.D., 2007.
NOTARY PUBLIC, State of Florida
Print Name:
Commission No.:
Commission Expires:
MIADOCS 2396934 5
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NOTARY PUBLIC, State of Florida
Print Name: C~~#~.~~ ~~ Gq~S
Commission No.:
Commission Expires: NOTARY PUBLIC~STATE OF FLORIDA
;:,:'Commission #DD388022
'Expires: APR. 07, 2008
BONDED THRU ATLANI'!C BONDING CO., INC.
i
MIADOCS 2396934 5 g
i r .p t.:.
.. •.' . .
JOINDER OF CONDO~'IINIi7M ASSOCIATION
1100 WEST CONDOMINIUM ASSOCIATION, 1NC., a Florida not-for-profit
corporation (the "Association"), hereby joins in the execution of this Covenant for the sole
purpose of agreeing that the Association will take no action, including, but not limited to, passing
a rule or regulation or entering into any agreement, that would prevent the performance of the
obligations required under this Covenant and/or the Order.
,
~
N e: ~
Witnessed by:
Name: (~I~7h~ ~ Un3
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
1100 WEST CONDOMINIUM ASSOCIATION, INC.,
f a Florida not-for-profit corporation
B:
Name: Keith Merin
Title: President
The foregoing instrument was acknowledged before me this !~" day of
2007, by Keith Mersin, as President of 1100 WEST CONDOMINIUM ASSOCIATION, INC.,
a Florida not-for-profit corporation. ~ she is (check one) [~], personally known to me or [
] has produced as identification.
WITNESS my hand and official seal in the county and state named above this
day of (~?~1Qth~ , A.D., 2007.
q
JOINDER BY MORTGAGEE
CORPORATION
The undersigned ~ ~ a
(state) corporation and Mortgagee under that certain mortgage from
dated the
day of ,and recorded in Official Records Book
,Page , of the Public Records of Miami-Dade County, Florida,
covering alUor a portion of the property described in this Covenant, does hereby acknowledge
that the terms of this~Covenant are and shall be binding upon the undersigned and its successors
in title.
Witnessed by: •~
a corporation
Name:
Name:
STATE OF
COUNTY OF
By:
Name:
Title:
The foregoing instrument was acknowledged before me by
the of corporation, on
behalf of the corporation. He/She is personally known to me or has produced
as identification.
WITNESS my hand and official seal in the county and state named above this
day of , A.D., 2007.
NOTARY PUBLIC, State of Florida
Print Name:
Commission No.:
Commission Expires:
MIADOCS 2396934 5
8
: i. .. '
JOINDER BY MORTGAGEE
CORPORATION
The undersigned Eurohypo AG, New York Branch, the New York branch of a German
banking corporation and, in its capacity as administrative agent, Mortgagee under that certain
mortgage from 1100 West Properties, LLC dated as of the 8~' day of August, 2006 and recorded
in Official Records Book 24801, Page. 3306, of the Public Records of Miami-Dade County,
Florida, as amended by that certain First Amendment to Mortgage, Security Agreement, Fixture
Filing and Assignment of Leases and Rents dated as of the 19~' day of December, 2006 and
recorded in Official Records Book 25210, Page 3790, of the Public Records of Miami-Dade
County, Florida, as further amendment by that certain Second Amendment to Mortgage, Security
Agreement, Fixture Filing and Assignment of Leases and Rents dated as of the 6~' day of
September, 2007 and recorded in Official Records Book 25944 Page 2682, of the Public Records
of Miami-Dade County, Florida, covering a1Uor a portion of the property described in this
Covenant, does hereby acknowledge that the terms of this Covenant are and shall be binding
upon the undersigned and its successors in title.
Witnessed by:
.,
Name:
~,r-~ ~'~tn~Dl1~
STATE OF
EUROHYPO AG, NEW YORK BRANCH,
the New York branch of a German banking
corporation, as administrative agent
By: ~~cur%
Name: Ovid Berner
Title: ~rectcr
G'
By: ,~' ~ ~''~,
Name: Stephen Cox
Title: lDireotoir
COUNTY OF
~ The foregoing instrument was ackno edged before me b '~ 1 -( ~ Gma 5
the ~ `Ce.G~~.,-s of~~.~'~ o ~G l~ ^~ve~ ~`,~ ~
~„ ~~ien, on ~
behalf of the corporation. ism personally known to a •rn ~
WITNESS my hand and official seal in the county and state named above this ~_
day of ~~ ~ ~. `t`n ~.,'~' , A.D., 2007.
PATRICIA A. FERRO
Notary Public -State of New York
No. 01FE6170163
j Qualified in Kings County
My Commission Expires July ~, 2011
~ MIADOCS 2396934 5
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,,
\~~~
NOTARY PL~B I State of~
Print Name: ,C'~~ ~~ ~~~
Commission No.: O "t ~~ lQ 1"l d \ lob.
Commission Expires:~T-~
6 ~~
I Exhibit "A"
-Legal Description of the Property
{ Unit CU-4 and the Hotel Unit of 1100 WEST, A CONDOMIN7CUM, according to
the Declaration of Condominium thereof, as recorded in Official Records Book
25780, Page 0498, of the Public Records of Miami-Dade County, Florida.
[*Note: The following information related to the Property has been added for informational
purposes only: The above units are located at Lots 7, 8, and the North 50.00 feet of Lot 9, Block
80, Subdivision of Block Eighty of the Alton Beach Realty Company, which is apart of Alton
j Beach Bay Front Subdivision, according to the plat thereof recorded in Plat Book 6, Page 12, of
the Public Records of Miami-Dade County, Florida. *]
MIADOCS 2396934 5
i
9
Exhibit "B"
The Order
MIADOCS 2396934 5
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1~
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.~
DESIGN REVIEW'BOARD
City of Miami Beach, Florida
MEETING DATE: June 5,.2007
iN RE: The Application for Design Review Approval for a new landscape plan forthe
• entire site, as well as for alterations to'the existing exterior elevations,
• including modifications to the windows,~doors, and Porte-cochere, and the •
• construction of new 2-story cabanas at the rear of the site.
FILE NO: 20181
PROPERTY: ~ 1100 West Avenue
CONSOLIDATED O R D E R
The applicant, 1100 West Properties, L.L.C., filed an application with the City of Miami Beach
Planning Department for Design Review Approvai:
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT, based
upon the evidence,~information, testimonyand materials presented atthe.public hearing~ancl wfiich
are part of the record for this matter..
A. Based on the plans and documents submitted with •the application, testimony and "
• information provided by the applicant, the reasons setforth in the Planning Department Staff
Report, and the original order issued March 6,2007 and the conditions stated therein (which
order is incorporated herein), the project, as submitted is not consistent with Design Review
Criteria 2, 3, 4, 7 & 10 in Section 118-251 of the Miami•Beach Cade.
B. The projectwould be consistent with the criteria and requirements of.secction 118-259 ifthe
following conditions are met: .
1. The applicant has voluntarily offered, proffered and agreed to construct a public baywalk
(°Public Baywalk°) west of the existing seawall along the rear of the subject site in accord
with the following conditions. This proffer and its• acceptance are based on a
• particularized evaluation and assessment of the subject project, the rational nexus
between such project and impacts to the local transportation network, and the rational
nexus and rough proportionality between the project and impacts to the transportation
network acid the bay walk proffered. The approval of the subject application is
• contingent upon such Public Baywalk being constructed in accordance with the following .
conditions: -
a. The Public Baywalk shall be designed, permitted and built by the applicant, and
may either be attached or detached from the existing seawall. All costs
associated with the design, permitting, construction and maintenance of the
Public Baywalk, as described herein, shall be borne by the applicant, including,
but not limited to, ail required environmental mitigation.
b. The Public Baywalk shall connect to and commence at the western terminus of
• Tenth Street and shall continue to the 'northern property line of 1200 West
Avenue. -
',i i .;lei 1N~""
~~
r•
` ~ Page2of8
Meeting Date: June 5, 2007
DRB File No. 20181
c. ~ The Public Baywaik shall be open to the public from 6:00 am to 9:00 pm, 7 days
a week. 'The applicant may install an operable fence, gate or other operable
barrier to restrict public access to'the Public Baywalk from 10~h Street and/or a
future connection to the north; subject to the review and approval of staff; such
operable fence, gate or barrier shall include some form of automatic timing
device, in order to ensure that the Public Baywalk is open between the hours of
6:00 am and 9:00 pm. Access by the public to the Public Baywalk shall only be
restricted between the hours of 9:00 pm and 6:00 am, and otherwise, as
• detemiined by the Planning Director, in the event of an emergency, dangerous
condition or other circumstance that would render usage of the Public Baywalk a
safety risk. Any violation of this condition shall be subject to a notice of violation
• and enforcement by the Special Master or any alternative remedy available to the
City. '
d. The Rublic Baywalk shall be at least fifteen (15) feet in width and located
westward of the seawall; the method of construction and connection shall be
subject to the review and approval of staff. In the event any permitting~authority
• does not permit the Public Baywalk to be 15 ft. in width, the applicant may
reduce the width of the Public Baywalk, to the degree and in a manner•to be
• approved by City Planning Department staff. The City shall use its best efforts to
assist the applicant in securing permits far the Public Baywalk westward of the
seawall to the extent City's consent.or approval is required for the approval or
• processing of permits. The applicant may elect to locate the Public Baywalk
eastward of the seawall, subject to the review and approval of staff. If the
• applicant is unable to secure permits for the Public Baywalk westward of the
seawall within two (2) years of this approval, the applicant shall design, permit
and corstruct the Public Baywalk eastward of the seawall, subject to and
contingent upon the agreement•and approval of the condominium associations of
1000 and 1200 West Avenue to extend the Public Baywalk in the rear yards,
eastward of the seawall, of the 1000 and 1200 West Avenue properties. The
• Design Review Board may, at its discretion, extend the period of time to obtain
the required permits for the Public Baywalk westward of the seawall. The
applicant shall work diligently while securing permits for the Public Baywalk
westward of the seawall and during such time shall provide progress reports on
the design, permitting and construction of the Public Baywalk to the Planning
Director approximately every six (Ei) months. The,Ptanning Director may referthe
matterto the Design Review Board and/orrequesta progress report at anytime,
• at the expense of the applicant, and the Design Review Board shall retain •
jurisdiction on the matter.
e. In the event that the applicant elects or is required to locate the Public Baywalk
eastward of the seawall, such eastward Public Baywalk shalt extend the full
length of the property from 1000 through 1200 West Avenue, at a width subject
• to the review and approval of Ciiy staff, not to exceed five (5) feet in,width. The
construction of such Public Baywalk i$ subject to and contingent upon the
agreement and approval of the condominium associations of 1000 and 1200. •
West Avenue to extend the Public Baywatk in the rear yards, eastward of the
seawall, of the 1000 and 1200 West Avenue properties. The applicant shall be
responsible for all expenses to design, permit, construct, and maintain the Public
Baywalk eastward of the seawall including, but not limited to all accessible •
connections to 10'" Street. The applicant shall use its good faith efforts to attempt
to secure the approval and agreement of the condominium associations of 1000
.'.~s ..a',;. '
f
.1
• ~ } r ~ . .
• Page 3 of 8
• .. ... . • Meeting Date: June 5, 2007
DRB File No. 20181
and 1200 WestAvenue necessaryforthe Baywalk to extend the full length ofthe
propertyfrom 1000 through 1200 West Avenue. In the event the Public Baywalk
is designed, permitted and constructed eastward of the seawall, the applicant
shall be permitted to construct a glass partition wall, including the use ofone-way
• glass, east of the Public Baywalk on. the pool deck, subject to all applicable
. requirements of the City Code: •
f. In the event consent from the condominium associations at 1000 and 1200 West
• ' Avenue cannot be obtained fora Public Baywalk eastward of the seawall in the
rear yards of the 1000 and 1200 West Avenue properties or for an attached
Public Baywalk westward of tfie seawall, or a permit is not granted for a
detached Public Baywalk westward of the seawall, regardless of any connection
• to a future marina, the applicant has voluntarily proffered to make a monetary
contribution toward right-of-wayimproverrients~on 10th Sireet, westward of West
Avenue, including the construction of a new park at the western terminus of 10'"
Street. The applicant shall have the right to name the park, subject to City laws
on naming rights: The amount of this monetary contribution shall be the average
of three (3) certified construction estimates, to be verified and approved by the
City, for the total hard' construction costs (The "Public Baywalk Cost") of a
. detached Public Baywalk westward of the seawall behind 1000,1100 and 1200
West Avenue. The foregoing shall not preclude the City in the future from
seeking the approval and cooperation of theowners of the 1000,1100 and 1200
West Avenue properties for the location .of a Public Baywalk eastward of the
seawall upon terms and conditions to be determined at that time.
g. The applicant shall be respbnsibie for the maintenance, repair and, if necessary,
• the replacement, if destroyed In whole or part, of the full Public Baywalk from
1000 to 1200 West Avenue, and shall establish reserves and Insurance to
• accomplish this obligation. However, the preceding sentence shall not apply in
the event repair or replacement is necessitated due to damage caused by the
City or any employee or independent contractor of the City.
h. The applicant shall complete all design development and permit drawings for the
proposed Public Baywalk westward of'the seawall prior to the issuance of any
building permit for any work approved by the Design Review Board in this
application. Such drawings shall be reviewed by City staff for sufficiency and
submitted by the applicant to the appropriate regulatory authorities for permitting;
. the design development drawings. shall be deemed complete to the extent they
are ready for submission to the appropriate agencies for the initial level of review.
• The Public Baywalk shall be permitted and substantially completed priorto the
issuance of any TCO, Partial CO or Final CO for any work approved by the
Design Review Board in this application. .
In the event that the Public Baywalk is not permitted orsubstantially completed at
the time a request is made for a TCO, Partial CO or Final CO for any work
approved by the Design Review Board in this application, the applicant shall post
a Letter of Credit, Performance Bond or similar instrument (LOC), in a form
acceptable to the CityAttomey, in the amount of one and one-half (1-1l2) times
the Public Baywalk Cost plus design and permitting costs attributable thereto, to
ensure the design, permitting, construction and completion of ~ the Public
Baywalk. The providing of the LOC shall not substitute for the applicant's
obligation to design, permit and construct the Public Baywalk, and if the costs of
-~:
4 ~"
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` ~. ~ - ..- Meeting Date: June-5, 2007
• - DRB File No. 20181
doing so exceeds the LOC, the applicant shall be responsible for the balance of
such costs. The LOC may only be released in writing by the Planning Director,
and shall not be released until the Public Baywalk is completed and open to the
public. Subsequentto th-e permitting and commencement of construction of the
Public Baywalk, the Planning Director may reduce or increase the total amount of
the- LOC, based upon the progress of and revised estimates of the cost of the
construction.
j. Prior to the issuance of a building permit for any work•approved by the Design
Review Board in this application, the applicant shall enter into and record a
restrictive covenant, approved by the City Attorney, which runs with the land,
confirming the applicant's voluntary proffer to design, permit, construct and
maintain a Public Baywalk, and confirming public access in perpetuity to such
-. ~ Public Baywalk, in accordance with these conditions. The restrictive covenant
shall be binding on successors and assigns and shall be recorded in the public •
records, at the expense of the applicant.
k. If the applicant sells, leases or otherwise conveys the property, these conditions .
shall run with the land, and the • applicant's successors and assigns shall
be obligated to comply with these conditions.
Notwithstanding the foregoing, if any marina should be constructed wesiward of
the seawall at 1000, 1100 or 1200 West Avenue in the future, at any time, the
applicant has proffered that in connection with such marina it will design,
construct and maintain at its cost and expense a Public Baywalk, westward of
the seawall, running the entire length of the rear of the properties at 1000,1100
and 1200 WestAvenue, including a direct connection to the western terminus of
Tenth Street. •
2. The Design Review Board {DRB) orthe Planning Director shall retain the rightto call the-
, owners or operators back before the DRB, at the expense of the owners or operators, to
impose and/or modify the hours of operation, and the placement and use on the properly
of outdoor bar counters, exterior loudspeakers, fixed or portable, should there be valid
complaints (as determined by Code Compliance) about loud, excessive, unnecessary, or
unusual noise. A violation of Chapter 46, Article 1V, "Noise," of the Code of the City of
Miami Beach, Florida (a/k/a "noise ordinance"), as amended, shall be deemed a violation
of this approval and subject the approval to modification in accordance with the
procedures for modification of prior approvals as provided for in the Code, and subject
• the applicant to the review provided for in the first sentence of tf}is paragraph.
3. The location, specifications and number of exterior speakers steal( be consistent with the
acoustic plan submitted by the applicant and subject to the review and approval of staff.
4. The applicant may remove and replace the existing tiles from the front exterior of the
structure, by obtaining a separate permit immediately and prior to the issuance of a
Building Permitforthe project. In the event the proposed exterior modifications approved
herein do not go forward, for any reason, all original file removed by the applicant shall
either be restored or replaced with a similar tile, iri a manner to be approved by staff. -
5. Revised elevation, site plan and floor plan drawings shall be submitted to and approved
by stafF, at a minimum, such drawings shall incorporate the following:
I ~ ' ~ Page 5. of 8 •
' ~ Meeting Date: June 5, 2007
• ~ ~ ~ ~ ~ DRB File No. X0181
a. Final details of all new file work shall be subject to the review and approval of staff_ •
• b. Manufacturers drawings and Dade County product approval numbers for all new
• windows, doors and glass shall be required. ~ .
c. Ali roof-top fixtures, air-conditioning units and mechanical devices shall be clearly •
• noted on a revised roof plan and shall •be screened from view, in a manner to be
• approved by staff.
d. Prior to the issuance of a Certificate of Occupancy, the project Architect shall verify,
• in writing, tha# the •subject project has been constructed in accordance with theplans
approved by the Planning.Departmentlor Building Permit. •
• 6. A revised landscape plan, prepared by a Professional Landscape Architect, registered in •
' the State of Florida, and corresponding site plan, shall be submitted to and approved by
staff. The species type, quantity, dimensions, spacing, location •and overall height of all
i ' •, plant material shall be clearly delineated and subject to the review and approuai of staff.
At a minimum, such plan shall incorporate the following:
' a. The ficus hedge proposed along fhe eastern perimeterof the~properly (fronting West
• Avenue), including those portions of the hedge rounding the comers to a depth of at
'~ least ten.(10') feet, shall not be permitted; such hedge maybe replaced with a hedge
' ~ or plant material that will not exceed five (5') feet in height and shall be subject to the
review and approval of staff.
b. Along the eastern perimeter of the property (fronting West Avenue) the smaller •
!i green island ficus shall be inverted and shall face the sidewalk, with the slightly large
hedge material located behind it.
c. All new overhead utilities shall•be placed underground, #o the extent permitted bx
FPL.
d. Right-of-Way improvements in front of the property steal! be included in the
Landscape plans.
. e: All exterior walkways shall consist of decorative pavers, set in sand or other semi-
pervious material, subject to the review and approval of staff. ,
~I f. All landscape areas abutting driveways and parking areas shall be defined by •
j ~ decorative bollards.
g. A fully automatic irrigation system with 100% coverage and an automatic rain sensor
in order to render the system inoperative in the event of rain. Right-of-way areas
shall a4so.be incorporated as part of the irrigation system.
• h. The utilization of root barriers and/or structural soil, as applicable, shall be clearly
delineated on the revised landscape plan.
i. The applicant shall verify, prior to the issuance of a Bui{ding Permit, the exact
locatian of ail backflow preventors and all other related devices and fixtures; such
fixtures and devices shall not be permitted within any required yard or any area
'~ ~ fron#ing a street or sidewalk. The location of backflow preventors, Siamese pipes or
i--
'~ " ~ , ~ ~ Page6of8
... ~ Meeting Date: June 5, 2007.
• ~ ~ DRB File No. 20181
other related devices and fixtures, if any, and how they are screened with landscape
material from the right-of-way, shall be clearly indicated on the site and,landscape .
plans and shah be subject to the review and approval of staff.
The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all applicable FPL transformers or vault rooms; such transformers and
vault rooms, and all other related devices and fixtures, shall not be permitted within
any required yard or any area fronting a street or sidewalk. The location of any
exterior transformers, and how they are screened with landscape material from the
right-af--way, shall be clearly indicated on the site and landscape plans and shall be
subject:to the review and approval of staff.
. ~ k. Priarto the issuance of a Certificate of Occupancy, the Landscape Architectforthe
project architect shall verify, in writing, that the project is consistent with the site and
• landscape plans approved by the Planning Department for Building Permit.
7. Ali new building signage shall be consistent in type, composed of flush mounted, non-
plastic,.non-illuminated, individual letters and shall require a separate permit.
8. The final exterior surface color scheme, including color samples, .shall be subject to the
review and approval of staff and shall require a separate permit.
• 9. A traffic mitigation plan, which addresses all roadway Level of Service (LOS} deficiencies
relative to the concurrency requirements of the City Code, if required, shall be submitted
priorto the issuance of a Building Permit and the final building plans shall meet all other
requiremen#s of the Land Development Regulations of the City Code.
10. A!I new and altered elements, spaces ahd areas shall meet the requirements of the
Florida Accessibility Code (FAC}.
11: The applicant may be required~to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based on a
preliminary review of the proposed project, the following maybe required by the Public
Works Department: .
a. A traffic and neighborhood impact study shall be conducted as a means to measure
a proposed development's impact on transportation and neighborhoods. The study
shall address all roadway Level of Service (LOS) deficiencies relative to the
concun'ency requirements ofthe City Code, and if required, shat! be submitted prior
to the issuance of a Building Permit. The final building plans shall meet all other
requirements of the Land Development Regulations ofthe City Code. The developer
. shall referto the most recent City of Miami Beach's Traffic and Neighborhood Impact
Methodology as issued by the Public Works Department.
b. Remove/replace sidewalks, curbs and gutters on all street frontages, if applicable.
. Unless otherwise specified, the standard color for city sidewalks is red, and the
standard curb and gutter color is gray.
i
c. Mill/resurface asphalt in rear alley along property, if applicable.
d. Provide underground utility service connections and on-site transformer location, if
necessary. ~ ~ .
• -. - ~ ~ ~ Page 7 of 8
` , ~ _ • ~ . . - ~ ~ ~ Meeting Date: June 5, 2007
• ~ ~ DRB Fiie No. 20189
e. Provide back-fiouv prevention devices on all water services.
f. Provide on-site, self-contained storm water drainage forthe proposed development
j g, Meet water/sewer concurrency requirements including a hydraulic water model
analysis and gravity sewer system capacity analysis as determined by the
~~ ~ Department and the required upgrades to water and sewer mains servicing this
project.
h. Payment of City utility impact fees for water~meters/services.
i. Provide flood.barrier ramps to underground parking or minimum stab elevation to be
. at highest adjacent crown road elevation plus 8".
j. Right-of-way permit must be obtained from Public Works..
• k. All right-of way encroachments must be removed.
~~ I. AI! planting/landscaping in.the public right-of-way must be approved by the Public
- Works and Parks Departments.
• • ~ 12. The. project shall comply with any landscaping or other.sidewalk/st~eet improvement
standards as may be prescribed by a relevant Urban Design Master Plan approved
'; prior to the completion of the project and the' issuance of a Certificate of Occupancy.
13. At the •time of completion of the project, only a Final Certfrcate of Occupancy (CO) or
• Final Certificate of Completion (CC) may be applied for; the staging and scheduling of.
• the construction on site shall take this into account. All work on site must be completed
• in accordance with the plans approved herein, as well as by the Building, Fire,
Planning, CIP and Public Works Departments, inclusive of all conditions imposed
herein, and by other Development Review Boards, and any modifications required
• pursuant to field inspections, prior to the issuance of a CO or CC.
.14. The Final Order is not severable, and if any provision orcondition hereof is held void or
unconstitutional in a final decision by a court of competent jurisdiction, the order shall
be returned to the Board for reconsideration as to whether the order meets the criteria
for approval absent the stricken provision or condition, and/or it is appropriate to modify
the remaining conditions or impose new conditions. .
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimonyand materials presented atthe March 6, 2007 and June 5, 2007 meetings, which are part
of the• record for this matter and the stafF reports and analysis from the March 6, 2007 and June 5,
2007 meetings, which are adopted herein, including the staff recommendations which were
amended by the Board, that the Application for Design Review Approval is GRANTED for the above-
referen'ced project subject to those certain consolidated conditions specified in paragraph B of the
Findings of Fact hereof (condition nos. 1-14, inclusive), to which the applicant has agreed. '
No building permit maybe issued unless and until all conditions of approval as setforth herein have
been met. The issuance of Design Review approval does not relieve the app[icantfrom obtaining all
other required Municipal, County and/or State reviews and permits, including zoning approval, If
~~
,,
lLt4~T P`~AGE
i '
!~ ~ ~ ~ Page 8 of 8
• ~ Meeting Date: June 5; 2007
DRB File No. 20181
adequate handicapped access is not provided, this approval does not mean that such handicapped
access is not required or that the Board supports an applicant's effort to seek waivers relating to
handicapped accessibility requirements. •
When requesting a building permit threes sets- of plans approved by the Board. modified in
accordance with the above conditions, shall be submitted to the Planning Department. If all of the
• above-specified conditions are satisfactorily addressed, the plans will be reviewed for building permit
• approval. Two (2) sets will be returned to you for submission for a building permit and one {1) set
i will be retained for the Design Review Board's file. •
This Final Order consolidates all conditions and requirements for Design ReviewApproval assame
are contained herein•and in the original Order of March 6, 2007; as amended. Accordingly, this
Order shall serve as the Final Order for the project and, in the event of conflict between the
provisions hereof and those of the March 6, 2007 Order, the provisions hereof shall control.
In the event a Full Building Permit is not obtained within eighteen (18) months of the March 6, 2007
meeting date, and construction does. not commence and continue •in accordance with the
requirements of the applicable Building Code, the Design Review Approval will expire and become
null and void, unless the applicant, prior to expiration of such period, makes application to the Board
for an extension of time; the granting of any such extension of time shall be at the discretion of the
Board. At the hearing on any such application; the Board may deny or approve the request and •
modify the above conditions or. impose additional conditions. In the event a proposed code
amendment should render the subject project non-conforming, as more specifically set forth
in sections 148.168 and 918-169 of the City Code, then the project shall not be eligible to
receive an extension of time for any reason. •
Approved As To Form: .-~ _~
Legal Department: ~-"~/ (6 ~~ ~'''~~' ~ )
Filed with the Clerk of the Design Review Board on (! 0 '~ ( . )
Failure to comply with this Order shall subject the Design Review Approval to Section 118-258, City
Code, for revocation or modifrcatio~n[~of~the Design Review Approval.
Dated this ~ .day of ~ V 1~ ~ , 20~.
• DESIGN REVIEW BOARD
' THE CI OF MI I B H, FLORIDA
• BY:
. THOMAS R. M00 CP
' ~DESlGN AND PRESERVATION MANAGER
• ~ FOR THE CHAIR
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STATE pF FLORIDA, COUNTY OF DADS
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of the
2~~day of November, 2008 by and between 1100 West Properties, LLC ("1100 West"); the City
of Miami Beach (the "C~"); and Shutts & Bowen LLP ("Escrow A ent").
RECITALS
A. 1100 West is the owner of that certain property located in the City and legally
described on Exhibit "A" attached hereto (the "Property"). 1100 West is developing a
condominium hotel project, commonly known as the Mondrian South Beach (the "Mondrian
Project").
B. The Mondrian Project received design review approval .from the City's Design
Review Board ("DRB"}, as evidenced by that certain Consolidated Order issued by the DRB on
June 7, 2007, as amended by that certain Amended Consolidated Order issued by the DRB on
November 6, 2008 {collectively and as amended, the "DRB Approval"), both of which aze
attached hereto as Exhibit "B."
C. The DRB Approval contains conditions, requiring generally that 1100 West
design, construct and obtain permits for a Public Baywalk (the "Baywalk"} either west or east of
the seawall from 10~' Street to 12ei Street or, if required government permits cannot be obtained
for the construction of a Baywalk or if the abutting condominium associations do not consent to
a Baywalk east of the seawall, that 1100 West contribute funds toward right-of--way
improvements to be constructed at the western terminus of 10~' Street in Miami Beach, all as
more specifically set forth in the DRB Approval.
D. The DRB Approval also requires generally that, in the event the Baywallc has not
received all required governmental permits by the date of issuance of a partial, temporary or
permanent Certificate of Occupancy relating to the Mondrian Project, 1100 West will establish
" ~ an ~Escrow~ Account- in the amount of $800,000 as security for its obligation to construct a
Baywalk pursuant to the terms of the DRB Approval.
E. Since 1100 West has requested the issuance. of a Partial Certificate of Occupancy
for the Mondrian Project and the Baywalk has not, as of this date, received all required
governmental permits, 1100 West has agreed to place in escrow with Escrow Agent the sum of
$800,000, to be disbursed in accordance with the terms and provisions of this Agreement.
F. This Agreement does not alter. or amend any obligations of 1100 West or other
affected entities arising from the DRB Approval, which remains in full force and effect,
including but not limited to paragraph 1.1. therein, on the obligation to include a public baywalk
as part of a future marina if approved at the Property.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which aze hereby acknowledged, the parties hereby
agree as follows:
MtADOCS 3160639 3
Exhibit B
1. The City and 1100 West agree that the foregoing recitals aze true and correct and
are incorporated herein as if repeated at length.
2. Simultaneously with its execution of this Agreement, 1100 West has deposited
with Escrow Agent the sum of $800,000 (the "Escrowed Money"). The Escrow Agent hereby
acknowledges receipt of the Escrowed Money and agrees to hold the sa>~e in trust and disburse
the Escrowed Money in accordance with the terms of this Agreement. Escrow Agent shall be
obligated to invest the Escrowed Money in aninterest-bearing account. All interest that accrues
on the Escrowed Money shall be the property of and disbursed to 1100 West.
Escrow Agent shall hold the Escrowed Money and disburse same as follows:
(a) If, after the date that is two (2) yeazs after the date of the DRB Approval
(i.e., June 7, 2009) (unless such date is otherwise extended by the City), the City Manager or
City Planning Director submits a signed statement (the "City Statement") to the Escrow Agent
stating that 1100 West has not obtained either (i) all required permits from governmental
agencies for the construction of a Baywalk westwazd of the seawall or (ii) the consent from the
condominium associations at 1000 and 1200 West Avenue for the construction of a Baywalk
eastward of the seawall, then Escrow Agent shall disburse the Escrowed Money to the City for
right-of--way improvements (the "Alternate Improvements") to be constructed at the western
terminus of 10~' Street, including the construction of a new park, pursuant to the DRB Approval.
(b) In the event that the City Statement has not been submitted as described in
paragraph 3(a) above, and 1100 West has received the required permits to construct the Baywalk,
1100 West shall provide the Escrow Agent, with copy to the City, written evidence of the total
cost of the Baywalk prior to commencement of construction. Escrow Agent shall return the
Escrowed Money to 1100 West on a pro-rata basis as 1100 West submits evidence to Escrow
Agent of the monies expended for construction of the Baywalk. More specifically, Escrow
Agent shall return apro-rata shaze in four equal installments of the Escrowed Money to 1100
West after the equivalent of 25%, 50%, and 75% of the cost to complete the Baywalk is
expended by 1100 West. The fina125% of the Escrowed Money shall not be released until the
Baywalk is actually opened to the public, and written certification of such event is given by the
City to the Escrow Agent.
(c) Escrow Agent shall give written notice to City of its release of the
Escrowed Money.
4. In the event Escrowed Money is released to the City under pazagraph 3(a) above
for the Alternate Improvements pursuant.to the DRB Approval, 1100 West's total contribution
for the Alternate Improvements shaA be determined based on the formula specified in the DRB
Approval (the "Required Contribution"). In the event that the amount of the Required
Contribution is determined to be less than the Escrowed Money pursuant to the cost
methodology set forth in the DRB Approval, then the amount of the Required Contribution shall
be disbursed to the City and the remainder of the Escrowed Money shall be released to 1100
West. In the event that the amount of the Required Contribution is determined to be more than
the Escrowed Money, 1100 West shall disburse to the City such additional funds to reach the
Required Contribution within thirty days of the date specified in paragraph 3(a) above. If 1100
West fails to disburse such additional funds to reach the Required Contribution as provided
MIADOCS 3160639 3 ~ 2
herein, or it or the Escrow Agent otherwise breaches this Agreement, 1100 West acknowledges
that City may revoke certificates of use and occupancy for the restaurant and lounge in the hotel
pooUpatio area, or may file suit in the Circuit Court for the Eleventh Judicial Circuit to enforce
this payment obligation and/or seek other relief. Prior to the revocation of certificates of use and
occupancy for the restaurant and lounge or the filing of suit in the Circuit Court, the City shall
provide 1100 West written notice of its intent with the opportunity for 1100 West to cure the
breach within thirty (30) days from the date of the notice. In the event that suit is filed, 1100
West hereby waives any objections to service, venue, waives trial by jury, and waives all
challenges to the validity of the payment and other obligations arising from the. DRB Approval.
5. All notices and/or written statements given or made pursuant hereto, or for the
purposes of invoking or enforcing any of the provisions hereof, shall be in writing (by a party or
by such party's attorney), and shall be sent by (i) personal delivery, (ii) delivery by a recognized
overnight courier, (iii) United States mail, postage prepaid, registered or certified mail, or (iv)
facsimile, with proof of transmission, addressed as follows:
If to 1100 West: Mr. Eric Bass
Senior Vice President of Development
Morgans Hotel Group Corp.
475 Tenth Avenue, 11~' Floor
New York, NY 10018
Telephone: (212} 277-4130
Fax: (212) 277-4270
With Copy to: Alexander I. Tachmes, Esq.
Shutts & Bowen LLP
201 S. Biscayne Blvd., Suite 1500
Miami, Florida 33131
Telephone: (305) 347-7341
Fax: {305) 347-7754
If to City: Planning Director
City of Miami Beach
1700 Convention Center Drive
Planning Department, 2nd Floor
Miami Beach, FL 33139
Attention: Jorge Gomez
Telephone: (305) 673-7000, Ext. 6150
Fax: (305) 673-7559
MIADOCS 3160639 3 3
With G`opy to: City Attorney .
City of Miami Beach
Office of the City Attorney
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Attention: Gary M. Held, Esq.
Telephone: (305) 673-7000, Ext. 6532
Facsimile: (305) 673-7002
If To Escrow Agent: Shuns & Bowen LLP
201 S. Biscayne Blvd., Suite 1500
Miami, Florida 33131
Attention: Alexander I. Tachmes, Esq.
Telephone: (305) 347-7341
Fax: (305) 347-7754
Personal delivery or overnight courier shall be effective upon receipt or as of the date of first
attempted delivery, and notice by mail shall be effective upon receipt as evidenced by a return
receipt, and notice by facsimile shall be effective upon transmission. Any of the foregoing
addresseffimay, at any time by giving ten (10) days prior written notice to the other addressees,
designate any other address in substitution of the foregoing address. The Escrow Agent shall
receive copies of all notices.
6. This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all constituting only one agreement. Executed counterparts received by
facsimile or electronically shall have the same validity as original counterparts.
7. The Escrow Agent:
(a) The Escrow Agent shall have no duties or obligations hereunder except
those specifically set forth herein and such duties and obligations shall be determined solely by
the express provisions of this Agreement. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith unless a court of competent jurisdiction determines that the
Escrow Agent's gross negligence or willful misconduct was the primary cause of the loss to a
party hereto. The Escrow Agent shall not incur any liability for following the instructions set
forth in this Agreement or written instructions given by a party hereto in accordance with this
Agreement. The Escrow Agent shall be entitled to assume that all notices and other documents
provided to it aze authentic and that all persons and entities executing such notices or documents
have been duly authorized to do so.
(b) In the event the Escrow Agent shall be uncertain as to its duties or rights
under this Agreement or shall receive any instruction, claim or demand that; in the opinion of the
Escrow Agent, is in conflict with the provisions of this Agreement (any of the foregoing, an
"Escrow Agent Dispute"), the Escrow Agent shall be entitled to refrain from taking any action
with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and non-
appealable order of a court of competent jurisdiction or by an instrument signed by 1100 West
and the City. In the event of any Escrow Agent Dispute, the Escrow Agent shall be entitled to
petition a court of competent jurisdiction in the County of Miami-Dade, Florida to resolve such
MIADOCS 3160639 3 4
Escrow Agent Dispute, and 1100 West and the City each consents to the jurisdiction of any such
court with respect to any such Escrow Agent Dispute.
(c) ~ The Escrow Agent shall be entitled to employ such legal counsel and other
experts as the Escrow Agent may deem necessary to advise the Escrow Agent in connection with
the Escrow Agent's duties hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefore which shall be paid by 1100 West. The Escrow
Agent shall be reimbursed by 1100 West for all reasonable fees and expenses incurred by the
Escrow Agent in connection with the performance of its duties and obligations under this
Agreement and reasonable courier fees incurred by the Escrow Agent in connection with any
deliveries required to be made by the Escrow Agent in connection with the performance of its
duties and obligations under this Agreement.
(d) The Escrow Agent shall not be deemed to have knowledge of any matter
or thing unless and until the Escrow Agent has actually received written notice of such matter or
thing and shall not be charged with any constructive notice whatsoever.
(e) In the event instructions from the parties hereto would require the Escrow
Agent to expend any monies or to incur any cost, the Escrow Agent shall be entitled to refrain
from taking any action until it receives payment for such costs if such costs exceed $500.
(f} In the event the Escrow Agent is joined as a party to a lawsuit by virtue of
the fact that it is holding the Escrowed Money, the Escrow Agent shall, at its option, either: {a}
tender the Escrowed Money to the registry of the appropriate court; or (b) disburse the Escrowed
Money in accordance with the court's ultimate disposition of the case. In the event the Escrow
Agent tenders the Escrowed Money to the registry of the appropriate court and files an action of
interpleader naming 1100 West and the City and any affected third parties of whom the Escrow
Agent has received actual notice, the Escrow Agent shall be released and relieved from any and
all further obligation hereunder or in connection herewith.
(g) 1100 West and the City acknowledge that Escrow Agent is the law firm
representing 1100 West, and that Escrow Agent shall have the right to represent 1100 West in
any dispute among the parties hereto with respect to the Escrowed Money or otherwise. Upon
delivery of the Escrowed Money pursuant to this Agreement, Escrow Agent's obligations
hereunder shall terminate.
8. 1100 -West shall jointly and severally indemnify, defend and hold harmless the
Escrow. Agent and its directors, officers, employees and agents from any loss, liability or
expense incurred by the Escrow Agent (including the fees and expenses of in-house or outside
counsel) arising out of or in connection with (a} its execution and performance of this
Agreement, except to the extent that such loss, liability or expense is due to the gross negligence
or willful misconduct of the Escrow Agent, or (b) its following of any instructions or other
directions from 1100 West or the City, except to the extent that its following any such instruction
or direction is expressly forbidden by the terms hereof. The provisions of this pazagraph shall
survive the termination of this Agreement.
9. This Agreement shall be governed by and construed and enforced in accordance
with the Laws of the State of Florida without regazd to principles of conflict of laws.
MIADOCS 3160639 3 5
10. This Agreement constitutes the entire agreement of the parties hereto regarding
the subject matter hereof. There are no agreements or understandings, oral or written, between
the parties hereto regarding the subject matter hereof that are not merged herein or superseded
hereby.
11. No waiver of any right under this Agreement shall be valid unless it is contained
in a writing signed by the party to be charged therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
WITNESSES:
r t Name:
1100 WEST PROPERTIES, LLC
By: 1100 WEST HOLDINGS,
By:
~ - ~~
Print Name: U
Print Name:
Print Name:
Print ame. ~iO coo v c8 t-C~
Z
Print ame: , f ~o.~, `r _ . ~ -~_ Z_
Title: PRESIDENT
CITY OF MIAMI BEACH
By:
Name:
Title:
SHUTTS & BOWEN LLP, as esc w a ent
By:
Na -~L 1fee1
MIADOCS 3160639 3 6
10. This Agreement constitutes the entire agreement of the parties hereto regarding
the subject matter hereof. There are no agreements or understandings, oral or written, between
the parties hereto regarding the subject matter hereof that are not merged herein or superseded
hereby.
11. No waiver of any right under this Agreement shall be valid unless it is contained
in a writing signed by the party to be charged therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
1100 WEST PROPERTIES, LLC
Print Name:
Print Name:
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Print Name: ~ ~
A
n
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PrintName: l^vM=rJ s~eNt--
By:
Name:
Title: '
CITY OF BE H
By:
T ~lyr,.~ y~~/~t~u~
d
SHUTTS & BOWEN LLP, as escrow agent
By:
Name:
Title:
MIADOCS 3160639 3 6
~-
Print Name:
Print Name:
•2 • D
Date
language and for
Ci Atto ey
Dated: ~Nr. 3'/~,~- °*'s d
F:~atto~LG~BaywalksVvlondrianl#3160639v3_MU>,DOCS_ -escrow with Held revisions FIIJAL.DOC
MIADGCS 3160639 3 7 /~~
m MIAMIBEACH
Office of the City Clerk
TO: Matti H. Bower and Members of the City Commission
FROM: Robert E. Farther, City Clerk ~~
DATE: April 9, 2009
MEMORANDUM
SUBJECT: DRB File No. 20181 Appeal, 1100 West Avenue- Mondrian
At the January 28, 2009 City Commission Meeting, the Commission approved via Resolution
No. 2009-26976, the setting of a public hearing to review a Design Review Board decision
requested by 1100 West Properties, LLC, pertaining to DRB File No. 20181 for the property
located at 1100 West Avenue. The public hearing was scheduled for February 25, 2009.
At the February 25, 2009 Commission Meeting, at the request of the applicant, the public
hearing was opened and continued to the April 22"d Commission Meeting.
Pursuant to City Code Section 118-262, the applicant may seek review of any order of the
Design Review Board by the City Commission, except that orders granting or denying a request
for a rehearing shall not be reviewed by the City Commission. A full verbatim transcript of all
proceedings which are the subject of the appeal shall be provided by the party filing the petition,
along with a written statement identifying those specific portions of the transcript upon which the
party filing it will rely for purposes of the appeal. The verbatim transcript and written statement,
or if represented by legal counsel, appropriate legal briefs, shall be filed no later than two weeks
prior to the first scheduled public hearing to consider the appeal.
The transcript and "Appellant's Pre-hearing Statement" was delivered to the City Clerk's Office
on Wednesday, April 8, 2009 and is being transmitted to the City Commission and City
Attorney's Office on Thursday, April 9, 2009.
Attachments -Copy of Transcript and Brief.
C: Jorge Gonzalez, City Manager
Jose Smith, City Attorney (Copy of transcript and brief attached)
Jorge Gomez, Planning Director (Copy of transcript and brief attached)
Hilda Fernandez, Assistant City Manager
F\C[fR`•.$ALI\L((LY'`•.MEMOS`•.2009`•.DRBfile#20)18) 1 JOUweskweMondrion.doc
We are commiflcd b providing eacelienl public SBNICe Ond Sa/B!y to ail who iivB. work: and pray in our vibrant. lropica~: historic cammunih•.
An Appeal before the City Commission of the City of Miami Beach
1100 WEST PROPERTIES, LLC,
Appellant,
v.
CITY OF MIAMI BEACH DESIGN
REVIEW BOARD,
Appellee.
DRB File No. 2018
1100 West Avenue-Mondrian
APPELLANT'S PRE-HEARING STATEMENT
Statement of the Case
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A decision was rendered by the Miami Beach Design Review Board (DRB)
on November 4, 2008, denying the request of the Appellant, 1100 West
Properties, LLC, (1100 West), to modify the conditions of an order by the DRB
which was entered on June 5, 2007 (the 2007 Order).
1100 West was represented at the November 4, 2008 hearing by attorney
Alex Tachmes (Mr. Tachmes); Eric Bass, Senior Vice-President of Morgans
Hotel Group; Keith Mann, Vice-President of 1100 West; and Russell Galbut (Mr.
Galbut), an approved manager of the Mondrian Hotel project. As stated by Mr.
Tachmes and Mr. Galbut, 1100 West requested as follows:
(1) That the 2007 Order be amended to lengthen the time frame within
which 1100 West would be required to build a public bay walk behind the
Mondrian Hotel (the Mondrian);
(2) That the 2007 Order be amended to remove the requirement that
1100 West build a public park on 10~' Street in the event that the bay
walk could not be built within 2 years; and
(3) That the 2007 Order be amended to remove the requirement that
1100 West post a LOC in the amount of 150% of the cost of the bay walk
if the bay walk was not finished at the time the Mondrian applied for a
certificate of occupancy (CO).
The DRB denied 1100 West's requests other than to replace the LOC
requirement with a requirement that 1100 West place $80,000 in escrow.
Argument and Authority
Article II, Division 3 DRB, of The Miami Beach City Code (the City Code)
established the powers and duties of the DRB are as follows:
(1) To promote excellence in urban design.
(2) To review all applications requiring design review approval for
all properties not located within a designated historic district or not
designated as a historic site. For works of art in the art in public
places program, the design review board shall serve as advisor to
the city commission, and may impose binding criteria, as provided
in chapter 82, article VII, art in public places, division 4, procedures.
(3) To prepare and recommend adoption of design plans
pertaining to neighborhood studies.
(4) To promote reduced crime and fear of crime through the use of
2
crime prevention through environmental design guidelines and
strategies, as approved by the city commission.
(5) To hear and decide appeals of the planning director when
deciding matters pursuant to section 118-260.
There is nothing in the City Code that would empower the DRB to force
1100 West, or any other builder, to build a public park on land unrelated to its
project as a prerequisite to obtaining DRB design approval and a CO.
100 West therefore rightfully requested that the DRB remove the requirement in
the 2007 Order that 1100 West build a public park on land that approximately a
block away from the Mondrian if the bay walk is not built within a specified period
of time.
Thomas Mooney (Mr. Mooney), Design and Preservation Manager for the
Chair of the DRB, clearly admitted during the November 4th DRB meeting that the
DRB used its power to force 1100 West into agreeing to the conditions of a
development order (which included the public park requirement). Mr. Mooney
stated as follows:
Mr. Mooney: "I don't think the board would have approved the request for
the major (sic) modifications that were approved for the exterior of the
building unless the DRB conditions were as they were" (Transcript, p. 22).
Mr. Mooney has also acknowledged that, absent an extension of time
sufficient for the CMB to obtain state approval for the bay walk, 1100 West could
be forced to pay for both the bay walk and the public park. Mr. Mooney stated as
follows:
Mr. Mooney: "If they give us $600,000 for a street end and we effectuate
the street end, and then two years later they get an approval for a marina,
the City is not going to give them money for bay walk because the bay
3
walk is going to be part of that marina that is required by this order"
(Transcript, p.49).
The CMB would be hard-pressed to cite any section of the City Code that
bestows upon the DRB the power compel a property owner to contribute money
to the City, or build a public park a block away from its property, or perform any
other action that is unrelated to the "maintenance of high standards of
architecture" as set forth in Article VI of the City Code, Section 118.254 (c),
above.
It is even questionable whether the DRB acted lawfully when it imposed
a requirement that 1100 build a public bay walk as a precondition to the issuance
of a CO. In VES Carpenter Contractors v. City of Dania, 422 So.2d 342, 354 (Fla.
App. Dist. 4 1982), the Court ruled that impact fees which were collected as a
precondition to obtaining building permits and certificates of occupancy were
illegal and amounted to coercion because the city had not passed an enabling
ordinance permitting the assessment of the fees. While the CMB is considering
the enactment of legislation imposing a requirement that property owners
contribute to public bay walks behind their properties and setting uniform
standards for enforcement, no such legislation or standards were in effect at the
time the DRB imposed the bay walk requirement upon the Appellant. As Mr.
Mooney has acknloweldged, had 1100 West declined to build the bay walk
and/or the public park, its project would not have been approved.
While 1100 West remains willing to build the bay walk should the state
approvals be obtained, it cannot accede to the coercion that was applied by the
DRB in extracting the "agreement" by 1100 West to build a city park a block away
4
from the Mondrian if the bay walk is delayed due to state permitting difficulties or
cannot be built. The requirement that the Appellant build the proposed public
park is clearly unrelated to the "maintenance of high standards of architecture" or
any other objective within the power and authority of the DRB (Article VI of the
City Code, Section 118.254 (c); Article II, Division 3 DRB of the Miami Beach City
Code), and was wrongfully included in the 2007 Order and ratified by the DRB on
November 4, 2008. Considering the City's lack of diligence and/or success in
pursing the State permits for the bay walk, as well as rapidly declining conditions
in the real estate market, it was manifestly unjust for the DRB to deny the
Appellant's requests for reasonable extensions of time and modifications to the
2007 Order.
Conclusion
1100 West has paid millions of dollars for taxes, impact fees, and permits
for the Mondrian project, and has never sought to avoid its legitimate
responsibilities to the City of Miami Beach. In addressing the DRB on November
4, 2008, Mr. Galbut pointed out how often the partners in 1100 West have also
been called upon to contribute to the City voluntarily through its various projects,
and have done so generously. But it is necessary to draw the line when a city
board resorts to unlawful methods of coercing financial contributions from those
doing business in the City.
As Mr. Galbut stated, "it is unconscionable that the city administration
would take a position that if you want this type of deferral, you have to pay
another $800,000 for a park that has nothing to do with the property" (Transcript,
pg 18-19). As set forth above, said actions by the DRB were not only
unconscionable, but were also contrary to the clearly expressed letter and spirit
of the City Code and applicable case law. In light of facts and law stated above,
as well as the difficulties experienced by the CMB in obtaining the necessary
state permits for the bay walk and the dire economic conditions now affecting our
country and the Appellant, the failure of the DRB to grant the extension of time
and other relief requested by 1100 West on November 4, 2008 should be
remedied by this honorable City Commission.
WHEREFORE, the Appellant, 1100 West Properties, LLC, respectfully
requests the following relief:
1. That the City Commission reverse and correct the action of the DRB
refusing to extend the deadline by which 1100 West must build the
bay walk until efforts to obtain state permitting have been exhausted;
2. That the City Commission reverse and correct the action of the DRB
refusing to extend the time for 1100 West Avenue build a bay walk
behind its property to provide the City with a reasonable amount of
time to obtain state permitting;
3. That the City Commission reverse and correct the action of the DRB
refusing to remove the requirement that 1100 West build a city park in
the event said bay walk is not built within a set period of time or cannot
be built due to the inability to obtain state permitting or other factors
beyond the Appellant's control; and
4. That the City Commission grant such other relief as is just.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and exact copy of the foregoing
Appellant's Pre-hearing Statement and copies of the transcript of the relevant
proceedings at the DRB meeting on November 4, 2009, was hand-delivered to
Robert Parcher, City Clerk, 1700 Convention Center Drive, Miami Beach, FL
33139 and Jose Smith, Miami Beach City Attorney, 1700 Convention Center
Drive, Miami Beach, FL 33139 on this ~ day of April, 2009.
DAVID H. NEVEL, P.A.
950 S. Pine Island Road, Ste. A-150
Plantation, Florida 33324
Tel: 954-4
Fax: 95 27- 0
By:
David H. Nevel, Esq.
FBN 201537
Attorney for Appellant