Resolution 2020-31180 RESOLUTION NO. 2020-31180
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND
READING/PUBLIC HEARING, A SECOND AMENDMENT TO THE
DEVELOPMENT AGREEMENT DATED JANUARY 9, 2019, BETWEEN THE
CITY AND SOUTH BEACH HEIGHTS I, LLC, 500 ALTON ROAD VENTURES,
LLC, 1220 SIXTH, LLC AND KGM EQUITIES, LLC,AS ASSIGNED TO TCH 500
ALTON, LLC, BY ASSIGNMENT OF DEVELOPMENT AGREEMENT DATED AS
OF SEPTEMBER 27, 2019 (THE "DEVELOPER"), FOR THE DEVELOPMENT
OF THE PROPERTIES LOCATED AT 500 ALTON ROAD, 630 ALTON ROAD,
650 ALTON ROAD, 1220 6TH STREET, 659 WEST AVENUE, 701 WEST
AVENUE, 703 WEST AVENUE, 711 WEST AVENUE, 721 WEST AVENUE, 723
WEST AVENUE, 727 WEST AVENUE AND 737 WEST AVENUE
(COLLECTIVELY, THE "DEVELOPMENT SITE"), AS AUTHORIZED UNDER
SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243,
FLORIDA STATUTES, WHICH SECOND AMENDMENT PROVIDES, AMONG
OTHER TERMS AND CONDITIONS, FOR: (1) SETTLEMENT OF THE DISPUTE
ARISING FROM THE BOARD OF ADJUSTMENT'S RULING, DATED
NOVEMBER 1, 2019, ALLOWING THE EXCLUSION OF COVERED STAIRS,
ELEVATOR SHAFTS, MECHANICAL CHUTES AND CHASES FROM THE
CALCULATION OF FLOOR AREA FOR THE PROJECT; (2)A REDUCTION OF
THE MAXIMUM NUMBER OF RESIDENTIAL UNITS PERMITTED ON THE
DEVELOPMENT SITE, FROM 410 UNITS TO A MAXIMUM OF 330 UNITS; (3)
APPROVAL OF THE FINAL PLANS FOR THE 3.0 ACRE PUBLIC PARK THAT
DEVELOPER SHALL CONSTRUCT ON BEHALF OF THE CITY, AT ITS SOLE
COST AND EXPENSE; (4) EXPEDITED TIMEFRAMES FOR THE DEVELOPER
TO COMPLETE CONSTRUCTION OF THE 3.0 ACRE PUBLIC PARK AND TO
CONVEY OWNERSHIP OF THE PARK SITE TO THE CITY; (5)APPROVAL OF
THE FINAL PLANS FOR THE 5T" STREET PEDESTRIAN BRIDGE PROJECT,
WHICH DEVELOPER SHALL CONSTRUCT ON CITY'S BEHALF (THE
"PEDESTRIAN BRIDGE PROJECT"), AND (6) APPROVAL OF THE FINAL
BRIDGE PROJECT BUDGET, SUBJECT TO A MAXIMUM CITY
CONTRIBUTION FOR BRIDGE PROJECT COSTS.
WHEREAS, on December 12, 2018, following two duly noticed public hearings and
extensive public testimony and discussion, the Mayor and City Commission adopted Resolution
No. 2018-30647, approving a Development Agreement between the City and 500 Alton Road
Ventures, LLC, 1220 Sixth, LLC, South Beach Heights I, LLC, and KGM Equities, LLC (the
"Development Agreement"), for the development, design and construction of a mixed use
residential and commercial project on the 500-700 Blocks of Alton Road (the "Project"). The
development of this area is a priority for the City, as it lies at the entrance to South Beach via the
MacArthur Causeway; and
WHEREAS, the Development Agreement was executed on or about January 9, 2019, and
recorded in the public records of Miami-Dade County, Florida on February 12, 2019; and
WHEREAS, on September 27, 2019, the Development Agreement was assigned to TCH
500 Alton, LLC (the "Developer"), pursuant to that certain Assignment and Assumption of
Development Agreement, dated as of September 27, 2019; and
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WHEREAS, the Development Agreement contemplates that in order for the Project to
proceed, the City would vacate 6th Street between West Avenue and Alton Road, and thereby
convey ownership thereof to the Developer, to provide a unified development site that would
permit the Developer to aggregate its development rights over the unified abutting parcels on the
500-700 blocks of Alton Road, and consolidate most of the available floor area within the
residential tower for the Project, which would be located on the northeast quadrant of the 500
Block; and
WHEREAS, in consideration for the vacation of 6th Street and other terms set forth in the
Development Agreement, the Developer is required to deliver certain key public benefits to the
City, including, among other terms, the design, permitting and construction, at the Developer's
sole cost and expense, of a 3.0 acre public park on the Development Site (the "Park Project"),
with the 3.0 acre park site to be conveyed to the City(the "Park Site"). Once completed, the City
would own and operate the Park Site as a municipal park for the benefit of the general public; and
WHEREAS, on July 17, 2019, the City Commission adopted Resolution No. 2019-30893,
approving the First Amendment to the Development Agreement, to provide for the Developer to
design, permit, and construct the Pedestrian Bridge Project on behalf of the City. The First
Amendment was executed as of December 18, 2019; and
WHEREAS, the proposed Pedestrian Bridge Project shall be constructed within public
right of way areas of the City of Miami Beach and the Florida Department of Transportation
("FDOT") that are adjacent to, and located to the north and south of, the MacArthur Causeway,
between Biscayne Bay and West Avenue. The proposed Pedestrian Bridge Project shall span
over and across the MacArthur Causeway and West Avenue along 5th Street, and shall connect
to the Development Site at the southwest corner of the 500 Block of Alton Road; and
WHEREAS, on July 10, 2019, and in response to a request by the Developer,the Planning
Director issued a determination reaffirming the City's longstanding position and concluding that
the following elements are included within the definition of floor area: (1) voids in floors to
accommodate elevator shafts; (2) voids in floors to accommodate mechanical/ventilation/trash
shafts; and (3) voids in floors to accommodate stairwells, including voids to accommodate
stairwells within accessory garages (the "Elements"). The Developer appealed the Planning
Director's determination to the Board of Adjustment, and the appeal was heard on November 1,
2019; and
WHEREAS, in a clear departure from its limited quasi-judicial authority, the Board of
Adjustment voted to reverse the July 10, 2019 determination, and effectively amend the Land
Development Regulations—without the authority to do so—to create a new exclusion for the
Elements from the definition of Floor Area (the "BOA Order"); and
WHEREAS, following the November 1, 2019 Board of Adjustment ruling, the Planning
Director and the City filed a Petition for Writ of Certiorari in Circuit Court, seeking appellate review
of the BOA Order(the "Petition") (altogether, the "Appeal"). Pursuant to City Code Section 118-9,
the filing of the Petition operates to stay the BOA Order and all "work on the premises and all
proceedings in furtherance of the action appealed from" (including the review or approval of any
plans excluding the Elements from floor area calculations); and
WHEREAS, on December 11, 2019, the City Commission voted unanimously to refer to
the Planning Board a draft Ordinance amending the definition of"floor area" set forth in City Code
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Section 114-1. The Ordinance expressly codifies the Planning Director's historic interpretation,
which has been consistent for more than 48 years, that "floor area" includes, without limitation,
"stairwells, stairways, covered steps, elevator shafts at every floor (including mezzanine level
elevator shafts), and mechanical chutes and chases at every floor (including mezzanine level)"
(the "Clarifying LDR Amendment"); and
WHEREAS, in an effort to resolve the foregoing dispute relating to the Appeal, on
December 11, 2019, the Administration and the City Attorney received guidance from the City
Commission with respect to settlement negotiations which would protect the City against the City-
wide increase in FAR potentially caused by the BOA Order and, relatedly, to address outstanding
issues related to the Project, the Park Project, and the Pedestrian Bridge Project, with such terms
to be memorialized in Second Amendment to the Development Agreement; and
WHEREAS, on December 17, 2019, the Planning Board unanimously voted to transmit
the Clarifying LDR Amendment to the City Commission with a favorable recommendation; and
WHEREAS, on January 15, 2020, the Mayor and City Commission adopted the Clarifying
LDR Amendment on first reading; and
WHEREAS, the Administration has negotiated the terms of the proposed Second
Amendment to the Development Agreement, a copy of which is attached as Exhibit "B" to the
Commission Memorandum accompanying this Resolution, and which Second Amendment
provides for the following, among other terms:
• Settlement of the parties' legal dispute with regard to the subject matter of the Appeal, subject
to and contingent upon the City Commission adopting the Clarifying LDR Amendment with an
applicability clause that allows the Project to proceed based on the Board of Adjustment's
November 1, 2019 interpretation (excluding elevator shafts, stairwells, mechanical chutes and
chases from the calculation of floor area for the Project), provided there is no change in the
height or floor plate/massing for the residential tower for the Project;
• Expedited timeframes for commencement and completion of the Park Project, with
commencement of construction of the Park Project within 30 days of issuance of Full Building
Permit, and completion of construction of the Park Project within the earlier of: (i) 36 months
following issuance of the Building Permit, or (ii) 48 months from date of execution of the
Second Amendment; and
• Expedited timeframe for the Closing (and conveyance of the Park Site to the City) not later
than June 1, 2020, unless such date is extended by the City Manager, in writing, at his sole
discretion, until environmental remediation/permitting matters are resolved; and
• Reduction in density for the Project, from a maximum of 410 residential units, to a maximum
of 330 residential units; and
• Approval of final proposed designs for the Park Project that would satisfy the "world-class"
park standard required by the Development Agreement, with Developer to be responsible for
specific resiliency and sustainability enhancements and higher quality fitness equipment both
as recommended by the Administration; and
• Approval of the final design for the Pedestrian Bridge Project, which shall include the artistic
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design elements created by world-renowned artist Daniel Buren; and
• Approval of the Final Pedestrian Bridge Project Budget, in the amount of $12,462,888, with
Developer to be responsible for all costs in excess of an adjusted Maximum City Contribution
of$9,610,000; and
• Strengthening of the financial security to be provided to the City at Closing to ensure a source
of funding is available for City to complete the Park Project and Bridge Project in the event
Developer fails to do so, via a Letter of Credit to secure Developer's Park Project obligations
and Developer's Bridge Project contribution; and
• Developer partial reimbursement of certain fees and expenses the City has incurred to date
in connection with the Appeal and this Second Amendment.
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 second reading/public hearing, a Second Amendment to
the Development Agreement dated January 9, 2019, between the City And South Beach Heights
I, LLC, 500 Alton Road Ventures, LLC, 1220 Sixth, LLC And KGM Equities, LLC, as assigned to
TCH 500 Alton, LLC, by Assignment Of Development Agreement dated as of September 27, 2019
(Tte "Developer"), for the development of the properties located at 500 Alton Road, 630 Alton
Road, 650 Alton Road, 1220 6th Street, 659 West Avenue, 701 West Avenue, 703 West Avenue,
711 West Avenue, 721 West Avenue, 723 West Avenue, 727 West Avenue and 737 West Avenue
(collectively, the "Development Site"), as authorized under Section 118-4 of the City Code, and
Sections 163.3220 — 163.3243, Florida Statutes, which Second Amendment provides, among
other terms and conditions, for: (1) settlement of the dispute arising from the Board of
Adjustment's ruling, dated November 1, 2019, allowing the exclusion of covered stairs, elevator
shafts, mechanical chutes and chases from the calculation of floor area for the Project; (2) a
reduction of the maximum number of residential units permitted on the Development Site, from
410 units to a maximum of 330 units; (3) approval of the final plans for the 3.0 acre public park
that Developer shall construct on behalf of the City, at its sole cost and expense; (4) expedited
timeframes for the Developer to complete construction of the 3.0 acre public park and to convey
ownership of the park site to the City; (5) approval of the final plans for the 5th Street Pedestrian
Bridge Project, which Developer shall construct on City's behalf(the"Pedestrian Bridge Project"),
and (6) approval of the Final Bridge Project Budget, subject to a Maximum City Contribution for
Pedestrian Bridge Project costs.
PASSED AND ADOPTED this _ C� day of Februr _ , 620.
ATTEST:
Dan Gelber, Mayor
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27/thin
Rafael E. ranado, City Clerk APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
City Attorney p(,/j' p Date
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Resolutions -R7 E
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager and Raul J.Aguila, City
Attorney
DATE: February 12, 2020
2:20 p.m. Second Reading Public Hearing
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND
READING/PUBLIC HEARING, A SECOND AMENDMENT TO THE
DEVELOPMENT AGREEMENT DATED JANUARY 9, 2019, BETWEEN THE
CITY AND SOUTH BEACH HEIGHTS I, LLC, 500 ALTON ROAD
VENTURES, LLC, 1220 SIXTH, LLC AND KGM EQUITIES, LLC, AS
ASSIGNED TO TCH 500 ALTON, LLC, BY ASSIGNMENT OF
DEVELOPMENT AGREEMENT DATED AS OF SEPTEMBER 27, 2019 (THE
"DEVELOPER"), FOR THE DEVELOPMENT OF THE PROPERTIES
LOCATED AT 500 ALTON ROAD, 630 ALTON ROAD, 650 ALTON ROAD,
1220 6TH STREET, 659 WEST AVENUE, 701 WEST AVENUE, 703 WEST
AVENUE, 711 WEST AVENUE, 721 WEST AVENUE, 723 WEST AVENUE,
727 WEST AVENUE AND 737 WEST AVENUE (COLLECTIVELY, THE
"DEVELOPMENT SITE"), AS AUTHORIZED UNDER SECTION 118-4 OF
THE CITY CODE, AND SECTIONS 163.3220 - 163.3243, FLORIDA
STATUTES, WHICH SECOND AMENDMENT PROVIDES, AMONG OTHER
TERMS AND CONDITIONS, FOR: (1) SETTLEMENT OF THE DISPUTE
ARISING FROM THE BOARD OF ADJUSTMENT'S RULING, DATED
NOVEMBER 1, 2019, ALLOWING THE EXCLUSION OF COVERED
STAIRS, ELEVATOR SHAFTS, MECHANICAL CHUTES AND CHASES
FROM THE CALCULATION OF FLOOR AREA FOR THE PROJECT; (2) A
REDUCTION OF THE MAXIMUM NUMBER OF RESIDENTIAL UNITS
PERMITTED ON THE DEVELOPMENT SITE, FROM 410 UNITS TO A
MAXIMUM OF 330 UNITS; (3)APPROVAL OF THE FINAL PLANS FOR THE
3.0 ACRE PUBLIC PARK THAT DEVELOPER SHALL CONSTRUCT ON
BEHALF OF THE CITY, AT ITS SOLE COST AND EXPENSE; (4)
EXPEDITED TIMEFRAMES FOR THE DEVELOPER TO COMPLETE
CONSTRUCTION OF THE 3.0 ACRE PUBLIC PARK AND TO CONVEY
OWNERSHIP OF THE PARK SITE TO THE CITY; (5) APPROVAL OF THE
FINAL PLANS FOR THE 5TH STREET PEDESTRIAN BRIDGE PROJECT,
WHICH DEVELOPER SHALL CONSTRUCT ON CITY'S BEHALF (THE
"PEDESTRIAN BRIDGE PROJECT"), AND (6) APPROVAL OF THE FINAL
BRIDGE PROJECT BUDGET, SUBJECT TO A MAXIMUM CITY
CONTRIBUTION FOR BRIDGE PROJECT COSTS.
Page 707 of 1185
RECOMMENDATION
See Commission Memorandum attached.
FINANCIAL INFORMATION •
Applicable Area
Citywide
Is this a Resident Right to Does this item utilize G.O.
Know item? .Bond Funds?
Yes Yes
Legislative racking
Office of the City Attorney
Sponsor
Mayor Dan Gelber
ATTACHMENTS:
Description
o Commission Memorandum
o Ex A- 1st Reading Commission Memorandum
❑ Ex B - Second Amendment to DAw-Exhibits
o Resolution
❑ Ad
Page 708 of 1185
MIAMIBE
City of Miami Beach,1700 Convention Center Drive,Miami Beach,Florida 33139, miar eactgl goy
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of t e City C mission
FROM: Jimmy L. Morales, City Manager
Raul J. Aguila, City Attorney - j cAl
DATE: February 12, 2020
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND
READING/PUBLIC HEARING, A SECOND AMENDMENT TO THE
DEVELOPMENT AGREEMENT DATED JANUARY 9, 2019, BETWEEN THE
CITY AND SOUTH BEACH HEIGHTS I, LLC, 500 ALTON ROAD VENTURES,
LLC, 1220 SIXTH, LLC AND KGM EQUITIES, LLC,AS ASSIGNED TO TCH 500 •
ALTON, LLC, BY ASSIGNMENT OF DEVELOPMENT AGREEMENT DATED AS
OF SEPTEMBER 27, 2019 (THE "DEVELOPER"), FOR THE DEVELOPMENT
OF THE PROPERTIES LOCATED AT 500 ALTON ROAD, 630 ALTON ROAD,
650 ALTON ROAD, 1220 6TH STREET, 659 WEST AVENUE, 701 WEST
AVENUE, 703•WEST AVENUE, 711 WEST AVENUE, 721 WEST AVENUE, 723
WEST AVENUE, 727 WEST AVENUE AND 737 WEST AVENUE
(COLLECTIVELY, THE "DEVELOPMENT SITE"), AS AUTHORIZED UNDER
SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243,
FLORIDA STATUTES, WHICH SECOND AMENDMENT PROVIDES, AMONG
OTHER TERMS AND CONDITIONS, FOR: (1)SETTLEMENT OF THE DISPUTE
ARISING FROM THE BOARD OF ADJUSTMENT'S RULING, DATED
NOVEMBER 1, 2019, ALLOWING THE EXCLUSION OF COVERED STAIRS,
ELEVATOR SHAFTS, MECHANICAL CHUTES AND CHASES FROM THE
CALCULATION OF FLOOR AREA FOR THE PROJECT; (2)A REDUCTION OF
THE MAXIMUM NUMBER OF RESIDENTIAL UNITS PERMITTED ON THE
DEVELOPMENT SITE, FROM 410 UNITS TO A MAXIMUM OF 330 UNITS; (3)
APPROVAL OF THE FINAL PLANS FOR THE 3.0 ACRE PUBLIC PARK THAT
DEVELOPER SHALL CONSTRUCT ON BEHALF OF THE CITY, AT ITS SOLE
COST AND EXPENSE; (4) EXPEDITED TIMEFRAMES FOR THE DEVELOPER
TO COMPLETE CONSTRUCTION OF THE 3.0 ACRE PUBLIC PARK AND TO
CONVEY OWNERSHIP OF THE PARK SITE TO THE CITY; (5)APPROVAL OF
THE FINAL PLANS FOR THE 5T" STREET PEDESTRIAN BRIDGE PROJECT,
WHICH DEVELOPER SHALL CONSTRUCT ON CITY'S BEHALF (THE
"PEDESTRIAN BRIDGE PROJECT"), AND (6) APPROVAL OF THE FINAL
BRIDGE PROJECT BUDGET, SUBJECT TO A MAXIMUM CITY
CONTRIBUTION FOR BRIDGE PROJECT COSTS.
On January 15, 2020, following a duly noticed public hearing, the Mayor and City Commission
Page 709 of 1185
Commission Memorandum
February 12, 2020
Page 2
approved, on First Reading, the proposed Second Amendment to the Development Agreement
between the City and to TCH 500 Alton, LLC, the Developer for the 500 Alton Project.
BACKGROUND
The relevant background for all issues involving this matter is more fully set forth in the January
15, 2020 Commission Memorandum for First Reading of the proposed Second Amendment, a
copy of which is attached hereto as Exhibit"A," and which Commission Memorandum includes
pertinent information regarding the following:
1) Background on the original Development Agreement, including with respect to the
Developer's proposed Project, the Park Project that Developer shall construct for the City, at
Developer's sole cost and expense, and the 5°' Street Pedestrian Bridge Project ("Bridge
Project"),which Developer shall construct for the City,subject to City's payment of a Maximum
City Contribution for the Bridge Project; and
2) Background on the Developer's appeal to the City's Board of Adjustment (BOA)
regarding the calculation of floor area for the Project(the"BOA Appeal"), the BOA's November
1, 2019 interpretation (the "BOA Order"), which BOA Order excluded (1) voids in floors to
accommodate elevator shafts;(2)voids in floors to accommodate mechanical/ventilation/trash
shafts; and (3) voids in floors to accommodate stairwells, including voids to accommodate
stairwells within accessory garages from the calculation of floor area (collectively, the
"Elements") from the calculation of floor area for the Project, and City's filing of a Petition for
Writ of Certiorari in Circuit Court, seeking appellate review of the BOA Order(the "Petition");
and
3) Background on the companion amendment to the City's Land Development
Regulations, also adopted unanimously by the City Commission on First Reading on January
15,2020, to amend the City's Land Development Regulations to expressly codify the Planning
Director's historic interpretation (which has been consistent for more than 48 years), that"floor
area"includes,without limitation,"stairwells,stairways,covered steps,elevator shafts at every
floor(including mezzanine level elevator shafts), and mechanical chutes and chases at every
floor, including mezzanine level" (the "Clarifying LDR Amendment");
4) Analysis of the proposed settlement of the parties' legal dispute, subject to and
contingent upon the City Commission adopting the Clarifying LDR Amendment with an
applicability clause that allows the Project to proceed based on the BOA Order, provided there
is no change in the height or floor plate/massing for the residential tower for the Project;
5) Analysis of the proposed Second Amendment, which would memorialize the settlement of
the parties' dispute and address outstanding issues related to the Project, the Park Project,
and the Pedestrian Bridge Project, including the following principal benefits to the City: (1)
acceleration of the timeframes for conveyance of the Park Site to the City and completion of
construction of the Park Project; (2) reduction in density for the Project, from a maximum of
410 residential units to 330 residential units; (3) contribution from Developer for all Bridge
Project costs in excess of the Maximum City Contribution of$9,610,000.
Page 710 of 1185
Commission Memorandum
February 12, 2020
Page 3
THE PROPOSED SECOND AMENDMENT
At First Reading, the City Commission provided guidance to the Administration and the City
Attorney's Office with regard to the pending issues that were the subject of continued negotiation.
The City Commission expressed an unambiguous desire for all of the material terms of the
Second Amendment to be addressed, and agreed upon, prior to the City Commission's
consideration of the final Second Amendment.
Since First Reading, the City and Developer have engaged in extensive discussions and
negotiations of the remaining pending items.
A copy of the most recent version of the proposed Second Amendment is attached hereto as
Exhibit "B". However, even at this late juncture, and notwithstanding the City Commission's
directive, we are still faced with five (5)significant open issues that must be resolved.
The remainder of this Commission Memorandum focuses solely on the changes made to the
Second Amendment between first and second reading. The agreed-upon changes, as well as
the open issues, are addressed below:
1) Developer's Agreement to Provide a Letter of Credit At Closing, as Security for
Developer's Park Project obligations and for Developer's Contribution for the Bridge
Project.
As noted at First Reading, Developer proposed to secure its Park Project obligations in the form
of a "lender recognition" agreement, whereby Developer's lender would commit to fund the then-
remaining Park Construction Amount to the City, from the Developer's construction loan, in the
event of a Park-Related Default. City, for its part, expressed a clear preference for the security
to be in the form of a standard, irrevocable Letter of Credit issued by a financial institution. From
the City's perspective, a Letter of Credit would involve less risk than a lender commitment, as it
would guarantee to the City access to the then-remaining Park Construction Amount upon the
City's presentment of a sight draft to the financial institution. Clarity with regard to the security
offered to the City is important, as access to the then-remaining Park Construction Amount is the
sole and exclusive remedy available to the City for a Park-Related Default under the Development
Agreement.
The Developer has agreed to provide the Letter of Credit, as requested by the City, to secure not
only the Park Project obligations, but the Developer's Bridge Project contribution (for costs in
excess of the Maximum City Contribution for the Bridge Project).
2) No "Tolling" of the new Park Completion Outside Date, Except for Limited
Construction-Related Delays.
In addition to Developer's agreement to expedite the overall completion date for construction of
the Park Project (which date is the earlier of 36 months from Building Permit for the Park Project
or 48 months from execution of Second Amendment), the Developer has agreed to City's
proposed language that the Park Completion Outside Date shall not be subject to tolling due to
the pendency of any lawsuit challenging the Project or any aspect thereof.
Although the initial Development Agreement provided that such deadlines be subject to tolling for
any number of events, including the pendency of any lawsuits related to the Project or the Park
Page 711 of 1185
Commission Memorandum
February 12, 2020
Page 4
Project, the Developer has agreed that the Park Completion Outside Date would only be subject
to extension for force majeure and similar construction-related delays that directly impede the
critical path of the construction of the Park Project (as would be customary on any construction
project). City, in turn, has accommodated Developer's request to provide for extensions for any
permit agency delays (provided Developer is diligently pursuing same in good faith).'
3) Developer's Covenant to Not Seek a Future Increase to the Height or Floor Plate for the
Project.
As noted at First Reading, Developer agreed to the covenant to not seek any increase to the
height or floorplate for the residential tower for the Project. Although Developer initially requested
that the foregoing restrictions expire should a building permit for the Project not be issued within
a specified timeframe, the Developer has agreed to the covenant to not seek any future increase
to the height or floorplate for the Project, as requested by the City, without restriction.
4) Final minimum amount to be expended by Developer for the Park Project and Final Park
Project Plans (including Resiliency Elements).
The Developer has confirmed the $8 million minimum amount that the Developer will expend for
the Park Project. City staff has met with the Developer and its architect to review the proposed
scope for the Park Project, which shall include the additional resiliency scope elements the
Developer has agreed to provide at the Administration's request, such as the cistern and the
upgraded fitness equipment.
In response to Commissioner Richardson's request at First Reading that the Agreement ensure
Developer's obligations to deliver the resiliency elements for the Park Project(and responsibility
for all costs related thereto), those resiliency elements have been expressly incorporated as part
of the Final Approved Park Plans attached as Exhibit"A" to the Second Amendment.
In addition, Developer has agreed to City's proposed language that the final Park Construction
Amount (which shall be based on Developer's contractor's guaranteed maximum price for the
Park Project), be subject to review by the City Manager and City's professional staff, to ensure
that the final Park Construction Amount, upon which the Letter of Credit will be based, is
reasonably sufficient to complete the Park Project. Although the City's prior draft provided that
such amount would also be subject to City Commission approval, the City agrees that this
technical issue could be addressed at the staff level, as the City is already protected in the Second
Amendment contractually, via the Developer's covenant to spend the minimum of $8 million for
the Park Project.
It should be noted that the above provision only applies to the construction timeline and the Park
Completion Outside Date;the Closing Date would nevertheless be subject to tolling for any lawsuit
challenging the validity of any approval provided for the Project. As the Closing also includes
City's conveyance of 6`h Street to the Developer, and as the City would not want to convey 6`h
Street until the conclusion of any lawsuit challenging any aspect of the Project, the City Attorney
does not object to the foregoing approach with regard to the Closing Date.
Page 712 of 1185
Commission Memorandum
February 12, 2020
Page 5
5) The Administration's Request for Early Completion of a Portion of the Park Project.
The Administration requested that Developer consider whether a designated portion of the Park
Project could nevertheless be completed on a fast track by the end of 2020, if possible. As the
new expedited timeline contemplates that the entire Park Project would be completed at the same
time, Developer has been unable to identify a phasing option that would permit the acceleration
of the entire Park Project while separately providing for early completion of a portion thereof.
Accordingly, consistent with the framework at First Reading, the Second Amendment eliminates
the phasing of the Park Project and provides for construction of the entire Park Project at the
same time.
FINAL PENDING ITEMS REQUIRING CITY COMMISSION DIRECTION
As explained above, as of the date of the release of this Commission Memorandum, there remain
several pending material issues that the Developer and the City have not reached agreement on,
and which may require City Commission input and direction. As these pending matters directly
relate to settlement, the City Attorney will convene an attorney client session (to seek guidance
from the City Commission as to settlement negotiations), to be held during the lunch recess at
the February 12, 2020 City Commission meeting, prior to the City Commission's consideration of
the Second Amendment and the Clarifying LDR Amendment, which is scheduled to be heard in
the afternoon. Depending on the outcome of the attorney-client session, the Second Reading of
the Second Amendment may be opened and continued to a later date. The open issues are
discussed below.
1) Developer's Request to Proceed with the Litigation In the Event of a Successful Third-
Party Challenge Precluding Developer from Excluding the Elements From the
Calculation of Floor Area for the Project.
The proposed settlement has always been premised on the dismissal with prejudice of the
Petition, and a mutual release of all claims related to the matters set forth therein.
However, one day prior to the release of this Commission Memorandum, Developer submitted
proposed language, set forth in Section 18 of the Settlement Agreement, that in the event of a
successful third-party challenge precluding Developer from excluding the Elements from the
calculation of floor area for the Project, Developer would have the right to "obtain final
determination and adjudication of its rights in the pending action/appeal to the Eleventh Judicial
Court in Case No. 19-323-AP-01 and to enforce compliance of its adjudicated rights."
Developer's proposed language is problematic for a number of reasons, most notably in that it
would effectively convert a dismissal with prejudice, which is the direction the City Commission
previously provided to the Administration and City Attorney's Office, to a dismissal without
prejudice. The proposed language is inconsistent with the framework the City has discussed, and
disclosed to the Developer, from the outset; namely, that the Developer assumes all risks with
regard to this transaction, as this is a settlement to resolve the disputed F.A.R. issues that the
Developer has placed in dispute, with a resolution that would benefit the Developer and allow the
exclusion of the Elements from the calculation of floor area for the Project. To permit the
possibility of subsequent, continued litigation of this issue would expressly contravene
the City Commission's express purpose for the settlement: to have the City Commission
Page 713 of 1185
Commission Memorandum
February 12, 2020
Page 6
control its destiny with regard to the calculation of floor area, and not have such matters
determined by a three-judge panel.
2) The Covenant Not to Sue the City Seeking to Exclude the Elements From the
Calculation of Floor Area For Other Projects, and Applicability of the Covenant to
Developer and its "Principals" In Their Individual Capacity.
The Commission Memorandum at First Reading explained that as part of the settlement,
Developer would provide a release in favor of the City and a covenant not to sue the City seeking
to exclude the Elements from the calculation of floor area for any other proposed development,
but that the release and covenant applied solely to the Developer entity (TCH 500 Alton, LLC),
and would not extend to the principals or members of the Developer entity.
Developer has agreed,on behalf of itself and its two individual members, David Martin and Russell
Galbut,that they would not seek to exclude the Elements from the calculation of floor area for any
of the "Designated Properties", namely: (v) 1212 Lincoln Road; (w) 1501 Collins Avenue (the
Bancroft Hotel); (x) 100 Lincoln Road (the Decoplage); (y) 7145 Carlyle Avenue; and (z) the
proposed Ocean Terrace project between 74th Street and 75th Street.2 In addition to the foregoing,
the Developer has agreed in the Second Amendment that a breach of the Settlement Agreement,
would constitute a material event of default under the Development Agreement, which would
entitle the City to terminate the Development Agreement.
The ongoing concern with the Developer's proposed covenant is that it is still too narrow to be
meaningful, and would not preclude entities owned by or affiliated with Mr. Martin or Mr. Galbut
to sue the City seeking to exclude the Elements from the calculation of floor area, even with
respect to the"Designated Properties" (i.e., the Developer's proposed covenant would undermine
the intent for the covenant not to sue altogether).
Based on the above concern, City has proposed that the covenant apply to Developer and each
of its members (direct and indirect), principals, affiliates, subsidiaries, directors, officers,
managers, employees, attorneys, successors and assigns (collectively, the "Developer Parties").
Moreover, City's proposed language would not be limited to 5 specific properties, but would
achieve a full and complete settlement with regard to the disputed BOA appeal, for all purposes
and all developer projects.
3) Limited Scope of Developer's Indemnification of the City.
As discussed at First Reading, the City Attorney's Office had previously requested a full
indemnification from the Developer for all third-party claims that could arise by virtue of City's
adoption of this proposed Second Amendment or the Clarifying LDR Amendment (the vehicle
through which Developer would be permitted to exclude the disputed Elements from the
calculation of floor area for the Project).
Developer has agreed to only indemnify the City for third-party claims relating to the Second
Amendment and/or the Clarifying LDR Amendment as it applies to the Developer's Project, but
2 It is unclear how the Developer's proposed inclusion of the Ocean Terrace project would make
any difference for the City, as the Ocean Terrace Project has already instituted adversarial
proceedings, based on the Developer's BOA Appeal.
Page 714 of 1185
Commission Memorandum
February 12, 2020
Page 7
Developer has objected to indemnifying the City for third-party claims concerning the application
of the Clarifying LDR Amendment to other development projects.
If the City Commission were to accept the Developer's proferred indemnity, the City would be
solely responsible for the fees and costs, and any liability exposure, related to any third-party
claims concerning the applicability of the Clarifying LDR Amendment as to other development
projects. Since First Reading, Mr. Neisen Kasdin, counsel for Ocean Terrace Holdings, LLC, the
developer of the Ocean Terrace Project, has initiated adversarial administrative proceedings
against the City by filing a Petition for Administrative Appeal, challenging the Planning
Department's exclusion of the Elements from the floor area calculations for the Ocean Terrace
development project. Other similar claims may follow suit.
Should the City accept the Developer's compromise position,the City would be solely responsible
for claims regarding the Clarifying LDR Amendment, as it relates to other development projects,
including the adverse proceeding recently initiated by Ocean Terrace Holdings, LLC.
4) Developer's Request to Eliminate Previously Negotiated Public Benefit Consisting of a
$750,000 Credit to the City for 10th Street to 12th Street Baywalks.
The Development Agreement provides that Developer shall complete, or cause to be completed,
the construction of the unfinished baywaiks along 1000 West Avenue(Mirador 1000 Condo), 1100
West Avenue (Mondrian Hotel), and 1200 West Avenue (Mirador 1200 Condo) (collectively, the
‘Baywalks") subject to City's obtaining the permits and any necessary consents for the Baywalks
from adjacent upload owners. Due to a concern that the adjacent upland owners may not provide
the requisite consents, the Development Agreement provided that in such event, Developer shall
provide a credit of $750,000 to the City (representing the value of the construction work the
Developer would be responsible for the Baywalks), which credit would be applied to the
construction of the Bridge Project.
During negotiations since First Reading, City sought to clarify that as the original $750,000 credit
is a credit to the City, if the upland owner consents are not obtained, the $750,000 credit would,
following approval of the Second Amendment, still be applied in favor of the City, i.e., to reduce
City's contribution for the Bridge Project. In the event the Baywalk consents from upland property
owners are not obtained, Developer has proposed elimination of the $750,000 credit, in view of
Developer's contribution to cover all costs in excess of the City's Maximum Contribution for the
Bridge Project.
Absent direction by the City Commission on this item, the Administration is not in a position to
recommend elimination of the $750,000 credit to the City.
5) Partial Reimbursement of City Costs for the BOA dispute and this Second Amendment.
City has proposed partial reimbursement of costs, up to $270,000. Developer has proposed
reimbursement of costs up to $125,000. As explained at First Reading, the Administration and
City Attorney's Office recommend the reimbursement of $270,000 in fees to cover City's out-of-
pocket costs in connection with this dispute and the resolution thereof. Moreover, should the City
Commission be inclined to accept the Developer's proposed limitation on the indemnity provision,
the reimbursement of City's fees would better position the City to cover costs for any third-party
claim not covered by the Developer pursuant to the indemnity provision.
Page 715 of 1185
Commission Memorandum
February 12, 2020
Page 8
JOINT CITY MANAGER/CITY ATTORNEY RECOMMENDATION
The City Commission's directive that all material issues be resolved prior to the second and final
reading of the Second Amendment and the Clarifying LDR Amendment speaks for itself. To that
end, the City Attorney's Office and outside counsel have worked tirelessly to conclude
negotiations and bring a final product before the City Commission. Unfortunately, that is not the
case, and in fact, the Developer continues to introduce new issues (such as the proposed
elimination of the previously negotiated $750,000 Baywalk credit, and the entire framework for a
conclusive settlement of this matter, with prejudice). In addition, the remaining issues such as
the covenant not to sue and the indemnification are significant to the City in as much as they
leave the City disproportionately exposed to future claims and potential liability. Given these
factors, we will present the outstanding settlement issues and seek direction from the City
Commission at the attorney-client session on February 12, 2020. Depending on the outcome of
the attorney-client session, our joint recommendation may be to open and continue the second
reading of both the Second Amendment and the Clarifying LDR Amendment pending resolution
of the material open items.
FISCAL IMPACT STATEMENT
Pursuant to Section 2-12 of the City Code, the proposed Second Amendment would not result in
an anticipated increase in budgeted revenues or expenditures of the City in this fiscal year, or in
the next fiscal year, as the City is not incurring any expense whatsoever related to the Park
Project, and the Maximum City Contribution of $9,610,000 for the Pedestrian Bridge Project is
within the $10 million previously appropriated for the Pedestrian Bridge Project. To the extent the
settlement is approved, the reimbursement of City fees would reduce City's expenditures in this
fiscal year by the amount of the final agreed-upon reimbursement.
•
Page 716 of 1185
Agenda Item R7 E
Date a-/a-a0
MIAMIBEACH
City of Miami Beach,1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Honorable Mayor an• q -• b- of the City Commission
FROM: Raul J. Aguila, ' it ,r, •rney
DATE: February 12, 2020
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING SECOND
READING/PUBLIC HEARING, A SECOND AMENDMENT TO THE
DEVELOPMENT AGREEMENT DATED JANUARY 9, 2019, BETWEEN THE
CITY AND SOUTH BEACH HEIGHTS I, LLC, 500 ALTON ROAD VENTURES,
LLC, 1220 SIXTH, LLC AND KGM EQUITIES, LLC, AS ASSIGNED TO TCH 500
ALTON, LLC, BY ASSIGNMENT OF DEVELOPMENT AGREEMENT DATED AS
OF SEPTEMBER 27, 2019 (THE "DEVELOPER"), FOR THE DEVELOPMENT
OF THE PROPERTIES LOCATED AT 500 ALTON ROAD, 630 ALTON ROAD,
650 ALTON ROAD, 1220 6TH STREET, 659 WEST AVENUE, 701 WEST
AVENUE, 703 WEST AVENUE, 711 WEST AVENUE, 721 WEST AVENUE, 723
WEST AVENUE, 727 WEST AVENUE AND 737 WEST AVENUE
(COLLECTIVELY, THE "DEVELOPMENT SITE"), AS AUTHORIZED UNDER
SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243,
FLORIDA STATUTES, WHICH SECOND AMENDMENT PROVIDES, AMONG
OTHER TERMS AND CONDITIONS, FOR: (1) SETTLEMENT OF THE DISPUTE
ARISING FROM THE BOARD OF ADJUSTMENT'S RULING, DATED
NOVEMBER 1, 2019, ALLOWING THE EXCLUSION OF COVERED STAIRS,
ELEVATOR SHAFTS, MECHANICAL CHUTES AND CHASES FROM THE
CALCULATION OF FLOOR AREA FOR THE PROJECT; (2)A REDUCTION OF
THE MAXIMUM NUMBER OF RESIDENTIAL UNITS PERMITTED ON THE
DEVELOPMENT SITE, FROM 410 UNITS TO A MAXIMUM OF 330 UNITS; (3)
APPROVAL OF THE FINAL PLANS FOR THE 3.0 ACRE PUBLIC PARK THAT
DEVELOPER SHALL CONSTRUCT ON BEHALF OF THE CITY, AT ITS SOLE
COST AND EXPENSE; (4) EXPEDITED TIMEFRAMES FOR THE DEVELOPER
TO COMPLETE CONSTRUCTION OF THE 3.0 ACRE PUBLIC PARK AND TO
CONVEY OWNERSHIP OF THE PARK SITE TO THE CITY; (5)APPROVAL OF
THE FINAL PLANS FOR THE 5TH STREET PEDESTRIAN BRIDGE PROJECT,
WHICH DEVELOPER SHALL CONSTRUCT ON CITY'S BEHALF (THE
"PEDESTRIAN BRIDGE PROJECT"), AND (6) APPROVAL OF THE FINAL
BRIDGE PROJECT BUDGET, SUBJECT TO A MAXIMUM CITY
CONTRIBUTION FOR BRIDGE PROJECT COSTS.
Supplemental Commission Memorandum
February 12, 2020
Page 2
The Commission Memorandum that accompanies this Agenda item includes a summary of the
agreed-upon changes made since First Reading of the proposed Second Amendment to the
Development Agreement, along with a discussion of several pending material issues that the
Developer and the City had not resolved as of the agenda print date. These unresolved issues
may require City Commission input and direction.
Since the release of the February 12, 2020 City Commission agenda, the Developer and the City
have continued their extensive discussions in an effort to resolve the pending issues.
An updated version of the Second Amendment, including an updated version of the Final
Approved Park Plans and Final Bridge Project Plans, is attached hereto as Exhibit"A."
The negotiated Second Amendment not only provides for the settlement of the litigation and the
parties' dispute concerning the floor area calculation for the Project, but improves the City's
position with respect to the Project, the Park Project, and the Bridge Project. The key provisions
of the Second Amendment are as follows:
• Expediting the timelines for the conveyance of the Park Site to the City and the completion
of construction of the Park Project; and
• Reducing the Project density, from a maximum of 410 residential units to 330 units; and
• Confirming Developer's contribution for all Bridge Project costs in excess of City's
Maximum Contribution of $9,610,000, with such Developer contribution anticipated to
exceed $2 million; and
• Strengthening the security provided to the City, via an irrevocable Letter of Credit, to cover
both the Developer's Park Project and Bridge Project financial obligations; and
• Providing for Developer's indemnification of the City for any third-party claims in
connection with the Project, including any matter related to the Second Amendment; and
• Achieving a dismissal with prejudice of the City's Petition, and mutual releases of all
claims; and
• Allowing the exclusion of the Elements from the calculation of floor area for the Project,
provided there is no change to the height or floor plate to the Tower for the Project, and
further provided that Developer covenants to not seek any future increase to the height or
floor plate for the Tower.
As noted in the Commission Memorandum accompanying this Agenda Item, the remaining
pending issues, which are denoted as "open issues" within the text of the Second Amendment
itself, are discussed in greater detail in the Commission Memorandum that accompanies this
Agenda Item (see pages 714-715 of the Agenda Book). The remaining items include:
Supplemental Commission Memorandum
February 12, 2020
Page 3
1. The scope of the covenant not to sue and applicability to certain specified projects affiliated
with Developer and/or its principals (Item No. 2, p. 714 of Agenda);
2. The scope of the Developer's indemnification of the City(Item No. 3, p. 714 of Agenda)
3. Developer's request to eliminate provision in the Development Agreement for a $750,000
credit to the City, in the event third-party consents for the 10th Street to 12th Street baywalks
are not obtained (Item No. 4, p. 715 of Agenda); and
4. Developer's reimbursement of City's costs incurred with regard to the BOA Appeal, the
Petition, and the Second Amendment (Item No. 5, p. 715 of Agenda).
Exhibit "A"
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT is made as of
this day of February, 2020 (this "Second Amendment")by and between the CITY OF
MIAMI BEACH, a Florida municipal corporation (the "City"), and TCH 500 Alton, LLC, a
Delaware limited liability company ("Developer") (the City and Developer, each a "Party" and
collectively, the"Parties").
RECITALS
A. City and 500 ALTON ROAD VENTURES, LLC, a Delaware limited liability
company, 1220 SIXTH, LLC, a Delaware limited liability company, SOUTH BEACH
HEIGHTS I, LLC, a Delaware limited liability company, and KGM EQUITIES, LLC, a
Delaware limited liability company entered into that certain Development Agreement, dated as
of January 9, 2019, 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 (the
"Development Agreement"), which Development Agreement is recorded in Official Records
Book 31323, Page 2781 in and of the Public Records of Miami-Dade County, Florida, as
assigned to TCH 500 Alton, LLC, pursuant to that certain Assignment and Assumption of
Development Agreement dated as of September 27, 2019 and recorded in Official Records Book
31627, Pages 1177-1182 in and of the Public Records of Miami-Dade County, Florida.
B. The Development Agreement provides, among other terms, the City's and
Developer's respective responsibilities and agreement to coordinate and cooperate in the
planning, scheduling and approval of the design, development and construction of a mixed use
residential and commercial project (the "Project") on the Development Site (as that term is
defined in the Development Agreement), and a 3.0 acre public park to be conveyed to the City
(the"Park Project").
C. On July 17, 2019, the Mayor and City Commission of the City approved a First
Amendment to the Development Agreement, delineating the terms and conditions for Developer
to develop, permit, design and construct a pedestrian bridge over and across 5th Street and West
Avenue, to connect the baywalks south of 5th Street with the Development Site (the "First
Amendment"),which First Amendment was dated as of December 18, 2019.
D. On November 1, 2019, the City's Board of Adjustment heard an appeal filed by
Developer, and voted to reverse an administration determination of the Planning Director
("Determination"), with respect to the inclusion of the following building elements in floor area
calculations for the Project in accordance with the City Code: (1) voids to accommodate elevator
shafts; (2) voids to accommodate mechanical/ventilation/trash shafts; and (3) voids to
accommodate stairwells, including voids to accommodate stairwells within accessory garages
(the "BOA Appeal"). On or about December 3, 2019, the City appealed the Board of
Adjustment ruling reversing the Planning Director's Determination to the Eleventh Judicial
Court in and for Miami-Dade County, and filed a Writ for Petition of Certiorari in Case No. 19-
323 AP-01 (the"Action").
ADSLLP-00076400.13
E. The Parties desire to resolve their dispute relating to the BOA Appeal and the
Action, and desire to amend the Development Agreement and First Amendment thereto, to
accomplish the terms and conditions outlined herein.
F. In Resolution No. 2020- , the Mayor and City Commission approved this
Second Amendment, following two (2) duly noticed public hearings in compliance with Section
163.3225 of the"Act,"having determined that it is in the City's best interest to address the issues
covered by the Development Agreement, as amended, in a comprehensive manner.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
conditions contained in this Second Amendment, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this Second
Amendment, intending to be legally bound, agree to amend the Development Agreement, as
amended, by the following additions (indicated by underlining and deletions indicated by
strilethceughs), as follows:
1. Incorporation of Recitals. The parties warrant and represent that the foregoing recitals
are accurate and correct and incorporate them into this Second Amendment.
2. Interpretation.
(a) Capitalized terms used but not otherwise defined in this Second Amendment shall
have the same meaning given to such terms in the Development Agreement or the
First Amendment thereto, unless otherwise specifically indicated or unless the
context clearly indicates to the contrary.
(b) The words "hereof", "herein" and "hereunder" and words of similar import when
used in this Second Amendment shall refer to this Second Amendment as a whole
and not to any particular provision of this Second Amendment. The words
"include", "includes" and"including" shall be deemed to be followed by the phrase
"without limitation". References herein to "days" shall mean calendar days unless
otherwise expressly provided. Unless the context in which used herein otherwise
clearly requires, "or" has the inclusive meaning represented by the phrase "and/or".
Defined terms include in the singular number the plural and in the plural number
the singular.
PART I—THE PROJECT AND PARK PROJECT
3. Amendment to Section 3 of Development Agreement.
(a) Section 3.7 of the Development Agreement is amended as follows:
3.7. "Closing" shall mean the formal exchange of documents between the
parties, as further described in Paragraph 9 of this Agreement. The
. • _ - . • .
ADSLLP-00076400.13 2
(a) the "Hazardous Substance Environmental Contingency" (as more
specifically defined below) as to the entire Park Site; and (b)
.. -- • - - "I "
. - . - -
City Commission. The Closing shall occur on a date set by the Developer,
which shall not be later than June 1, 2020, on not less than ten (10)
Business Days prior written notice to the City; or, if DERM has not issued
an approved Remedial Action Plan for the Park Site as of the then
scheduled Closing Date, then on such later date as may be set by the City
Manager on written notice to the Developer not less than five (5)
Business Days prior to such then scheduled Closing Date, should the City
Manager elect to extend the Closing until after the issuance of a DERM-
approved Remedial Action Plan for the Park Site. If the Closing is
extended by the City Manager, then: (a) the City Manager shall promptly
issue a letter to the City Commission apprising the City Commission of
the status of the Closing including the new Closing Date; and (b) any
further extensions of the Closing by the City Manager shall be treated in
the same manner as set forth above.
(b) Section 3.15 of the Development Agreement is amended as follows:
"Environmental Contingency" shall mean the remediation of the Park
Site, as further described in subparagraphs 6(c)(i) through (iv) (iii) of this
Agreement.
(c) Section 3.25(c) of the Development Agreement is amended as follows:
(c) The uses permitted on the Development Site shall have a maximum
of: (i) 330 41-0 residential units (including multi-family residential units,
single-family detached units, townhomes, condominiums, and
apartments), with up to a total of nine (9) or three percent (3%) of such
residential units, whichever is less, consisting of "Amenity Guest
Apartment Units" available for use (on a daily, weekly or monthly basis)
only by the owners, tenants and/or residents of the multi-family residential
tower in which such residential units are located and the relatives, guests
and invitees of such owners, tenants and/or residents (with no
advertisements or listings of such Amenity Guest Apartment Units for
rental by the general public, and no activity or operation of such Amenity
Guest Apartment Units that would require a hotel license or public
lodging establishment license by the State of Florida Department of
Business and Professional Regulation); and (ii) 15,000 square feet of retail
uses. Except with respect to the Amenity Guest Apartment Units (which
ADSLLP-00076400.13 3
may be rented, leased, used and/or occupied on a daily, weekly or monthly
basis), the Developer acknowledges and agrees that, as part of the
consideration to the City for the vacation of the City Parcel and for
entering into this Agreement, any agreements for the rental, lease, sub-
lease, use or occupancy of residential units within the Development Site
for periods of less than six (6) months and one (1) day shall be expressly
prohibited with respect to (xi) all residential units that are part of a
condominium form of ownership and owned by person or entities other
than the Developer, and (xii) ninety percent (90%) of the residential units
owned by the Developer; provided, however, any agreements for the
rental, lease, sub-lease,use or occupancy with respect to ten percent(10%)
of the residential units owned by the Developer for periods of less than
thirty (30) days shall be expressly prohibited. If any of the residential
units in the multi-family residential tower are developed and sold as a
condominium, then the limitations set forth in this subparagraph 3.25(c)
shall be expressly incorporated in the Declaration of Condominium to
which such residential units are subjected. Developer covenants that it
will not seek any increase to the maximum height of 519 feet or maximum
floor plate of 13,800 sq. ft. for the multi-family residential tower for the
Project.
(d) Section 3.30 of the Development Agreement is hereby amended as follows:
3.30 "World-class" shall mean, with respect to the Park Project, the
same or substantially similar standard of physical and operational quality
for the facilities, landscaping and associated infrastructure as the following
parks as of the Effective Date: Millennium Park, Chicago, Illinois; South
Point Park, Miami Beach, Florida; and Soundscape Park, Miami Beach,
Florida. "'- - . ., . ' . •• . ' - .
upon the issuance of the "Park Zoning Approval" (as more specifically
defined below
4. Amendment to Section 6 of the Development Agreement. Section 6 of the
Development Agreement is hereby amended as follows:
(a) Section 6(c) of the Development Agreement is amended as follows:
(i)
then the Developer shall deliver to the City on or before Closing a bond, letter of
credit, or similar security reasonably acceptable to the City in an amount equal to
(ii) If the Developer Environmental Assessments and/or any timely delivered
City Environmental Assessments identifies any hazardous substance (other than
ADSLLP-00076400.13 4
arsenic) within the Park Site that is in violation of any environmental laws, rules,
regulations or standards applicable to the use of the Park Site as a public
municipal park in the City of Miami Beach, then the Developer shall remediate
the Park Site for such hazardous substances prior to Closing prior to conveyin,
the completed Park Project to the City (the "Hazardous Substance
Environmental Contingency").
(iii)(jiff the Developer Environmental Assessments and/or any timely delivered
City Environmental Assessments identifies any arsenic within the Park Site that is
in violation of any environmental laws, rules, regulations or standards applicable
to the use of the Park Site as a public municipal park in the City of Miami Beach,
then the Developer shall remediate the Park Site for such arsenic prior to
conveying the completed Park Project to the City. If the Developer fails to
to the City, and such failure is not cured by Developer within any applicable
notice and cure period, then the City may draw on the Arsenic Surety for the
(iv)(iii) For purposes of this Agreement, the term "remediate" (and words
derivative thereof or of similar import such as "remediation") shall mean all
actions necessary to obtain regulatory closure of the remediation at issue with
conditions from Miami-Dade County Department of Regulatory and Economic
Resources — Division of Environmental Resources Management ("DERM")
and/or any other agency, department or governmental authority having
jurisdiction over such remediation(any other agency, department or governmental
authority having jurisdiction over such remediation is referred to herein as an
"Applicable Environmental Agency"). Such conditional closure shall allow for
recordation of a covenant in favor of Miami-Dade County and/or any other
Applicable Environmental Agency against title to the Park Site that provides for
implementation of an approved engineering control (such as a clean soil cap) and,
if necessary, prohibits use of groundwater for consumption or irrigation. In
addition, the Developer may also, in its sole and absolute discretion, elect to
remediate in full or in part by seeking approval from DERM and/or any other
Applicable Environmental Agency of "Alternative Cleanup Target Levels" or
by conducting source removal. In the event that the Developer elects to pursue
conditional closure for soils on the Park Site based in part or in full on the use of
an engineering control, the Developer shall be required to obtain approval from
DERM and/or any other Applicable Environmental Agency of an "Enflineering
Control Plan" with respect to such engineering control. The Developer's
obligations under this Paragraph 6 (i.e., satisfaction of the Hazardous Substance
Environmental Contingency and/or satisfaction of the Environmental
Contingency (as applicable)) shall be deemed complete upon issuance by DERM
and/or any other Applicable Environmental Agency of correspondence indicating
that no further remediation is required with respect to the Park Site. Prior to
Closing, the Developer shall have the right to execute and record any and all
agreements, documents and/or instruments against title to the Park Site in
connection with its remediation of the Park Site. After Closing, the City shall
ADSLLP-00076400.13 5
promptly execute and deliver to the Developer (and the Developer shall have the
right to thereafter record against title to the Park Site) any and all agreements,
documents and/or instruments requested by the Developer in connection with its
remediation of the Park Site, subject to the City's right to approve any such
agreements, documents and/or instruments, which approval shall not be
unreasonably withheld, conditioned or delayed.
5. Amendment to Section 8 of the Development Agreement. Section 8 of the
Development Agreement is hereby amended as follows:
8 Prerequisites to Building Permits. The Developer acknowledges
that until the effective date of the Vacation Resolution and the Closing, the
City remains the owner of the City Parcel, and that no application for a
Building Permit for the residential component of the Project may lawfully
be approved without the City's joinder to such application while the City
is the owner of the City Parcel. The City shall not join any application for
a Building Permit for the residential component of the Project, and shall
not join the Covenant in Lieu of Unity of Title (and therefore no Building
Permit for the residential component of the Project may be issued), until
after the effective date of the Vacation Resolution and the Closing
(including the execution and/or delivery of all items in subparagraphs
9(a)-(k) of this Agreement). Subject to the immediately preceding two (2)
sentences with respect to the residential component of the Project, and
subject to the issuance of the Building Permit for the Park Project, the
Developer shall have the right to apply for a phased Building Permit for
the Project, the first phase of which may include either the commercial or
the residential component of the Project, or both the commercial and the
residential components of the Project, at any time during the Term of this
Agreement ; . . . -:, - . , ' - - t - . - . . - - . .•- . : .' .
Permit for the commercial component of the Project located north of 61
such commercial area of the Project located north of 6th Street in
- • 4 -• -- -
6. Amendment to Section 9 of the Development Agreement. Section 9(f) of the
Development Agreement is hereby amended as follows:
(f) Developer will deliver, at its election, either:
(i) a written tri party agreement among Developer, the City and the
lender providing a construction loan for the construction of the Park
to the City (the "Recognition Agreement"), pursuant to which the Park
Lender agrees, among other terms, to (A) fund the then remaining "Park
Construction Amount" (as hereinafter defined) directly to the City in the
"p p - • " - - - - - -- •
under this Agreement which is not cured by Developer within any
ADSLLP-00076400.13 6
applicable notice and cure period, (B) fund the then remaining Park
then remaining Park Construction Amount directly to the City pursuant to
(ii) a letter of credit (the "Letter of Credit") in an amount equal to the
Park Construction Amount (as hereinafter defined), which Letter of Credit
(A) is unconditional, irrevocable, and payable to City on sight at an office
of the issuing financial institution in a single draw equal to the then
remaining Park Construction Amount, (B) is in form and content
reasonably acceptable to the Developer and the City, and (C) shall contain
an "evergreen" provision which provides that the Letter of Credit is
automatically renewed on an annual basis (unless the issuer delivers sixty
(60) days' prior written notice of cancellation to City) until the Park
Project has been completed and accepted by the City, and which the City
shall have the right to present for payment in accordance with its terms in
the event (Y) of any Park Related Default by Developer under this
Agreement which is not cured by Developer within any applicable notice
and cure period, or (Z) the Developer fails to provide the City with any
renewal or replacement letter of credit complying with the terms of this
Agreement at least thirty (30) days prior to the expiration of the then-
current Letter of Credit where the issuer of such Letter of Credit has
advised the City of its intention not to renew the same.
(iii) For purposes of this Agreement, the term: (A) "Park Construction
Amount" shall mean an amount equal to one hundred percent (100%) of
the then remaining cost to complete the construction of
3 of the Park Project based on the budget of a guaranteed maximum price
contract for or which includes the construction of the Park Project(i.e., the
cost to construct the Park Project based on the Final Approved Park Plans,
as initially set forth in the budget of a guaranteed maximum price contract
for or which includes the construction of the Park Project, less any
amounts paid towards the construction of the Park Project); and (B) "Park
Related Default" shall mean any of (Y) the failure of the Developer to
construct the Park Project in accordance with the terms and conditions of
this Agreement and/or(Z) institution of any foreclosure proceeding by any
lender (including without limitation any mezzanine lender) of Developer
or any of its members with respect to the Project. If the Developer elects
to deliver the Letter of Credit, then the The Developer shall have the right
to reduce the amount of the same Letter of Credit to reflect the then
remaining cost to substantially complete the Park Project Park
on a calendar quarter basis by delivering to the City
Manager documentation supporting such reduction (including, at a
minimum, a completion certificate by the "Park Contractor" (as
ADSLLP-00076400.13 7
hereinafter defined), certifying the percentage completion of the Park
Project based on the schedule of values set forth in the"Park Construction
Contract" (as hereinafter defined). The City shall: (AA) cooperate with the
Developer in reducing the amount of the Letter of Credit (including,
without limitation, promptly providing an original instruction letter, duly
signed by the City Manager (or his or her designee), authorizing the
applicable financial institution to reduce the amount of the Letter of Credit
and otherwise complying with any requirements of the issuer of the Letter
of Credit in reducing the amount of the same) as and when requested by
the Developer in accordance with this sub-section 9(f)(ii)); and (BB)
promptly after its acceptance of the completed Park Project, return the
Letter of Credit to the Developer, together with an original instruction
letter, duly signed by the City Manager (or his or her designee),
authorizing the applicable financial institution to cancel the Letter of
Credit and otherwise comply with any requirements of the issuer of the
Letter of Credit to canceling the same.
(iii) Following any Park Related Default, the City shall have the right,
but not the obligation, to draw all funds under the Letter of Credit. The
right to draw funds under the Recognition Agreement or Letter of Credit
(as applicable) shall be the City's sole and exclusive remedy with respect
to a Park Related Default, other than the failure of the Developer to
(iv) of this Agreement. AAs soon as the City draws any funds under the
Recognition Agreement or Letter of Credit (as applicable), then all
conditions precedent to the issuance of a temporary certificate of
occupancy, final certificate of occupancy, and/or certificate of completion
for the Project (whether in whole or in part) shall be deemed satisfied, and
the Developer shall have the right to apply for a temporary certificate of
occupancy, final certificate of occupancy, and/or certificate of completion
for the Project (whether in whole or in part) whether or not construction of
the Park Project has been completed or accepted by the City, in which
case, the City's issuance of a temporary certificate of occupancy, final
certificate of occupancy, and/or certificate of completion for Project
(whether in whole or in part) shall only be subject to such regulatory
approvals that may be required by any agencies having jurisdiction over
the Project (or such part thereof for which a temporary certificate of
occupancy, final certificate of occupancy, and/or certificate of completion
is sought).
(iv) If the Park Lender refuses to enter into a Recognition Agreement
Agreement is not reasonably acceptable to the City, then the Developer
(hall be required to deliver the Letter of Credit in lieu of the Recognition
Agreement. If the City draws funds under the Letter of Credit and there
are any excess funds remaining after the City completes construction of
the Park Project, the City shall return any such excess funds to the
ADSLLP-00076400.13 8
Developer promptly after the City completes such construction of the Park
Project. In addition, to the fullest extent permitted by law, the City shall
indemnify and hold the Developer harmless from and against any and all
damages, losses, liabilities, fees, cost and expense (including attorneys'
fees, costs and expenses) that the Developer may pay, sustain or incur as a
result of the Letter of Credit being lost or presented by any person or
entity other than the City. This paragraph shall survive the expiration or
any earlier termination of this Agreement.
7. Amendment to Section 12 of Development Agreement. Section 12 of the
Development Agreement is hereby amended as follows:
12(a) Except as expressly set forth in this Agreement, Developer shall be
solely responsible for the design, permitting and construction of the Park
Project, at the Developer's sole cost and expense. The Developer shall
execute a contract for the design of the Park Project pursuant to the Park
Zoning Approval with a Florida licensed architecture/engineering firm
(the "Park Design Contract"), unless the Developer elects to execute a
design-build contract for the Park Project pursuant to the Park Zoning
Approval as provided below. The Developer shall execute a contract for
the construction of the Park Project pursuant to the Park Zoning Approval
with a Florida licensed contractor (the "Park Contractor"), or,
alternatively, the Developer may, in its sole and absolute discretion,
execute a design-build contract with the Park Contractor for the design
and construction of the Park Project pursuant to the Park Zoning
Approval, which contract may be a stand-alone construction or design-
build contract with a guaranteed maximum price for the Park Project, or
an addendum to or component of a construction or design-build contract
related to both the Project and the Park Project (the "Park Construction
Contract"). The Park Design Contract and Park Construction Contract
shall, among other things: (a) require that the City to be named as an
additional or named insured on all insurance coverages required by the
Park Design Contract and Park Construction Contract and under which the
Developer is an additional or named insured; (E) (b) require that the City
be named a co-obligee under any the payment and performance bonds (if
any) required by Park Construction Contract, as provided below; ( ) be
assignable to the City in the event of a default by the Developer under the
Park Design Contract, Park Construction Contract or this Agreement
(which assignment shall include, with respect to the Park Design Contract,
an assignment or express right to use the plans, specifications and
drawings for the Park Project), as provided below; (d) (e) contain usual
and customary warranties by the Park Contractor (including a warranty
against defective workmanship for a period of not less than one year
following substantial completion of the Park Project); (f)name the City
as an intended third-party beneficiary with respect to all warranties
included in the Park Design Contract and Park Construction Contract; and
(g) provide the City with the same indemnification protections as
ADSLLP-00076400.13 9
afforded the Developer under the Park Design Contract and Park
Construction Contract. Except as expressly specified in this Agreement,
in no event shall City be responsible for paying or otherwise reimbursing
the Developer or the Park Contractor for any costs to design, develop or
construct the Park Project.
(b) The final proposed plans for the design of the Park Project are hereby
approved by the City Commission, in its proprietary capacity, and attached
as Exhibit "A" to the Second Amendment of this Agreement (the "Final
Approved Park Plans"). Upon execution of the Second Amendment to
this Agreement, the Final Approved Park Plans are conclusively deemed
to satisfy the World-class standard. Any changes to scope, or value
engineering, following the City Commission's approval of the Final
Approved Park Plans, shall be subject to the City Manager's prior review
and approval. Any proposed modifications to the Final Approved Park
Plans shall be indicated by "ballooning," highlighting, blacklining or
describing such modifications in reasonable detail. Within ten (10)
Business Days after receipt of the same, the City Manager shall review
and either (i) approve the proposed modifications, (ii) reject the proposed
modifications, or (iii) notify the Developer of the City Manager's election
to present the proposed changes to the City Commission for its
consideration at its next regularly scheduled City Commission meeting.
Neither the City Manager nor the City Commission shall have the
obligation to approve any changes in scope or value engineering of the
Final Approved Park Plans that he/they deem, in his/their respective sole
and reasonable discretion, to be material. In the event that either the City
Manager or the City Commission, as applicable, does not approve changes
deemed to be material, such decision shall be binding on the Developer,
and Developer shall be obligated, at its sole cost and expense, to construct
the Park Project in accordance with the Final Approved Park Plans.
• •• I , • -
and limited purpose of verifying that the Park Project set forth therein is
substantially in accordance with the Park Zoning Approval. The City
Manager shall review and either approve or reject such construction
City Manager fails to approve or reject such construction documents
within such ten (10) Business Day period, then such construction
documents shall be deemed approved by the City Manager. However, if
the specific and detailed reasons for such rejection; in which event, the
Developer shall revise the construction documents for the Park Project so
process until such construction documents have been or are deemed to
ADSLLP-00076400.13 10
. "• "
Prior to commencement of any construction of the Park Project, the
the Approved Park Plans (which shall be indicated by "ballooning,"
detail) for the sole and limited purpose of verifying that the Park Project
set forth therein is substantially in accordance with the Park Zoning
Approval. The City Manager shall review and either approve or reject the
modifications within such ten (10) Business Day peried, then such
it shall give the specific and detailed reasons for such rejection; in which
. _
,� •
the Park Project and, in the event of any such dispute, all time periods set
Developer and the City.
(c) Prior to the issuance of the Building Permit for the Park Project.,
Developer shall execute, and shall cause its architect/engineer and the
Park Contractor each to execute an assignment of the Park Design
Contract and Park Construction Contract, as applicable, in the form of
assignment attached as Exhibit "B" to the Second Amendment to this
Agreement.
(d) Prior to the issuance of the Building Permit for the Park Project.,
Developer shall require the Park Contractor to provide a performance
bond and a payment bond for the Park Project, in the forms attached as
Exhibit "C" to the Second Amendment to this Agreement in an amount
equal to the Park Construction Amount, which performance bond and
payment bond shall each name the City as co-obligee.
(e) After the issuance of a Building Permit for the Park Project, the
Developer shall construct, at its sole cost and expense, the Park Project
ADSLLP-00076400.13 11
substantially in accordance with the Park Zoning Approval and Final
Approved Park Plans.
(f) Developer covenants and agrees to expend a minimum of
$8,000,000 for the total design, permitting and construction of the Park
Project in accordance with the Final Approved Park Plans. In no event
shall Developer expend less than the Park Construction Amount (as
defined herein) to complete the Park Project. Promptly after the full
execution of the Park Construction Contract, the Developer shall provide a
copy of the same to the City(the cost of the Park Project as set forth in the
Park Construction Contract is referred to herein as the "Park Construction
Amount"), and the City Manager (or his or her designee) shall have the
right to review the Park Construction Contract (including quantities, unit
prices, and other supporting information set forth therein for the
components of the work) for the limited purpose of verifying that the Park
Construction Contract covers all work required for the construction of the
Park Project in accordance with the Final Approved Park Plans.
(g) Notwithstanding the foregoing, the Developer shall be solely liable
for all costs in excess of the Park Construction Amount (if any) as may be
necessary to complete construction of the Park Project in accordance with
the Final Approved Park Plans, unless the City exercises its remedy for a
Park Related Default and draws on the Letter of Credit for the then-
remaining Park Construction Amount, in which event the City shall then
be solely liable for all fees, costs and expenses in excess of the Park
Construction Amount (if any) as may be necessary to complete
construction of the Park Project in accordance with the Final Approved
Park Plans.
8. Amendment to Section 14 of the Development Agreement. Section 14 of the
Development Agreement is hereby amended as follows:
14. Developer shall submit full building permit plans for the entire Park
Project within ninety (90) days following City Commission approval of
the Second Amendment to this Agreement. Developer shall diligently
pursue the issuance of a full building permit for, and shall commence
construction of, the Park Project (clearing, grubbing, and/or drainage
improvements) not later than thirty(30) days following the City's issuance
of the Building Permit for the Park Project. The City agrees to expedite its
review of the full building permit plans for the Park Project.
Upon issuance of the Building Permit for the Park Project, Developer shall
thereafter diligently pursue the completion of the Park Project, and shall
complete construction of the entire Park Project not later than the earlier of
(a) thirty-six (36) months after the issuance of the Building Permit for the
Park Project or (b) forty-eight (48) months following the execution of the
Second Amendment to this Agreement (such earlier date, the "Park
ADSLLP-00076400.13 12
Completion Outside Date"). There shall be no tolling of the Park
Completion Outside Date except for Unavoidable Delays (as defined
herein) that directly impede the progress of construction of the Park
Project.
For purposes of this Section 14, "Unavoidable Delays" means a delay that
(a) directly impacts the critical path activity delineated in the construction
schedule for the Park Project, (b) is beyond the reasonable control of
Developer, and (c) is not due to a negligent or intentional act, error or
omission of Developer. Subject to the foregoing criteria, "Unavoidable
Delay" may include events such as delays in securing the permits for the
prosecution of the Park Project (provided that Developer is pursuing same
in good faith and with diligence), war, civil insurrection, riot, fires,
epidemics, sabotage, explosions, embargo restrictions, shortages of
materials, quarantine restrictions, transportation accidents, strikes, floods,
hurricanes or tornadoes, earthquakes, or other acts of God which prevent
performance. "Unavoidable Delay" shall not include technological
impossibility, failure of equipment supplied by Developer or any
contractor, receipt of and incorporation of defective materials into the Park
Project, shortage of funds, failure of suppliers to deliver equipment and
materials except where such failure is itself the result of an Unavoidable
Delay. If two or more separate events of Unavoidable Delay are
concurrent with each other, Developer shall only be entitled to an
extension of time for each day of such concurrent critical path delay, and
Developer shall not be entitled to double recovery thereon. For illustration
purposes only, if two events of Unavoidable Delay are concurrent for two
days, Developer shall only receive an extension of time, if at all, of a total
of two days, and not four days. In no event shall Developer's financial
condition constitute an "Unavoidable Delay, nor shall any delay arising
from Developer's default under the Development Agreement constitute an
"Unavoidable Delay" with respect to Developer's obligations hereunder.
The times for performance set forth in this Second Amendment shall be
extended to the extent performance is delayed by Unavoidable Delay;
provided that Developer notifies the City in writing not later than twenty-
one (21) days after the occurrence of such Unavoidable Delay of the
occurrence thereof. Failure to provide timely notice, as set forth herein,
shall be a waiver of any claim by the Developer alleging an Unavoidable
Delay.
Developer and City agree and hereby reaffirm the obligation of Developer
to diligently prosecute completion of the work for the Park Project.
Accordingly, the prompt delivery of the Park Project to the City is, and
remains, a primary inducement and consideration for the City to enter into
the Development Agreement, as amended, and the issuance of a Building
Permit for the Park Project shall be a non-waivable condition precedent to
ADSLLP-00076400.13 13
the issuance of the Building Permit for the residential components of the
Project.
- - - - .to such conditions for completion of each Phase of the Park Project as
10.7
" ,
-- - - -
been filed (or, in the event an appeal is filed, the same has been resolved
(by judgement, settlement or otherwise) on terms and conditions
- - •- ' - ..
the Developer shall (i) commence construction (consisting of
clearing, grubbing, erection of construction fencing and/or drainage
Exhibit "Z" attached hereto and incorporated herein by this reference
•
on terms and conditions acceptable to the Developer in its sole and
of construction of Phase 2 of the Park Project; and
the Developer shall complete that portion of the Park Project
depicted as "Phase 3" on Exhibit "Z" attached hereto and incorporated
Date.
During the construction of the Project and the Park Project, the City shall
provide the following construction staging, storage, use and construction
parking accommodations to the Developer and the Park Contractor at no
cost or expense to the Developer or the Park Contractor, except as
provided herein: (wx) the closure of 6th Street for a period of thirty (30)
months after the issuance of the Building Permit for the residential
component of the Project for use by the Developer and the Park Contractor
as a staging area/lay-down yard in connection with the construction of the
Project and the Park Project, provided, however, that during such period
when 6th Street is closed, the Developer shall construct, and make
ADSLLP-00076400.13 14
available for use by the general public, an alternate pedestrian pathway
between West Avenue and Alton Road in a location determined by the
Developer in its sole discretion south of 8th Street; (x) the right to use
Phase 3 of the Park Project as a staging area/lay down yard in connection
construct, install and operate construction, leasing and/or sales trailers, and
improvements related thereto, on Phase 3- of the Park Project until
• • ' • -- -- • and(zy) subject to
the "Not-To-Exceed Amount (as more specifically defined below), two
hundred(200)parking passes in the City owned garage located at 1100 5th
Street, Miami Beach (the "City Garage") for the period beginning on the
date the Building Permit for the residential components of the Project is
issued for use by the Developer and the Park Contractor (and their
respective employees and sub-contractors), until such time as the Not-To-
Exceed Amount has been expended. For purposes of this Agreement, and
in consideration : . - . . • . . for the completion of
the Park Project set forth in this Paragraph 14, the City shallbudget and
appropriate, from the City's General Fund, the necessary funds to pay the
Parking Department for monthly parking passes at the then-prevailing
standard rates, up to an aggregate not-to-exceed amount of $600,000.00
(the "Not-To-Exceed Amount"). Once the Not-To-Exceed Amount has
been expended by the City,the Developer and/or the Park Contractor shall
be solely responsible for the cost of all monthly parking passes for the
City Garage issued to it by the City, or making other parking arrangements
for the Developer and the Park Contractor (and their respective employees
and sub-contractors) at the Developer and the Park Contractor's sole
discretion.
Completion of each phase of the Park Project shall occur when (aa) the
City Manager(or the City Manager's designee) has certified, in the City's
proprietary capacity as owner of the Park Site), that the Park Project has
been constructed substantially in accordance with the Park Zoning
Approval and the Final Approved Park Plans; (bb) the Developer has
obtained one or more temporary certificates of occupancy, final
certificates of occupancy, and/or certificates of completion that
"Park Improvements") have been conveyed to and accepted by the City
through a bill of sale; and, Completion of the entire Park Project shall
occur when (xx) the City Manager (or the City Manager's designee) has
certified, in the City's proprietary capacity as owner of the Park Site), that
the Park Project has been constructed substantially in accordance with the
Park Zoning Approval and the Final Approved Park Plans; (yy) the
Developer has obtained one or more temporary certificates of occupancy,
final certificates of occupancy, and/or certificates of completion that
ADSLLP-00076400.13 15
individually or collectively encompass the entire Park Project, and (zz) all
Park-Improvements improvements that comprise the entire Park Project
(the "Park Improvements") have been conveyed to and accepted by the
City through a bill of sale.
- .
issuance of the Park Zoning Approval and the ex
filed (or, in the event an appeal is filed, the same has been resolved (by
. _ . . • -
and keep and maintain such sod until such time as the Developer
commences construction of the Project (or any part thereof) and/or the
Park Project (or any part thereof). [If the Developer has not poured the
concrete foundation for the multi family residential tower to be
constructed on the Development Site within twelve (12) months after
by the City, then the Developer shall sod Phase 3 of the Park Project
. _ . _ 9
L - -
and maintain such sod until such time as Developer commences
• • •- th
Street,
9. Deletion of Exhibit "Z" of the Development Agreement. Exhibit "Z" to the
Development Agreement, which depicted the former phasing plan for the Park Project, is hereby
deleted, as the entire Park Project shall be constructed at the same time (as provided in Section 7
of this Second Amendment, amending the provisions of Section 14 of the Development
Agreement).
10. Replacement of Exhibits "P" and "0" of the Development Agreement. Exhibit "P"
to the Development Agreement, which depicts the Future Pedestrian Pathway Parcel providing
pedestrian access across the area of the Project outside of the public right of way south of 6th
Street is hereby replaced by Exhibit "G" to this Second Amendment. Exhibit "Q" to the
Development Agreement, the Future Pedestrian Pathway Parcel Easement Agreement providing
for perpetual public access over the Future Pedestrian Pathway Parcel, is hereby replaced by
Exhibit"H"to this Second Amendment.
ADSLLP-00076400.13 16
11. Amendment to Section 17 of the Development Agreement. Section 17 of the
Development Agreement is amended as follows:
17. Conditions Precedent to Issuance of Certificate of Occupancy or
Temporary Certificate of Occupancy for the Project. The Developer
acknowledges that conveyance of the Park Site and the completion of the
Park Project and the conveyance of the Park Improvements to the City are
additional and essential consideration for the City's vacation of the City
Parcel. Except as otherwise provided in this Agreement, the Developer
shall not apply for, and the City shall not issue, any temporary certificate
of occupancy, final certificate of occupancy, and/or certificate of
completion for the Project (in whole or in part) until the following has
occurred:
(a) The Developer shall have completed construction of the Park Project
substantially in accordance with the Park Zoning Approval and the Final
Approved Park Plans (as evidenced by the issuance of one or more
temporary certificates of occupancy, final certificates of occupancy or
certificates of completion that individually or collectively encompass the
entire Park Project);
(b) Developer shall have designed and constructed, at Developer's sole
cost and expense, the "Future Pedestrian Bridge Platform" (as more
specifically defined below).
(c) The Developer shall have satisfied the Environmental Contingency;
and
(d) The Developer shall have conveyed the Park Improvements to the City
through a bill of sale. The City shall be obligated to accept such bill of
sale for the Park Improvements if the Park Project has been completed
substantially in accordance with the Park Zoning Approval and the Final
Approved Park Plans (as evidenced by the issuance of one or more
temporary certificates of occupancy, final certificates of occupancy or
certificates of completion for the Park Project that individually or
collectively encompass the entire Park Project) and the Environmental
Contingency has been satisfied.
Provided however, and notwithstanding anything to the contrary
contained in this Agreement, subparagraphs 17(a) and (d) above shall be
deemed satisfied, and the Developer shall have the right to apply for a
temporary certificate of occupancy, final certificate of occupancy, and/or
certificate of completion for the Project (whether in whole or in part), if
the City draws any funds under the Letter of
Credit (as—applicable)ble) as provided in subparagraph 9(f)(iii) of this
Agreement, in which case,the City's issuance of a temporary certificate of
occupancy, final certificate of occupancy, and/or certificate of completion
ADSLLP-00076400.13 17
for Project (whether in whole or in part) shall only be subject to such
regulatory approvals that may be required by any agencies having
jurisdiction over the Project.
Notwithstanding anything in this Agreement to the contrary, the
Developer shall have the right: (a) prior to the conveyance or completion
of the Park Project, to (i) permit, develop, construct, install and operate
construction trailers, leasing trailers and sales trailers, and improvements
related thereto, on the Property, and (ii) apply for any temporary
certificate of occupancy, final certificate of occupancy and/or certificate of
completion for any such trailer or related improvements, and the City's
issuance thereof shall only be subject to such regulatory approvals that
may be required by any agencies having jurisdiction over such trailers and
related improvements; and (b) after the conveyance of the Park Site and
to Phase 1 and Phase 2 of the Park Project, to apply for any temporary
certificate of occupancy, final certificate of occupancy and/or certificate of
completion for any commercial component of the Project on the
Development Site north of 6th Street, and the City's issuance thereof shall
only be subject to such regulatory approvals that may be required by any
agencies having jurisdiction over the commercial component of the
Project.
12. Amendment to Section 18 of the Development Agreement. Section 18(d) of the
Development Agreement is hereby [deleted in its entirety] [amended as follows]:
[OPEN ISSUE FOR CITY COMMISSION DIRECTION: AS
DEVELOPER IS NOW RESPONSIBLE FOR ALL BRIDGE
PROJECT COSTS IN EXCESS OF CITY'S MAXIMUM
CONTRIBUTION, DEVELOPER HAS REQUESTED DELETION
OF CREDIT TO THE CITY IN THE AMOUNT OF $750,000 FOR
THE BRIDGE PROJECT, BUT SOLELY IF THE THIRD-PARTY
CONSENTS FOR THE 10TH — 12TH STREET BAYWALKS
CANNOT BE OBTAINED. IF THE CONSENTS FOR THE
BAYWALKS ARE OBTAINED, DEVELOPER'S OBLIGATION TO
CONSTRUCT THE BAYWALKS SHALL REMAIN
UNCHANGED.]
Developer's proposed language:
(d) If the City is unable to obtain the Baywalk Permits within forty-
eight (48) months after the Effective Date, and: (i) the City awards the
Developer a contract for the construction of the 5th Street Pedestrian
. _ ' .. ,
in the amount of $750,000.00 to be applied against the Developer's
ADSLLP-00076400.13 18
construction of the 5th Street Pedestrian Bridge Project.; or (ii) the City
Street Pedestrian Bridge Project in an amount of approximately
the Project or the Park Project, then (A) the Developer shall have no
obligation to provide the City with any credit against the Developer's
(B) the Developer shall have no obligation to construct any of the
Baywalk Improvements whatsoever.
City's proposed language:
(d) If the City is unable to obtain the Baywalk Permits within forty-
eight (48) months after the Effective Date and: (i) the City awards the
• - . ... ... ..
or the Park Project, then the Developer shall provide the City with a credit
in the amount of$750,000.00 to be applied against the City's Maximum
Contribution for Developer's construction of the 5th Street Pedestrian
Bridge Project.; or(ii) the City fails to award the Developer a contract for
the construction of the 5th Street Pedestrian Bridge Project in an amount
. ... ... .. • -
. - - .
. - • • -
against the Developer's construction of the 5th Street Pedestrian Bridge
' :' - , ..•: the Developer shall have no obligation to
construct any of the Baywalk Improvements whatsoever.
13. Amendment to Section 26 of the Development Agreement. Section 26(b) of the
Development Agreement is hereby amended as follows:
(b) This Agreement shall run for an initial term of eight (8) years from
the Effective Date (the ,"Term"); provided, however, if the Developer
completes construction of Phase 1, Phase 2 and Phase 3 of the Park Project
•
as provided in Section 14 of this Agreement, then the Term shall
automatically be extended (without the need of any notice to or consent of
the City, or being subject to any public hearing) for an additional
seventeen(17) years (so that the Term of this Agreement shall be a total of
twenty-five (25) years from the Effective Date). Except for the automatic
seventeen (17) year extension of the Term set forth above (which does not
require any consent of the City or public hearing): (i) the Term of this
Agreement may be extended only by the mutual consent of the City and
ADSLLP-00076400.13 19
the Developer subject to a public hearing pursuant to Section 163.3225,
Florida Statutes; and (ii) 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 after the expiration of this Agreement the parties shall
have no further obligations under this Agreement, except for those
obligations that expressly survive the expiration of this Agreement.
14. Amendment to Section 31 of the Development Agreement. Section 31 of the
Development Agreement is hereby amended as follows:
(a) Section 31(b) of the Development Agreement is hereby amended as follows:
(b) If, •. - . - - _ ?. _ on or
before the Park Completion Outside Date, the requirements of
subparagraphs 17(a) through (d) have not been or deemed to have been
satisfied.
(b) Section 31 is hereby amended to include the following subsection(f)thereto:
(f) Any breach by Developer of any terms or provisions of the
Settlement Agreement.
15. Amendment to Section 32 of the Development Agreement. Section 32 of the
Development Agreement is hereby amended to include the following clause (g) to the definition
of Material Event of Default set forth therein:
(g) any breach of any term or provision of the Settlement Agreement.
16. Amendment to Section 43 of Development Agreement. Section 43 is hereby amended
as follows:
43. Transfer and Assignment. The Developer shall not be entitled to
assign or transfer this Agreement or any of the rights and obligations
hereunder prior to the satisfaction or deemed satisfaction of the conditions
set forth in subparagraphs 17(a) through(d) of this Agreement without the
prior written consent of the City (which consent may be withheld,
conditioned or delayed in the sole and absolute discretion of the City),
except as hereinafter provided. The Developer shall have the right at any
time and from time to time to sell, transfer and convey all or any portion
of the Property to any person or entity (a "Subsequent Owner") and
assign and transfer this Agreement and the rights and obligations
hereunder in whole or in part to any Subsequent Owner in connection with
such sale, transfer or conveyance of the Property or any portion thereof
without the prior consent or approval of the City, provided that a "Galbut
Entity" (as more specifically defined below) shall at all times (a) hold,
directly or indirectly, not less than a 10% ownership interest in the
Development Site, (b) serve, directly or indirectly, as a manager of the
ADS LLP-00076400.13 20
entity that is developing the Project and the Park Project, and (c) exercise,
directly or indirectly, day-to-day operational control of the entity as the
manager of the entity that is developing the Project and the Park Project;
provided, further, that this Agreement and the rights and obligations
hereunder can be assigned and transferred to any lender, lender designee
or non-lender affiliated purchaser (any of the foregoing being referred to
herein as a "Foreclosure Purchaser") who acquires the Property or any
portion thereof through a foreclosure sale or deed-in-lieu of foreclosure
without the prior consent or approval of the City. Direct and indirect
owners of Developer shall also be entitled to pledge their direct and
indirect ownership interests in Developer to one or more lenders, and any
such lender, its designee and a non-lender affiliated purchaser (any of the
foregoing being referred to herein as a "Mezzanine Foreclosure
Purchaser") shall be permitted to acquire all or any portion of the direct
and/or indirect ownership interests in Developer through foreclosure of
any such pledge or acceptance of an assignment-in-lieu of foreclosure
without the prior consent of approval of the City.
This Paragraph 43 and the restrictions, limitations and prohibitions
contained herein shall automatically terminate, extinguish and be of no
further force or effect immediately upon the earlier of the following events
to occur(y)(A the satisfaction or deemed satisfaction of the conditions set
forth in subparagraphs 17(a) through (d) of this Agreement, of(z) the
acquisition of the Property or any portion thereof by any Foreclosure
Purchaser through a foreclosure sale or deed-in-lieu of foreclosure; or (c)
the acquisition of all or any portion of the direct and/or indirect ownership
interests in Developer by any Mezzanine Foreclosure Purchaser through
foreclosure of any such pledge or acceptance of an assignment-in-lieu of
foreclosure whereupon, the Developer, any Subsequent Owner and/or any
Foreclosure Purchaser or Mezzanine Foreclosure Purchaser shall have the
absolute and unconditional right to sell, transfer and convey all or any
portion of the Property to any person or entity and to assign and transfer
this Agreement and the rights and obligations hereunder in whole or in
part to any person or entity in connection with such sale, transfer or
conveyance of the Property or any portion thereof without the prior
consent or approval of the City whether or not a Galbut Entity (aa) holds,
directly or indirectly, any ownership interest in the Development Site, (bb)
serves, directly or indirectly, as a manager of the entity that is developing
the Project and the Park Project, or (c) exercises, directly or indirectly,
day-to-day operational control of the entity as the manager of the entity
that is developing the Project or the Park Project. Any assignee or
transferee (including, any Subsequent Owner or Foreclosure Purchaser)
shall assume all remaining obligations of the Developer under this
Agreement at the time of such assignment or transfer of this Agreement.
For purposes of this Paragraph 43, the term "Galbut Entity" shall mean:
(ww) Russell Galbut; (xx) any spouse, child, grandchild, brother,
sister, niece, nephew or first cousin of Russell Galbut, or of any
ADSLLP-00076400.13 21
combination of the foregoing; (yy) (c) any trust established for the benefit
of Russell Galbut, or any spouse, child, grandchild, brother, sister, niece,
nephew or first cousin of Russell Galbut, or of any combination of the
foregoing; and/or (zz) ) any entity owned, directly or indirectly, one
hundred percent (100%) by Russell Galbut, or any spouse, child,
grandchild, brother, sister, niece, nephew or first cousin of Russell Galbut,
or any trust established for the benefit of Russell Galbut, or any spouse,
child, grandchild, brother, sister, niece, nephew or first cousin of Russell
Galbut, or of any combination of the foregoing.
17. Amendment to Section 44 of Development Agreement. Section 44 is hereby amended
as follows:
44 Force Majeure and Third Party Challenges. All time periods set
forth in this Agreement and in any approval or permit issued in connection
with the Project and/or the Dark Project will be tolled due to force majeure
events (including, without limitation, strikes, lockouts, acts of God,
hurricanes and severe weather, and other causes beyond the control of
either party), and due to delays in obtaining permits and approvals from
governmental agencies, and during the pendency of any "Lawsuit" (as
hereinafter defined) and any unexpired appeal period thereof, and during
any dispute between the Developer and the City with respect to the
construction documents for the Park Project under Paragraph 12 of this
Agreement. In the event that a third party unrelated to or unaffiliated with
the City or the Developer institutes any action, suit or proceeding relating
to the Project and/or the Park Project, including, without limitation, any
action, suit or proceeding challenging the validity or issuance of the
Vacation Resolution, this Agreement, the Land Development Regulation
Amendments, the Project Zoning Applications, the Project Zoning
Approvals, the Park Zoning Application, the Park Zoning Approval1 or
any Building Permit, and/or any claims challenging any approvals that
may be provided by the City pertaining to the floor area for the Project, or
otherwise alleging the applicability of any law or ordinance to the Project
(including, without limitation, the City Charter) (in each instance as it
relates specifically to the Project, including any related appeals, a
"Lawsuit"), then the Developer shall defend any such Lawsuit at its sole
cost and expense using legal counsel reasonably acceptable to the City.
The Developer shall further indemnify and hold the City harmless from
and against all actual damages, losses, liabilities, fees, cost and expense
(including attorneys' fees, costs and expenses) of any and every kind
arising out of or relating to any such Lawsuit. This paragraph shall
survive the expiration or any earlier termination of this Agreement.
If a Lawsuit is commenced prior to the vacation and conveyance of the
City Parcel as contemplated by this Agreement, then the City shall not be
required to effectuate such vacation and conveyance of the City Parcel
until thirty (30) days after the Lawsuit has been completed and finally
ADSLLP-00076400.13 22
disposed of (by judgement, settlement or otherwise) on terms and
conditions acceptable to Developer in its sole and absolute discretion;
provided, however, if the Lawsuit is still pending more than sixty (60)
months after it has been commenced, then either party, at its option, may
from and after the expiration of such sixty (60) month period and while
the Lawsuit remains unresolved, elect to terminate the transaction
contemplated by this Agreement by delivering a written notice of
termination to the other party, whereupon the Vacation Resolution shall be
rescinded and this Agreement shall be terminated, and the City and the
Developer shall have no further obligation and/or liability to each other
hereunder.
18. No City Warranty or Representation.
City has not made, does not make and will not make, and Developer has not relied
upon, any representation or warranty, express or implied, as to any requirement
under any law or ordinance including, without limitation, the City Charter,
relating to the resolution of the disputed floor area issues or the implementation of
any settlement of disputed floor area issues, through any approval provided by the
City for the Project including, without limitation, any clarifying amendment that
may be required to the City's Land Development Regulations as to the definition
of floor area or the applicability thereof ("Clarifying LDR Amendment").
Developer expressly assumes all risks with respect to any of the foregoing
matters.
19. Settlement and Mutual Release; Waiver of Consequential Damages.
(a) The City and Developer hereby agree to a mutual release of all claims either party
may have relating to the BOA Appeal and the Action and the subject matter
thereof. Within five (5) days following the effective date of the Clarifying LDR
Amendment and this Second Amendment, and as a condition subsequent thereto,
the Developer and the City shall execute a settlement agreement for the mutual
releases outlined herein, the form of which agreement is attached hereto as
Exhibit "D," which settlement agreement will be contingent upon the Clarifying
LDR Amendment including an applicability clause that allows the Project to
proceed based on the Board of Adjustment's November 1, 2019 interpretation
excluding the Elements from the calculation of floor area. Within five (5) days
after the effective date of the settlement agreement, the City and Developer shall,
along with counsel, execute a stipulation for dismissal with prejudice of the BOA
Appeal and the Action in accordance with the settlement agreement.
(b) Developer, on behalf of itself and each of its members and David Martin
(individually) and Russell Galbut (individually) and each owner of any of the
Identified Properties (as hereinafter defined) in which either or both of David
Martin or Russell Galbut has any direct or indirect ownership interest
(collectively, the "Developer Covenant Parties"), hereby unconditionally
covenants and agrees that neither Developer nor any of the Developer Covenant
ADSLLP-00076400.13 23
Parties will: (a) seek to exclude the Elements from the calculation of floor area for
any of the Identified Properties based on the Board of Adjustment's November 1,
2019 interpretation excluding the Elements from the calculation of floor area; or
(b) commence any action, suit or proceeding against the City (including, without
limitation, any agency or regulatory body of the City) seeking to exclude the
Elements from the calculation of floor area for any of the Identified Properties.
For purposes of this paragraph, the term"Identified Properties" shall mean and be
limited to the following four (4) properties: (v) 1212 Lincoln Road; (w) 100
Lincoln Road (the Decoplage); (x) 1501 Collins Avenue (the Bancroft Hotel); and
(v) 7145 Carlyle Avenue. [OPEN ISSUE; Developer does not agree to extend
covenant to 1501 Collins Ave. or 7145 Carlyle Ave.]
(c) Notwithstanding any provision to the contrary contained in the Development
Agreement, as amended, in no event shall either party be liable to the other party
(or any other person) for any indirect, special, consequential, exemplary, punitive
damages, economic damages, lost profits or similar damages in connection with
the Project. This provision is not intended to, and does not modify, Section 7(h)
of Amendment No. 1 or the City's rights to pursue actual damages as set forth in
the Development Agreement, as amended.
(d) Developer agrees to pay up to 1000][$270,000] of the City's administrative
and professional fees and costs (including, without limitation, legal fees)
associated with the BOA Appeal, the Action, the Clarifying LDR Amendment,
and this Second Amendment. The foregoing obligation does not and shall not be
interpreted to limit in any manner any of the indemnities of the Developer
pursuant to the Development Agreement, the First Amendment or this Second
Amendment. [OPEN ISSUE; CITY REQUESTS REIMBURSEMENT OF
$270,000]
20. DRB Administrative Determinations.
City agrees to provide Developer with expedited administrative review of certain
specified Developer-proposed changes to the zoning approvals for the Project, Park Project,
and/or Bridge Project to the extent the Planning Director determines, in his sole discretion, that
such changes may be approved administratively. For the avoidance of doubt, no contract term is,
nor shall any such term be deemed to be, an abrogation of the Planning Director's discretion.
Subject to the administrative determinations referenced above, within five (5) days following the
effective date of the settlement agreement described herein, Developer shall voluntarily dismiss
with prejudice the separate pending DRB appeal pertaining to the surface parking adjacent to the
commercial component for the Project. The City's administrative determinations will survive
the expiration, discharge, or any early termination of this Second Amendment. In the event that
an action, suit, or proceeding with respect to the Project invalidates approvals that may be
provided by the City pertaining to the floor area for the Project based on Board of Adjustment's
November 1, 2019 interpretation, the administrative determinations shall be deemed modified to
adjust the floor area of the Project accordingly.
ADSLLP-00076400.13 24
21. Satisfaction of Condition Set Forth in Section 11 of Development Agreement
Relating to the Bridge Project.
The Parties acknowledge and agree that the City Commission awarded the Bridge Project
contract to Developer on July 17, 2019, via approval of the First Amendment to the
Development Agreement, and that such approval was provided by the City Commission prior to
the date on which the Developer applied for the initial Building Permit for the Project or the Park
Project. Accordingly, pursuant to Section 11 of the Development Agreement and
notwithstanding any provision to the contrary in the Development Agreement, as amended,
Developer shall be solely responsible for the payment of all applicable City Impact Fees (as such
term is defined in Section 11 of the Development Agreement) for the Project and Park Project at
the time the Developer applies for such initial Building Permit.
PART II-5th STREET PEDESTRIAN BRIDGE PROJECT
22. Amendment to Section 2 of the First Amendment to the Development Agreement.
Section 2(a) of the First Amendment is hereby amended as follows:
"City Contingency" means that separate fund in the amount of X0,000 Zero
Dollars ($0.00) established outside of the Construction Contract but within the
Final Bridge Project Budget which will be made available to the Developer with
the City Manager's consent, which shall not be unreasonably withheld,to fund the
Bridge Project Design Costs, Developer's Direct Costs and hard construction
costs of the Bridge Project after the exhaustion of the Developer Contingency in
accordance herewith. Any unused City Contingency remaining at the completion
of the Bridge Project shall accrue solely to the City.
"Maximum City Contribution" means the maximum amount of $9,�2500,000
$9,610,000 to be contributed by the City towards the Bridge Project Design Costs,
the Developer's Direct Costs and the hard construction costs of the Bridge
Project, plus the City Contingency solely to the extent made available by the City
Manager in accordance herewith.
23. Approval of Final Bridge Project Plans. Notwithstanding any other provision to the
contrary in the First Amendment, the Parties hereby agree as follows:
(a) The City Commission hereby approves the Final Bridge Project Plans, a
copy of which is attached hereto as Exhibit"E." The Parties re-affirm that
the Daniel Buren design for the Bridge Project, as previously approved by
the City Commission on July 17, 2019 as part of the Bridge Project
Concept Plan, and as subsequently approved by the City's Design Review
Board, in DRB File No. 19-0385 is a material inducement and
consideration for the City to enter into the Development Agreement, as
amended. The bridge alignment and access may be modified as necessary
to remove utility conflicts and comply with City or State permitting •
requirements, so long as the overall design (including the Daniel Buren
design elements) remains consistent with the Final Bridge Project Plans,
ADSLLP-00076400.13 25
and provided, however, that any modifications to the Final Approved
Bridge Plans shall be subject to review and approval by the City Manager,
in the City Manager's sole discretion (or by the City Commission, as
provided in Section 19 of the First Amendment).
(b) The City Commission hereby approves the Final Bridge Project Budget, a
copy of which is attached hereto as Exhibit"F".
(c) Developer covenants to expend the minimum of the amount established as
the Final Bridge Project Budget, to complete the Bridge Project in
accordance with the Final Bridge Project Plans.
(d) Except for inspection costs for which City is responsible under the First
Amendment, and any Scope Changes for which the City is responsible
pursuant to Section 10(b) of the First Amendment, notwithstanding
anything to the contrary set forth in the First Amendment or this Second
Amendment, Developer is and shall be solely responsible for all costs of
completion of the Bridge Project in accordance with the Final Bridge
Project Plans in excess of the Maximum City Contribution (which excess
costs include without limitation, Bridge Project Design Costs and
Developer's Direct Costs) (the "Developer's Bridge Contribution"),
whether or not such excess costs are identified in the Final Bridge
Project Budget.
(e) Within thirty(30) days after the execution of the Construction Contract for
the Bridge Project in accordance with the First Amendment, Developer
shall provide City with an irrevocable letter of credit in favor of the City,
in the amount equal to the Developer's Bridge Contribution (the "Bridge
Project Letter of Credit") (which security shall be subject to reduction on
the same terms as specified above with respect to the Letter of Credit for
the Park Project and shall be issued on the same terms as specified above
with respect to the Letter of Credit for the Park Project provided that the
City's right to draw shall be conditioned solely upon an Event of Default
under the First Amendment).
24. Amendment to Section 7(e) of the First Amendment to Development Agreement.
Section 7(e) of the First Amendment is hereby amended as follows:
(e) Target Substantial Completion Date. Developer shall endeavor to
achieve Substantial Completion of the Bridge Project by April 30, 2020 (the
"Target Substantial Completion Date"); provided, however, that failure to
. . . - - - - [Intentionally Omitted.]
25. Amendment to Section 16(a) of the First Amendment to Development Agreement.
Section 16(a) of the First Amendment is hereby amended to include the following subsection
(xiv):
ADSLLP-00076400.13 26
(xiv) Institution of any foreclosure proceeding by any lender (including
without limitation any mezzanine lender) of Developer or any of its members with
respect to the Project, which Default shall not be subject to any cure period
pursuant to Section 16(c) hereof and shall conclusively and immediately be an
"Event of Default" for all purposes hereof.
26. Amendment to Section 16(d) of the First Amendment to Development Agreement.
Section 16(d) of the First Amendment is hereby amended to include the following subsection
(vi):
(vi) Draw funds under the Bridge Project Letter of Credit.
PART 3 —GENERAL PROVISIONS
27. Ratification. Except as modified by this Second Amendment, the Development
Agreement and First Amendment shall otherwise remain unmodified and in full force and effect
and the parties ratify and confirm the terms of the Development Agreement as modified by the
First Amendment and this Second Amendment. City and Developer certify to each other that
they have no offsets, defenses, or claims with respect to their obligations under the Development
Agreement, as amended. All references in future agreements to the Development Agreement
shall mean the Development Agreement, as modified by the First Amendment and this Second
Amendment.
28. Purchase and Sale Agreement. The Development Agreement approved the execution
of a Purchase and Sale Agreement ("PSA") between City and Developer relating to the
conveyance of the Park Site to the City, which PSA was included as Exhibit "M" to the
Development Agreement and executed by the Parties on or about June 28, 2019. The City
Manager shall have the delegated authority to execute an amendment to the PSA, subject to form
approval of the amendment by the City Attorney, for the limited purpose of conforming the PSA
to the provisions of this Second Amendment.
29. Entire Agreement. The Development Agreement, as amended by the First Amendment
and this Second Amendment, and the Purchase and Sale Agreement dated June 28, 2019
represents the entire agreement between the parties with respect to the subject matter hereof and
thereof.
30. Benefit and Binding Effect.This Second Amendment shall be binding upon and inure to
the benefit of the parties to this Second Amendment, their legal representatives, successors, and
permitted assigns.
31. Amendment. This Second Amendment may not be changed, modified, or discharged in
whole or in part except by an agreement in writing signed by both parties to this Second
Amendment.
32. Severability. In the event either Party terminates the First Amendment in accordance
with the provisions therewith, then the provisions of Part II of this Second Amendment shall be
null and void. For the avoidance of doubt, termination of the First Amendment (and Part II of
this Second Amendment, relating to the Bridge Project) shall not in any respect operate to
ADSLLP-00076400.13 27
terminate, modify, amend or affect any other of the respective rights and obligations of the
parties under the Development Agreement, as otherwise amended, all of which shall continue to
be in full force and effect.
33. Conflict. In the event of any conflict between the terms of the Development Agreement
and this Second Amendment, this Second Amendment shall control. In the event of any conflict
between the terms of the First Amendment and this Second Amendment, this Second
Amendment shall control.
[Signatures commence on following page]
ADSLLP-00076400.13 28
EXECUTION BY THE CITY
IN WITNESS WHEREOF, the City and Developer intending to be legally bound have
executed this First Amendment to Development Agreement as of the day and year first above
written.
WITNESSES: CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation of the State of Florida
Print Name: By:
Dan Gelber, Mayor
ATTEST:
Print Name:
By: [SEAL]
Rafael Granado, City Clerk
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
R-0767 a- [ [
City Attorney V ` D�ate
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me, by means of ❑ physical
presence or 0 online notarization, this day of , by Dan
Gelber, as Mayor, and Rafael Granado, as City Clerk of the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal
corporation. They are personally known to me or produced valid Florida driver's licenses as
identification
My commission expires:
Notary Public, State of Florida
Print Name:
ADSLLP-00076400.13 29
EXECUTION BY DEVELOPER
WITNESSES: TCH 500 Alton, LLC, a Delaware limited
liability company
Print Name: By:
Name/Title
Print Name: ATTEST:
By:
, Secretary
[CORPORATE SEAL]
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me, by means of ❑ physical
presence or ❑ online notarization, this day of , , by
as , and , as Secretary, of
, a , on behalf of such
. They are personally known to me or produced valid Florida driver's
licenses as identification.
My commission expires:
Notary Public, State of Florida
Print Name:
ADSLLP-00076400.13 30
List of Second Amendment Exhibits
Exhibit"A" Final Approved Park Plans
Exhibit"B" Form of Assignment Agreement for Park Design Contract and Park Construction
Contract
Exhibit"C" Forms of Performance Bond and Payment Bond
Exhibit"D" Form of Settlement Agreement
Exhibit"E" Final Bridge Project Plans
Exhibit"F" Final Bridge Project Budget
Exhibit"G" Future Pedestrian Pathway Parcel
Exhibit"H" Future Pedestrian Pathway Parcel Easement Agreement
ADSLLP-00076400.13 31
Exhibit"A" - Final Approved Park Plans
ADSLLP-00076400.13
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SCOPE OF WORK FOR THE PARK
• Develop 3 acres into a park for the benefit of city residents
• The park will provide different areas to include fitness equipment, open green spaces,
benches, drinking fountains, outdoor living rooms enclosed with landscaping and children's
play area.
• Provide landscape to encourage habitat areas for pollinators, including at least 70% of
plants and trees to be native.
• Provide lighting to limit backlight, up light and glare, within temperature ranges in
accordance with City safety requirements, including but not limited to light poles, lighted
bollards and landscaping lighting.
• Provide at least 5,000 square feet area to be for a dog park.
• Provide a playground area with perimeter shade trees for residents and children
• Provide two (2) trellis structures which facilitate shade areas close the playground area.
• Provide a playground equipment manufactured by Monstrum (or equivalent) made mostly
of wood and warrantied for durability and low maintenance.
• Provide a fitness station over a resilient rubber surface.
• A stormwater management system capable of retaining and disposing runoff in accordance
with the City of Miami Beach as well as the F-DOT design storm requirements.
o Miami-Dade County RER (DERM) 5-Year, 1-Hour 3.2" rainfall storm
o Miami-Dade County RER (DERM) 5-Year, 24-Hour, 6" rainfall storm
o City of Miami Beach 10-Year, 24-Hour, 8.75" rainfall storm (which includes a 1.25
factor of safety)
o F-DOT 100-Year, 24-Hour, 13" rainfall storm
• The storm management system will promote the cleaning of the first disposal from the lift
station to the bay.
• A bio-swale will be provided to contain part of the stormwater and to work as part of the
stormwater management system.
• Provide a 25,000-gallon cistern to capture runoff during storm events and provide reuse
opportunity to irrigate planting.
• Provide five interconnected wells for the sole use to improve the performance storm water
runoff quality from the existing pump station.
• A perimeter swale will be constructed to contain storm and irrigation runoff water on the
property.
• Exposed shell concrete will be used in most of the hardscape finishes all over the park.
• A path or wellness loop to promote users to move about the park throughout the different
areas surrounded by landscaping.
• Relocate the perimeter sidewalk into the property of the park and create a green area
between the sidewalk and curb.
• Information and education signage to be installed to inform and inspire the public about
resilience and sustainability efforts being made in the property.
• [Parties finalizing whether or to what extent to include a shade canopy over playground or
portion thereof]
Exhibit"B"
Form of Assignment Agreement for Park Design Contract and Park Construction Contract
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
FOR VALUE RECEIVED, the undersigned TCH 500 ALTON, LLC, a Delaware limited
liability company ("Developer"), as of this day of , 20 (the "Effective
Date") assigns to THE CITY OF MIAMI BEACH, FLORIDA, a municipal corporation duly
organized and existing under the laws of the State of Florida(the"City"), pursuant to that certain
Development Agreement by and between the City and Developer dated as of January 9, 2019,
which Development Agreement is recorded in Official Records Book 31323, Page 2781 in and
of the Public Records of Miami-Dade County, Florida, as assigned to TCH 500 Alton, LLC,
pursuant to that certain Assignment and Assumption of Development Agreement dated as of
September 27, 2019 and recorded in Official Records Book 31627, Pages 1177-1182 in and of
the Public Records of Miami-Dade County, Florida, and as amended by the First Amendment to
Development Agreement, dated as of December 18, 2019, and the Second Amendment to
Development Agreement, dated as of , 2020 (as amended, collectively, the"Development
Agreement"), all of Developer's right, title and interest under all existing and future general
contractor's agreements, architect's agreements, engineers' agreements, or any other agreements
for the provision of labor, materials, services or supplies, as amended, between Developer and
any other person or entity (collectively, the "Construction Agreements") relating to the
construction of the Park Project, as defined and described in the Development Agreement. The
Construction Agreements include, but are not limited to, that certain construction contract
between Developer and ("Contractor") dated , as amended,
that certain architect's agreement between Developer and , a
("Architect"), dated , as amended, and that certain engineer's
agreement between Developer and , a
("Engineer"), dated , as amended.
THIS ASSIGNMENT OF CONSTRUCTION AGREEMENTS ("Assignment") constitutes a
present and absolute assignment to the City as of the Effective Date; provided, however, that for
so long as no Park Related Default (as defined in the Development Agreement) has occurred
under the Development Agreement and until the earlier of(i) termination of the Development
Agreement, (ii) City's exercise of its remedy for a Park Related Default as provided in the
Development Agreement, or (iii) final completion of the Park Project ("Final Completion"), the
City grants Developer a license to use all Construction Agreements for completion of the Park
Project in accordance with the Development Agreement. Upon the occurrence of (a) a Park
Related Default under the Development Agreement, or (b) the termination of the Development
Agreement, or (c) Final Completion, the City may, in the City's sole discretion, give notice to
any of Contractor, Architect, Engineer and/or any other party to a Construction Agreement of the
City's intent to enforce the rights of Developer under the applicable Construction Agreement and
may initiate or participate in any legal proceedings respecting the enforcement of said rights.
Developer acknowledges that solely by accepting this Assignment, the City does not assume any
of Developer's obligations under the Construction Agreements.
ADSLLP-00076400.13
Developer represents and warrants to the City, as of the Effective Date, that (a) all Construction
Agreements entered into by Developer are in full force and effect and are enforceable in all
material respects in accordance with their terms and no default, or event which would constitute
a default after notice or the passage of time, or both, exists with respect to any of the
Construction Agreements, (b) all copies of the Construction Agreements delivered to the City are
true, complete and correct as of the date of this Assignment, and (c) Developer has not assigned
any of Developer's rights under the Construction Agreements other than to the City. Developer
shall deliver to the City true, complete and correct copies of all Construction Agreements entered
into after the date hereof,promptly upon execution thereof.
Developer agrees (a) to pay and perform all obligations of Developer under the Construction
Agreements, (b) to enforce the full and prompt performance of all obligations of any other
person or entity under the Construction Agreements, (c) except as otherwise may be permitted
under the Development Agreement, not to materially modify the existing Construction
Agreements nor to enter into any future Construction Agreements without the City's prior
written approval, which will not be unreasonably withheld, and (d) not to further assign, for
security or any other purposes, Developer's rights under the Construction Agreements without
the City's prior written consent.
Unless otherwise defined herein, capitalized terms used in this Assignment shall have the
meanings attributed to such terms in the Development Agreement. This Assignment shall be
governed by, and construed and enforced in accordance with the laws of the State of Florida,
without regard to conflicts of laws. Except as otherwise expressly provided under the terms and
conditions herein, the terms of this Assignment shall bind and inure to the benefit of the heirs,
executors, administrators, nominees, successors and assigns of the parties hereto. All exhibits,
schedules, riders and other items attached hereto are incorporated into this Assignment by such
attachment for all purposes.
[Remainder of Page Intentionally Left Blank]
ADSLLP-00076400.13
IN WITNESS WHEREOF, Developer intending to be legally bound has executed this
Assignment as of the date first written above.
DEVELOPER:
TCH 500 ALTON, LLC,
a Delaware limited liability company
By:
Name:
Title:
ADSLLP-00076400.13
CONSENT
THIS CONSENT ("Consent") is made by ("Contractor"), this day
of , 20 , to and for the benefit of THE CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation duly organized and existing under the laws of the State of
Florida (the "City"), with agreement by TCH 500 Alton, LLC, a Delaware limited liability
company("Developer").
Contractor and Developer have entered into that certain dated
, 20_ (the "Construction Agreement"), providing for [construction] [design]
[engineering] of the Park Project, as defined in that certain to Development Agreement by and
between the City and Developer dated as of January 9, 2019, which Development Agreement is
recorded in Official Records Book 31323, Page 2781 in and of the Public Records of Miami-
Dade County, Florida, as assigned to TCH 500 Alton, LLC, pursuant to that certain Assignment
and Assumption of Development Agreement dated as of September 27, 2019 and recorded in
Official Records Book 31627, Pages 1177-1182 in and of the Public Records of Miami-Dade
County, Florida, and as amended by the First Amendment to Development Agreement, dated as
of December 18, 2019, and the Second Amendment to Development Agreement, dated as of
2020 (as amended, collectively,the"Development Agreement").
Developer has assigned the Construction Agreement to the City pursuant to the Assignment of
Construction Agreements (the"Assignment")to which this Consent is attached.
The City has required, as a condition of the Development Agreement, as amended, that
Contractor execute this Consent. NOW THEREFORE, Contractor agrees as follows:
1. Contractor represents and warrants to the City,that the Construction Agreement is
in full force and effect and is enforceable in all material respects in accordance with its terms and
no default, or event which would constitute a default after notice or the passage of time, or both,
exists with respect to the Construction Agreement.
2. Contractor agrees that if, at any time, the City elects to undertake or cause the
completion of construction of the Park Project in accordance with the Construction Agreement
and gives Contractor written notice of such election (an "Election Notice"), then, so long as the
City assumes and performs the payment obligations of Developer under the Construction
Agreement accruing from and after the date of the Election Notice, then Contractor shall
continue to perform its obligations under the Construction Agreement in accordance with the
terms thereof for the benefit and account of the City in the same manner as if performed for the
benefit of account of Developer in the absence of the Assignment. Unless and until the City
expressly assumes the obligations of Developer under the Construction Agreement (and then
only to the extent the same arise from and after such assumption), the City shall not be a party to
the Construction Agreement and will in no way be responsible to any party for any claims of any
nature whatsoever arising or which may arise in connection with the Construction Agreement.
3. Contractor further agrees that, in the event of a breach by Developer of the
Construction Agreement, Contractor will give written notice to the City at the address shown
ADSLLP-00076400.13
below its signature of such breach. Unless and until the City expressly assumes the obligations
of Developer under the Construction Agreement (and then only to the extent the same arise from
and after such assumption), the City shall not be a party to the Construction Agreement and will
in no way be responsible to any party for any claims of any nature whatsoever arising or which
may arise in connection with the Construction Agreement.
4. [Contractor further agrees that Contractor shall not enter into any amendment to
the Construction Agreement in violation of the terms of the Development Agreement.]
[APPLICABLE TO CONSTRUCTION CONTRACT]
5.
a. Contractor agrees, notwithstanding anything to the contrary contained herein, that
upon an event of default by Developer resulting in a termination of the Development Agreement,
or City's exercise of its remedy for a Park Related Default as provided in the Development
Agreement„ until and unless the City gives Contractor an Election Notice, the Construction
Agreement may be terminated for any or no reason at the election of the City and the City shall
not be responsible to any party for any claims of any nature whatsoever arising or which may
arise in connection with the Construction Agreement.
b. [Additionally, if requested by the City in writing, Contractor will continue as the
general contractor for construction of the Park Project for up to thirty (30) days after such
termination or City's exercise of its remedy for a Park Related Default under the Development
Agreement (the "Transition Period") on the same terms and conditions as set forth in the
Construction Agreement, provided that Contractor is paid by the City in accordance the
Construction Agreement for all work, labor and materials rendered pursuant to the Construction
Agreement performed during the Transition Period; and] [APPLICABLE TO
CONSTRUCTION CONTRACT]
c. [Subject to Contractor's receipt of the payments prescribed by Section 5.b. above,
Contractor will engage in reasonable, good faith efforts to cooperate with any other general
contractor selected by the City in order to assure a smooth transition, including, without
limitation, delivering to the City or its designee copies of all project records in Contractor's
possession or control that Developer is entitled to obtain under the terms of the Construction
Agreement.] [APPLICABLE TO CONSTRUCTION CONTRACT]
6. Nothing in this Consent shall supersede or modify any provisions of the
Construction Agreement as between Developer and Contractor. By its joinder in the execution
of this Consent, Developer agrees that any action by Contractor in accordance with the terms
hereof shall not constitute a violation by Contractor of any term of the Construction Agreement
or of any obligation Contractor has or may have to Developer. For instance, in the event the City
terminates the Construction Agreement as provided in Section 5 hereof, Developer shall remain
liable for all amounts due Contractor in accordance with the applicable termination provisions of
the Construction Agreement.
ADSLLP-00076400.13
7. This Consent shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida. Each of the undersigned parties hereby knowingly,
voluntarily and intentionally, after opportunity for consultation with independent counsel, waives
its right to trial by jury in any action or proceeding to enforce or defend any rights or obligations
under or arising in connection with this Consent.
8. Contractor warrants and represents that it has no knowledge of any prior
assignment(s) of any interest in the Construction Agreement.
[Remainder of Page Intentionally Left Blank]
ADSLLP-00076400.13
IN WITNESS WHEREOF, Contractor intending to be legally bound has executed this
Consent as of the date first written above.
CONTRACTOR:
, a
By:
Name:
Title:
Contractor's Address:
DEVELOPER:
TCH 500 ALTON, LLC,
a Delaware limited liability company
By:
Name:
Title:
Developer's Address:
CITY:
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of Florida
By:
Name:
Title:
ADSLLP-00076400.13 39
ATTEST:
By: [SEAL]
City's Address:
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
With a copy to:
City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
ADSLLP-00076400.13 40
Exhibit "C"
Forms of Performance Bond and Payment Bond
FORM OF PERFORMANCE BOND
By this Bond, We as Principal, whose principal
business address is , as
the [Contractor] under the agreement dated , 20 , between Principal and
the [Developer Entity] (hereinafter referred to as "Developer") for the construction of the Park
Project on behalf of the City of Miami Beach, Florida ("City") (which agreement and the other
Contract Documents referenced therein are hereinafter referred to as "Contract"), the terms of
which Contract are incorporated by reference in its entirety into this Bond, and
a corporation, whose principal business address is
as Surety, are bound to Developer, as co-obligee,
and City, as co-obligee, in the sum of U.S. dollars
($ ), for payment of which we bind ourselves, our heirs, personal
representatives, successors, and assigns,jointly and severally.
THE CONDITION OF THIS BOND is that if Principal:
1. Performs all the work under the Contract, including but not limited to guarantees,
warranties and the curing of latent defects, said Contract being made a part of this Bond
by reference, and at the times and in the manner prescribed in the Contract; and
2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees,
including appellate proceedings, that Developer and City sustains as a result of default by
Principal under the Contract, including but not limited to a failure to honor all guarantees
and warranties or to cure latent defects in the work or materials within the time period
provided in Section 95.11(2)(b), Florida Statutes; and
3. Performs the guarantee of all work and materials furnished under the Contract for the
time specified in the Contract, including all warranties and curing all latent defects within
the time period provided in Section 95.11(2)(b), Florida Statutes;
then this bond is void; otherwise it remains in full force.
Surety specifically assumes liability for any and all damages, including but not limited to
liquidated damages set forth in the Contract, arising from Principal's default of the Contract, as
well as all latent defects uncovered in the work of the Principal after final acceptance of the work
by the City.
If no specific periods of warranty are stated in the Contract for any particular item or work,
material or equipment, the warranty shall be deemed to be a period of one (1) year from the date
of final acceptance by the City; provided, however, that this limitation does not apply to suits
ADSLLP-00076400.13 41
seeking damages for latent defects in materials or workmanship, such actions being subject to the
limitations found in Section 95.11(2)(b), Florida Statutes.
Whenever the Principal shall be, and is declared by Developer to be, in default under the
Contract, Developer having performed Developer's obligations thereunder, the Surety may
promptly remedy the default, or shall promptly:
(1) Complete the Contract in accordance with its terms and conditions; or
(2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions,
and upon determination by Surety of the lowest responsible bidder, or, if Developer elects, upon
determination by City, Developer and Surety jointly of the lowest responsible bidder, arrange for
a contract between such bidder and Developer, and make available as work progresses (even
though there should be a default or a succession of defaults under the Contract or Contracts of
completion arranged under this paragraph) sufficient funds to pay the cost of completion less the
balance of the Contract Price; but not exceeding, including other costs and damages for which
the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term
"balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by
Developer to Principal under the Contract and any amendments thereto, less the amount properly
paid by Developer to Principal.
The Surety hereby waives notice of and agrees that any changes in or under the Contract and
compliance or noncompliance with any formalities connected with the Contract or the changes
does not affect Surety's obligation under this Bond.
No right of action shall accrue on this bond to or for the use of any person or corporation other
than the Developer and City named herein. Any action under this Bond must be instituted in
accordance with the notice and time limitations provisions prescribed in Section 255.05(2),
Florida Statutes.
Signed and sealed this day of , 20
WITNESSES:
(Name of Corporation)
Secretary By:
(Signature)
(CORPORATE SEAL)
(Print Name and Title)
ADSLLP-00076400.13 42
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attorney-in-Fact
Address:
[attach copy of Agent's ID card (Street)
Issued by Fla. Ins. Commissioner]
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
ADSLLP-00076400.13 43
FORM OF PAYMENT BON D
By this Bond, We _ as Principal, whose principal
business address is , and whose telephone
number is , as the [Contractor] under the agreement dated
20 , between Principal and the [Developer entity] (hereinafter referred to as "Developer") for
the construction of the Park Project on behalf of the City of Miami Beach, Florida ("City")
(which agreement and the other Contract Documents referenced therein are hereinafter referred
to as "Contract"), the terms of which Contract are incorporated by reference in its entirety into
this Bond, and , a corporation, whose principal business address
is as Surety, are bound to Developer, as co-obligee,
and City, as co-obligee, in the sum of U.S. dollars
($ ), for payment of which we bind ourselves, our heirs, personal
representatives, successors, and assigns,jointly and severally.
THE CONDITION OF THIS BOND is that if the Principal:
1. Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1),
providing Principal with labor, materials, or supplies, used directly or indirectly by
Principal in the prosecution of the work provided for in the Contract, and in the times and
in the manner prescribed in the Contract; and
2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees
including appellate proceedings, that Developer and City sustain because of a failure by
Principal to make any payments required under the Contract;
then this bond is void; otherwise it remains in full force.
A claimant shall have a right of action against the Principal and the Surety for the amount due it.
Such action shall not involve the Developer or City in any expense.
A claimant, except a laborer, who is not in privity with Principal and who has not received
payment for its labor, materials, or supplies shall, within forty-five (45) days after beginning to
furnish labor, materials, or supplies for the prosecution of the work, furnish to Principal a notice
that he intends to look to the bond for protection. A claimant who is not in privity with Principal
and who has not received payment for its labor, materials, or supplies shall, within ninety (90)
days after performance of the labor or after complete delivery of the materials or supplies,
deliver to Principal and to the Surety, written notice of the performance of the labor or delivery
of the materials or supplies and of the nonpayment.
No action for the labor, materials, or supplies may be instituted against Principal or the Surety
unless both of the above-referenced notices have been given. Any action under this Bond must
be instituted in accordance with the notice and time limitations prescribed in Section 255.05(2),
Florida Statutes.
ADSLLP-00076400.13 44
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the Contract
or the changes does not affect the Surety's obligation under this Bond.
Signed and sealed this day of , 20
Principal
ATTEST:
(Name of Corporation)
By:
(Secretary) (Signature)
(Corporate Seal) (Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attorney-in-Fact
Address:
[attach copy of Agent's ID card (Street)
Issued by Fla. Ins. Commissioner]
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
ADSLLP-00076400.13 45
Exhibit "D"
Form of Settlement Agreement
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims (the "Settlement Agreement") is
made and entered into this day of , 2020, by TCH 500 Alton, LLC, a
Delaware limited liability company ("Developer"), and the City of Miami Beach, a Florida
municipal corporation(the"City") (each, a"Party"and collectively,the"Parties").
The Parties agree and stipulate to the following:
RECITALS
1. City and 500 ALTON ROAD VENTURES, LLC, a Delaware limited liability company,
1220 SIXTH, LLC, a Delaware limited liability company, SOUTH BEACH HEIGHTS I,
LLC, a Delaware limited liability company, and KGM EQUITIES, LLC, a Delaware limited
liability company entered into that certain Development Agreement, dated as of January 9,
2019, 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 (the
"Development Agreement"), which Development Agreement is recorded in Official Records
Book 31323, Page 2781 in and of the Public Records of Miami-Dade County, Florida, as
assigned to TCH 500 Alton, LLC, pursuant to that certain Assignment and Assumption of
Development Agreement dated as of September 27, 2019 and recorded in Official Records
Book 31627, Pages 1177-1182 in and of the Public Records of Miami-Dade County, Florida.
2. The Development Agreement provides, among other terms, the City's and Developer's
respective responsibilities and agreement to coordinate and cooperate in the planning,
scheduling and approval of the design, development and construction of a mixed use
residential and commercial project (the "Project") on the Development Site (as that term is
defined in the Development Agreement), and a 3.0 acre public park to be conveyed to the
City(the"Park Project");
3. On July 17, 2019, the Mayor and City Commission of the City approved a First
Amendment to the Development Agreement, delineating the terms and conditions for
Developer to develop, permit, design and construct a pedestrian bridge over and across 5th
Street and West Avenue, to connect the baywalks south of 5th Street with the Development
Site(the"First Amendment"), which First Amendment was dated as of December 18, 2019;
4. On November 1, 2019, the City's Board of Adjustment heard an appeal filed by
Developer, and voted to reverse an administration determination of the Planning Director
("Determination"), with respect to the inclusion of the following building elements in floor
area calculations for the Project in accordance with the City Code: (1) voids to accommodate
elevator shafts; (2) voids to accommodate mechanical/ventilation/trash shafts; and (3) voids
ADSLLP-00076400.13 46
to accommodate stairwells, including voids to accommodate stairwells within accessory
garages (the"BOA Appeal"). On or about December 3, 2019,the City appealed the Board of
Adjustment ruling reversing the Planning Director's Determination to the Eleventh Judicial
Court in and for Miami-Dade County, and filed a Writ for Petition of Certiorari in Case No.
19-323 AP-01 (the"Action").
5. The Parties desire to resolve their dispute relating to the BOA Appeal and the Action, and
desire to amend the Development Agreement and First Amendment thereto, to accomplish
the terms and conditions outlined herein.
6. In Resolution No. 2020- , the Mayor and City Commission approved the Second
Amendment and this Settlement Agreement, following two (2) duly noticed public hearings
in compliance with Section 163.3225 of the "Act," having determined that it is in the City's
best interest to address the issues covered by the Development Agreement, as amended, in a
comprehensive manner.
7. In Ordinance No. 2020- , the Mayor and City Commission enacted an amendment
to the City's Land Development Regulations, clarifying the areas of a building that count
toward the maximum floor area limitations and reaffirming the City's longstanding
application of the definition of floor area as including (1) voids to accommodate elevator
shafts; (2) voids to accommodate mechanical/ventilation/trash shafts; and (3) voids to
accommodate stairwells, including voids to accommodate stairwells within accessory garages
(the"Clarifying LDR Amendment").
8. The Clarifying LDR Amendment contained an applicability clause to effectuate the
settlement of the BOA Appeal and the Action, by providing that the foregoing "shall not
apply to the development site that is the subject of an appeal granted by the Board of
Adjustment prior to the effective date of this Ordinance that(i) authorized the exclusion from
floor area calculations of voids in elevator shafts, mechanical/ventilation/trash shafts, and
stairwells; and (2) does not result in a change to the height or floor plate of the residential
tower of the proposed development."
NOW, THEREFORE, based on the above and in consideration of mutual covenants and
other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree to the following:
1. The foregoing recitals are true and correct and are incorporated herein by reference.
2. Exclusion of Certain Elements from Calculation of Floor Area for the Project. Subject to the
terms and conditions of the Second Amendment to Development Agreement, and in
accordance with the Clarifying LDR Amendment, the Parties agree that the Developer will
have the right to exclude (1) voids to accommodate elevator shafts; (2) voids to
accommodate mechanical/ventilation/trash shafts; and (3) voids to accommodate stairwells,
including voids to accommodate stairwells within accessory garages from the calculation of
floor area for the Project, provided that the foregoing does not result in a change to the height
or floor plate of the residential tower for the Project.
ADSLLP-00076400.13 47
3. Release by the Developer. Except for performance required under the Settlement Agreement
and the Second Amendment, the Developer, on behalf of itself and each of its members
(direct and indirect), principals, affiliates, subsidiaries, directors, officers, managers,
employees, attorneys, successors and assigns (collectively, the "Developer Parties"), hereby
forever releases and discharges the City, including without limitation any agency or
regulatory body of the City, and its elected officials, employees, agents and representatives
(collectively, the "City Parties"), from each and every right, claim, debt, cause of action,
demand, suit, liability, or right of action of any nature whatsoever, whether asserted or
unasserted, known or unknown, relating to or arising from the subject matter of the BOA
Appeal and the Action or the Allegations of the BOA Appeal and the Action, and all facts or
alleged evidence that were or could have been brought in those proceedings by the City or
the Developer, and the interpretation of the City's Land Development Regulations to exclude
the (1) voids to accommodate elevator shafts; (2) voids to accommodate
mechanical/ventilation/trash shafts; and (3) voids to accommodate stairwells, including voids
to accommodate stairwells within accessory garages (collectively, (1)-(3), the "Elements")
from the calculation of floor area.
4. Release by the City. Except for performance required under the Development Agreement, as
amended, and this Settlement Agreement and in conjunction with and subject to the dismissal
of the BOA Appeal and the Action in accordance with Section 6 hereof, the City hereby
forever releases and discharges the Developer from each and every right, claim, debt, cause
of action, demand, suit, liability, or right of action of any nature whatsoever, whether
asserted or unasserted, known or unknown, involving, relating to or arising from the subject
matter of the BOA Appeal and the Action or the allegations of the BOA Appeal and the
Action, and all facts or alleged evidence that were or could have been brought in those
proceedings by the City or the Developer, and the interpretation of the City's Land
Development Regulations to exclude the Elements from the calculation of floor area for the
Project.
5. Covenant Not to Sue. Developer, on behalf of itself and each of its members and David
Martin (individually) and Russell Galbut (individually) and each owner of any of the
Identified Properties (as hereinafter defined) in which either or both of David Martin or
Russell Galbut has any direct or indirect ownership interest (collectively, the "Developer
Covenant Parties"), hereby unconditionally covenants and agrees that neither Developer nor
any of the Developer Covenant Parties will: (a) seek to exclude the Elements from the
calculation of floor area for any of the Identified Properties based on the Board of
Adjustment's November 1, 2019 interpretation excluding the Elements from the calculation
of floor area; or (b) commence any action, suit or proceeding against the City (including,
without limitation, any agency or regulatory body of the City) seeking to exclude the
Elements from the calculation of floor area for any of the Identified Properties. For purposes
of this paragraph, the term "Identified Properties" shall mean and be limited to the following
four (4) properties: (v) 1212 Lincoln Road; (w) 1501 Collins Avenue (the Bancroft Hotel);
(x) 100 Lincoln Road (the Decoplage); and (y) 7145 Carlyle Avenue. [OPEN ISSUE;
Developer does not agree to extend covenant to 1501 Collins Ave or 7145 Carlyle Ave]
ADSLLP-00076400.13 48
6. Dismissal of the BOA Appeal and the Action. In conjunction with the completion of this
Settlement Agreement, within five (5) days after the City and Developer have executed the
Second Amendment and this Settlement Agreement, the City and Developer shall, along with
counsel, execute a stipulation for dismissal with prejudice of the BOA Appeal and the
Action, along with any other pleadings which may be required to effectuate the dismissal
with prejudice of the BOA Appeal and the Action, inclusive of all claims asserted therein,
and without recovery of attorneys' fees or costs, except as expressly provided in the Second
Amendment.
7. Predecessors, Successors, and Assigns. All persons or business entities granting releases
hereby include any assignee, predecessor in interest, or successor in interest of the respective
grantor. All persons or business entities released hereby include any predecessor in liability
or successor in liability for the released liability.
8. Representations and Warranties. It is acknowledged that Developer and City have read this
Settlement Agreement and have consulted with their respective legal counsel, or knowingly
chose not to consult legal counsel, before executing same; the Parties have relied upon their
own judgment and/or that of their respective legal counsel in executing this Settlement
Agreement and have not relied on or been induced by any representation, statement or act by
any other Party except for the recitals contained herein, which each Party acknowledges and
agrees are specific representations by such Party; each Party enters into the Settlement
Agreement voluntarily, with full knowledge of its significance; and the Settlement
Agreement is in all respects complete and final. The Parties warrant and represent that (a)
each is the sole owner of the Parties' respective rights and claims against any of the other
parties, and they have not assigned, transferred, or conveyed any rights or claims they may
have against any of the other parties to any other person or entity; and (b) each of the parties
has full power and authority to enter into an perform this Settlement Agreement without the
consent of or duty to notify any other person, entity, or regulatory authority. Developer, on
behalf of itself and each of the Developer Parties, covenants and agrees that it will not take or
permit any of the Developer Parties to take any action to intentionally frustrate the purpose of
this Settlement Agreement. City, on behalf of itself and each of the City Parties, covenants
and agrees that it will not take or permit any of the City Parties to take any action to
intentionally frustrate the purpose of this Settlement Agreement.
9. Legal Fees and Costs. Each of the Parties shall pay its own respective costs and attorneys'
fees incurred with respect to the BOA Appeal and the Action and this Settlement Agreement,
except as provided in the Second Amendment.
10. Entire Settlement Agreement. This Settlement Agreement constitutes the entire settlement
with respect to the subject matter addressed herein and supersedes any prior written and/or
verbal agreements between the Parties.
11. Amendments. This Settlement Agreement may not be orally modified. This Settlement
Agreement may only be modified in a writing signed by all of the Parties.
ADS LLP-00076400.13 49
12. Preparation of Settlement Agreement and Construction. This Settlement Agreement has
been prepared jointly by each of the Parties, with a full opportunity for the Parties to
negotiate its terms. Accordingly, any rule of law or legal decision that would require
interpretation of any ambiguities in this Settlement Agreement against the Party that has
drafted it is not applicable and is hereby waived.
13. Waiver and Modification. The failure of the Parties to insist, in any one or more instances,
upon the strict performance of any of the covenants of this Settlement Agreement, or to
exercise any option herein contained, shall not be construed as a waiver, or a relinquishment
for the future of such covenant or option, but shall continue and remain in full force and
effect.
14. Further Necessary Actions. To the extent that any document is required to be executed by
any party to effectuate the purposes of this Settlement Agreement, the party will execute and
deliver such document to the requesting party.
15. Counterparts. This Settlement Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one in
the same instrument. A copy of this Settlement Agreement transmitted by facsimile shall be
deemed an original.
16. Binding Agreement. This Settlement Agreement is binding on the Parties hereto and the
Parties agree to execute any and all documents necessary and consistent with applicable law,
to ratify, confirm, and perform the terms and provisions of this Settlement Agreement. The
terms of this Settlement Agreement shall be binding on and inure to the benefit of the Parties,
their legal representatives, members, constituents, successors, assigns, subsidiaries and
affiliates, and shall supersede all prior discussions, negotiations and agreements among the
Parties, concerning the terms of this Settlement Agreement.
17. Jurisdiction and Choice of Law. This Settlement Agreement shall be construed, enforced and
interpreted in accordance with the laws of the State of Florida. By this Settlement
Agreement, Developer and City submit to the jurisdiction of the Circuit Court of the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida for any action to enforce or
interpret this Settlement Agreement.
18. Severability. In the event any provision, term or condition of this Settlement Agreement, on
behalf of either Party hereto shall be inapplicable, invalid, illegal or unenforceable in any
respect, the remainder of this Settlement Agreement and application of such provisions,
terms or conditions shall not be effected thereby, and shall be enforced to the fullest extent
permitted by law.
19. City's Sovereign Immunity. Nothing contained in this Settlement Agreement is intended to,
or shall be construed as, a waiver of the City's sovereign immunity as provided under the
laws of the State of Florida.
ADSLLP-00076400.13 50
20. No Third-Party Beneficiaries. The Parties expressly acknowledge that it is not their intent to
create or confer any rights or obligations in or upon any third person or entity under this
Settlement Agreement. None of the Parties intend to directly or substantially benefit a third
party by this Settlement Agreement. The Parties agree that there are no third party
beneficiaries to this Settlement Agreement and that no third party shall be entitled to assert a
claim against any of the Parties based upon this Settlement Agreement. Nothing herein shall
be construed as consent by an agency or political subdivision of the State of Florida to be
sued by third parties in any manner arising out of this Settlement Agreement, or other
obligations, whether known or unknown to the Parties.
The Parties approve the above terms and voluntarily enter into this Settlement Agreement to
settle the BOA Appeal and the Action between them as provided herein, and as of the date first
entered above.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
ADSLLP-00076400.13 51
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above:
TCH 500 Alton, LLC, a Delaware limited
liability company
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me, by means of 0 physical
presence or 0 online notarization this day of , 2020, by
of TCH 500 Alton, LLC, a
Delaware limited liability company, on behalf of said company, who is personally known to me
or who has produced (type of identification).
Name:
(Print Name)
Notary Public—State of Florida
My Commission Expires:
ADSLLP-00076400.13 52
THE CITY OF MIAMI BEACH,
FLORIDA, a political sub-division of the
State of Florida
By:
Name: Dan Gelber
Title: Mayor
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me, by means of 0 physical
presence or 0 online notarization, this day of , 2020, by Dan Gelber, as Mayor of
CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, who is
personally known to me or who has produced (type of
identification).
Name:
(Print Name)
Notary Public—State of Florida
My Commission Expires:
ATTEST:
City Clerk Date
Approved as to Form and
Legal Sufficiency Only:
City Attorney Date
ADSLLP-00076400.13 53
Exhibit"E" - Final Bridge Project Plans
ADSLLP-00076400.13 54
PROPOSED
, PEDESTRIAN BRIDGE S.O.W I
,
‘ i 0
1
1......0.1
- I r^' I n
n n
) , .
.
e , 1!' 1' ..-_/ •.
4 Ul
s ..a ; 600-700 ALTON ROAD r
13
500 ALTON ROAD
_ I r , I
I
i - - - - ^
:::,,,, --1
0
.., I
ARUU/TECTON/CA PEDESTRIAN
THC 500 ALTON,LLC PEDESTRIAN CONNECTOR
r.w,,,�.�,,>es.>,�„n SITE PLAN e" A5-03
_ BRIDGE
,.. ........a,..,.�....-...�= :°f . ...n....x.-••••• n....n,.M..+..«...a.n,.x.-u.
. MIAMI BEACH,FL 33139
PROPOSED ow 7:::
Oro. ......
milimunimil
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I___,— ----iff__.;_r_...„,p_. ,..,..._.v._.,„,„.. ..,,, .....re.liitil ; a .
.
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Wi i
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^11W I ECHINIC/ � THC 500 ALTON,LLC BAYWALK
M..,,»7.,ru...4 PEDESTRIAN CONNECTOR RENDERING DATE A5-O6
BRIDGE 07/08/2019
...ew :..n.�orti 'Zr.” w"w".r+"w�+'"•++'"+.+�•+'+a""—""'++ MIAMI BEACH,FL 33139 _ li. 1•
PROPOSED
1911
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rit O _
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^'•N NWA ENfINE09 THC 500 ALTON.LLC BAYWALK ,c
•�,n,....n.».„� PEDESTRIAN CONNECTOR RENDERING A5-
BRIDGE
,�.,-,�--�,,,,,•, ,,,,-.,.,,,,�,.,�.w • .e.•.+.-- .-.�•-e—�•-^�.•.+ MIAMI BEACH,FL 33139 „_
PROPOSED so y
..I 4
i . .14114.44:44
Q
rt-. . -.� .a 'S A# so' 4 `14
t Y ` aFP
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'M` INE THC 500 ALTON,LLC BAYWALK
PEDESTRIAN CONNECTOR RENDERING ®' DATE. A541
BRIDGE 07108/2019
•..7-4-.4.. .:=7-,:::4...e..ES W•- -177.7.+.+1Zirii -":"4.a.:+�++ MIAMI BEACH,FL 33139 „.. _r
PROPOSED �.�■■,,,,��
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_ \\�� \ ®-�' - _140,.
Imo/ t
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limi
mounwma LAKES THC 500 AITON,LLC WBAYALK 1
ENGINEERING,NC.
r.=,en„g PEDESTRIAN CONNECTOR RENDERING + DATE: A5'12
_ BRIDGE 0 710 8/201 9
L+E5+7— ti-EEr Za ==–•Z.=.=.1-'.+^+++ MIAMI BEACH.FL 33139 ,.
PROPOSED
..... V4
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AROUITECTONICA hI THC 500 ALTON,LLC BAMALK
,a,7,,,,s � PEDESTRIAN CONNECTOR RENDERING F�
,,,,, • DATE. A5-14
_ BRIDGE 07/0812019
..,....., .,.....�r.r,�..,n. +-.++...,�...+^^. ••+�r.-•7+ MIAMI BEACH,FL 33139 ,.e I
PROPOSED ;
ALL CONCRETE COLUMNS AND OTHER •::,. �••
SURFACES 10'AND BELOW WILL(IECEIVE '
GRAFFITI GUARD PAINT FINISH """'"" 1 1
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i
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..'7 ', % ::::':..::.::::...V.::; • #
^'•OU1' 4.M ICA ENhi'N4EEK GF,,1N4 THC 500 ALTON,LLC , BAYWALK
.a..,..,.a,... PEDESTRIAN CONNECTOR BRIDGE-LEVEL I PLAN ®' A5-15
BRIDGE
.+..............r.........>.,...edw :._...""...:"—:a._2...+...•"..�r...�..... MIAMI BEACH.FL 33139 ,...,,, e
PROPOSED NO-.
I
......\
SURFACES le AND BELOW WILL RECEIVE ; ;
GRAFRTI GUARD PAINT FINISH ,
t. 140+T
S B1 PN03S
1 '
w It tt
,I
qFOOT 0.0.W.LINE
;
* '----- - ' - --.-- - \iilk *
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... . ,,,.....s, - '''.......,, ' : \ \-;-----"'--.7;1„,,-------'--_,,,,,,--'',-1 ....-_-____'-,._
. \ts --**-- ...,....... _ a \I --------------'-'-'---11 '
(EI BUILDING
j, �\ FOOT 0.0.W.UNE •
01 .
AROUT EC'"MICA ENGINEER'NG.INC. THC Sc:ALTON.LLC B ALK
.a.n»�:,�m„4 PEDESTRIAN CONNECTOR BRIDGE-LEVEL 2 PLAN A5-17
BRIDGE
_
.. ...,,.,«.....w.................,.Am .+---«,-- .- ..+.- -.-.- .- MIAMI BEACH.FL 33139 w„.,
PROPOSED ,�_
\ lit,i.,
a Q FOOT B.O.W.LINE
.v
11I — — .�...� I
000000.06000000 .410,,,A ,
,,,N.. !Ili/ ,,,,,,, \ \a...‘....,.. ,,
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14 I
il Nun
... #.4; ; \ \-,....iirr- 'fie
AR11UITECTONICA km,„ER BAVWALK
,..,n u'•a,r n THC 500 ALTON,LLC PEDESTRIAN CONNECTOR I BRIDGE-ROOF LEVEL RENDERED
_ . �� _ BRIDGE PLAN ��' �'1�
MIAMI BEACH.FL 33139
• ..•.,,r....w.,r�r..+.re..�.��..w .'-•e�..a-'r.•--�. .�
.++w .•� �.
'v..r.+
PROPOSED
500 ALTON PROJECTI . /--;77:. f_.... .....
EXISTING BUILDING
�
BEYOND IV "•
—_—_---_`_— 0 77 te— .-_. . --1,--.'t,,,-_ - " _-. _ _-yeti
�f
�
/ w0.1.— _,_, .� I-ti - " _f I —.�e
WEST ELE ATION^
If 4114114
-
---i- �N [„�iuilllllll"I iiir - - ��
�1 jl/ rr
EAST ELE J1.010
AIWyamIE IONkagrS
THC 500 ALTON.LLC BAVWALK
.=�.ww,r PEDESTRIAN CONNECTOR BRIDGE-WEST AND EAST
BRIDGE ELEVATIONS /,5c-2 M
.ra..�......,.,....a,..7:5.: zIE-1w '. ". ".r'«.""""."":-:-`:-.7." MIAMI BEACH.FL 33139 ..... .
PROPOS
o .�
NORTH E1EVATDN OF STM AND ELEVATOR ORB.ZO
emagameoremor
/ M —
101110111.1.1
SOUTH ELEVATION OF STAIR AND ELEVA ORB 1
AROJJ TECTDN/CA E,,G!NEEK THC 500 ALTON,LLC BAYVVALK
.aw" Fr PEDESTRIAN CONNECTOR BRIDGE-ELEVATIONS A5-23
BRIDGE
w+error..rw..rr:.rM•T��r''�"�°"�O"'"""�""�"•�"-'�"'�"�" MIAMI BEACH,FL 33139 1j„„,, 11
PROPOSED
r.,FACillii.XXXViINTAittliAitZt '
O11'l/lll/llhe MIY111111111w11NN11111Y11
-
Jç :- � IUIIMIIYYNAY1/N11NORTH ELEVATION cIL BRIDGE(!)
Wrti
1r= ■A— 44.
SOUTH ELEVATION Of BRIDGE
' BAVWALK \J
AROTHC 500 ALTON,LLC PEDESTRIAN CONNECTOR BRIDGE-ELEVATIONS El+ A5-24
.tea v m
BRIDGE
__
w�........�w....aw..=. .�r �wrT......�.�.....................r......... MIAMI BEACH,FL 33139 .,„„ „
PROPOSED
E
500 ALTON PROJECT twos
r.� EXISTING BOURNS
BEYOND •"'
''t I..1
lin 2iE 015— - -- J ►.. II II 6`.Wa, --.914---
w i i i I illi Zia '. ` III iM � r
.i r i ili .i r iz a 3 i
WEST ELE ATXRIO
-
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IF ir 1 [ it a 4.11 .. - 111114111i, lig ' ,
,I
!1,. 0 iii ,.:
EAST ELEVA«IONO
AR•'UI ELGIN!`" 6011,5 IN2, THC 500 ALTON.LLC BA PEDESTRIAN CONNECTOR BRIDGE-RENDERED ELEVATIONS
YVVALK
:7..7,1747,4",rA6-25
BRIDGE
......, ......,..r...........•,..,.,,ew. ..-+a.. •-^^.^-..^+.-•^.....-..,.^....+ MIAMI BEACH.FL 33139 „",..,.
PROPOSED
•
/—....111.4101.111.4r...11
•
WPM
a.
oNba.4 111
NSW eirM.VIM,*
W.", / 7 t .
SOUTH ELEVATION OF STAIR AM)ELEVATOR DRB COLOR O
AROW/R7AMMa hfilial INC 500 MIAMIALTON, WALK
,a„,,,d,�„� LLC BAVPEDESTRIAN CONNECTOR !BRIDGE RENDERED ELEVATIONS A5-26
:ff.-i.....,.-... -..--........,_--.w _ BRIDGE
+�-.�-�+�+—++^.---�---�++--r^-+ter. MIAMI BEACH,FL 33139 ,.. ,.
PROOFED
PPM LO. 0111
10.1111•01.0 NNW
—_---_—_— .__---. �-1111 . _—_
w
Mient MOM.
SOUTH ELEVATION VEIL
,.....m /'—..,,.,.,.
/
---'---------------------_--------- ,i./... \ W11\\\\ii\t110'Mil\
— — — — — — — — — — — — — — — — — — —-—- ;J.l✓;.YI..LZ1Jd6aZ.Gl;-—-—-—.-'3►
II
�/� /�]�u/�� �� NORTH ELEVATION OF BPoDGE
�"`r�`�'`ten/`"^ k'N4EEKING VIC THC 500 ALTON.LLC YVVALK
PEDESTRIAN CONNECTOR BRIDGE_RENDERED ELEVATIONS ®' `J A5-27
_ BRIDGE
,. .......w.........r...w,«.w ..-.o+.�+.....++...+..• 7w MIAMI BEACH,FL 33139 ,.-,..,. '•'y'..:......: •
PROPOSED
".---
.../-6--".01.....al.i...r.--------7.. --.- -,1,, ,I .„... "11.------;" -------""'
,,,_SII Eli E . _ � -,
" ., ���-� ��� •
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OIMPOISROOM MORN.
tliMM.IMMIL NOWT MO
STAIR 12SECTNIN STAR 11 SECTION c Z,
—-—'Ai pr. Fiall-,,,.....I -u
ik•
-: .1
= la , ' -
STAIR 11 SSCSON n
.""701111ECION!C44 ENGIN THC 500 ALTON.LLC BAYWALK I
..am.,OU,�m �„ PEDESTRIAN CONNECTOR STAIR SECTIONS
BRIDGE
•...r....F=..,......„-- .. •^+.....r^...--^..++^•+r.r”.... MIAMI BEACH,FL 33139
PROPOS
01011110.11110 OM.
ktaiii' lliiit
i lI i \\ moi.
.7.;.;_....m�a ' I� r�- - - ""r�t9 ammo.
111
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SECTION AT WEST AYE ORBO
--■j —
911.0 0011.1 KAN. i \ t t
I MK
ll UMW
-- - -- ....M.S., ''. Ill. j'ingte.
L ; L
CROSS SECTION AT BRIDGE,- BUARBRAL DETAL AT y. ._�!
AROW7 C w•IC1hpAKEN THC 500 ALTON.LLC BAYWALK A5-29
rara,.v,=t4 PEDESTRIAN CONNECTOR BRIDGE SECTION .4..1•
BRIDGE
_
.,�.an �,wwar.r..... +w. ..r+.. ...++++..... + MIAMI BEACH.FL 33139
PROPOSED
•
alt
•
-71
Is
ARQUITECTONICA A CFS ARQ[IlTrrmtiire BAYWALK
IN RIN THC SOO ALTON,LLC PEDESTRIAN CONNECTOR
BRIDGE GROUND LEVEL RENDERED PLAN 07/08/19 L1-100
MIAMI BEACH,FL 33139
PROPOSED
e '• "• '• • • 'e a •, e, , s
)11I
411 \
•
ABQU/TECTON/CA CF ARQUITfrrnniirn BAYWALK
x F THC 500 ALTON,LLC PEDESTRIAN CONNECTOR
BRIDGE 2ND LEVEL RENDERED PLAN 07/08/19 L1-200
..--73-. :.==.-,-..�..�.4-- """'—~��""�""`���'""" MIAMI BEACH.FL 33139
Exhibit "F" - Final Bridge Project Budget
ADSLLP-00076400.13 55
GRAFT Updated 12/12/19
BAYWALK CONNECTOR BRIDGE BUDGET
gime
rGE CONSTRUCTION COSTS BUDGET REVISED 8i7DGET DELA notes
Structure Construction Costs $ 5,869,900 S 6,771,429 5 901,529
Artwork Construction Costs 5 1,000,000 $ 1,200,000 S 200,000
Utility Work(water main,etc) $ 600,000 $ 600,000
Hard Cost Contingency 5 343,495 $ 428,571 $ 85,076
Total Construction Costs $ 7,213,395 5 9,000,000 S 1,786,605
DEVELOPER DIRECT COSTS
Electrical Relocation/Utility Relocation $ 175,000 5 - 5 (175,000) included in const casts
Construction Inspection
CFI Inspection/Materials Testing $ 390,000 S 550,000 S 160,000 per revised estimd:e
CEI Reimbursables $ 19,500 5 27,500 5 8,000
Administrative
legal 5 120,000 5 120,000 5
Procurement Facilitation 5 59,490 5 75,000 5 15,510
insurance $ 200,000 $ 200,000 5 -
Municipal&Permits
City of Miami Beach Permits S 3,500 5 3,500 $
FOOT Permits 5 1,000 S 1,000 5
Miscellaneous Permits $ 7,500 5 7,500 S -
Peer Review S 5,000 S 5,000 5 -
Administrative Fee 5 400,000 5 400,000 S
Owner Direct Contingency $ 49,050 5 49,475 5 426
Total Owner Direct _ $ 1,430,040 5 1,438,975 $ 8,936
BRIDGE DESIGN COSTS
Architectural&Engineering
Architecture&landscape $ 402,000 5 402,000 $ -
lighting Consultant $ 50,000 $ 70,000 $ 20,000 updated oer actual fee
Bridge Engineering S 420,000 $ 480,000 5 60,000 add service for utility/design chanpr
Surveyor S 4,405 S 4,405 5
Elevator Consultant $ 6,500 5 6,500 $
A&E Reimbursables $ 44,145 5 52,845 S 8,700
Artwork/Skin Consultant
Art Consulting $ 197,500 $ 197,500 5
Soft Cost Contingency $ Sb,228 $ 60,663 S 4,435
Total Soft Costs S 1,180,778 $ 1,273,913 $ 93,135
Total Bridge Project Developer Costs 5 9,824,212 S 11,712,888 S 1,888,676
City Expenses:City Inspector/Geotech/IPO $ 390,000 S 390,000 5 •
City Owner's Contingency $ 360,000 5 360,000 5 •
City Total $ 750,000 5 750,000 S -
Total Bridge Project Budget $ 10,574,212 5 12,462,888 5 1,888,676
Total Budget Cap I S 10,000,000
Total Development Expenses S 12,462,888
Outstanding Balance $ ( 462,888)
Exhibit"G"
Future Pedestrian Pathway Parcel
ADSLLP-00076400.13 56
THE fLORIDIAN ------l
IMAMIBEACH •
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rte
A A
.
,
r
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•
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_ -- is .. ia_�____.L .
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AL TON ROAD ALTON ROAD "•'4pim' !7MVIk *WNW x
I
•
91__i
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•
I r ccLEGEND
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i 1 Z PUBLIC ACCESS AS PER
.p ' , CITY STANDARTS
1 IBM PRIVATE LIMITED ACCESS
AREAS
Exhibit "G"
Exhibit"H"
Future Pedestrian Pathway Parcel Easement Agreement
This instrument was prepared by:
Name: Raul J. Aguila, City Attorney.
Address: City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
EASEMENT AGREEMENT
(Pedestrian Pathway—500 Block)
THIS EASEMENT AGREEMENT(the"Agreement"), is made this day of
, 201 , by!,having an address of !e -' -. - '_ : . - .. :, .. - . - • .
2665 South Bayshore Drive, Coconut Grove, Florida 33133 (the "Owner") in favor of the City
of Miami Beach, a Florida municipal corporation(the"City").
WITNESSETH:
WHEREAS, the Owner holds fee simple title to that certain real property more
specifically described on Exhibit "A" attached hereto and incorporated herein by this reference
(the"Property");
WHEREAS, the real property more specifically described on Exhibit "B" attached
hereto and incorporated herein by this reference (the "Easement Area") is contained within the
Property; and
WHEREAS, the Owner seeks to grant a perpetual non-exclusive easement upon, over and
across the Easement Area in favor of the City for the "Easement Purpose" (as hereinafter
defined).
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto intending to be legally bound hereby agree as follows:
1. Recitals. The above recitals are true and correct and by this reference are hereby
incorporated into the body of this Agreement as if fully set forth herein.
2. Grant of Easement. Subject to the rights reserved herein, the Owner hereby grants
to the City a perpetual, non-exclusive and irrevocable easement upon, over and across the
Easement Area for the purpose of unrestricted ingress and egress by the general public for
ADSLLP-00076400.13 5 7
pedestrian travel (the "Easement Purpose"); . •. :, , . : • - . • . _ . • •
to the contrary contained in this Agreement, the Owner reserves the right to install gates,
' . -.. - • - . .. . - . .. . ally located east of the
"Pedestrian Bridge Platform" (as hereinafter defined) and as more specifically described on
" " - - • - _ . - :le
P.M. through sunrise on every day of the week.
3. Pedestrian Bridge Platform. The Owner and the City hereby acknowledge and
agree that: (a) the City intends (but is not obligated) to design and construct at its sole cost and
expense a pedestrian bridge over and across West Avenue and 5th Street (such pedestrian bridge,
together with all related improvements, are referred to herein collectively as the "Pedestrian
Bridge"); (b) the eastern end of the Pedestrian Bridge is to connect to that portion of the
Easement Area more particularly described on Exhibit "C" attached hereto and incorporated
herein by this reference (the "Pedestrian Bridge Platform"); and (c) subject to the rights
reserved herein, the Owner hereby grants to the City a perpetual, non-exclusive and irrevocable
right to connect and attach the Pedestrian Bridge to the Pedestrian Bridge Platform, subject to the
Owner's prior review and written approval (which approval shall not be unreasonably withheld,
conditioned or delayed) of the Pedestrian Bridge and the methods of its connection and
attachment to the Pedestrian Bridge Platform. If the City elects to construct the Pedestrian
Bridge and connect and attach the same to the Pedestrian Bridge Platform, the City hereby
• . ..
Pedestrian Bridge Platform, the City shall (i) remove all debris, equipment and materials from
the Easement Area, (ii) fill, compact, grade and otherwise restore the Easement Area to
• .. a
all times. Notwithstanding anything to the contrary contained in this Agreement, except for the
Pedestrian Bridge and the parts and components related to its connection and attachment to the
Pedestrian Bridge Platform, the Owner shall be solely responsible for keeping and maintaining
the Pedestrian Bridge Platform in good condition, repair and working order.
4. Miscellaneous.
4.1 This Agreement shall be governed by, enforced and construed under the
laws of the State of Florida. Venue for all actions, litigation and/or other proceedings arising out
of this Agreement shall be exclusively in Miami-Dade County, Florida. The parties hereby
ADSLLP-00076400.13558
knowingly and voluntarily waive the right to a trial by jury of any claim, controversy or disputed
matter between them arising under, out of or in connection with this Agreement. The prevailing
party in any action, litigation or other proceeding that is based on any claim, controversy or other
disputed matter arising under, out of or in connection with this Agreement shall recover from the
non-prevailing party all fees, costs and expenses (including, without limitation, reasonable
attorneys' fees and costs through all trial, appellate and post judgment levels and proceedings)
incurred by the prevailing party in such action, litigation or other proceeding.
4.2 The parties hereby acknowledge and agree that each has had an
opportunity to be represented by or consult with independent legal counsel and that any rule of
construction which provides that ambiguities are to be construed against the drafter shall not
apply in the interpretation or construction of this Agreement. If any term, provision or portion of
this Agreement is for any reason held to be invalid, illegal or unenforceable by a court of
competent jurisdiction, then such term, provision or portion of this Agreement shall be given it
nearest valid, legal and enforceable meaning, or construed as deleted, whichever such court may
determine, and the same shall not invalidate the remaining terms, provisions and/or portions of
this Agreement, which remaining terms, provisions and portions of this Agreement will remain
in full force and effect.
4.3 This Agreement includes all exhibits attached hereto. This Agreement,
together with all such exhibits, contains the entire agreement and understanding between the
parties relating to the subject matter of this Agreement, and all prior or contemporaneous terms,
covenants, conditions, representations, warranties, statements, agreements and understandings
made by or on behalf of the parties, whether oral or written, are merged herein.
4.4 This Agreement may not be amended, modified or terminated except by a
written instrument executed by the Owner and the City through its Public Works Director, or
his designee, or the successor administrative officer with jurisdiction over the matter, and
which is recorded in the Public Records of Miami-Dade County, Florida. This Agreement shall
inure to the benefit of and shall be binding upon the parties and their respective successors and
assigns.
4.5 The failure of any party to insist in any one or more instances upon strict
performance of any term, covenant, condition or other provision of this Agreement will not be
construed as a waiver or relinquishment of the future enforcement of such term, covenant,
condition or other provision of this Agreement.
4.6 Wherever appropriate in this Agreement, the singular shall be deemed to
refer to the plural and the plural to the singular, and pronouns of each gender shall be deemed to
comprehend either or both of the other genders. The section and paragraph headings in this
Agreement are for convenience only and shall not affect the meaning, interpretation or scope of
the terms or provisions set forth therein.
4.7 This Agreement may be executed in multiple counterparts, each of which
individually shall be deemed an original, but when taken together shall be deemed to be one and
the same Agreement.
ADSLLP-00076400.13 59
4.8 This Agreement shall never be construed as a conveyance in any manner
whatsoever of fee simple title to any portion of the Property or the Easement Area; it being
intended by the parties that this Agreement conveys only an easement interest with respect to the
Easement Area for the specific uses and purposes set forth herein.
4.9 All of the rights, easements and interests herein created and granted are and
shall be limited to and utilized solely for the uses and purposes expressly set forth herein.
Notwithstanding anything to the contrary contained in this Agreement, the Owner hereby
expressly reserves the right to use and grant others the right to use any and all portions of the
Property owned by it (including, without limitation, any and all portions of the Easement Area) so
long as such use by the Owner and/or others does not prohibit the City from engaging in the
Easement Purpose granted to it under this Agreement.
4.10 This Agreement and the rights, easements and interests herein created and
granted shall only become effective upon the recordation of this Agreement in the Public Records
of Miami-Dade County. This Agreement and the rights, easements and interests herein created and
granted shall run with the land, and shall be binding on all persons holding title to said lands.
5. Notice. All notices, demands, requests or other communications which may be or
are required to be given, served, or sent by either the Owner or the City pursuant to this
Agreement shall be in writing and addressed as follows:
If to Owner: David Martin
c/o Terra Group
2665 S Bayshore Drive, Suite 1020
Miami, FL 33133
AND
2200 Biscayne Boulevard
Miami, Florida 33137
Attn: David Smith
With a copy to:
2200 Biscayne Boulevard
Miami, Florida 33137
Attn: Michael Sheitelman
AND
Graham Penn, Esq.
Bercow Radell Fernandez Larkin& Tapanes, PLLC
200 S. Biscayne Blvd., Suite 850
Miami, FL 33131
If to the City: City of Miami Beach
Attn: City Manager
1700 Convention Center Drive, 4th Floor
ADSLLP-00076400.13 60
Miami Beach, Florida 33139
With copies to: City of Miami Beach
Attn: Public Works Director
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Each party may designate by notice in writing a new address to which any notice,
demand,request or communication may thereafter be so given, served or sent.
6. Solely to the extent and limits permitted by Section 768.28 of the Florida Statutes,
and without waiving any rights or defenses therein, the City shall indemnify, defend and hold the
Owner harmless from and against all claims, demands, causes of action, suits, losses, damages,
liabilities, liens, judgments, fees, costs, expenses and other charges (including, without
limitation, reasonable attorneys' fees and costs through all trial, appellate and post judgment
levels and proceedings) (collectively, the "Claims") commenced, incurred and/or paid by or
against any of the Owner to the extent the Claims arise from: (a) the willful misconduct or
negligent use of the Easement Area by the City or any successor, assign and/or grantee thereof
expressly approved by the City Commission; (b) the design, construction, installation, operation,
use, maintenance, repair and/or replacement of, or the failure to properly design, construct,
install, operate, use, maintain, repair and/or replace, the Pedestrian Bridge by the City or any
successor, assign and/or grantee thereof expressly approved by the City Commission; and(c) any
default, breach or violation of any term, covenant, condition or provision of this Agreement by
the City or any successor, assign and/or grantee thereof expressly approved by the City
Commission. Notwithstanding anything to the contrary contained in this Agreement: (y) nothing
in this Agreement shall impair, limit or prohibit any rights or remedies the Owner has against
any person or entity using or occupying the Easement Area under, through or as an assignee or
grantee of the City; and (z) the obligation of the City to indemnify, defend and hold the Owner
harmless as set forth herein shall not apply to the extent any such Claims arise from the
negligence or willful misconduct of the Owner or any successor, assign and/or grantee thereof.
7. The Owner shall indemnify, defend and hold the City harmless from and against
all Claims commenced, incurred and/or paid by or against the City to the extent the Claims arise
from the design, construction, installation, operation, use, maintenance, repair and/or
replacement of, or the failure to properly design, construct, install, operate, use, maintain, repair
and/or replace, the Pedestrian Bridge Platform by the Owner. Notwithstanding anything to the
contrary contained in this Agreement, the obligation of the Owner to indemnify, defend and hold
the City harmless as set forth herein shall not apply to the extent any such Claims arise from the
negligence or willful misconduct of the City or any successor, assign and/or grantee thereof.
APPROVED
Public Works Director Date
APPROVED AS TO
FORM & LANGUAGE
ADS LLP-00076400.13 61
City Attorney Date
[EXECUTION PAGES TO FOLLOW]
ADSLLP-00076400.13 62
IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed
executed and acknowledged on day of , 20 , in its name by its proper
officials.
Print Name: By:
Name:
Title:
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of ,
201_ by , as of
, 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
ADSLLP-00076400.13 63
Exhibit A
Legal Description of Property
ADSLLP-00076400.13
Exhibit B
Legal Description of Easement Area
ADSLLP-00076400.13
sur30AMAnnw4 NEIGHBORS I 23NE
MAIM,Mt D COM
Ml AM I B E AC H CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING AND INTENT TO
CONSIDER AN AMENDMENT TO DEVELOPMENT AGREEMENT
' NOTICE IS HERESY given:nal a Second Read ng/Publ•c 1 4rng a-It oe heard b'y'he Mayor ant City Cominnss on Of the C ey Of Marn.Beach Florida n the Co!nnrss.on Chambers
3rd f,nor Gly v •700 Conventron Center Drive Miami Beach Flo•nta on February 12,2020 at 2 20 p.m..or as soon thereafter as the matter car,be herdto co^sder
A Resolution Of The Mayor And City Cornet ssion Of The City Of Miami Beach,To Consider Approval.Following Second Read'ngfPubhc Nearing,01 A Second Amendment To
The Development Agreement Dated January 9,2019.Between The City And South Beach Nights I,LLC, 500 Alton Road Ventures,LLC, 1220 Sixth,LLC And KGM Equities.
LLC, As Ass:pried To TCN SOO Alton.LLC. By Assignment Of Development Agreement Dated As Of September 77, 7019(The`Developer"). For The Development Of The
Properties Located At 500 Alton Road 630 Alton Road 650 Alton Road. 1220 6th Street,659 West Avenue 701 West Avenue,703 West Avenue,711 West Avenue,721 West
Avenue 723 West Avenue.727 West Avenue And 737 West Avenue(Collectively,The Development Site),As Author:aed Under Section 1111-4 Of The Gly Code,And Sections
163.3220-'63 3243,Florida Statutes,Wh:cn Second Amendment Provides,Among Other Terms And Conditions,For(1)Settlement 01 The Dispute Ariaung From The Board
Of Adluslmants Ruling,Dated November 1,2019.ADow:ng The foetus-on 01 Covered Stars Elevator Shafts Mechanical Chutes And Chases From The Calculation 01 Floor
Area Foe The Prolett,(2)A Reduction Of The Yasrmum'number Of Res:denhal Units Permitted On The Development Site From 410 Units To A Yavmum Of 330 Un to,(3)
Approval Of The Final Plans Few The 3.0 Acre Public Park That Developer Shall Construct On Behalf Of The Gly,At Its Sole Cost And Expense (4)Enpedited T'meframes For
The Developer To Complete Construction Of The 30 Acre Public Park And To Convey Ownership Of The Park Site To The City,(5)Approval Of The Final Plans Foe The 5
Street Pedestrian Bridge Protect,Which Developer Shall Construct On City's Behalf(The Bridge Protect').And(6)Approval Of The Final Brdge Project Budget Subject To
A Manmum City Contr•but.on Foe Badge Protect Costs.
PROPERTIES "he Development Sde consists of 500 Alton Pow.630 Alto^Road 650 Alton Road 1270 6'Street 659 West Avenue.70' Wes'Avenue 77,3 Weil Averue.7-• West
Avenue_72'West Avenue 723 West Avenue 777 West Avenue and 737 West Avenue
Tau FOM hos 374203.001.0220 02.4203-001-0210. 02-4203-001-0201. 02-4203-00'-0200 02.4203-001-3190. 02-4203-031-0160 07-4203-001-0170 02-4203-001-0161,
07 4703.001-0760 02-4203-00'0100 07-4204-00('x0070,02421t400600!0
LOCATION OF PROPOSED r STREET PEOESTIRAN BRIDGE PROJECT- 'he 5" Sleet Pedest•tan R.dge Proect shall be constructed within public r 9111 0l way areas o'the
Crty 0'Mianv Beach and the Fords Department of"ransportaton Mat are ed,soent to.and located to the'oft'',and south of the MacArthur Causeway between Biscayne Bay and
West Avenue The proposed Pedestrian Bridge P•gect shall span over and across the MacArthur Causeway and West Avenue along 5-Street and shil connect to the Deveobment Ste
at the southwest corner of the 500 Block of Alton Road
ZONING DISTRICT The proposed Development Site s currently located wetter Qts Commercial Medium intensty D.sr'ct(CD-2 District', as modified by the Alton Road Gateway Area
DeveloW^e^'aegutaton; set forth in Sect On '42 3'1 d the C ty Code.The City's Land Development Regulations provide for budding intensbes for Ns zoning d'strict cons sting Oa
floor area ratio o'wo to 7 2.and population densrtls for mit zOnVtg district M 100 units per acre
MAXIMUM HEIGHT 'ke proposed Amendment Inc 7 does not Dov4e for any change in tweignl Sect-on '47-311(11(4)of the City Code provides fiat the nis$rmun height of any
resident at tower on me Development See than not exceed 5'9 feet n height
PERMITTED USES -he main permitted uses allowed on the DereIopnsem See are mAtcram,ly residential un Is single-fain!y detached unis townhomes,condom•n.ums.or apartments,
and co•nmerc•aI uses The proposed Awendmen'do 2 to the Development Agreement will reduce'M maximum number Of reside^hat,;nets permitted on Ise Development Site from a
maximum of 410 units to 330 unds imultrfainity residentat unds single-'a+•ly detached units.townho+w condominiums or apartments) 'he Development S:Ie also:ncl,:des 15,000 sq
II of retal uses ores-ously avehonred as pert of the UevelODmer't Agreement
A copy of(ne p000sed Developmenr Agreement is avadabie for public mspechon during normal busness Pours at Me CO),Clera's Office, 1700 Ctnveseron Center Ouse.'sr Floor,City Have
Miami Beach.Florida J31J9
INTERESTED PARTIES are invited to aopear al the meeting or be represented by an agent or to express their views-n ion t ng addressed to the City Commission,c/o the City Clerk
1700 Comte^tan fence•Drive.•'Floor.Cty Had Mian,Beach.Florida 33'39 This-tem's avedatee for Pubic•ntbecwn du'mg normal Duane**hours in the Gty Clerics C'1ice. 1100
Convention Center Drive,I'Ftpor,Gly+tad,Miami Beach Flor 0a 33139 This mtsebng,cr any^em?toren may be cont Hued.and under such c:'cumstancesadditernal legal notce need
not be provided pursuant to Section 266 0105 Fla Stet the C ty hereby adv set the pubis that if a person decides to appeal any dec-sO^made by the City Conlin span wet respect
to any matte•cont'dered at its nieebrlg or ds hearing.such Dere*^must enau•e that a verbal-m record of the proceedings n made wit-ch record ^eludes the testimony and evidence
upon whet.the appeal p to be based Tiffs hetet does not conWtute consent by the City to'the nirodvchon w edmeeen of otherwise madttussrble or irrelevant evidence nor does t
author cMiknges or appeals hot otherwise allowed by law
To request this material ^ alternate format. sin language ihte•pteter(fve.day npttce requeed).information on access for persons with disabilitiesand/or any accommodatan to
review any document or part:hpets n any Crty-sponsored proceedings.cad 305 604 2469 and select 1 leo Fngksh or 7 ler Spanish.then option 6. 'TY,iters may ca9 via 7..1
(Fbnda Relay Servicel
Rafael F Granado.City Clerk
City of Miami Such
AD 02122020.09
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