Public Beach Walk Adjacent to W-South Beach Hotel & Collins Park~ 009- a y~~ C7~ -~~~y
AGREEMENT REGARDING
THE CONSTRUCTION OF PUBLIC BEACH WALK
ADJACENT TO W-SOUTH BEACH HOTEL & COLLINS PARK
THIS AGREEMENT REGARDING THE CONSTRUCTION OF PUBLIC BEACH
WALK ADJACF~NT TO W-SOUTH BEACH HOTEL AND COLLINS PARK ("Agreement"),
dated this ~~~ day of /L/L 2009, is entered into by 2201 Collins Fee LLC, a
Delaware limited liability company, whose address is 390 Park Avenue, 3rd Floor, New York,
NY 10020 ("Developer"), and the City of Miami Beach ("City"), a Florida Municipal
Corporation whose address is 1700 Convention Center Drive, Miami Beach, Florida, 33139.
The City and Developer may also be referred to collectively herein as, the "Parties".
RECITALS:
1. Developer owns the property located at 2201 Collins Ave in the City (the
"Property"), consisting of land more particularly described in "Exhibit A."
2. Developer has received all required design approvals from the City's Historic
Preservation Board to construct a new tower on the Property for a W-South Beach Hotel
("Project").
3. It is to the benefit of both the Developer and City that the Project be completed as
soon as possible.
4. The Developer has agreed to design, develop, construct, and partially fund a
public beach walk ("Beach Walk"), extending from the northern boundary of the Property to the
northern terminus of the current Beach Walk at the 21st Street Beach, as more particularly
described in "Exhibit B".
5. The Developer has contracted with K-M PLAZA CONSTRUCTION (the
"General Contractor" or "G.C.") to construct the Beach Walk at a current contract price of
$1,107,225.70 ($952,370.79 in hard costs and $154,854.96 in soft costs) as described in "Exhibit
C." Construction of the Beach Walk has commenced; approximately $1,107,200.70 of the
contract price has been expended thus far.
6. Construction of the Beach Walk and the Project has required the closure of part of
the portion of 21st Street Beach described in Exhibit B, including a number of on-street metered
parking spaces, for use as a construction staging area (the "Street Closure").
7. Developer and City have agreed to execute this Agreement for the purpose of
memorializing their agreement.
AGREEMENTS:
Accordingly, in consideration of the foregoing and of the respective agreements and
covenants contained herein, and intending to be legally bound hereby, the Parties agree as
follows:
1. Recitals. The above Recitals are true, correct, and form a material part of this
Agreement, and are hereby incorporated by reference and made a part hereof.
2. Beach Walk. The City and the Developer agree that with that with respect to the
Beach Walk:
a. The Developer shall be solely responsible for designing, developing,
and constructing the Beach Walk on behalf of the City. The cost shall
be shared between the Developer and City as follows: City shall pay
the two hundred-fifty thousand dollars ($250,000.00) of the final
contract price for construction of the Beach Walk ("City's
Contribution") upon the execution of this Agreement. The Developer
shall pay the remainder of the final contract: price, including any cost
overruns, and any other costs, as may be required, to design, develop,
and construct the Beach Walk. The City's Contribution shall cover the
City's share of all costs associated with the Beach Walk, including,
without limitation, architectural fees and permit fees.
Additionally, two months after the execution of this Agreement, the
City shall reimburse the Developer for all costs associated with that
portion of the Street Closure associated with the City of Miami Beach
ROW permit (as hereinafter defined), and which shall include
reimbursement for use of the street and street parking; provided,
however, that the City's reimbursement obligation to Developer shall
not exceed the amount of $275.000. Notwithstanding this subsection
2(a), or any other term of this Agreement, Developer acknowledges
and agrees that the City's maximum total contribution pursuant to this
Agreement (and including, without limitation, the City's Contribution
and any reimbursement by City to Developer for the City of Miami
Beach ROW permit) shall not exceed the lesser of 1) $525,000, or 2)
forty seven percent (47%) of the total final cost for the Beachwalk.
b. Developer shall direct the construction process and be responsible for
entering into all contracts necessary for the construction of the Beach
Walk and shall secure all required permits and approvals for the Beach
Walk on its own behalf and, to the extent appropriate, on behalf of the
City and with the City's cooperation. Any approval, consent, or
joinder required from the City shall be given to Developer within
seven (7) days of the request by Developer, unless, within that time,
City provides Developer with a written statement setting forth in detail
the City's reasons for not so providing, or otherwise conditioning,
2
,,
Developer's request. If said statement is not provided within seven (7)
days, the City shall be deemed to have given its consent or approval.
Notwithstanding the preceding paragraph, the Parties acknowledge
that Developer's contractors have been issued the following City of
Miami Beach (CMB) Permits for the Beach Walk:
(i) CMB Building (Small Work) Permit No. B0900513 (to
construct at grade Beachwalk at rear of W-Hotel, 2301
Collins Avenue, South to 21St Street City Parking Lot P-
49), issued to KM Plaza Construction Services on 12-12-
08, and expiring on 6-10-09 (the CMB Building Permit);
(ii) CMB Building (Demolition) Permit No. BD090018 (for
demolition of existing boardwalk at rear of W-Hotel, 2301
Collins Avenue, South of 21St Street City Parking Lot P-
49), issued to Horizon Contractors, Inc. on 11-20-08, and
expiring on 5-19-09 (the CMB Demolition Permit);
(iii) CMB Right of Way Permit No. WR090199 (for purpose of
occupying CMB Right of Way on beach to demolish
existing boardwalk and construct new beach paver
walkway from 21St Street to 23rd Street), issued to Horizon
Contractors, Inc. on 12-08-08 (for location at 2111 Miami
Beach Drive, Beach Walk from 21St Street to 23rd Street),
which ROW Permit shall be void after 6-8-09 (the CMB
ROW Permit); and
(iv) DEP permit DA-573 for Construction pursuant to section
161.053.
The CMB Building Permit; the CMB Demolition Permit;
the CMB ROW Permit; and the DEP Permit are each
attached and incorporated as "Exhibit D" hereto.
3. The Developer shall cause all designs, drawings and plans, including any
revisions and enhancements thereto (the "Beach Walk Plans"), which are necessary for the
construction of the Beach Walk, to be prepared by an architect/engineer (the A/E Consultant)
selected by the Developer and which is mutually acceptable to the City (which approval by the
City shall not be unreasonably withheld or delayed). The City shall have the right to the prior
review and approval of the Beach Walk Plans (which approval shall not be unreasonably
withheld or delayed). The Parties acknowledge that the final design shall reflect the overall
design theme of the City's Public Beach Walk Project (the City Beach Walk) and shall comply
with all applicable Federal, State, and Local (Miami-Dade County and City of Miami Beach)
requirements.
In accordance with the first paragraph of subsection 2(b) hereof, the City has
approved the Beach Walk Plans, as prepared by EDSA, and dated May 29, 2008 for DEP
3
Submission and July 11, 2008 for DEP Revision; the approved Beach Walk Plans are attached
and incorporated as "Exhibit E" hereto.
4. When EDSA certifies that the Beach Walk has reached Substantial Completion,
Developer shall so notify City in writing. City shall then promptly inspect the work. When City,
on the basis of such an inspection, determines that the Beach Walk is substantially complete, it
will then prepare a Certificate of Substantial Completion which shall establish the date of
Substantial Completion, and shall also list all work yet to be completed to satisfy the
requirements for Final Completion. The failure to include any items of corrective work on such
list does not alter the responsibility of Developer to complete all of the work for the Beach Walk
in accordance with this Agreement.
The Parties acknowledge that a Permit for the Beach Walk was issued by the City
on December 8, 2008 (the "City Beach Walk Permit"). Except for lighting, the Beach Walk
must be substantially complete within one year from the date the City Beach Walk Permit was
issued.
5. Upon the issuance of a final CO or CC, as applicable, for the Beach Walk, the
Developer shall assign to the City any warranties provided by contractors and subcontractors
engaged by the Developer in the construction of the Beach Walk (including, without limitation,
the G.C., as defined in Section 3). All warranties for the Beach Walk shall be guaranteed and in
effect for a period of one (1) year from the issuance of a final CO or CC
6. The City has the right (but not the obligation) to regularly inspect and monitor the
design, permitting and construction process with respect to the Beach Walk. In the event that any
aspect of said process is not proceeding in accordance with the Beach Walk Plans, or if the
quality of the construction is materially deficient, then the City, through its Public Works
Director or his designee, shall promptly notify the Developer in writing, specifying any
deviations from the Beach Walk Plans and/or any deficiencies in the construction. The
Developer shall have a reasonable period of time in which to cure the noted deficiencies or
provide a satisfactory response. If the Developer does not cure the noted deficiencies or provide
a response reasonably satisfactory to the City, then the City shall have the right to cure such
deficiencies at the Developer's cost. The Developer shall make no representations or warranties
with respect to the Beach Walk; provided, however, that the Developer shall assign to the City
any warranties of any of the contractors and subcontractors engaged by the Developer in the
construction of the Beach Walk (including, without limitation, the G.C., as defined in Section 3).
Additionally, if within one (1) year after the issuance of the final CO or CC for the Beach Walk
any of the work found to be defective or not in accordance with the Beach Walk Plans,
Developer after written notice from the City, shall promptly correct, or cause to be corrected
such defective or non-conforming work, without cost to the City.
7. Method of Payment. The City's Contribution of two-hundred fifty thousand
dollars ("$250,000.00") shall be paid to the Developer at the execution of this Agreement upon
showing that the Developer has expended at least $250,000.00 and upon final lien waivers and
releases from all parties providing labor and materials included in such amount. The refund for
portion of the City of Miami Beach ROW Permit associated with the street closure shall be paid
2 months after the execution of the Agreement (In no event shall the refund exceed the maximum
4
allowable reimbursement to Developer under subsection 2(a) hereof). Prior to the issuance of
the CO or CC for the Beach Walk, Developer shall provide City with any and all remaining final
lien waivers and releases from all parties providing labor and materials for the Beach Walk
including, without limitation, those amounts not funded by the City's Contribution.
8. Additional Terms.
a) Cleaning Up and Removal of Equipment. Developer shall at all times
keep the Beach Walk construction site free from accumulation of waste
materials or rubbish caused by Developer's operations. Upon the
completion of the Beach Walk, Developer shall remove all its waste
materials and rubbish from and about the site as well as its tools,
construction equipment, machinery and surplus materials. If Developer
fails to clean up upon the completion of the Beach Walk, City may do so,
and the cost thereof shall be charged to Developer.
b) Safes and Protection. To provide for maximum safety and security,
Developer shall erect and maintain all necessary barricades, and any other
temporary walls, boarding, or fencing, as required throughout construction
of the Beach Walk.
c) Developer shall be responsible for initiating, maintaining and supervising
all safety precautions and programs in connection with its use of the public
beach area, and any other adjacent public property and/or right of ways,
used in conjunction with construction of the Beach Walk. Developer shall
take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury or loss to:
(i) All contractors, subcontractors for the Project including,
without limitation, those working on the Beach Walk, and
their respective employees, agents, and servants, and/or
other persons who may be affected thereby;
(ii) All the work and all materials or equipment to be
incorporated for the Beach Walk, whether in storage on or
off the site; and
(iii) Other property at the site or adjacent thereto.
d) Developer shall comply with all applicable laws, ordinances, rules,
regulations and orders of any public body having jurisdiction for the safety
of persons or property or to protect them from damage, injury or loss, and
shall erect and maintain all necessary safeguards for such safety and
protection. Developer shall notify owners of adjacent properties and
utilities when prosecution of the work may affect them. All damage, injury
or loss to any property referred to above, caused directly or indirectly, in
whole or in part, by Developer, any contractor or, subcontractor or anyone
5
directly or indirectly employed by any of them, or anyone for whose acts
any of them may be liable, shall be remedied by Developer. Developer's
duties and responsibilities for the safety and protection of the Beach Walk
shall continue until such time as all the Beach Walk is completed.
e) Developer shall designate a responsible member of its organization at the
site who shall be Developer's Project Representative unless otherwise
designated in writing by Developer to City.
9. Indemnification of City. In consideration of Twenty-five Dollars ($25.00),
separately acknowledged by Developer, and other valuable consideration, Developer shall
indemnify and save harmless City, its officers, agents and employees, from or on account of any
injuries or damages, received or sustained by any person or persons during or on account of any
construction activities of Developer, its G.C., or any subcontractors, consultants, agents,
servants, or employees connected with the Beach Walk; or by or in consequence of any
negligence of Developer, its G.C., or any subcontractors, consultants, agents, servants, or
employees, in connection with any construction activities of Developer, its G.C., or any
subcontractors, consultants, agents, servants, or employees connected with use of the
construction of the Beach Walk; or by use of any improper materials; or by or on account of any
act, error or omission of Developer, its G.C., or any subcontractor, consultants, agents, servants
or employees, except to the extent caused by the negligence of the City in connection with the
construction of the Beach Walk. Developer agrees to indemnify and save harmless City against
any claims or liability arising from or based upon the violation of any federal, State, County or
City laws, bylaws, ordinances or regulations by Developer, its G.C., or any subcontractors,
agents, servants or employees (excluding negligence of City). Developer further agrees to
indemnify, save harmless and defend City, its agents, servants and employees, from and against
any claim, demand or cause of action of whatever kind or nature arising out of any negligent
conduct or misconduct of Developer not included above and for which City, its agents, servants
or employees, are alleged to be liable.
The indemnification provided in this Section 9 shall obligate Developer to defend,
at its own expense, to and through appellate, supplemental or bankruptcy proceeding, or to
provide for such defense, at City's option, any and all claims of liability and all suits and actions
of every name and description that may be brought against City which may result from
Developer's operations and activities under this Agreement from any construction activities of
Developer, its G.C., or any subcontractors, consultants, agents, servants, or employees.
The execution of this Agreement by Developer shall obligate Developer to
comply with the foregoing indemnification provision. This indemnification shall survive
termination of this Agreement but shall terminate four years from the issuance of the CO or CC
for the Beach Walk.
10. Insurance. Developer shall provide, or cause to be provided, pay for, and
maintain in force at all times during construction of the Beach Walk, the following insurance
coverage: Workers' Compensation Insurance, Employer's Liability Insurance, Comprehensive
General Liability Insurance, and Professional Liability Insurance, as will assure to City the
protection contained in this Agreement.
6
Such policy or policies shall be issued by companies approved to do business in
the State of Florida, and having agents upon whom service of process may be made in the State
of Florida. Developer shall specifically protect City by naming City as an additional insured
under all policies hereinafter described:
a) Professional Liability Insurance with limits of liability provided by
such policy not less than One Million Dollars ($1,000,000.00)
b) Workers' Compensation Insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of
Florida and all applicable federal laws. In addition, the policy (ies)
must include:
Employer's Liability with a limit of $100,000.00 each accident.
c) Comprehensive General Liability with minimum limits of Two
Million Dollars ($1,000,000.00 primary and excess of
$1,000,000.00) per occurrence combined single limit for Bodily
Injury Liability and Property Damage Liability. Coverage must be
afforded on a form no more restrictive than the latest edition of the
Comprehensive General Liability Policy, without restrictive
endorsements, as filed by the Insurance Services Office.
Notice of Cancellation, Expiration and/or Restriction: The policy(ies) must be
endorsed to provide the City of Miami Beach, Florida, with thirty (30) calendar days written
notice of cancellation, expiration and/or restriction, to the attention of the City's Risk Manager,
1700 Convention Center Drive, Miami Beach, Florida 33139. Developer shall provide to City a
Certificate of Insurance or a copy of all insurance policies required herein. The City's Risk
Manager reserves the right to require certified copies if requested.
11. Waivers. Any waiver by any party hereto of any breach of or failure to comply
with any provision of this Agreement by any other party hereto shall be in writing and shall not
be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other
breach of, or failure to comply with such provision or any other provision of this Development
Agreement.
12. Headings. The headings in this Agreement are solely for convenience of
reference and shall not be given any effect in the construction or interpretation of this
Development Agreement. Unless otherwise stated, references to Sections are references to
Sections of this Agreement.
13. Third Parties. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person or entity, other than Developer and City,
any rights or remedies under, or by reason of this Development Agreement.
14. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall constitute a single
instrument.
7
15. Modification. This Agreement may only be modified by a writing signed by all
of the parties hereto, and no waiver hereunder shall be effective unless in writing signed by the
party to be charged.
16. Attorneys' Fees. Should any party to this Agreement bring an action against any
other party to enforce any provision of the Agreement, the prevailing party in said action shall be
entitled to recover its reasonable attorneys' fees and court costs in all trial and appellate
proceedings.
17. Effective Date. This Agreement shall not be effective unless approved by the
Manager and City Commission. Upon execution by the parties the effective date shall be the
date set forth on page 1 of this Agreement.
18. Governing_Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, both substantive and remedial, without regard
to principles of conflict of laws. The exclusive venue for any litigation arising out of this
Agreement shall be Miami-Dade County, Florida, if in State court, and the U.S. District Court,
Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING
OUT OF, THIS AGREEMENT.
19. Severability. If any provisions of this Agreement are held to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall not be affected or impaired and
each remaining provision shall remain in full force and effect. In the event that any term or
provision of this Agreement is determined by appropriate judicial authorities to be illegal void or
otherwise invalid, said provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines and the remainder of this Agreement shall be construed to
be in full force and effect.
20. Notices. All notices and communications in writing required or permitted
hereunder may be delivered personally to the representatives of the Developer and the City listed
below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an
address outside of the city of dispatch).
Until changed by notice in writing, all such notices and communications shall be
addressed as follows:
TO DEVELOPER: 2201 Collins Fee, LLC
Attn: Shahar Perry
390 Park Avenue
3rd Floor
New York, New York 10020
8
TO CITY: City of Miami Beach
Attn: Fernando Vazquez
City Engineer
1700 Convention Center Drive
Miami Beach, Florida 33139
(305) 673-7000, Ext. 6399
Notices hereunder shall be effective:
If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day
following the date mailed; and if mailed to an address outside the city of dispatch on the seventh
day following the date mailed.
[Signatures on next page]
9
[Continued from previous page]
IN WITNESS WHL+'REOF, the parties hereto have caused their names to be signed and
their seals to be affixed; ali as of this day and year first written above.
M tti err a B wer, Mayor
Y~~1 w`
Robert Parcher, City Clerk
Attest:
L~
Secretary
CITY OF MIAMI BEACH
a ge onz lez, City Man er
2201 Collins Fee, LLC, Delaware limited
liability company
Shahar Perry, ~er~,f•
[Both party signatures notarized on next page]
APPROVED ASTO _:.~
FORM E~ LANGUAGE ~ ~'~"~
%: 7A~
8 FOR CUTION ~~
1 f =~~%
~..~'~ ~1 t~ ah
• ttv me f~ to
10
[Continued from previous page]
S"I'ATF OF FLORIDA }
SS: `` ~~
COUNTY OF MIAMI-DARE ) ~, Vin', r~ ~~`' ~
The foregoing instrument was acknowledged before e this ~~ day of
2009 by Jorge M. Uonzalez, City Manager, nn behalf of the CITY OF
MIAMI 'ACI-L, known to me to be the persons described in and who executed the foregoing
instrument, and acknowledged to and before me that they executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal, this 1~ day of _, 2009
Notary P ic, State o o • ? e ~~~ ~~ •- KERRY ~~
*. .: MY COMMISSION # DD 626373
Commission No.: ~~~ EXPIRES: May 3, 2011
My Commission Expires: '~;P;,;;~~' ea,a~arn""m°'ywo~u"°e~rire~
STATE OF F~9~~B~- ~2u~ yoc~
SS:
COUNTY OF Mh~r~ ~~Y~crl
The foregoing instrument was acknowledged before me this ~~ day of
2009 by Shahar Perrv on behalf of 2201
Col ins Fee, LLC, known to me to be the persons described in and who executed the foregoing
instrument, and acknowledged to and before me that they ..executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal, this ~ day of 9 ~ , 2009.
Notary ublic, State of Ada-a~x~ ~,(~~ y~~~
Com Sion No.:
My Commission Expires: JEFFREY T. STEINER
Notary Public, State of New York
No.02ST6092754
Qualified in New York County
Commission Expires May 27, 2011
MIA 180,548,498.O6B320.0f0100
11