2014-28814 Reso RESOLUTION NO, 2014-28814
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, APPROVING, IN SUBSTANTIAL FORM (AS ATTACHED AND
INCORPORATED TO THIS RESOLUTION), FOLLOWING FIRST
READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT, AS
AUTHORIZED UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS
163.3220 — 163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 8701
COLLINS DEVELOPMENT, LLC ("8701"), WHICH DEVELOPMENT
AGREEMENT, IN PERTINENT PART, (1) MEMORIALIZES THE CONDITIONS
FOR VACATING THE CITY'S RIGHT-OF-WAY AT 87TH TERRACE EAST OF
COLLINS AVENUE ("CITY PARCEL"); (2) GRANTS TO THE CITY A
PERPETUAL PEDESTRIAN ACCESS EASEMENT ACROSS A PORTION OF
THE VACATED CITY PARCEL; (3) ENSURES THE PAYMENT TERMS FOR
8701'S PAYMENT OF A VOLUNTARY MONETARY CONTRIBUTION, IN THE
AMOUNT OF $10.5 MILLION DOLLARS, TO BE USED BY THE CITY FOR
PUBLIC PURPOSES; (4) PROVIDES FOR THE TERMS AND CONDITIONS
UNDER WHICH 8701 WILL DESIGN, DEVELOP AND CONSTRUCT CERTAIN
IMPROVEMENTS TO THE CITY'S RIGHT-OF-WAY AT 87TH STREET AND
COLLINS AVENUE, INCLUDING WITHOUT LIMITATION, THE TERMS OF A
MANAGEMENT AGREEMENT BETWEEN THE CITY AND 8701; AND (5)
DELINEATES THE CONDITIONS FOR THE DESIGN, DEVELOPMENT AND
CONSTRUCTION OF THE PROJECT LOCATED AT 8701 COLLINS AVENUE
AS A HOTEL AND/OR RESIDENTIAL CONDOMINIUM SITE; FURTHER
AUTHORIZING THE CITY AND 8701 TO CONTINUE TO NEGOTIATE AND
FINALIZE ANY OUTSTANDING TERMS OF THE DEVELOPMENT
AGREEMENT BETWEEN FIRST AND SECOND READING; AND FURTHER
SETTING THE SECOND AND FINAL READING OF THE DEVELOPMENT
AGREEMENT FOR A TIME CERTAIN.
WHEREAS, on September 17th, 2014, after second reading public hearing, the City
Commission approved Resolution No. 2014-28754, attached and incorporated as Exhibit "A"
hereto and also referred to as the "Vacation Resolution", approving, with conditions, the
vacation of a 50 foot wide right-of-way, running from Collins Avenue, east 360 feet to Tract "A",
currently known as 87th Terrace (hereinafter "City Parcel"), in favor of 8701 Collins
Development, LLC ("8701"); and
WHEREAS, 8701 owns the Dezerland Hotel, located at 8701 Collins Avenue
(hereinafter the "Property"), which is located to the south of and adjacent to the City Parcel, and
intends to redevelop the Property, together with the parking lot located on the north half of the
Property and portions of the City Parcel, into a hotel, condo-hotel, and/or residential
condominium (hereinafter the "Project"); and
WHEREAS, in contemplation of this Project, 8701 will be seeking to enter into a
development agreement with the City pursuant to Sections 163.3220 — 163.3243, Florida
Statutes ("Development Agreement') to memorialize the terms and conditions of the Project,
including the vacation of the City Parcel, and any other conditions imposed by the City
Commission; and
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WHEREAS, Sections 163.3220 — 163.3243, Florida Statutes, and Section 118-4 of the
City's Code require two public hearings on the Development Agreement; and
WHEREAS, the Development Agreement shall provide, amongst other things, the
following terms and conditions:
a. 8701 has offered a voluntary public contribution (hereinafter the "Voluntary
Contribution") of $10.5 Million to the City in connection with the vacation of the City
Parcel, with such funds to be payable in accordance and subject to the terms of the
Development Agreement (which incorporates the terms of the Vacation Resolution). All
funds shall be allocated to public projects in North Beach, as shall be determined by the
City Commission, in its sole and reasonable discretion;
b. 8701 shall develop and construct the Project consistent with the RM-2 zoning
regulations and the terms of the Development Agreement;
c. No later than ten (10) business days following the City Commission's final approval
of the Development Agreement, 8701 shall transfer to the City a perpetual public
pedestrian access easement over a portion of the City Parcel, subject to the review and
approval of City staff, not to be unreasonably withheld, in order to provide beach access
to the public (the "City Easement");
d. The City Easement shall be improved as part of the Project and shall be open to
the public and no later than the date a TCO or CO (whichever comes first) is issued for
the Project. 8701 shall be solely responsible for all costs and work associated with the
improvement (including, without limitation, the planning, permitting or construction) of the
vacated City Parcel, as part of the Project including, but not limited to resurfacing,
drainage, landscaping, hardscaping, sidewalks, irrigation, signage, beach access
signage, lighting, design and construction of the City Easement;
e. 8701 shall be responsible for the safety, security and maintenance of the City
Easement;
f. 8701 will enter into a Management Agreement for the 87th Street City right-of-way,
allowing 8701 to develop, maintain, pave, drain, light, landscape and install street
furniture along this right-of-way in order to open the road to pedestrian traffic;
g. Except as to involuntary transfers (as shall be defined in the Development
Agreement and which will include, without limitation, foreclosure transfers and transfers
in lieu of foreclosure), 8701 shall not be entitled to assign or transfer its rights under the
Development Agreement until after the earlier of (i) issuance of a Certificate of
Occupancy ("CO") for the Project, or (ii) the payment of all of the Voluntary Contribution.
Any such transferee shall assume all remaining obligations of 8701 under the
Development Agreement including, without limitation, (i) 8701's obligation to grant and
improve the City Easement and (ii) to improve the 87th Street right-of-way; provided,
however, that as to subsection (ii) the City may, at its sole discretion, elect not to
proceed with, or terminate (as the case may be) the Management Agreement for the
87th Street right-of-way.
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h. 8701 agrees to reimburse the City for any attorney's fees incurred by the City for
outside counsel's review and negotiation of the Development Agreement, and related
agreements, not to exceed reasonable amounts, as mutually agreed upon by the Parties
(which counsel shall be selected and approved by the City Attorney).
WHEREAS, the City and 8701 have negotiated the attached Development Agreement.
NOW THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, following first reading/public hearing, a Development Agreement,
as authorized under Section 118-4 of the City Code, and Sections 163.3220— 163.3243, Florida
Statutes, between the City and 8701 Collins Development, LLC ("8701"), which Development
Agreement, in pertinent part, (1) memorializes the conditions for vacating the City's right-of-way
at 87th Terrace East of Collins Avenue ("City Parcel"); (2) grants to the City a perpetual
pedestrian access easement across a portion of the vacated City Parcel; (3) ensures the
payment terms for 8701's payment of a voluntary monetary contribution, in the amount of $10.5
million dollars, to be used by the City for public purposes; (4) provides for the terms and
conditions under which 8701 will design, develop and construct certain improvements to the
City's right-of-way at 87th Street and Collins Avenue, including without limitation, the terms of a
Management Agreement between the City and 8701; and (5) delineates the conditions for the
design, development and construction of the project located at 8701 Collins Avenue as a hotel
and/or residential condominium site; further authorizing the City and 8701 to continue to
negotiate and finalize any outstanding terms of the Development Agreement between first and
second reading; and further setting the second and final reading of the Development Agreement
for a time certain.
PASSED and ADOPTED this o? day of October, 2014.
ATTEST:
Philip L in ayor
R fael E. Gr ,.Cif• Cle•k•••d
APPROVED AS TO
FORM & LANGUAGE
ORATtD= &FO XE UTION
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City Attorney
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MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139,
www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members of the City Commission
FIRST READING
FROM: Jimmy L. Morales, City Mana er PUBLIC HEARING
Raul Aguila, City Attorney
DATE: October 29, 2014
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, APPROVING, IN SUBSTANTIAL FORM (AS ATTACHED
AND INCORPORATED TO THIS RESOLUTION), FOLLOWING FIRST
READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT, AS AUTHORIZED
UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.32439
FLORIDA STATUTES, BETWEEN THE CITY AND 8701 COLLINS DEVELOPMENT,
LLC ("870199), WHICH DEVELOPMENT AGREEMENT, IN PERTINENT PART, (1)
MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S RIGHT-OF-WAY
AT 87TH TERRACE EAST OF COLLINS AVENUE ("CITY PARCEL"); (2) GRANTS
TO THE CITY A PERPETUAL PEDESTRIAN ACCESS EASEMENT ACROSS A
PORTION OF THE VACATED CITY PARCEL; (3) ENSURES THE PAYMENT TERMS
FOR 87019S PAYMENT OF A VOLUNTARY MONETARY CONTRIBUTION, IN THE
AMOUNT OF $10.5 MILLION DOLLARS, TO BE USED BY THE CITY FOR PUBLIC
PURPOSES; (4) PROVIDES FOR THE TERMS AND CONDITIONS UNDER WHICH
8701 WILL DESIGN, DEVELOP AND CONSTRUCT CERTAIN IMPROVEMENTS TO
THE CITY'S RIGHT-OF-WAY AT 87TH STREET AND COLLINS AVENUE,
INCLUDING WITHOUT LIMITATION, THE TERMS OF A MANAGEMENT
AGREEMENT BETWEEN THE CITY AND 8701; AND (5) DELINEATES THE
CONDITIONS FOR THE DESIGN, DEVELOPMENT AND CONSTRUCTION OF THE
PROJECT LOCATED AT 8701 COLLINS AVENUE AS A HOTEL AND/OR
RESIDENTIAL CONDOMINIUM SITE; FURTHER AUTHORIZING THE CITY AND
8701 TO CONTINUE TO NEGOTIATE AND FINALIZE ANY OUTSTANDING TERMS
OF THE DEVELOPMENT AGREEMENT BETWEEN FIRST AND SECOND READING;
AND FURTHER SETTING THE SECOND AND FINAL READING OF THE
DEVELOPMENT AGREEMENT FOR A TIME CERTAIN.
Agenda Item A C
Date /0-a -N
Development Agreement with 8701 Collins Avenue LLC, First Reading-Public Hearing
October 29, 2014 Page 2 of 3
The City Attorneys Office and the City Managers Office received red-lined
comments to the attached Development Agreement during the evening of October 27,
2014. Those red-lined comments are not enclosed, as they have yet to be reviewed.
The City Attorney had provided the City's draft of the Development Agreement
(attached) to 8701's counsel on October 21, 2014. No comments were received until
last night. The City Manager's Office received the draft agreement on the morning of
October 28th, 2014.
On September 17th, 2014, after second reading public hearing, the City
Commission approved Resolution No. 2014-28754, and shall be referred to as the
"Vacation Resolution", approving with conditions, the vacation of a 50 foot wide right-of-
way, running from Collins Avenue, east 360 feet to Tract "A", currently known as 87th
Terrace (hereinafter "City Parcel") in favor of 8701 Collins Development, LLC ("8701").
In contemplation of the hotel, condo-hotel and/or residential condominium
Project, 8701 is required to enter into a Development Agreement with the City pursuant
to Sections 163.3220 — 163.3243, Florida Statutes ("Development Agreement") to
memorialize the terms and conditions of the Project, including the vacation of the City
Parcel, and any other conditions imposed by the City Commission. The material
provisions of the attached Development Agreement include:
• The zoning district requirements for the RM-2 district and permitted uses for the
site.
• Payment terms for the voluntary public contribution (hereinafter the "Voluntary
Contribution") of $10.5 Million to the City in connection with the vacation of the
City Parcel. All funds shall be allocated to public projects in North Beach, as
shall be determined by the City Commission, in its sole and reasonable
discretion. A companion Resolution, accepting the recommendation of the
Finance and Citywide Projects Committee with respect to disposition of the
Voluntary Contribution, is also being presented to the City Commission at the
October 29, 2014 meeting for consideration. (See Agenda Item R7D).
• 8701 will make the first payment, in the amount of $1,000,000, within ten (10)
business days following the City Commission's final approval of the Development
Agreement. This payment will be non-refundable.
• 8701 will apply for a full building permit for the Project, using commercially
reasonable efforts, no later than February 19, 2016.
• 8701 will pay the City $4.5 million on the earlier of: (i) within ten (10) business
days of the issuance of a full building permit for the Project, or (ii) November 19,
2016. The actual vacation of the City Parcel shall be effective as of the date the
8701 makes the $4.5 million payment. The $4.5 million payment shall be non-
refundable.
• 8701 will pay the remaining $5 million in four (4) equal payments of $1.25 million
every six (6) months starting on the earlier of: (i) six (6) months after the City's
issuance of the full building permit for the Project, or (ii) May 19, 2017; provided,
however, that the entire amount remaining to be paid shall be paid ten (10) days
Development Agreement with 8701 Collins Avenue LLC, First Reading-Public Hearing
October 29, 2014 Page 3 of 3
prior to the issuance of a temporary certificate of occupancy (TCO) or certificate
of occupancy (CO), whichever comes first, for the Project. The City may
condition and withhold the issuance of the TCO or CO for the Project upon full
and final payment of the remaining balance of the Voluntary Contribution. The $5
million payment shall also be non-refundable;
• Conditions relating to any litigation, indemnification of the City by 8701, and final
payment of the remaining balance of the Voluntary Contribution.
• Conditions for transfer to the City a perpetual public pedestrian access easement
over a portion of the City Parcel (vacated ROW), in order to provide beach
access to the public (the "City Easement").
• Terms and conditions for a Management Agreement relating to 87th Street.
• A preclusion from 8701 in assigning or transferring its rights under the
Development Agreement until after the earlier of (i) issuance of a Certificate of
Occupancy ("CO") for the Project, or (ii) the payment of all of the Voluntary
Contribution.
• Reimbursement by 8701 of City's outside counsel costs in preparing the
Development Agreement. The City Attorney has hired Stacy H. Krumin, of
Squire Patton Boggs (US) LLP, to assist with the expedited drafting of the
Development Agreement.
Please note, that if the Commission approves the enclosed draft Development
Agreement at first reading, the City Attorney will continue to negotiate with 8701 as to
any outstanding issues contained within 8701's red-lined comments, prior to second
and final public hearing.
The City has complied with all notice requirements of Section 118-4 and Section
163.3225, Florida Statutes.
Recommendation:
The City Manager and City Attorney's Office recommends that the City
Commission approve the Resolution and attached City draft of the Development
Agreement, after first reading/public hearing; authorize the Administration and the City
Attorney's Office to continue to negotiate and finalize any outstanding terms between
first and second reading; and schedule the second reading/final public hearing.
This instrument was prepared by (record and return to):
Jeffrey Bercow, Esq
Bercow Radell & Fernandez, P.A.
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
(305) 377-6220
(Space reserved for Clerk)
DEVELOPMENT AGREEMENT -
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of the
day of 2014, by and among the CITY OF MIAMI BEACH, a Florida
municipal corporation (the "City"); and 8701 COLLINS DEVELOPMENT LLC, a Delaware limited
liability company (the "Owner"):
Introduction
A. The property that is the subject of this Agreement lies in Miami Beach, Miami-
Dade County, Florida. This Agreement, among other things, is intended to and shall constitute
a development agreement between the parties pursuant to Sections 163.3220-163.3243,
Florida Statutes, the "Florida Local Government Development Agreement Act" and Section 118-
4 of the City's Code.
B. The Owner owns the property located at 8701 Collins Avenue, Miami Beach,
Florida (the "Property") and intends to redevelop the Property with a hotel and/or residential
development substantially in accordance with the provisions contained in this Agreement.
C. The City is desirous of improving 87th Street which abuts the Property to the
south, and 87th Terrace, which abuts the Property to the north, and has agreed to vacate the
public right-of-way for 87th Terrace and enter into a maintenance agreement with Owner for
87th Street in order to enhance access to the beach and improve the aesthetics of the area.
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D. The City, in cooperation with the Owner, also wishes to obtain from the Owner a
permanent pedestrian access easement over 87th Terrace, to provide the public with access
from Collins Avenue to the beach. The Owner is willing to grant the easement over 87th
Terrace, for public purposes, as part of its Project.
E. Pursuant to City Resolution No. 2014-28754 (the "Vacation Resolution"), the City
approved the vacation of 87th Terrace, subject to and conditioned upon the terms and
conditions contained in such Vacation Resolution, including, without limitation, (1) the grant by
the Owner to the City of the 87th Terrace Easement; (2) the Owner entering into the
maintenance agreement for 87th Street; (3) the Owner's commitment to expend funds and
prepare the 87th Street Plans and the 87th Terrace Plans at the Owner's expense; (4) the
Owner's commitment to expend funds and construct the 87th Street Improvements and the 87th
Terrace Easement Improvements at the Owner's expense; and (5) the Owner's commitment to
provide the City with a voluntary monetary contribution of $10,500,000 (the "Voluntary
Contribution")to be allocated as described in Section 7 of this Agreement.
F. The City is a Florida municipal corporation with powers, and authority conferred
under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the
Miami Beach City Charter and Code of Ordinances. The City has all governmental, corporate
and proprietary powers to enable it to conduct municipal government, perform municipal and
governmental functions and render municipal services, including the authority to adopt,
implement and enforce (together with any other required governmental approvals)
comprehensive plans, zoning ordinances, redevelopment plans and other police power and
legislative measures necessary to assure the health, safety and general welfare of the City and
its inhabitants.
G. Having fully considered this Agreement at two duly conducted public hearings in
compliance with Section 163.3225 of the Act, having determined that the Project and this
Agreement are in compliance with the Comprehensive Plan and the City's Land Development
Regulations as of the Effective Date, and having further determined that it is in the City's best
interest to address the issues covered by this Agreement in a comprehensive manner, in
compliance with all applicable laws, ordinances, plans, rules and regulations of the City, the
City has agreed to enter into this Agreement with the Owner.
H. The City has determined that the Project, the 87th Street and 87th Terrace
Easement Improvements, and the Voluntary Contribution will benefit the City and the public.
The Project and the 87th Street and 87th Terrace Easement Improvements will improve a
northern entrance to the City and a significant North Beach location. The Project is compatible
with the area and will serve as a catalyst in the City's continuing efforts to revitalize the North
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Beach area. The 87th Street Improvements and 87th Terrace Easement Improvements will
renovate and beautify the northern end of North Shore Open Space Park and area access to the
beach. The Project is consistent with the City's plans for redevelopment of the area and will
positively influence the character of future development in the North Beach area of the City.
I. All capitalized terms used in this Introduction are defined in Section 3 or
elsewhere in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby-agree as follows:
1. Recitations. The foregoing recitations are true and correct and are incorporated
herein by this reference.
2. Authority. This Agreement is entered into pursuant to the authority and
procedures provided by the Act.
3. Definitions. All capitalized terms in this Agreement shall have the definitions set
forth in this Section unless such terms are defined elsewhere in the body of this Agreement.
3.1 "Act" shall mean the Florida Local Government Development Agreement
Act (Section 163.3220- 163.3243, Florida Statutes (2014)).
3.2 "Closing" shall refer to the formal exchange of documents between the
parties and as further described in Section 13 of this Agreement.
3.3 "Comprehensive Plan" shall mean the comprehensive plan which the City
has adopted and implemented for the redevelopment and continuing development of the City
pursuant to Chapter 163 Part II, of the Florida Statutes.
3.4 "Development Order" shall have the meaning set forth in §163.3164(15),
Florida Statutes (2014).
3.5 "Development Permit" shall have the meaning set forth in §163.3164(16),
Florida Statutes (2014).
3.6 "Effective Date" is the date when the City records the executed
Agreement in the Public Records of Miami-Dade County, as provided in Section 19(a) of this
Agreement, and pursuant to Section 163.3239, Florida Statutes.
3.7 "Execution Date" is the date the last of the required parties executes this
Agreement.
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3.8 "Land Development Regulations" means ordinances, rules and policies
enacted or customarily implemented by the City for the regulation of any aspect of
development and includes any Federal, State, County or local government zoning, rezoning,
subdivision, building construction, or sign regulation or any other regulations controlling the
development of or construction upon land in effect as of the Effective Date.
3.9 "Laws" means all ordinances, resolutions, regulations, comprehensive
plans, Land Development Regulations, and rules adopted by government or agency having
jurisdiction affecting the development of land, specifically including the zoning and sign
regulations of the City; the provisions of the City's Land Development Regulations; and the
Comprehensive Plan in effect as of the Effective Date.
3.10 "Project" shall mean the construction and development of the Property
(as defined in Section 3.11 below and to include the Owner's right, title and interest to the 87th
Terrace Property after the Closing) consistent with the RM-2 zoning regulations of the City's
Land Development Regulations and the following provisions (with the stricter of the two
prevailing):
(a) The maximum total floor area permitted upon the Property shall not
exceed that provided by the City's Land Development Regulations for the purposes of
determining population densities and building intensities as required by the Act. In the event
that the existing hotel is retained and the Property is developed as two building sites, the
maximum permitted floor area on the Property shall be 241,172 square feet. In the event that
the hotel is removed and the Property is reduced to a single building site, the maximum floor
area developed on the Property shall be 202,462 square feet.
(b) The height of any habitable building on the Property shall not exceed 200
feet to the top of the roof, and architectural projections will comply with the terms of the City's
Land Development Regulations.
(c) The uses permitted on the Property shall be up to 232 residential units,
including single-family detached dwellings; townhomes; condominiums; apartments;
apartment-hotels; hotels; condo/hotel units; and appurtenant facilities, including, without
limitation, (i) facilities for conventions, banquets and other functions; (ii) spa; (iii) restaurants
(subject to compliance with the City's neighborhood impact establishment regulations); (iv)
parking facilities; (v) administrative office space; and (vi) any other hotel related uses including
accessory uses commonly associated with hotels, as permitted under the City's Land
Development Regulations; provided, however that in no event shall more than twenty-five
percent (25%) of the accessory use be that which is generally classified as a "place of assembly"
or "hall for hire" by the City.
(d) The Project shall include on-site parking in accordance with the
provisions of the City's Land Development Regulations.
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(e) The Owner shall cause the completion of the Project and shall obtain a
certificate of occupancy or certificate of completion, as applicable, within five (5) years of the
Effective Date.
3.11 "Property" shall mean the parcel of real property described in Exhibit A
hereto. From and after the Closing, the Property shall include all of the Owner's right, title and
interest in and to the 87th Terrace Property pursuant to the vacation of 87th Terrace as
approved pursuant to, and subject to and conditioned upon, the terms of the Vacation
Resolution.
3.12 "Owner" means the person or entity undertaking the development of the
Property, as defined in the preamble to this Agreement, or any permitted successors, assigns,
or heirs thereof.
3.13 "Vacation Resolution" means the City's Resolution No. 2014-28754,
approving, with conditions,the vacation of the 87th Terrace Property.
3.14 "87th Street Maintenance Agreement" shall mean the agreement
between the City and Owner relating to the use, improvement, maintenance, operation and
security for the public pedestrian access area located on the 87th Street right-of-way, from
Collins Avenue running Easterly through 87th Street to Tract "A" of the ALTOS DEL MAR
SUBDIVISION NO. 2 (according to the plat thereof recorded in Plat Book 4 at p. 162, Public
Records of Miami-Dade County), which agreement shall be in the form attached hereto as
Exhibit B.
3.15 "87th Street Property" shall mean the area described in Schedule "A" to
the 87th Street Maintenance Agreement.
3.16 "87th Terrace Easement" shall mean a perpetual easement for public
pedestrian traffic on, across and through the 87th Terrace Property for the purpose of allowing
pedestrians to continue to use a portion of the 87th Terrace Property for public access to the
beach and Atlantic Ocean, which easement shall be in the form attached hereto as Exhibit C.
3.17 "87th Terrace Property" shall mean the area described in Schedule "A" to
the 87th Terrace Easement.
3.18 "87th Street Improvements" shall mean the improvements to be made to
the 87th Street Property as depicted in the 87th Street Plans, and as further described in Section
8 of this Agreement.
3.19 "87th Terrace Easement Improvements" shall mean the improvements to
be made to the 87th Terrace Property as depicted in the 87th Terrace Plans, and as further
described in Section 9 of this Agreement.
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3.20 "87th Street Plans" shall mean the plans, designs, and drawings including
any revisions and enhancements thereto, depicting the 87th Street Improvements, as further
described in Section 8 of this Agreement.
3.21 "87th Terrace Plans" shall mean the plans, designs, and drawings including
any revisions and enhancements thereto, depicting the proposed construction and installation
of public pedestrian access improvements and landscaping for the 87th Terrace Easement area,
as further described in Section 9 of this Agreement.
4. 87th Street Maintenance Agreement. Subject to the terms and conditions of this
Agreement, at the Closing the Owner and the City shall execute the 87th Street Maintenance
Agreement in the form attached hereto as Exhibit B.
5. 87th Terrace Easement. Subject to the terms and conditions of this Agreement,
the 87th Terrace Easement shall be granted by the Owner to the City and recorded in the Public
Records of Miami-Dade County, Florida, at the Closing and shall be in the form attached hereto
as Exhibit C.
6. Vacation of 87th Terrace and Voluntary Contribution.
(a) The Owner submitted an application to the City for the vacation of 87th
Terrace and on September 17th, 2014, after second reading public hearing, the City Commission
approved the Vacation Resolution. The 87th Terrace Property shall be included within the
Property when the actual vacation of the 87th Terrace Property becomes effective in
accordance with the terms of the Vacation Resolution, and as set forth in subsection 6(b)(iii),
below. At that time, the City shall deliver to Owner all instruments reasonably required to
effectuate the vacation of the 87th Terrace Property, including, without limitation, a certified
copy of the executed Vacation Resolution.
(b) As a condition to the City's approval of the Vacation Resolution, Owner
shall make a Voluntary Contribution to the City in the amount of$10,500,000. Owner shall pay
the $10,500,000 Voluntary Contribution to the City as follows:
(i) The Owner shall make the first payment, in the amount of
$1,000,000, within ten (10) business days following the City Commission's (A)
approval of the Vacation Resolution and (B) final approval of this Agreement at
the second public hearing. This payment will be non-refundable.
(ii) The Owner shall apply for a full building permit for the Project,
using commercially reasonable efforts, no later than February 19, 2016.
(iii) The Owner shall pay the City $4.5 million on the earlier of (A)
within ten (10) business days of the issuance of a full building permit for the
Project, or (B) November 19, 2016. The actual vacation of the 87th Terrace
Property shall be effective (1) as of the date the Owner makes the $4.5 million
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payment and (2) upon the Owner's satisfaction of all of the conditions set forth
in the Vacation Resolution. The $4.5 million payment shall be non-refundable.
(iv) The Owner shall pay the remaining $5 million in four (4) equal
payments of$1.25 million every six (6) months starting on the earlier of: (A) six
(6) months after the City's issuance of the full building permit for the Project, or
(B) May 19, 2017, provided, however, that the fourth and final installment shall
be paid no later than ten (10) days prior to the issuance of a temporary
certificate of occupancy (the "TCO") or certificate of occupancy (the "CO"),
whichever comes first, for the Project. The City may condition and withhold the
issuance of the TCO and/or CO for the Project pending full and final payment of
the remaining balance of the Voluntary Contribution. The $5 million payment
shall also be non-refundable, as and when each payment is made.
7. City Allocation of Voluntary Contribution. The Voluntary Contribution will be
allocated in accordance with the terms of City Resolution No. , attached and
incorporated as Exhibit "H" hereto, as follows: fifty per cent (50%) of the funds shall be
allocated to improvements to North Shore Open Space Park, including toward the future
maintenance of the ark improvements; and the balance will be allocated to public projects in
p P
North Beach, north of 71St Street, as shall be determined by the City Commission, in its sole and
reasonable discretion.
8 87th Street Improvements. The Owner, at its sole expense, shall design, construct
and install the 87th Street Improvements.
(a) The Owner shall cause the 87th Street Plans to be prepared by an
architect or other design professional selected by the Owner and approved by the City (such
approval by the City shall not be unreasonably withheld or delayed). The 87th Street Plans shall
be submitted to the City, to its City Manager within days of the Effective Date. The City
shall have business days to review the 87th Street Plans and provide its written comments,
if any, to Owner. The Owner shall address such comments and respond with revised 87th Street
Plans within _ days of its receipt of the City comments. This process shall be repeated until
the City approves the 87th Street Plans. Owner's failure to obtain the City's approval of the 87th
Street Plans by the date which is days from the Effective Date shall be deemed a Default
under this Agreement.
(b) The Owner shall secure all required permits and approvals for the 87th
Street Improvements.
(c) The existing geometry of 87th Street shall be substantially followed in the
design of the 87th Street Improvements. No change in the location of the sidewalks, curbs and
gutters shall be permitted without the prior written consent of the City.
(d) The 87th Street Improvements shall include, at a minimum, the following:
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(i) Lighting;
(ii) Resurfacing, drainage, hardscaping, paving;
(iii) Landscaping and related irrigation;
(iv) Outdoor seating and other outdoor furniture;
(v) Sidewalk; and
(vi) City-approved street signage; including directional signage, beach
access signage and similar signs (including private signage).
(e) The Owner will complete the 87th Street Improvements by the date of the
issuance of a final certificate of occupancy or certificate of completion, as applicable, for the
Project.
9 87th Terrace Easement Improvements. The Owner, at its sole expense, shall
design, construct and install the 87th Terrace Easement Improvements within the area
described in the 87th Terrace Easement.
(a) The Owner shall cause the 87th Terrace Easement Plans to be prepared by
an architect or other design professional selected by the Owner and approved by the City (such
approval by the City shall not be unreasonably withheld or delayed). The City shall review the
87th Terrace Plans as part of the development permit package(s) for the Project. The 87th
Terrace Easement Improvement Plans shall be submitted to the City, to its City Manager within
days of the Effective Date. The City shall have business days to review the 87th Terrace
Easement Improvement Plans and provide its written comments, if any, to Owner. The Owner
shall address such comments and respond with revised 87th Terrace Easement Improvement
Plans within _ days of its receipt of the City comments. This process shall be repeated until
the City approves the 87th Terrace Easement Improvement Plans. Owner's failure to obtain the
City's approval of the 87th Terrace Easement Improvement Plans by the date which is days
from the Effective Date shall be deemed a Default under this Agreement.
(b) The Owner shall direct the construction process and be responsible for
entering into all contracts necessary for the construction of the 87th Terrace Easement
Improvements and shall secure all required permits and approvals for the 87th Terrace
Easement Improvements with the City's cooperation.
(c) The 87th Terrace Easement Improvements shall include, at minimum, the
following:
(i) Lighting within the Easement area;
(ii) Resurfacing, drainage, hardscaping, paving;
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(iii) Landscaping and related irrigation either within or adjacent to the
87th Terrace Easement area designed in a manner that benefits the 87th Terrace
Easement;
(iv) Sidewalk within the Easement area; and
(v) City-approved directional signage, beach access signage and
similar signs (excluding private signage) either within the Easement area or
immediately adjacent thereto.
(d) The 87th Terrace Easement Improvements must be completed by the
date of the issuance of a CO or certificate of completion, as applicable, for the Project.
(e) Owner shall be responsible for the maintenance and security relating to
the 87th Terrace Easement area.
10. Development Permits. Certain provisions of this Agreement will require that the
City and/or its boards, departments or agencies take certain governmental actions, acting in
their governmental capacity and issue Development Permits in order to accomplish and satisfy
the following:
(a) The inclusion of approximately 36,400 square feet of floor area
development rights in the Property as a result of the City's vacation of the 87th Terrace right-of-
way; and
(b) The authorization of the 87th Street Improvements.
11. Applications for Development Approvals. Promptly following the effective date
of this Agreement, the Owner will initiate and diligently pursue all applications for
Development Orders and Development Permits that were not previously initiated. The City shall
process all Development Permit and Development Order applications in a timely fashion. All
applications for Development Permits and Development Orders may be submitted under the
presumption that the vacation of the 87th Terrace right-of-way is not conditional and the City
hereby authorizes the Owner to submit applications for the Development Permits and
Development Orders on that basis. Notwithstanding the foregoing, Owner shall be solely
responsible for obtaining all final, non-appealable Development Orders and Development
Permits for the Project, the 87th Street Improvements and the 87th Terrace Easement
Improvements. No extension of any time period herein shall be deemed to be an extension of
any time periods contained within the Development Permits or Development Orders.
12. Laws Governing this Agreement. For the entire term of this Agreement, the City
hereby agrees that the City's zoning and land development regulations and policies governing
the development of the Property as they exist as of the Effective Date of this Agreement shall
govern the development of the Property and the Project (i.e. entitlements shall not be reduced)
after the Effective Date and during the Term. Notwithstanding the foregoing, the City may
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apply subsequently adopted laws or policies to the Property as permitted or required by the
Act.
13. Closing.
(a) At the Closing, the City shall execute and/or deliver *to Owner the
following items:
(i) All instruments reasonably required to effectuate the 87th Street
Maintenance Agreement.
(ii) All instruments reasonably required to effectuate the vacation of
87th Terrace, which shall be held in escrow pending satisfaction of all conditions
set forth in the Vacation Resolution.
(b) At the Closing, the Owner shall execute and/or deliver (as appropriate) to
the City the following items:
(i) All instruments reasonably required to effectuate the 87th Street
Maintenance Agreement.
(ii) The 87th Terrace Easement, which shall be held in escrow pending
satisfaction of all conditions set forth in the Vacation Resolution.
(iii) Any subordination agreement that may be required pursuant to
Subsection 14(c)(i) of this Agreement.
(c) At the Closing, the Owner shall grant the 87th Terrace Easement free and
clear of all liens, encumbrances, rights of occupancy, or other matters except only the
following:
(i) any then existing mortgage encumbering the underlying land,
provided the holder of any such mortgage shall execute and deliver an
appropriate subordination agreement (in a form reasonably acceptable to the
City) subordinating the lien and rights of such mortgage holder to the rights of
the City and the public;
(ii) applicable zoning ordinances and regulations in accordance with
this Agreement; and
(iii) rights of the public that do not adversely affect the rights granted
under the 87th Terrace Easement.
14. "As Is" Condition. Owner agrees to accept the 87th Terrace Property in "as-is"
physical condition at the Closing without any representation or warranty by the City regarding
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physical condition. The City agrees to accept the 87th Terrace Easement with the underlying
land and improvements (if any) in "as-is" condition, subject to Owner's subsequent compliance
with the terms of Section 9 of this Agreement.
15. Compliance with Local Regulations Regarding Development Permits. This
Agreement is not and shall not be construed as a Development Permit, approval or
authorization to commence any development, fill, or other land modification. The Owner and
the City agree that the failure of this Agreement to address a particular permit, approval,
procedure, condition, fee, term or restriction in effect on the Effective Date of this Agreement
shall not relieve Owner of the necessity of complying with the regulation governing said
permitting requirements, conditions, fees, terms or restrictions, subject to the terms of Section
12 of this Agreement.
16. Reservation of Rights. This Agreement shall not affect any rights that may have
accrued to any party to this Agreement under applicable laws and each party hereto reserves
any and all of such rights.
17. Consistency with the City's Comprehensive Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of
this Agreement dealing with the Property and the Project are consistent with the City's adopted
Comprehensive Plan and Land Development Regulations (subject to all applicable
requirements, permits and approvals).
18. Concurrency. Owner shall be solely responsible for obtaining all land use
permits, including, but not limited to, all permits and approvals required pursuant to Section
163.3180, Florida Statutes (2014), with respect to concurrency requirements for roads, sanitary
sewer, solid waste, drainage, potable water, parks and recreation (the "Concurrency
Requirements"). Prior to applying for its building permit for the Project, Owner shall apply to
the appropriate Governmental Authorities and obtain letters or other evidence that Owner has
obtained all applicable Concurrency Requirements, and shall diligently and in good faith obtain
such letters or other evidence that the Project meets all applicable Concurrency Requirements
and shall pay such impact fees as may then be due or applicable to meet Concurrency
Requirements.
19. Effective Date and Duration.
(a) Within fourteen (14) days following approval at two public hearings and
execution by all parties, the City shall record the Agreement in the Public Records of Miami-
Dade County. The Owner shall submit a copy of the recorded Agreement to the State of
Florida's land planning agency within fourteen (14) days after this Agreement is recorded. This
Agreement shall become effective only after (i) it has been recorded in the Public Records of
Miami-Dade County, Florida, and (ii) thirty (30) days have elapsed after the State of Florida land
planning agency's receipt of a copy of the recorded Agreement. The Owner agrees that it shall
be responsible for all recording fees and other related fees and costs related to the recording
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and delivery of this Agreement as described in this Section. Notwithstanding the Effective Date
provided herein, the City and the Owner shall act in good faith to carry out the intent of the
Agreement upon the Execution Date.
(b) This Agreement shall run for an initial term of five (5) years from the
Effective Date (the "Term"), and may be extended by mutual consent of the City and the Owner
subject to a public hearing pursuant to Section 163.3225, Florida Statutes. Consent to any
extension of this Agreement is within the sole discretion of each party to this Agreement. No
notice of termination shall be required by either party upon the expiration of this Agreement,
and thereafter the parties hereto shall have no further obligations under this Agreement except
that in no event shall the Owner's obligation to pay the Voluntary Contribution be extinguished
by the expiration of the term if it has not otherwise been paid.
20. Presently Permitted Development. The development that is presently permitted
on the Property, including population densities, and building intensities and height, which are
subject to this Agreement are more specifically set forth in Exhibit D hereto.
21. Public Facilities to Serve the Property. A description of the public facilities that
will service the Project of the properties subject to this Agreement, including who shall provide
such facilities; the date any new facilities, if needed, will be constructed; and a schedule to
assure public facilities are available concurrent with the impacts of the development is included
as Exhibit E hereto.
22. Public Reservations and/or Dedications. A description of the reservations and/or
dedications of land for public purposes that are proposed under the terms of this Agreement is
included as Exhibit F hereto.
23. Required Development Permits. Attached and made a art hereof as Exhibit G is
a p p
a listing and description of all local development permits approved or needed to be approved
for the development of the Project.
24. Default. Each of the following shall be an "Event of Default" by Owner
hereunder:
(a) If Owner shall fail to observe or perform any term, covenant or condition
of this Agreement on Owner's part to be observed or performed and Owner shall fail to cure or
remedy the same within ten (10) days of Owner's receipt of written notice from the City, with
respect to monetary defaults, or within thirty (30) days of Owner's receipt of written notice
from the City with respect to non-monetary defaults (each, a "Default Notice"). If such non-
monetary default is susceptible to cure but cannot reasonably be cured within said thirty (30)
day period, then Owner shall have any additional sixty (60) day period to cure such failure and
no Event of Default shall be deemed to exist hereunder so long as Owner commences such cure
within the initial thirty (30) day period and diligently and in good faith pursues such cure to
completion within such resulting ninety (90) day period from the date of the City's notice.
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(b) If, after the Effective Date, Owner shall fail to commence design and
pursue all permits and approvals which are necessary for the Project, the 87th Street
Improvements and the 87th Terrace Easement Improvements, with reasonable dispatch; it
being acknowledged and understood that in the event Owner cannot evidence work or efforts
expended toward design and obtaining such permits and approvals for a period of ninety (90)
days, Owner shall be deemed to be in default under this subsection.
(c) If, during the construction phase of the Project, the 87th Street
Improvements and the 87th Terrace Easement Improvements, Owner shall stop work on any
such improvements for a period in excess of ninety (90) days.
(d) If Owner shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or shall consent to
the appointment of a receiver or trustee or liquidator of all of its property or the major part
thereof or if all or a substantial part of the assets of Owner are attached, seized, subjected to a
writ or distress warrant, or are levied upon, or come into the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors.
(e) If Owner shall commence a voluntary case under the Title 11 of the
United States Code (the "Bankruptcy Code") ; or an involuntary proceeding is commenced
against Owner under the Bankruptcy Code and relief is ordered against Owner, or the petition
is controverted but not dismissed or stayed within one hundred fifty (150) days after the
commencement of the case, or a custodian (as defined in the Bankruptcy Code) is appointed for
or takes charge of all or substantially all of the property of Owner and is not discharged or
dismissed within one hundred fifty (150) days; or Owner commences any other proceedings
under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar Law of any jurisdiction whether now or hereafter in effect
relating to Owner; or there is commenced against Owner any such proceeding which remains
undismissed or unstayed for a period of one hundred fifty (150) days; or Owner fails to
controvert in a timely manner any such case under the Bankruptcy Code or any such
proceeding, or any order-of relief or other order approving any such case or proceeding is
entered; or Owner consents to or approves of, in any such case or proceeding or the
appointment of any custodian or the like of or for it for any substantial part of its property or
suffers any such appointment to continue undischarged or unstayed for a period of one
hundred fifty (150) days.
In the event the City shall claim any Default shall have occurred hereunder, the City's
Default Notice shall state with specificity the provisions of this Agreement under which the
Default is claimed, the nature and character of such Default, the date by which such Default
must be cured pursuant to this Agreement, if applicable, and, if applicable, that the failure of
Owner to cure such Default by the date set forth in such notice will result in the City having the
right to terminate this Agreement.
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25. Enforcement of Performance; Damages and Termination. If an Event of Default
occurs hereunder,the City may elect any one or more of the following remedies:
(a) Enforce strict performance by Owner;
(b) Terminate this Agreement; or
(c) Pursue any other remedy available to the City at law or in equity.
The City's election of a remedy hereunder with respect to any one or more Events of
Default shall not limit or otherwise affect the City's right to elect any of the remedies available
to it hereunder with respect to any other Event of Default.
In the event the City elects to terminate this Agreement after an Event of Default and
such termination is stayed by order of any court having jurisdiction of any matter relating to
this Agreement, or by any federal or state statute, then following the expiration of any such
stay, the City shall have the right, at its election, to terminate this Agreement with five (5) days'
written notice to Owner, Owner as debtor in possession or if a trustee has been appointed, to
such trustee.
26. Strict Performance; Waiver. No failure by the City or Owner to insist upon strict
performance of any covenant, agreement, term or condition of this Agreement or to exercise
any right or remedy available to such party by reason of the other party's default or an Event of
Default hereunder shall constitute a waiver of any such default, Event of Default or of such
other covenant, agreement, term or condition hereunder.
27. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by hand,
sent by recognized overnight courier (such as Federal Express) or mailed by certified or
registered mail, return receipt requested, in a postage prepaid envelope, and addressed as
follows:
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager, City Attorney
With a copy to: Squire Patton Boggs (US) LLP
201 North Franklin Street, Suite 2100
Tampa, FL 33602
Attn: Stacy Krumin, Esq.
If to Owner at: 8701 Collins Development, LLC
c/o Terra Group
2675 S. Bayshore Drive
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Miami, FL 33133
Attn: David Martin
With a copy to: Jeffrey Bercow, Esq.
Bercow Radell & Fernandez, P.A.
200 S. Biscayne Blvd.
Suite 850
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be deemed given on
the date of delivery and notices mailed in accordance with the foregoing shall be deemed
given three (3) days after deposit in the U.S. mails. The terms of this Section 27 shall survive
the termination of this Agreement.
28. Governing Laws, Construction and Litigation. This Agreement shall be governed
and construed in accordance with the laws of the State of Florida. The Owner and the City
agree that Miami-Dade County, Florida is the appropriate venue in connection with any
litigation between the parties with respect to this Agreement. All of the parties to this
Agreement have participated fully in the negotiation and preparation hereof; and accordingly,
this Agreement shall not be more strictly construed against any of the parties hereto. In
construing this Agreement, captions, and section and paragraph headings shall be disregarded
and the use of any gender shall include every other and all genders. All of the exhibits
referenced in this Agreement are incorporated in, and made a part of, this Agreement. In the
event of any litigation between the parties under this Agreement for a breach thereof, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and
appellate levels. The terms of this Section 28 shall survive the termination of this Agreement.
29. Severability. In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.
30. Time of Essence. Time shall be of the essence for each and every provision
hereof.
31. Entire Agreement. This Agreement, together with the documents referenced
herein, constitutes the entire agreement and understanding among the parties with respect to
the subject matter hereof, and there are no other agreements, representations or warranties
other than as set forth herein. Neither party shall be bound by any agreement, condition,
warranty nor representation other than as expressly stated in this Agreement. This Agreement
may not be changed, altered or modified except by an instrument in writing signed by both
parties hereto, subject to the requirements for the amendment of development agreements in
the Act.
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32. Other Agreements. This Agreement has no effect on any other agreement, the
City's development orders, or declaration of restrictions otherwise encumbering the Property.
Any and all agreements currently in the public records remain valid. The parties incorporate by
reference each and every requirement set forth in the Act.
33. Binding Effect. The obligations imposed pursuant to this Agreement upon the
Owner and upon the Property shall run with and bind the Property as covenants running with
the Property, and this Agreement shall be binding upon and enforceable by and against the
parties hereto,their personal representatives, heirs, successors, grantees and assigns.
34. Transfer and Assignment. Except as to involuntary transfers, which shall include,
without limitation, foreclosure transfers and transfers in lieu of foreclosure, the Owner shall not
be entitled to assign or transfer its rights under this Agreement without the prior written
consent of the City, in the City's sole and absolute discretion. Any such transferee (including by
involuntary transfer) shall assume all remaining obligations of the Owner under this Agreement
including, without limitation:
(a) The Owner's obligation to pay the Voluntary Contribution to the City;
(b) The Owner's obligation to grant and improve the 87th Terrace Easement
area; and
(c) The Owner's obligation to improve the 87th Street right-of-way; provided,
however, at its sole discretion, the City may elect not to proceed with the Maintenance
Agreement for the 87th Street right-of-way if performance under the Maintenance Agreement
has not yet commenced; however, if performance under the Maintenance Agreement has
commenced then the City may only terminate the Maintenance Agreement in accordance with
its terms.
35. Force Maieure and Third Party Challenges. Except as to the Owner's obligation
to make the Voluntary Contribution payments in accordance with Section 6, above, time
periods will be tolled due to force majeure (strikes, lockouts, acts of God, and other causes
beyond the control of either party); appeals or other judicial or administrative challenges to
project approvals; and delays in obtaining permits from other governmental agencies.
Notwithstanding the foregoing, in the event that, a third party (unrelated or unaffiliated with
the City or the Owner) institutes a legal proceeding in a court of competent jurisdiction (the
"Law Suit") challenging the validity of the Vacation Resolution or this Agreement, then the
Owner shall pay the remainder of the Voluntary Contribution within sixty (60) days of the filing
of such legal action and the Owner shall defend (using legal counsel reasonably acceptable to
the City), indemnify and hold the City harmless, from and against all claims, injury, damage, loss
and liability, cost and expense (including attorneys' fees, costs and expenses) of any and every
kind arising out of or relating to such Law Suit. This Section 35 shall survive the termination or
expiration of this Agreement.
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36. Indemnification of City. Owner shall defend, indemnify and hold harmless (using
legal counsel reasonably acceptable to the City) the City, its agents, servants and employees,
from and against any loss, cost, expense, claim, demand or cause of action of whatever kind or
nature arising out of or related to the conduct, act or omission of Owner related to this
Agreement or the Project and for which the City, its agents, servants or employees, are alleged
to be liable or charged with such expense. The Owner shall directly pay all costs and expenses
related to any expense or cost charged, or legal defense required by the City pursuant to the
foregoing. This Section 36 shall survive termination or expiration of this Agreement.
37. Corporate Obligations. It is expressly understood that this Agreement and the
obligations issued hereunder are solely corporate obligations, and that no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors,
elected or appointed officials (including, without limitation, the Mayor and City Commissioner
of the City) or employees, as such of Owner, any of any successor corporation or any of them,
under or by reason of-the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and that any and all such personal liability, either at common law or in
equity or by constitution or statute, of, and any of all such rights and claims against, every such
incorporator, stockholder, officer, director, elected or appointed official (including, without
limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by
reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom are expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement.
38. No Conflict of Interest. Owner represents and warrants that, to the best of its
actual knowledge, no member, official or employee of the City has any direct or indirect
financial interest in this Development Agreement nor has participated in any decision relating
to this Development Agreement that is prohibited by law. Owner represents and warrants that,
to the best of its knowledge, no officer, agent, employee, or representative of the City has
received any payment or other consideration for the making of this Agreement, directly or
indirectly, from Owner.
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I
EXECUTED as of the date first above written in several counterparts, each of which
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered CITY OF MIAMI BEACH,
in the presence of: a Florida municipal corporation
Print Name:
By:
Print Name: Name:
Attest:
City Clerk
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
, 2014, by , as Mayor of the
City of Miami each, a municipal corporation, on behalf of the Corporation. He is personally
known to me or has produced as identification and who did (did
not)take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
City Attorney ote
285861/4/TAMPA
8701 COLLINS DEVELOPMENT LLC, a
Delaware limited liability company
By:
David Martin, Managing Member
Print Name:
Print Name:
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
2014 by David Martin, as managing member of 8701 Collins Development, LLC, a Delaware
limited liability company, on behalf of the company. He is personally known to me or has
produced as identification and who did/did not take
an oath.
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
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EXHIBIT A
[LEGAL DESCRIPTION OF PROPERTY]
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EXHIBIT B
[87t"STREET MAINTENANCE AGREEMENT]
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EXHIBIT C
[87t"TERRACE EASEMENT]
i
i
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f
EXHIBIT D
PRESENTLY PERMITTED DEVELOPMENT
(a) Permitted Development and Uses. The Property, including 87th Terrace,
is designated as RM-2 Residential multifamily, medium intensity according to the City's adopted
Comprehensive Plan. The Property, including 87th Terrace, as well as the North % of 87th Street,
are zoned RM-2 Residential multifamily, medium intensity by the City's Land Development
Regulations. The RM-2 zoning district permits single-family detached dwellings; townhomes;
apartments; apartment-hotels; and hotels. The Property may be used for the purposes
permitted and regulated in these land use designations and zoning districts, as further limited
by the by the City's Land Development Regulations and Comprehensive Plan.
(b) Density, Building Heights, Setbacks and Intensities. The maximum
density, heights, setbacks and intensities for any development on the Property shall be
regulated by the City's Land Development Regulations, Comprehensive Plan and any applicable
Federal, State or County laws and regulations. In the RM-2 land use designation, the maximum
residential density is 100 dwelling units per acre. The intensity of hotel use is limited by such
set back, height, floor area ratio, minimum room size and other provisions of the Land
Development Regulations.
THIS EXHIBIT DESCRIBES THE PRESENTLY PERMITTED DEVELOPMENT FOR PURPOSES OF THE
ACT ONLY.THE PROJECT SHALL CONFORM TO THE DESCRIPTION PROVIDED IN SECTION 3.10
O F THIS AGREEMENT.
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EXHIBIT E
i
PUBLIC FACILITIES
[The following is subject to review and confirmation by the City]
The proposed development will be serviced by those roadway transportation facilities
currently in existence as provided by state, county, and local roadways. The proposed
development will also be serviced by public transportation facilities currently in existence, as
provided by Miami-Dade County, the City of Miami Beach, and such other governmental
entities as may presently operate public transportation services within the City of Miami
Beach. Sanitary sewer, solid waste, drainage, and potable water services for the proposed
development shall be those services currently in existence and owned or operated by Miami-
Dade County, the Miami-Dade County Water and Sewer Department, and the City of Miami
Beach. The proposed development shall be serviced by those existing educational facilities
owned or operated by the Miami-Dade Public Schools District. The proposed development
shall be serviced by those existing parks and recreational facilities owned or operated by the
United States Government within Miami- Dade County, by the State of Florida, by Miami-Dade
County, and by the City of Miami Beach. The proposed development shall be serviced by
those existing health systems and facilities operated by the United States Government within
Miami-Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami
Beach.
The proposed development will also be serviced by any and all public facilities, as such
are defined in Section 163.3221(12) of the Act, that are described in the Comprehensive Plan,
specifically including but not limited to those facilities described in the Infrastructure Element
and the Capital Improvements Element therein, a copy of which is available for public
inspection in the offices of the City Clerk of the City of Miami Beach.
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EXHIBIT F
PUBLIC RESERVATIONS/DEDICATIONS
1. The vacation of 87th Terrace as described in Section 6 of this Agreement. When
the vacation of the 87th Terrace Property becomes effective in accordance with the terms of
Resolution No. 2014-28754, and as set forth in subsection 6 (b) (iii) of the Agreement, then the
87th Terrace Property shall be included within the Property, with the area of the Property and
the 87th Terrace Property to be measured for purposes of floor area ratio calculations. [Note:
Discuss whether sidewalks will be dedicated.]
2. The 87th Terrace Easement.
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285861/4/TAMPA
EXHIBIT G
REQUIRED DEVELOPMENT PERMITS AND VARIANCES
The following constitutes a generalized list of local permits anticipated as necessary to
be approved by the terms of this Agreement:
1. Design Review Board, Planning Board, and/or Board of adjustment approvals,
pursuant to Chapter 118 of the City of Miami Beach Code.
2. Utility Permits
3. Demolition Permits
4. Buildin g Permits
S. Street vacations and related permits
6. Environmental Permits
7. Variances, pursuant to Chapter 118 of the City of Miami Beach Code
8. Hazardous Materials Removal Permit, if removal of hazardous materials is found
necessary.
9. Coastal Construction Control Line Permit
10. Public Works Permit, Paving and Drainage
11. Public Works Permit, Water and Sewer
12. Certificates of Use and/or Occupancy
13. All other local governmental approvals as may be applicable to the subject
property from time to time pursuant to the terms of this Development
Agreement.
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285861/4/TAMPA
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V kA V A I B
E' :_ CITY OF MIAMI BEACH
NOTICE OF-PUBLIC HEARING
NOT_ICE IS HEREBY given that a First Reading/Public Hearing will be heard by the Mayor and
City Commission of the City of Miami Beach, Florida, in the Commission Chambers, 3rd Floor,
City Hall,1700 Convention Center Drive,Miami Beach,Florida,on Wednesday,October 29,2014
t 5 40- m.,or as soon thereafter as the rriatter can be heard,to consider:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, To Consider I
Approval,Following First Reading/Public Hearing Of.A Development Agreement As Authorized
Under Section 118-4 Of The City Code,And Sections 163.3220-163.3243, Florida Statutes,
Between The City And 8701 Collins Development,LLC("8701"),Which Development Agreement.
(1) Memorializes The Conditions For Vacating-The City's Right Of Way At 87!h Terrace East Of
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Collins Avenue("City Parcel");(2)Grants To.The City A Perpetual Pedestrian Access Easement
i Across_A Portion Of The Vacated City Parcel;(3)Ensures The Payment Terms For 8701's Payment
I I Of A Voluntary Monetary Contribution, In The Amount Of$10.5 Million Dollars,To Be Used By
The'City For Public Purposes;(4)Delineates The Conditions For The Construction Of The Project
Located At 8701 Collins Avenue As A Hote[And/Or.Residential Condominium Site;And(5)Subject
To And Contingent Upon 8701's Satisfaction Of-The Conditions Set Forth In The Development
Agreements And Further Setting The Second And Final Reading Of The Development Agreement. 1
For.A_Time Certain.Inquiries may be,directed,to the City Attorney's Office at 305.673.7470.
Avenue,Miami Beach,Florida(Folio No.02-3202-006-0010),and
PROPERTY:8701 Collins A -
---=87th Terrace east of Collins Avenue.,
jPERMITTED USES: May include condominiums; apartments; apartment-hotels; hotels; condo/
hotel units;and accessory uses such as facilities.for.conventions,banquets and other functions; s
spa; beachfront recreational facilities; restaurants;-parking facilities; administrative office space;
and any other hotel or resort related uses including accessory uses commonly associated with
hotels,as permitted under the City's Land Development Regulations. i
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i The maximum residential density is 100 dwelling units per acre. The maximum building
intensity is a floor area ratio'of 2.0.-The maximum building height is 200 feet.The scale of
the hotel use is limited by setback, height, floor area ratio, minimum room size and other
provisions of the Land Development Regulations.
The height of any habitable building on the Property shall not exceed 200 feet to the top
of the roof-and and architectural projections will comply with the terms of the City's Land.
Development Regulations.
A copy of the proposed Development Agreement is available for inspection and may be obtained by
inquiring at the City Attorney's Office 305.673.7470, 1700 Convention Center Drive,41h Floor,Miami
Beach,Florida 33139.
INTERESTED PARTIES are invited to appear at this meeting,or be-represented by an agent,or to express
their views in writing addressed to the City Commission,c/o the City Clerk,1700
Convention Center_Drive, 15' Floor, City Hall, Miami Beach, Florida 33139.This item is available for
public inspection during normal business hours in the City Clerk's Office,1700-Convention Center Drive,
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1 S'Floor,City Hall,Miami Beach,-Florida 33139.This meeting,or any item herein.may be_continued,and
Z i under such circumstances,additional legal notice need not be provided.
Pursuant to Section 286.0105,Fla.Stat.,the City hereby advises the public that if a person decides
to appeal any decision made by the City Commission with respect to any matter considered at its
meeting or its hearing,such person must ensure that a verbatim record of the proceedings is made,
°' which record includes the testimony and evidence upon which the appeal is to be based.This notice
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does not constitute consent by the City for the introduction or admission of,otherwise inadmissible
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or irrelevant evidence,nor does it authorize challenges or appeals not otherwise allowed by law.
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O To request this material in accessible format,sign language interpreters,information on access
� ! I persons with disabilities and/or any accommodation to review any document or participate in any
O l City-sponsored proceeding,please contact us five days in advance at 305.673.7411(voice)or TTY
>= ! users may also call the Florida Relay Service at 711.
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Rafael E.Granado,City Clerk
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City of Miami Beach
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