Letter from Scott Robbins FUNDING AGREEMENT
This Funding Agreement is executed as of the Effective Date (as hereafter defined) by •
and between City of Miami Beach, a Florida municipal corporation, ( "City ") and Bay Road',
Partners, LLC, a Florida limited liability company ( "BRP ") {collectively; the City and BRP
may also be referred to herein as the "Parties," or each'individually as a "Party ")
RECITALS
A. City entered into a certain agreement, dated December .16, 2008, (as heretofore
amended, the "Acquisition Contract")- with Scott Robins Companies, Inc:, aTlorida corporation,
Purdy Partners, LLC, a Florida limited liability company, Purdy Partners 19.19, LLC, a Florida
limited liability company, and 1849 Purdy .Partners, LLC, a Florida limited . liability company
(collectively, "Original Seller ") with respect to. the "Land" (as such term is, defined in the
Acquisition Contract).
B. All of Original Seller's rights and obligations under the Acquisition Contract have
been assigned to BRP, and BRP has assumed all obligations of Original Seller under. the
Acquisition Contract.
C. Pursuant to the Acquisition Contract, City has agreed to construct the Project (as
hereafter defined) on the Land, and BRP has agreed to fund certain costs with respect thereto.
D. City requires that- BRP deposit with City the estimated amount of the BRP
Construction Costs (as hereafter defined) prior to commencement of construction, and BRP has
agreed to deposit the funds in accordance. with the terms of this Funding Agreement.
Now, therefore, City and BRP agree as follows:
1. Incorporation of Recitals City and BRP acknowledge and agree that the Recitals
are correct, and they are hereby incorporated into and made a part of this Agreement.
2. Definitions The following terms, as used in this. Funding Agreement, shall have
the following meanings:
Architect means Arquitectonica•.
AIE means that certain AIE agreement, dated April T, 2009,
Agreement between City and . Architect for the design, permitting,
bid /award, , and .construction administration of the Project, and
any subsequent amendments with respect thereto.
BRP means all costs of construction with. respect to the BRP Unit
Construction (and its percentage interest in the Common Elements),
Costs including its share of general conditions, soft costs, change
orders and cost overruns. BRP Construction Costs shall
include without limitation all amounts contemplated by
548823.1
Section 8.6(a) of the Acquisition Contract; provided, however,
that Exhibit E to the Acquisition Contract is hereby replaced
with Exhibit E to this. Funding Agreement. The initial BRP
Construction Costs are estimated to equal the BRP Deposit.
}
BRP Deposit means $1,820,350. (including contingency), the initial amount
deposited by BRP with the City pursuant to this Funding
Agreement,
BRP Unit shall have 'the meaning ascribed to it in the Declaration,
including its -percentage interest iii the Common Elements,
Cit-V means all .costs of construction with respect to the City Unit
Construction
(including its percentage interests in the Common Elements),
Costs including its share of ,general conditions, soft costs,' change
orders, and cost overruns. The City Construction Costs are
estimated to be $8,964,294 (including contingency).
City unit shall have the meaning ascribed to it in the' Declaration,
including its percentage interest in the Common Elements.
Construction means that certain construction contract executed, or to be ,
Contract executed, between -City and Bor'an Craig Barber Engel
(BCBE) Construction Company, Inc., as approved pursuant
to -City Resolution No... 2010- 27557, for construction of the
Project, and any subsequent change orders . with respect
thereto.
Declaration means, the Declaration of Condominium for Purdy '-Avenue
Commercial Condominium as recorded in Official Records
Book 26815 Page 3667 of the Public Records of .Miami -Dade
County, Florida as amended by First , Amendment to
Declaration of Condominium executed . simultaneously
herewith.
Effective Date means December 15, 2010.
Plans means the final plans and specifications for the Project as
customarily required to obtain a full building permit, and
including, without limitation, all architectural and engineering _
plans and specifications heretofore or hereafter produced by
Architect pursuant to the A/E Agreement and approved by the
City:
Proi ect means design, permitting, 'development 'and construction : of
- . that certain public parking garage and first floor retail. space
building in accordance with, -respectively, the A/E Agreement
and Construction Contract {and as said Project was heretofore
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E
approved by the .City's Design Review Board on October 6,
2008, pursuant to File No. 21861 and the City's Planning
Board on September 23, 2008, pursuant to File No. 18969).,
3. BRP Deposit Simultaneously with the execution of this .Funding Agreement,
BRP has delivered to ,City the BRP Deposit. City acknowledges receipt of the BRP Deposit.
City shall maintain the BRP Deposit in -a separate account and shall not . commingle the BRP
Deposit with other funds. BRP shall not be entitled to receive any interest, if any, that accrues
thereon. BRP shall have no right to a return of all or any portion of 'the BRP Deposit unless City
fails or refuses. to construct the Project or the BRP Construction Costs are less than the BRP
Deposit as determined by the Architect.
4: Use of BRP Deposit City shall use the BRP Deposit solely for the purpose of
paying the BRP Construction Costs. City shall have absolute control .of the BRP Deposit so long
as City uses the BRP Deposit solely for payment of BRP Construction Costs. As construction of
the Project proceeds, City shall from time to time make payments for the costs thereof. City
shall'use the BRP Deposit to pay the BRP Construction Costs and City shall use City's funds to
pay the City. Construction Costs.. City .shall be entitled to rely solely upon the Architect for
purposes of determining the allocation of each -invoice between BRP Construction Costs and
City Construction Costs.
5. Deficiency; Excess In the event Architect or the General Contractor estimates
that the actual BRP Construction Costs, will exceed the BRP Deposit, City shall notify BRP in
writing with a copy of the Architect's or General Contractor's revised estimate and the manner
of such computation and BRP shall within ten (10) business days thereafter increase the BRP
Deposit by the. amount of the deficiency demanded by City. BRP is responsible for all BRP
Construction Costs including any such costs that exceed the BRP Deposit. If upon completion of
the Project BRP has not fully paid the BRP Construction Costs, BRP shall promptly upon.
demand of City pay any unpaid amounts for which BRP is responsible. Any amounts owed by
either party to the other pursuant to this paragraph 5 shall bear interest at the rate of 15% per
annum from the time when due until paid. To the extent the BRP Deposit exceeds the BRP
Construction Costs, City will return the excess to BRP within a reasonable time after final
completion of the Project.
6. Successors _and Assigns Bound This Agreement shall.. be binding upon City and
BRP and their respective successors and assigns.
7: No Third Party Beneficiary This Funding Agreement is intended solely for the
benefit of City and BRP and their respective successors and assigns, and . no third party shall have
any rights or interest in this Funding Agreement.
8. No Agency or Partnership Nothing contained in this : Furding' Agreement shall
constitute City as a joint venturer, partner or agent of BRP or render City liable for any debts,
obligations, acts, omissions, representations or contracts of BRP.
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9. Amendment and Waiver This Funding Agreement may not be modified except
by written instrument signed by both City and BRP.
10: Notices No notice or other communication shall be deemed given unless sent in
the manner provided for in the Acquisition-Contract.
11. Severability The invalidity, illegality, or unenforceability of any provision of this
Funding Agreement pursuant to judicial decree shall not affect the validity or enforceability of
any other provision of this. Agreement, all of which shall remain in full force and effect.
12. Governing-Law and Venue 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 Floridajf in federal court. BY ENTERING INTO THIS AGREEMENT,
CITY AND BRP EXPRESSLY WAIVE ANY RIGHTS EITHER'PAR.TY MAY HAVE TO A
TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF
THIS AGREEMENT.
13. Nature of Agreement This Funding Agreement supplements the provisions of the
Acquisition Agreement that survived closing of the Acquisition Contract, all of which remain in
full force and effect and are not superseded hereby.
IN WITNESS WHEREOF, City and BRP have caused this Funding Agreement to be
executed and delivered as of the Effective Date.
CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation of the State of
Florida
By:
Date: z z o
ATTEST:
B U
Y•
Date: _G l3 &7Z / c d
APPROVED AS TO
FORM & LANGUAGE
[BRP.signature page follows] e FOR EXEGU -nON
1 1 la
548823:1 4 Cit Attorney ate
BAY ROAD PARTNERS, LLC (BRP)
By: Bay Rya RP, LLC
By:
Scott Robins
Managing Member
548623.1 $
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December -� , 2014
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Re: Agreement, made on or about December 15, 2008, as amended by that certain First Amendment to
Agreement, dated- March 30, 2009 ( "Agreement "), whereby Bay Road Partners, LLC a .Florida
limited liability company ( "Bay Road Partners ") and City of Miaini Beach, a Florida municipal
corporation ( "City "), have acquired the. Land described in the .Agreement, which has beeii and is
being submitted to condom inium.ownership.
Ladies and Gentlemen:
City consents to the trarYSfer to Bay Road Partners of all o Sellers' interests under the Agreement and
Bay Road Partner's assumption of all of Seller's obligations thereunder. Bay Road, Partners assumes and
agrees to perform all of Sellers' obligations under the Agreement.
As provided in Section 8.4 of the Agreement, Bay Road Partners acknowledges and agrees , that it
shall continue to collect all rentals Linder Leases up to '.the date of termination thereof pursuant to
subparagraph 8.6(e) of the Agreement; and shall continue to be obligated to pay all expenses and obligations
under the Leases, and shall continue to'hold City harmless from ' all - obligatons, liabilities, losses, damages, .
delays and costs (including attorneys' fees and court costs) incurred by City, that arise from or udder the Land
and /or the Leases and from all claims made by tenants or occupants thereunder. until all tenants and
occupants. have vacated the Land; provided, however, the foregoing indemnity shall not apply with respect to
any liabilities, losses, damages, delays and costs caused by City's gross negligence or willful misconduct..
All terms and provisions of the Agreement, that survive Closing shall remain in full force and effect.
Without limiting the generality of the foregoing Bay Road Partners specifically acknowledges and agrees, to
the obligations under Section 8.6(d) of the Agreement and under Section 11.4 of the Agreement (but the
incorrect cross reference in said Section 11.4 is hereby corrected to mean 8.6(d) rather than 8.7(e)).
Bay Road Partners shall close or otherwise dispose of all existing open permits, if any, that may
affect the Retained Property, the City Unit or the BRP Unit (as defined in the Declaration of Condominium,
as amended).
All initially capitalized terms used in letter shall have the meaning ascribed to them in the
Agreement, unless otherwise specified. This letter is subject to the terms and conditions of the Agreement.
In the event of any confl ict 'between the terms of this letter and the terms of the Agreement, the Agreement
shall prevail. This letter may be executed in multiple counterparts, each of which ' shall be deemed an
original, and all such counterparts together shall constitute one and the same instrument.
Please sign Below to acknowledge City's agreement to the above terms.
Very truly yours,
' + RS, LLC
By .
Scott.Robins, Manager
MIAMI 2367748.4 7829330796
AG ED TO AND ACCEPTED THIS
51 DAY OF DECEMBER, 2010:
CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation of the State of Florida
By:
ATTE
B
ISEAL1 .
APPROVED AS TO
FORM & LANGUAGE
& FOR ECUTION
1� t
f
ail iflPC1By/ ate
MIAMI 2367748.4 7829330796