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2014-28628 Reso RESOLUTION NO. 2014-28628 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING FIRST READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND JAMECK DEVELOPMENT, INC. (JAMECK OR DEVELOPER) FOR THE DESIGN, DEVELOPMENT, AND CONSTRUCTION OF CERTAIN STREETSCAPE IMPROVEMENT IN THE CITY'S RIGHT OF WAY, AT THE PORTION OF EUCLID AVENUE BETWEEN LINCOLN ROAD AND LINCOLN LANE SOUTH (EUCLID RIGHT OF WAY PROJECT OR THE PROJECT) INCLUDING, WITHOUT LIMITATION, REMOVAL OF THE DISCONNECT VAULT AND LANDSCAPE, INSTALLATION OF NEW HARDSCAPE, LANDSCAPE, STREET LIGHTING, AND CLOSURE OF A PORTION OF EUCLID AVENUE TO VEHICULAR TRAFFIC AS PART OF AN EXTENSION OF THE LINCOLN ROAD PEDESTRIAN MALL; SAID PROJECT HAVING A TOTAL BUDGETED COST TO THE CITY, IN THE TOTAL SUM OF $485,8219 WITH ANY ADDITIONAL FUNDS FOR THE PROJECT TO BE COVERED BY THE DEVELOPER; WITH SUCH CITY FUNDS TO BE APPROPRIATED FROM MIAMI BEACH REDEVELOPMENT AGENCY (HISTORIC CONVENTION VILLAGE/CITY CENTER RDA) FUNDS; AND FURTHER SETTING THE SECOND AND FINAL READING OF THE DEVELOPMENT AGREEMENT FOR A TIME CERTAIN ON JULY 23, 2014. WHEREAS, the City is the owner of certain land located on Euclid Avenue, between Lincoln Road and Lincoln Lane South, in Miami Beach, Florida (the "Project Site"); and WHEREAS, Lincoln Center Associates, LLC, a Florida limited liability company ("Lincoln Center") is an affiliate of Developer and is the owner of certain land adjacent to the Project Site, on which a parking lot is located (the "Lincoln Center Parking Lot"); and WHEREAS, on October 8, 2013, the City's Historic Preservation Board (HPB), pursuant to an order under HPB File No. 7385, issued a Certificate of Appropriateness granting approval of streetscape improvements in the City's right of way including, but not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape and street lighting (collectively "Streetscape Improvements"), and the closure of a portion of Euclid Avenue to vehicular traffic, as part of an extension of the pedestrian mall; and WHEREAS, on May 13, 2013, the Finance and Citywide Projects Committee of the City, recommended the approval of the Developer's conceptual plan for the closure of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the construction of the Streetscape Improvements in the City's right-of-way located in the Project Site (the "Conceptual Plan"); and WHEREAS, on June 5, 2013, the Mayor and City Commission approved the Conceptual Plan and authorized the City Manager to enter into negotiations with Developer to design and build the Project; and WHEREAS, the proposed Project is estimated to cost $618,000, of which $485,821 shall be funded by the City, with funding available from City Center Redevelopment Area funds; and WHEREAS, the City and Developer have negotiated the attached Development Agreement, and would hereby recommend that the Mayor and City Commission approve the Agreement on First Reading, as required pursuant to the Florida Local Government Development Act, Section 163.3220, et. seq., Florida Statutes; and WHEREAS, if approved on First Reading, the Administration would further recommend that the Mayor and City Commission set the public hearing for Second and Final Reading on July 23. 2014. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, following First Reading/Public Hearing, a Development Agreement between the City and Jameck Development, Inc. (Jameck or Developer) for the design, development, and construction of certain streetscape improvement in the City's Right Of Way, at the portion of Euclid Avenue between Lincoln Road and Lincoln Lane South (Euclid Right Of Way Project or the Project), including, without limitation, removal of the disconnect vault and landscape, installation of new hardscape, landscape, street lighting, and closure of a portion of Euclid Avenue to vehicular traffic as part of an extension of the Lincoln Road Pedestrian Mall; said project having a total budgeted cost to the City, in the total sum of $485,821, with any additional funds for the Project to be covered by the Developer; with such City funds to be appropriated from Miami Beach Redevelopment Agency (Historic Convention Village/City Center RDA) Funds; and further set the Second And - Final Reading of the Development Agreement for a time certain on July 23, 2014. PASSED AND ADOPTED this the 11th day of JUNE, 2014. i Phil s ATTEST- 7/7/1'f APPROVED AS TO Raf el E. Granado FORM &LANGUAGE CITY CLERK &FOR EXECUTION TAAGENDA\2014\June\TCED\Euc1id Street End DA RESO.docx I City Attorney-,�*� Da e . CORP 0R A7 E�- - COMMISSION ITEM SUMMARY Condensed Title: A Resolution To Consider Approval, Following First Reading/Public Hearing, Of A Development Agreement Between The City Of Miami Beach (City) And Jameck Development, Inc. (Jameck, Developer) For The Design, Development, And Construction Of Certain Streetscape Improvement In The City's Right Of Way, At The Portion Of Euclid Avenue Between Lincoln Road And Lincoln Lane South (Euclid Right Of Way Project), Including, Without Limitation, Removal Of The Disconnect Vault And Landscape, Installation Of New Hardscape, Landscape, Street Lighting, And Closure Of A Portion Of Euclid Avenue To Vehicular Traffic As Part Of An Extension Of Lincoln Road Pedestrian Mall; Said Project Having A Total Budget Cost To The City, In The Total Sum Of $485,821, Appropriated From Miami Beach Redevelopment Agency (Historic Convention Village/City Center RDA) Funds; And Further Setting The Second And Final Reading Of The Development Agreement For A Time Certain On July 23, 2014. Key Intended Outcome Supported: Ensure well designed quality capital projects-- Increase Community Satisfaction with City Services Supporting Data (Surveys, Environmental Scan, etc.): Based on the 2012 community survey, recently completed capital projects were highly rated by both residents and businesses. Item Summary/Recommendation: The owner of Lincoln Center Associates, LLC, approached the City to enter into a development agreement for the closure of a portion of.Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mail, and the construction of Streetscape Improvements in the City's right-of-way. This item was discussed at the July 10, 2012 Finance and Citywide Projects Commission Committee and subsequently referred to the September 19, 2012 Land Use and Development meeting for further discussion. The FY 2012/13 Capital Improvement Plan for 2012/13 through 2016/17 was approved at the September 27, 2012 RDA meeting however the Euclid Avenue Street End Project was requested to return to commission for additional discussion. At the October 24th 2012 Commission meeting, referring to the results of the September 19, 2012 Land Use and Development meeting, the Commission voted to move the discussion of the Euclid Street End project to the full Commission with no recommendation, with a request for the information on all the projects on the capital projects list. At the May 8, 2013 Commission meeting the Commission voted to refer the project to the May 13, 2013 Finance and Citywide Projects Commission meeting for further discussion. At the May 13, 2013 Finance and Citywide Projects Commission Meeting the Committee requested a Letter to Commission on the item and a Resolution for the June 5, 2013 Commission meeting. On June 5, 2013 the City Commission adopted Resolution No. 2013-28236 approving the conceptual plan developed for the Euclid Avenue Street End Project on Lincoln Road. Since the June 2013 Commission meeting, the City staff has been negotiating with Jameck Development, Inc., Developer, to further develop design concepts, construction schedules, and cost estimates, plus terms and conditions for a negotiated development agreement. On October 8, 2013, the Historic Preservation Board (HPB) of the City, pursuant to an order under HPB File No. 7385, issued a certificate of appropriateness granting approval of streetscape improvements in the City's right of way, including, but not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape and street lighting (collectively "Streetscape Improvements"), and the closure of a portion of Euclid Avenue to vehicular traffic, as part of an extension of the pedestrian mall. A summary of the proposed development agreement can be found in the attached memorandum and a full copy of the agreement is also attached. Advisory Board Recommendation: See above summary. Financial Information: Source of F nds: Amount Account 1 $416,820 FY 2012/13: -365 City Center RDA Capital Fund. $69,000 FY 2013/14:—365 City Center RDA Capital Fund. Financial Impact Summary: Funds for this project were approved by the City Commission as part of the City Center Redevelopment District Funds (City Center RDA in the FY 2012/13 and FY 2013/14 Capital Budget. City Clerk's Office Legislative Tracking: Max Sklar, Ext. 6116 Sign-Offs: Departmeff Diocto Assistant City Manager City er MS KGB JJ JL 0 AGENDA ITEM I ' MIAMIBEACH � DATE MIAMI BEACH I I COMM SS ON EMORANDUM M TO: Mayor Philip Levine and Member of the City ommission FROM: Jimmy L. Morales, City Manager DATE: June 11, 2014 SUBJECT: A RESOLUTION OF THE MAYOR ND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, FOLLOWING FIRST READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND JAMECK DEVELOPMENT, INC. (JAMECK OR DEVELOPER) , FOR THE DESIGN, DEVELOPMENT, AND CONSTRUCTION OF CERTAIN STREETSCAPE IMPROVEMENT IN THE CITY'S RIGHT OF WAY, AT THE PORTION OF EUCLID AVENUE BETWEEN LINCOLN ROAD AND LINCOLN LANE SOUTH (EUCLID RIGHT OF WAY PROJECT OR THE PROJECT) INCLUDING, WITHOUT LIMITATION, REMOVAL OF THE DISCONNECT VAULT AND LANDSCAPE, INSTALLATION OF NEW HARDSCAPE, LANDSCAPE, STREET LIGHTING, AND CLOSURE OF A PORTION OF EUCLID AVENUE TO VEHICULAR TRAFFIC AS PART OF AN EXTENSION OF THE LINCOLN ROAD PEDESTRIAN MALL; SAID PROJECT HAVING A TOTAL BUDGETED COST TO THE CITY, IN THE TOTAL SUM OF $485,821, WITH ANY ADDITIONAL FUNDS FOR THE PROJECT TO BE COVERED BY THE DEVELOPER; WITH SUCH CITY FUNDS TO BE APPROPRIATED FROM MIAMI BEACH REDEVELOPMENT AGENCY (HISTORIC CONVENTION VILLAGE/CITY CENTER RDA) FUNDS; AND FURTHER SETTING THE SECOND AND FINAL READING OF THE DEVELOPMENT AGREEMENT FOR A TIME CERTAIN ON JULY 239 2014. ADMINISTRATION RECOMMENDATION. Adopt the Resolution on First Reading/Public Hearing and Set the Second and Final Reading for July 23, 2014. KEY INTENDED OUTCOME SUPPORTED Ensure well designed quality capital projects Increase Community Satisfaction with City Services FUNDING FY 2012/13: $416,820 - 365 City Center RDA Capital Fund. FY 2013/14: $69,000—365 City Center RDA Capital Fund. BACKGROUND City Commission Memorandum Euclid Avenue Street End Project Jameck Development,Inc.-Development Agreement June 11, 2014 Page 2 of 8 Lincoln Road has been Miami Beach's best known commercial corridor since the City was first developed. It was primarily the product of Carl Fisher, who named the street after Abraham Lincoln. Early developments on Lincoln Road included Carl Fisher's residence, the Lincoln Hotel (Fisher's first hotel) located at Lincoln Road and Washington Avenue, the Community Church located on land donated by Carl Fisher at Lincoln Road and Drexel Avenue, and the Carl Fisher office building (formerly Van Dyke's) at Lincoln Road and Jefferson Avenue. Frequently referred to as Miami Beach's Fifth Avenue, Lincoln Road contained many of South Florida's and America's most prominent retailers, including Bonwit Teller, Saks Fifth Avenue, Elizabeth Arden, Doubleday, and others. The quality and variety of merchandise available on Lincoln Road figured prominently in Miami Beach promotional literature and was a significant factor in the development of Miami Beach as a visitor and residential destination. In an effort to compete with the development of suburban shopping centers, eight blocks of Lincoln Road were closed to vehicular traffic in 1959. A pedestrian mall with fountains, flower beds, and shade/display structures was designed by architect Morris Lapidus, one of the most famous of the local architects of the time. The design of the mall and the motorized tram system were considered very progressive and were expected to re-establish Lincoln Road's primacy among local commercial districts. It was during this time that many historic buildings and storefronts were "updated" with the addition of false facades and modern surfaces. During the 1960's and 1970's, Lincoln Road experienced a decline due to a variety of reasons, including reduced tourism, increased competition from Bal Harbour and other suburban shopping centers, as well as the lessening income of surrounding residents. In 1994 a substantial renovation and rehabilitation of the original Lapidus design of Lincoln Road was. completed. As part of this renovation, the vehicular access from Alton Road to Lenox Avenue was redesigned, incorporated a large landscaped median. In 1997, the City Commission entered in to a development agreement with UTA Management, developer of 1111 Lincoln Road, to close the 1100 block of Lincoln Road from Lenox Avenue to Alton Road, which provided a new pedestrian plaza, extending the pedestrian portion of Lincoln Road west to Alton Road. ANALYSIS The principal of Lincoln Center Associates, LLC, Melvyn Schlesser, which also owns a parking lot adjacent to Euclid Avenue, between Lincoln Road and Lincoln Lane South, approached the City to enter into.a development agreement for the closure of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the construction of Streetscape Improvements in the City's right-of-way (the Project). This item was discussed At the July 10, 2012 Finance and Citywide Projects Commission Committee, and subsequently referred to the September 19, 2012 Land Use and Development meeting for further discussion. At the Land Use and Development meeting, community members spoke in support of the Project and the Committee requested that the Administration provide an analysis of how other projects that are currently scheduled for future funding might be affected if the proposed Project was not funded for FY 2012/13. This analysis was provided in the September 26, 2012 Project Update Letter to Commission (LTC). The FY 2012/13 Capital Improvement Plan for 2012/13 through 2016/17 was approved at the City Commission Memorandum Euclid Avenue Street End Project Jameck Development,Inc.-Development Agreement June 11, 2014 Page 3 of 8 September 27, 2012 RDA meeting; however, the Project was requested to return to the City Commission for additional discussion. The City Commission subsequently requested a re- evaluation of the priority of spending $416,820 on this Project against other needs (additional police, shade structures, pavers on Lincoln Lane, ongoing maintenance etc). At the October 24th 2012 City Commission meeting, based on the review from the September 19, 2012 Land Use and Development meeting, the City Commission requested information on all the Projects on the City Capital Projects list. At the May 8, 2013 Commission meeting, the Commission voted to refer the Project to the May 13, 2013 Finance and Citywide Projects Commission meeting for further discussion. At the May 13, 2013 Finance and Citywide Projects Commission Meeting, the Committee requested a Letter to Commission on the item and a Resolution for the June 5, 2013 Commission meeting. On June 5, 2013 the City Commission adopted Resolution No. 2013-28236, approving the conceptual plan developed for the Project, with funding to come from City Center Redevelopment District Funds, and further authorized the City Manager to enter into negotiations with the developer, to design and build the project. Please note that funds for this Project were approved by the City Commission as part of the City Center Redevelopment District Funds (City Center RDA) in the FY 2012/13 and FY 2013/14 Capital Budget. On October 8, 2013, the City's Historic Preservation Board (HPB), pursuant to an order under HPB File No. 7385, issued a Certificate of Appropriateness granting approval of streetscape improvements in the City's right of way, including, but not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape and street lighting (collectively "Streetscape Improvements"), and the closure of a portion of Euclid Avenue to vehicular traffic, as part of an extension of the pedestrian mail. A copy of the signed HPB Order is attached_ hereto as Exhibit 1". Since the June 2013 Commission meeting, the City staff has been negotiating with Jameck Development, Inc. (the Developer) to further develop design concepts, construction schedules, and cost estimates, plus terms and conditions for a negotiated development agreement. The highlights of the proposed development agreement, are as follows: Parties and Protect Owner or City: City of Miami Beach Developer: Jameck Development, Inc., a Florida corporation, is the Developer selected by the City to design, develop and construct the Improvements pursuant to a Development Agreement to be entered into between City and Developer, in accordance with the Florida Local Government Development Agreement Act (F.S. 163.3220 — 163.3243). City Commission Memorandum Euclid Avenue Street End Project Jameck Development, Inc.-Development Agreement June 11, 2014 Page 4 of 8 Architect: R+O Studio, LLC. The Architect shall contract with Developer to provide professional services for the design and construction of the Improvements. Developer's agreement with Architect shall be subject to .City's review and approval prior to such agreement being executed between Developer and Architect. General Contractor: Developer shall enter into a cost plus with a Guaranteed Maximum Price contract (GMP Contract) with a contractor (General Contractor) to construct the Improvements. Developer shall select the General Contractor pursuant to a competitive bidding process which will be developed, initiated, and overseen by Developer; provided, however, that the City shall have the right to approve the recommended General Contractor, which approval shall not be unreasonably withheld, conditioned, or delayed. The City shall also have the right to review and approve the GMP Contract with the selected General Contractor prior to such Contract being executed between Developer and General Contractor. Construction Manager: Developer has selected Arlen Construction Group, Inc. (Arlen) to act on behalf of Developer as the Project construction manager. The construction manager fees shall be paid by Developer. Project Description: The closure of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the construction of streetscape improvements in the City's right-of-way (hereinafter defined as the Improvements). Project Site: Euclid Avenue, between Lincoln Road and Lincoln Lane South, Miami Beach, Florida. Improvements: The Improvements shall consist of the removal of the planted area where Euclid Avenue intersects with Lincoln Road, including the electrical disconnect vault, and relocating the disconnects to the electrical vault in the Lincoln Center parking lot. The curb, sidewalk and roadway of Euclid Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be replaced with a new designed black and white concrete pattern and new planting areas will be added. That part of Euclid Avenue will become a pedestrian mall. A pedestrian drop-off area shall also be designed for the Project, in a manner to be reviewed and approved by the City's Public Works Department. City Commission Memorandum Euclid Avenue Street End Project Jameck Development, Inc.-Development Agreement June 11, 2014 Page 5 of 8 The Improvements shall be designed, developed, and constructed substantially in accordance with a Concept Plan, which has been approved by the City Commission and the Historic Preservation Board and which shall be attached and incorporated as an exhibit to the Development Agreement. Proiect Cost/Responsibilities: Project Cost: An initial budget for the Improvements is attached as Exhibit"F" of the Development Agreement. Cost to City: City shall fund the hard costs of the Improvements, in an amount not to exceed $485,821 (City Costs), subject to approval of the City Commission. City shall not be responsible for the disbursement of any sums in excess of the City Costs, except for approved change orders, which shall be limited to City requested change orders, force majeure events, and/or unknown site conditions. Cost to Developer: Developer shall fund the soft costs of the Improvements, which are - estimated to be approximately $100,000 (Developer Costs). Developer Liability: Developer shall not be liable for design or construction defects except in the event caused by Developer's gross negligence. Project Design/Construction: City Design Approvals: Following execution of the Development Agreement and City Commission approval of the Project Concept Plan, City (in its proprietary capacity as Owner) shall have prior review and approval rights of the plans and specifications for the Improvements, during the following stages of the design phase: (a) schematics; (b) design development drawings; (c) 60% construction drawings; and (d) 100% construction drawings. In addition to the aforestated proprietary review and approvals, Developer shall be solely responsible for securing any and all final non- appealable approvals for the Improvements, as may be required by the City, in its regulatory capacity. GMP Contract: Upon obtaining the City's approval of the 60% construction drawings, Developer shall submit, the construction of the Improvements for bids. If the bids exceed the City Costs (i.e. $485,821), then the City Commission, at its sole discretion, may elect to: (1) have the Developer (and its Architect and Contractor) value City Commission Memorandum Euclid Avenue Street End Project Jameck Development,Inc.-Development Agreement June 11, 2014 Page 6 of 8 engineer the Project (at Developer's sole cost and at no cost to the City) to get it back within the estimated cost to the City; (2) add more money to the Project construction budget (i.e. increase the City Costs); or (3) terminate the Development Agreement, without further liability to the City. Alternatively, Developer shall have the right, but not the obligation to pay for the costs in excess of the City Costs, so long as the increased cost of the Improvements is not likely to materially increase the future maintenance costs to be incurred by the City after completion of the Improvements, as reasonably determined by the City. Notwithstanding the preceding, if the City Commission elects to value engineer the Project, and the resulting value-engineered Project reflects material changes to the Improvements from those described in the approved Concept Plan ("Material changes" shall be determined by the City Commission, in its sole and absolute discretion), and the City and Developer are unable to agree on a modified Project design, then either City or Developer shall have the right to terminate the Development Agreement, without further liability. Contract Time: The Improvements shall be substantially completed within six (6) months after the issuance of permit(s) to commence construction and the Notice to Proceed (unless extended as a result of force majeure events, or by mutual agreement of the parties). Final completion of the Improvements shall be achieved within thirty (30) days from the date certified by the Architect as the date of Substantial Completion. Warranties, Bonds, Indemnities and Developer shall cause the Architect and General Insurance: Contractor to provide warranties, indemnities and insurance in favor of City. Prior to commencement of construction, Developer shall cause the General Contractor to furnish City with payment and performance bonds that identify City and Developer as co-obligees. City shall be a third party beneficiary to the Developer's agreement with the Architect and the GMP Contract. Construction Staging: Construction staging for the Project will be confined to the Project Site, thereby not impacting adjacent commercial areas. Developer shall develop a plan for construction staging in order for access to the adjacent commercial areas to be continually maintained with only minimal disruptions. Such plan shall be subject to City's prior approval, which shall not be unreasonably withheld, conditioned or delayed. City Commission Memorandum Euclid Avenue Street End Project Jameck Development, Inc.-Development Agreement June 11, 2014 Page 7 of 8 Underground Utilities: City, as part of the City Costs, will be solely responsible for relocating any underground utilities now existing on the Project Site. Construction Schedule: The Project construction schedule shall be provided by the Developer to the City for the City's approval, which shall not be unreasonably withheld. Such schedule may be modified from time to time as a result of an approved change order. Environmental Matters: Developer shall be responsible for conducting environmental due diligence prior to construction to assess the environmental site conditions and subsequent remediation needs, if applicable. City is responsible (at its cost) for any required environmental remediation within the Project Site; provided, however that if the cost of such remediation is, in the sole and reasonable business judgment of City, economically unfeasible, then City shall have the right to terminate the Development Agreement, without any further liability. Art in Public Places ("AIPP"): As per Chapter 82 of the Miami Beach City Code, an Art In Public Places (AIPP) contribution does not apply to the proposed Project because the Improvements are defined as streetscape beautification projects, which include but are not limited to, one or all of the following elements: resurfacing, new curbs, gutters, pavers, sidewalks, landscaping, lighting, bus shelters, bus benches, street furniture and signage. Public Benefits: Public Benefits: The Project will benefit the public in the following ways: (a) by removing delivery vehicles at the end of Euclid Avenue just south of Lincoln Road and establishing a delivery vehicle loading zone south of Lincoln Lane South that will permit such vehicles to travel east or west through Lincoln Lane South instead of having to back up and turn around to exit on Euclid Avenue; (b) by providing the Flamingo Park residents with an entrance to Lincoln Road off Euclid Avenue; and (c) by creating more space for performances at the Euclid Oval. Other: Easements: Developer shall grant to the City, upon completion of the Project, a permanent easement for the new electrical vault that is being moved onto Developer's property as part of the Improvements. City Commission Memorandum Euclid Avenue Street End Project Jameck Development,Inc.-Development Agreement June 11, 2014 Page 8 of 8 Maintenance: Developer shall perform the following maintenance of the Improvements: sweeping of the street that is part of the Project Site, trash removal within the Project Site, and maintenance of the landscaping in the Project Site (but not replacement of the landscaping). The balance of the maintenance shall be performed by the City. CONCLUSION The Administration recommends adopting the attached Resolution and Development Agreement, a copy of which is attached hereto as Exhibit "2", on First Reading/Public Hearing, and setting the Second and Final Reading for July 23, 2014. JLM/JJ/KGB/ T:WGENDA\2014�J Pe \Euclid Street End DA Memo.docx i EXHIBIT «1„ r 7 HISTORIC PRESERVATION BOARD City of Miami Beach, Florida M MEETING DATE: October 8, 2013 I FILE NO: 7385 PROPERTY: Euclid Avenue between Lincoln Road and Lincoln Lane South LEGAL: A portion of the Public-Right-of-Ways of Euclid Avenue from Lincoln Lane to Lincoln Road along with a portion of the adjacent Right-of-Ways, all lying and being in the City of Miami Beach, Florida. IN RE: - - - The Application for a Certificate of Appropriateness for streetscape improvements in the City's rights-of-way. These improvements include, but are not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape, and street lighting and the closure of a portion of Euclid Avenue to vehicular traffic, as part of an extension of the pedestrian mall. ORDER The applicant, City of Miami Beach, filed an application with the City of Miami Beach Planning Department for a Certificate of Appropriateness. The City of Miami Beach Historic Preservation Board makes the following FINDINGS OF FACT, based upon the evidence, information, testimony and materials presented at the public hearing and which are part of the record for this matter: A. The subject site is located within the Flamingo Park Local Historic District. f B. Based on the plans and documents submitted with the application, testimony and Page 2of7 HPB File No. 7385 Meeting Date: October 8, 2013 i information provided by the applicant, and the reasons set forth in the Planning Department Staff Report, the project as submitted is consistent with the Certificate of Appropriateness Criteria in Section 118-564(a)(1) of the Miami Beach Code, is not consistent with Certificate of i Appropriateness Criteria `f in Section 118-564(a)(2) of the Miami Beach Code, and is not consistent with Certificate of Appropriateness Criteria `h' in Section 118-564(a)(3) of the Miami Beach Code. C. The project would be consistent with the criteria and requirements of section 118-564 if the following conditions are met: 1. A revised landscape plan, prepared by a Professional Landscape Architect, registered in the State of Florida, and corresponding site plan, shall be submitted to and approved by staff. The species type, quantity, dimensions, spacing, location and overall height of all plant material shall be clearly delineated and subject to the review and approval of staff. At a minimum, such plan shall incorporate the following: i a. The proposed planter closest to Lincoln Road, which is intended to preserve the two large and existing Copper Pod trees shall be significantly enlarged in order to protect and minimize damage to the existing roots stem of the trees, in a p 9 9 Y manner to be reviewed and approved by Planning Department staff and the City's Urban Forester consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. At a minimum, the overall square footage of the existing planting area shall not be reduced. b. A tree protection. plan, ensuring that the root system, trunk, and branches of the existing Copper Pod trees are fully protected during the construction period, shall be submitted in a manner to be reviewed and approved by Planning Department staff and the City's Urban Forester consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. C. One or more additional large canopy trees shall be introduced within the northern portion of the southernmost oval planter, in a manner to be reviewed and -- approved by Planning Department staff and the City's Urban Forester consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. d. Small size accent palms trees may be utilized as part of the understory plant palette composition, but should not prevent or limit the addition of more shade trees, in a manner to be reviewed and approved by Planning Department staff and the City's Urban Forester consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. e. The planter structure shall be constructed of a high quality, natural architectural concrete, in a manner to be reviewed and approved by Planning Department staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. , i f. Any demolition work adjacent to the existing trees shall be performed in close consultation with the City's Urban Forester. Page 3 of 7 HPB File No. 7385 Meeting Date: October 8, 2013 g. The utilization of root barriers and/or Silva Cells, as applicable, shall be clearly delineated on the revised landscape plan. h. A fully automatic irrigation system with 100% coverage and an automatic rain sensor in order to render the system inoperative in the event of rain. Right-of- way areas shall also be incorporated as part of the irrigation system. i. The proposed black and white concrete paving areas shall be comprised of fully integral colored concrete and samples shall be provided, in a manner to be reviewed and approved by Planning Department staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. i j. The applicant shall explore with the Planning Department and Public Works Department the most appropriate lighting system to be used in the new plaza area, in a manner to be reviewed and approved by Planning Department staff consistent with the Certificate of Appropriateness Criteria and/or the directions i from the Board. Standard "Paulsen" lights, matching the existing pedestrian lighting elsewhere on this block of Lincoln Road, shall be used in the new plaza area if no alternative more appropriate lighting system is identified. k. Materials samples shall be provided for all proposed mosaic tiles and grout of the "decorative mosaic mounds" of the new plaza, in a manner to be reviewed and approved by Planning Department staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. 1. Any proposed up-lighting of the trees in the new plaza area shall be provided, in a manner to be reviewed and approved by Planning Department staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. M. The applicant shall verify, prior to the issuance of a Building Permit, the exact location of all backflow prevention devices. Backflow prevention devices shall not be permitted within any required yard or any area fronting a street or sidewalk, unless otherwise permitted by the Land Development Regulations. The location of all backflow prevention devices, and how they are screened from ` the right-of-way, shall be clearly indicated on the site and landscape plans and shall be subject to the review and approval of staff. The fire department shall require a post-indicator valve (PIV) visible and accessible from the street. E n. The applicant shall verify, prior to the issuance of a Building Permit, the exact location of all post-indicator valves (PIV), fire department connections (FDC)and all other related devices and fixtures, which shall be clearly indicated on the site and landscape plans, in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. o. The applicant shall verify, prior to the issuance bf a Building Permit, the exact location of all applicable FPL transformers or vault rooms; such transformers and Page 4 of 7 HPB File No. 7385 j Meeting Date: October 8, 2013 I vault rooms, and all other related devices and fixtures, shall not be permitted within any required yard or any area fronting a street or sidewalk. The location of any exterior transformers, and how they are screened with landscape material from the right-of-way, shall be clearly indicated on the site and landscape plans in a manner to be reviewed and approved by staff consistent with the Certificate of Appropriateness Criteria and/or the directions from the Board. P. Prior to the issuance of a Certificate of Occupancy, the Landscape Architect for the project architect shall verify, in writing, that the project is consistent with the site and landscape plans approved by the Planning Department for Building Permit. 2. A comprehensive annual maintenance program and schedule shall be prepared by the design consultants and provided to the City for the future successful maintenance of this plaza area. This maintenance proposal shall be reviewed and approved by all relevant city agencies. 3. The applicant may be required to submit a separate analysis for water and sewer requirements, at the discretion of the Public Works Director, or designee. Based on a preliminary review of the proposed project, the following may be required by the Public Works Department: a. The existing electric utility room shall be relocated to private property and an easement access shall be provided. b. A traffic and neighborhood impact study shall be conducted as a means to measure a proposed development's impact on transportation and neighborhoods. The study shall address all roadway Level of Service (LOS) deficiencies relative to the concurrency requirements of the City Code, and if required, shall be submitted prior to the issuance of a Building Permit. The final building plans shall meet all other requirements of the Land Development Regulations of the City Code. The developer shall refer to the most recent City of Miami Beach's Traffic and Neighborhood Impact Methodology as issued by the Public Works Department. C. Remove/replace sidewalks, curbs and gutters on all street frontages, if applicable. Unless otherwise specified, the standard color for city sidewalks is red, and the standard curb and gutter color is gray. d. Mill/resurface asphalt in rear alley along property, if applicable. e. Provide underground utility service connections and on-site transformer location, if necessary. f. Provide back-flow prevention devices on all water services. g. Provide on-site, self-contained storm water drainage for the proposed development. Page 5of7 HPB File No. 7385 Meeting Date: October 8, 2013 h. Meet water/sewer concurrency requirements including a hydraulic water model f analysis and gravity sewer system capacity analysis as determined by the Department and the required upgrades to water and sewer mains servicing this j project. f L Payment of City utility impact fees for water meters/services. parking Provide flood barrier ramps to underground j• P 9 P 9 or minimum slab elevation to be at highest adjacent crown road elevation plus 8". k. Right-of-way permit must be obtained from Public Works. I. All right-of-way encroachments must be removed. M. All planting/landscaping in the public right-of-way must be approved by the Public Works and Parks Departments. 4. All new and altered elements, spaces and areas shall meet the requirements of the Florida Accessibility Code(FAC). I 5. At the time of completion of the project, only a Final Certificate of Occupancy (CO) or Final,Certificate of Completion (CC) may be applied for; the staging and scheduling of the construction on site shall take this into account. All work on site must be completed in accordance with the plans approved herein, as well as by the Building, Fire, Planning, CIP and Public Works Departments, inclusive of all conditions imposed herein, and by other Development Review Boards, and any modifications required pursuant to field inspections, prior to the issuance of a CO or CC. This shall not prohibit the issuance of a Partial or Temporary CO, or a Partial or Temporary CC. 6. The Final Order shall be recorded in the Public Records of Miami-Dade County, 2ELE to the issuance of a Building Permit. 7. The Final Order is not severable, and if any provision or condition hereof is held void or unconstitutional in a final decision by a court of competent jurisdiction, the order shall be returned to the Board for reconsideration as to whether the order meets the criteria for approval absent the stricken provision or condition, and/or it is appropriate to modify the remaining conditions or impose new conditions. 8. The conditions of approval herein are binding on the applicant, the property's owners, i operators, and all successors in interest and assigns. j 9. Nothing in this order authorizes a violation of the City Code or other applicable law, nor allows a relaxation of any requirement or standard set forth in the City Code. IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information, testimony and materials presented at the public hearing,, which are part of the record for this matter, and the staff report and analysis, which are adopted herein, including the staff recommendations, which were amended by the Board, that the Certificate of Appropriateness is GRANTED for the above-referenced project subject to those certain conditions specified in Page 6 of 7 HPB File No. 7385 Meeting Date: October 8, 2013 paragraph C of the Findings of Fact (Condition Nos. 1-9 inclusive) hereof, to which the applicant has agreed. PROVIDED, the applicant shall build substantially in accordance with the plans approved by the Historic Preservation Board, as determined by staff, entitled "Lincoln Road Euclid", as prepared by R + 0 Studio, dated 08:12:2013. When requesting a building permit, the plans submitted to the Building Department for permit shall be consistent with the plans approved by the Board, modified in accordance with the conditions. set forth in this Final Order. No building permit may be issued unless and until all i conditions of approval that must be satisfied prior to permit issuance, as set forth in this Final Order, have been met. r h The issuance of this Certificate of Appropriateness does not relieve the applicant from obtaining all other required Municipal, County and/or State reviews and permits, including final zoning approval. If adequate handicapped access is not provided on the Board-approved plans, this approval does not mean that such handicapped access is not required. When requesting a building permit, the plans submitted to the Building Department for permit shall be consistent with the plans approved by the Board, modified in accordance with the conditions set forth in this Order. If the Full Building Permit for the project is not issued within eighteen (18) months of the meeting date at which the original Certificate of Appropriateness was granted, this Certificate of Appropriateness will expire and become null and void. If the Full Building Permit for the project should expire for any reason (including but not limited to construction not commencing and continuing, with required inspections, in accordance with the applicable Building Code), this i Certificate of Appropriateness will expire and become null and void. In accordance with Section 118-561 of the City Code, the violation of any conditions and safeguards that are a part of this Order shall be deemed a violation of the land development regulations of the City Code. Failure to comply with this Order shall subject this Certificate of Appropriateness to Section 118-564, City Code, for revocation or modification of the Certificate of Appropriateness. Dated this day of , 20 . HISTORIC PRESERVATION BOARD THE ITY OF MI MI BEACH, ORIDA BY: i THOMAS R. MONEY, AICP DESIGN AND PRESERVATION MAN GER FOR THE CHAIR Page 7 of 7 HPB File No. 7385 Meeting Date: October 8, 2013 E STATE OF FLORIDA ). )SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this A�_ day of ey ,V. _ 20/,'* by Thomas R. Mooney, Design and Preservation Manager, Planning Department, City of Miami Beach; Florida, a Florida Municipal Corporation, on behalf of the corporation. He is personally known to me. �o��''•pu�•o 'rL'RESA MARIA ` MY COMMISSION#dQ 928148 ` EX�PKS:December 2,2013 NOTARY PUBLIC �f4lFOFF10 e Bonded ThruRudaetNote services Miami-Dade County, Florida My commission expires. Approved As To Form: Legal Department: Filed with the Clerk of the Historic Preservation Board on 19\ F:IPLANI$H PB113 H PB10ct1317385.0ct2013.FO.docx I f t f k I I . l EXHIBIT 662" This instrument prepared by and after recording return to: Adam D.Lustig,Esq. Bilzin Sumberg Baena Price&Axelrod LLP 200 South Biscayne Blvd., Suite 2500 Miami,Florida 33131-5340 For Recorder's Use Only) DEVELOPMENT AGREEMENT Between CITY OF MIAMI BEACH, FLORIDA and JAMECK DEVELOPMENT, INC. for STREETSCAPE IMPROVEMENTS AND STREET CLOSURE TO VEHICULAR TRAFFIC ON EUCLID AVENUE BETWEEN LINCOLN ROAD AND LINCOLN LANE SOUTH MIAMI 4065935.6 80574/43097 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the day of , 2014 (the "Effective Date"), by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida (the "City") and JAMECK DEVELOPMENT, INC., a Florida corporation("Developer"). RECITALS: A. The City is the owner of certain land located on Euclid Avenue, between Lincoln Road and Lincoln Lane South, in Miami Beach, Florida, more particularly described in the attached Exhibit "A" (the "Project Site"). B. Lincoln Center Associates, LLC, a Florida limited liability.company ("Lincoln Center") is an affiliate of Developer and is the owner of certain land adjacent to the Project Site on which a parking lot is located, and more particularly described in the. attached Exhibit "B" (the "Lincoln Center Parking Lot"). C. On October 8, 2013, the Historic Preservation Board (HPB) of the City, pursuant to an order under HPB File No. 7385, issued a certificate of appropriateness granting approval of streetscape improvements in the City's right of way, including, but not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape and street lighting (collectively "Streetscape Improvements"), and the closure of a portion of Euclid Avenue to vehicular traffic, as part of an extension of the pedestrian mall. D. On May 13, 2013, the Finance and Citywide Projects Committee of the City, recommended the approval of the Developer's conceptual plan for the closure of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the construction of Streetscape Improvements in the City's right-of-way located in the Project Site (the "Conceptual Plan"). E. On June 5, 2013, the Mayor and the City Commission approved the Conceptual Plan in the form attached as Exhibit "C" and authorized the City Manager to enter into negotiations with Developer to design and build the Project(as defined below). F. The City administration staff and Developer met several times to develop design concepts, construction schedules, costs estimates and terms and conditions for a negotiated development agreement between the City and Developer. G. The Mayor of the City and the City Commission in Resolution No. adopted after two duly noticed public hearings held pursuant to the Development Agreement Act (as hereinafter defined), determined that it is in the best interest of the City to enter into this Agreement with Developer for the closure of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the construction of Streetscape Improvements in the City's right-of-way, located in the Project Site MIAMI 4065935.6 80574/43097 NOW, THEREFORE, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, the City and Developer agree as follows: ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are assumed to be true and correct and are agreed upon by the parties. The above recitals are true and accurate and incorporated into this Agreement by reference. Whenever the following terms or pronouns in place of them appear in this Agreement the intent and meaning shall be interpreted as follows: 1.1 Agreement: Agreement shall mean this Agreement and all addenda, exhibits, and amendments thereto between the City and the Developer for the Project, all as defined herein. 1.2 AIPP: AIPP means the City's Art in Public Places 1.3 Change Order: A written document ordering a change in the Contract Sum or Contract Time or a material change in the Improvements. 1.4 City: The City shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139, which is a party hereto and/or for which this Agreement is to be performed. In all respects hereunder, City's performance is pursuant to City's position as the owner of the Property. In the event City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations,-laws and ordinances shall be deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Agreement. 1.5 City Commission: City Commission shall mean the governing and legislative body of the City. 1.6 Ci Manage r: City Manager shall mean the Chief Administrative Officer of the �— Y g City. 1.7 Conceptual Plan: Conceptual Plan shall have the meaning set forth in the Recitals. 1.8 Construction Drawings: Construction Drawings shall have the meaning set forth in Section 3.3. MIAMI 4065935.6 80574/43097 2 1.9 Construction Manager: Developer has selected Arlen Construction Group, Inc. to act on behalf of Developer as the Project Construction Manager. The Construction Manager's fees shall be paid by Developer. 1.10 Construction Phase: The phase of services which constitutes Developer's administration of the construction of the Project and all activities necessary for the completion of the Project. 1.11 Construction Schedule: The schedule for the Project, attached as Exhibit "D", as such schedule may be modified from time to time as a result of a Change Order. 1.12 Consultant: The registered architect, professional engineer, professional land surveyor, civil engineer, and/or registered landscape architect who has contracted with Developer to provide professional services for the design and construction of the Project, and who is further licensed by the State of Florida to provide said services. The primary consultant for this Project shall be the firm of R+O Studio, LLC, a professional services firm duly certified, licensed and registered as an architectural firm, located at 1444 Biscayne Blvd., Suite 215, Miami, Florida 33132. When the term "Consultant" is used in this Agreement it shall be deemed to include R+O Studio, LLC, as the primary consultant, or such other consultant selected by Developer and approved by the City, in writing, in its reasonable discretion, prior to retention by Developer. Developer and City herein agree and acknowledge that Developer shall utilize Consultant's Plans and Specifications for the Project for Developer's construction of the Project. Developer further acknowledges and agrees that Consultant shall render as a Cost of the Work certain professional services pursuant to this Agreement, including but not limited to, additional A/E services, as required; Project construction site supervision and/or observations relative to the Improvements; and the rendering of approvals, opinions, and decisions, all as more specifically set forth in the Contract Documents. Developer herein further agrees and shall require any Consultant services, including but not limited to those referenced in the preceding sentence, which will be required pursuant to the Contract Documents, to also be binding upon Developer's Contractor; to the extent as same are binding upon Developer as a party pursuant to this Agreement. It shall further be Developer's sole and absolute responsibility to assure such compliance by its Contractor. Developer and the City agree and acknowledge that the City is an intended third party beneficiary in any contract entered into between Developer and Consultant. Developer shall therefore submit its final agreement with Consultant to the City, for its review and reasonable approval, prior to such agreement being executed by and between Developer and Consultant. Additionally, Developer herein represents to the City that its agreement with Consultant shall incorporate the terms and conditions of this Agreement and the Contract Documents, and Developer shall assume sole and absolute responsibility for binding Consultant to same as if Consultant were a party to this Agreement. The City has approved Developer's selection of R & O Studio, LLC as the Consultant to design the Improvements. 1.13 Contract Administrator: The Director of the Public Works Department of the City, or his designee, shall be designated as the Contract Administrator for matters concerning MIAMI 4065935.6 80574/43097 3 this Agreement. The City agrees that a single person shall serve as Contract Administrator under this Agreement and the City shall notify Developer of the person who shall serve as Contract Administrator. Developer herein agrees and shall require that any Contract Administrator services which will be required pursuant to the Contract Documents shall also be binding upon Contractor, to the same extent as same are binding upon Developer as a party pursuant to this Agreement. 1.14 Contract Documents: This Agreement, as approved by the Mayor and City Commission and executed by the Mayor and City Clerk; the AIA A 111 Standard Form of Agreement Between Owner and Contractor, the Addendum to A 111, the A201, General Conditions to the Contract of Construction, any approved Change Orders; the performance and payment bonds; Plans and/or Specifications, the Construction drawings, and any and all other construction documents; other construction documents such as CPM, Construction Schedule, and schedule of values; and any other documents the submission of which is required by this Agreement. When reference is made in the Contract Documents to publications, standards or codes issued by associations or societies, the intent shall be to specify the current or adopted edition of such publication or standard including revision and effect on the date of the contract execution, notwithstanding any reference to a particular date. 1.15 Contractor (or General Contractor): The contractor shall be selected by Developer, and shall further be subject to prior approval in writing, by the City in its reasonable discretion, to perform the Improvements for the Project. Developer shall enter into a cost plus with a Guaranteed Maximum Price Contract (GMP Contract) with the City approved Contractor. Developer and City agree and acknowledge that City is an intended third party beneficiary in any contract entered into between Developer and 'Contractor. The Developer shall therefore submit the final GMP Contract to the City, for its review and approval, prior to such agreement being executed by and between Developer and Contractor. Additionally, Developer herein represents to City that its agreement with Contractor shall incorporate the terms and conditions of this Agreement and the Contract Documents, and Developer shall assume sole and absolute responsibility for binding Contractor to same as if Contractor were a party to this Agreement. 1.16 Contractor's Fee: Contractor's Fee shall have the meaning set forth in Section 8.6. 1.17 Contract Sum: The Contract Sum is the Cost of the Work. Also, Developer shall enter into a cost plus with a Guaranteed Maximum Price Contract (GMP Contract) with the City- approved Contractor. 1.18 Contract Time: Contract Time shall have the meaning set forth in Section 6.3. 1.19 Cost of the Work: Cost of the Work shall have the meaning set forth in Section 8.10. 1.20 CPM Schedule: CPM Schedule shall mean critical path method schedule. MIAMI 4065935.6 80574/43097 4 1.21 Defective Work: Defective Work means Work that is not performed in accordance with the Contract Documents, in violation of code, installed in violation of the manufacturer's written instructions where the installation has caused new materials to be detrimentally affected where the life expectancy of the material installed is reduced, or otherwise installed in a non-workmanlike manner. 1.22 Department: Department shall have the meaning set forth in Section 52.4. 1.23 Developer: Jameck Development, Inc., a Florida corporation, its successors and assigns, is the Developer selected to perform the Improvements pursuant to this Agreement, and is the person, firm or corporation liable for the acceptable performance of the Project. 1.24 Development Agreement Act: Development Agreement Act means the Florida Local Government Development Agreement Act, Section 163.3220, et. seq., Florida Statutes, as same may be amended from time to time. 1.25 Development Approval: Development Approval means any zoning, rezoning, conditional use special exception, variance or subdivision approval, concurrency approval under Section 163.3180, Florida Statutes, or any other official action of local government having the effect of approving development of land. 1.26 Documents: Documents shall have the meaning set forth in Section 35.1. 1.27 Field Order: A written order issued by the Contract Administrator which orders minor changes in the work but which does not involve a change in the total cost or time for performance. 1.28 Final Completion: The date certified by Consultant that all conditions of the permits and regulatory agencies have been met, all construction, including corrective and punch list Work, has been performed, pursuant to the Contract Documents, all administrative requirements of the Contract Documents have been completed, and City has received from Developer a release of all liens, consent of surety, release of claims by Developer, corrected as- built drawings, executed final adjusted Change Order(s), copies of pertinent test results, correspondence and other necessary documentation, including all warranties, guarantees, and operational manuals, if any. 1.29 Guaranteed Maximum Price (GMP): Guaranteed Maximum Price shall have the meaning set forth in Section 8.1. 1.30 Hazardous Materials: As used in this Agreement "Hazardous Materials" means any chemical, compound, material, substance or other matter that: 1.30.1 is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; MIAMI 4065935.6 80574/43097 5 1.30.2 is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 1.30.3 gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or 1.30.4 is. any other material or substance giving rise to any liability, responsibility or duty upon the City with respect to any third person under any Hazardous Materials Law. 1.31 Hazardous Materials Laws: As used in this Agreement, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so called "common law"), including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §§9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. §§1801 et seq.), and the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§6901 et seq.), relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under or about the Premises, soil and ground water conditions or other similar substances or conditions. 1.32 Historic Preservation Board or HPB: the Historic Preservation Board of the City created and established pursuant to the Land Development Regulations or any board or body which may succeed to its functions. 1.33 Improvements: The improvements to be constructed on the Project Site. The Improvements shall consist of the removal of the planted area where Euclid Avenue intersects with Lincoln Road, including the electrical disconnect vault, and relocating the electrical vault disconnects to the Lincoln Center Parking Lot. The curb, sidewalk and roadway of Euclid Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be replaced with a new designed black and white concrete pattern and new planting areas will be added. That part of Euclid Avenue will become a pedestrian mall. A pedestrian drop-off area shall also be designed for the Project, in a manner to be reviewed and approved by the City's Public Works Department. The Improvements shall be designed, developed, and constructed substantially in accordance with the Conceptual Plan attached as Exhibit "C", which has been approved by the City Commission and the Historic Preservation Board. 1.34 Land Development Regulations: Land Development Regulations means Subpart B (Chapters 114 through 142) of the Code of the City of Miami Beach, Florida, as the same was in effect as of the Effective Date of this Development Agreement. 1.35 Lincoln Center: Lincoln Center shall have the meaning set forth in the recitals. 1.36 Notice(s) to Proceed: A written document(s) issued by the Contract Administrator informing the Developer to officially begin the Project. 1.37 Plans and/or Specifications: The official graphic and descriptive representations of this Project, which are a part of the Contract Documents. MIAMI 4065935.6 80574/43097 6 1.38 Project: The Project means the Work described in the Contract Documents and generally consists of the closure of a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, to vehicular traffic, as part of an extension of the Lincoln Road pedestrian mall, and the construction of the Improvements located in the Project Site.. 1.39 Project Site: Project Site shall have the meaning set forth in the Recitals. 1.40 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the CPM Schedule), and other data specially prepared by Contractor or its subcontractors, sub- subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work. 1.41 Streetscape Improvements: shall have the meaning set forth in the Recitals. 1.42 Substantial Completion: Subject to the requirements of Article 42, the date (or dates) certified by the Consultant that all conditions of the permits and regulatory agencies have been met for the City's intended use of the Project (or portions thereof), and all construction has been performed therein in accordance with this Agreement and the Contract Documents so City can fully, as opposed to partially, occupy or utilize the Project (or each portion thereof) for its intended purpose. At a minimum, a Certificate of Substantial Completion is one of the requirements for Substantial Completion. 1.43 Surety: The surety company or individual which is bound.by the performance bond and payment bonds with and for Developer and Contractor who is primarily liable and which surety company or individual is responsible for Contractor's acceptable performance of the Work under the Contract Documents and for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 1.44 Utilities: The public or private systems on the Project site for rendering electrical power, light, heat, gas, water, communication, sewage systems, and the like. 1.45 Work: The construction required by the Contract Documents, as permitted, including all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction. ARTICLE 2 INTENTION OF AGREEMENT It is the intent of the Contract Documents to describe a functionally complete Project to be constructed by Developer in accordance with said Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result will be supplied. When words which have a well-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the standard specification, manual, code, laws or regulations in effect at the time of the completion MIAMI 4065935.6 80574/43097 7 of design. Applicable laws or codes that may be changed after a permit is issued may result in an increase in the Contract Time or Contract Sum should additional Work be required on behalf of the Developer. ARTICLE 3 CONSTRUCTION 3.1 Consistency with City's Comprehensive Plan and Zoning Regulations. The City has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of this Agreement dealing with the Project and the Project Site are consistent with the City's adopted Comprehensive Plan and Land Development Regulations, subject to all applicable requirements, permits and approvals. 3.2 Historic Preservation Board Approval. 3.2.1 The City has heretofore submitted an application to the Historic Preservation Board for its review of the Project, and the Historic Preservation Board has approved the Project. 3.2.2 If at any time after Final Completion it shall be necessary in connection with the reconstruction or renovation of the Project to apply to the Historic Preservation Board for its review or approval of any changes or modifications to the Project, the City shall be solely responsible for making such application. 3.3 Design of the Project. Developer shall be solely responsible for overseeing and directing Consultant in the design of the Project, and such design shall be substantially in accordance with the Conceptual Plan. City's prior written approval of the Plans and Specifications for the Improvements, in its proprietary and not regulatory capacity, which shall not be unreasonably withheld, conditioned or delayed, shall be required for the following: (a) schematics, design development drawings; (b) design development drawings; (c) 60% construction drawings; and (d) 100% construction drawings. City shall have thirty (30) days after receipt of, respectively, 60% construction drawings, and 100% construction drawings (collectively, the "Construction Drawings") to review and provide Developer with written notice of its approval or disapproval of the Construction Drawings. If the City fails to provide written notice to Developer of its approval or disapproval of the Construction Drawings within such time periods, the City shall be deemed to have approved them. If the City provides Developer with timely disapproval of the Construction Drawings, Developer shall cause Consultant at its sole cost and expense and at no cost to the City, to revise the Construction Drawings in accordance with the City's objections and submit revised Construction Drawings to the City to address the City's reasonable objections. City shall have the same time period to review and approve or disapprove the revised Construction Drawings as set forth above with respect to the original Construction Drawings. In the event the City disapproves the Construction Drawings, the design phase and the construction phase set forth in the Construction Schedule and the Contract Time shall be extended by one day for each day from Developer's receipt of the City's disapproval notice to the date of the City's approval of the revised Construction Drawings, provided, however that the Developer shall bear all costs and expenses associated with such revisions, and the City MIAMI 4065935.6 80574/43097 8 shall have no liability to either Developer or Consultant for payment of any costs associated therewith. 3.4 Public Facilities and Concurrence. As the Project involves the creation of a public pedestrian open space on the existing right of way of Euclid Avenue, between Lincoln Road and Lincoln Lane South, and there is no enclosed space being constructed, there are no concurrency impacts on the Project. City and Developer anticipate that the Project will be served by those roadway transportation facilities currently in existence as provided by State, County and local roadways. It is also anticipated that the Project will be served by public transportation facilities currently in existence, including those provided by Miami-Dade County, the City, and other governmental entities as may presently operate public transportation services within the City. Sanitary sewer, solid waste, drainage, and potable water services for the proposed Project are expected to be those services currently in existence and owned or operated by Miami-Dade County, the Miami-Dade County Water and Sewer Department, and the City. The Project will also be serviced by any and all public facilities, as such are defined in Section 163.3221(12), Florida Statutes (1997), as such are described in the City's Comprehensive Plan, specifically including, but not limited to, those facilities described in the Infrastructure Element and Capital Improvements Element therein, a copy of which is available for public inspection in the offices of the Planning Department. 3.5 Required Development Permits. 3.5.1 In addition to the proprietary review and approvals set forth in Section 3.3 hereof, Developer shall be solely responsible for securing any and all final non-appealable Development Approvals for the.Improvements including, without limitation, those listed in the attached Exhibit "E", to the extent required by the City, in its regulatory capacity. Where necessary or desirable the City shall act as the applicant for the Development Approvals. Developer shall be responsible for processing all applications for the Development Approvals. Contract Administrator shall reasonably assist Developer in facilitating the prompt issuance of the Development Approvals. In the event Developer has provided the City with all documentation necessary to obtain the Development Approvals and the City fails to issue all of the Development Approvals (other than the Certificate of Completion) prior to the end of the permit phase set forth in the Construction Schedule, the permit phase and the Contract Time shall be extended one day for each day from the end of the permit phase to the issuance of all of the Development Approvals (other than the Certificate of Completion). All fees due in connection with the Development Approvals shall either be (a) paid by the City in addition to the Cost of the Work and not as part of the Contract Sum, or(b) waived. 3.5.2 There are no reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement, except as expressly set forth in Section 52.3. 3.5.3 The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve Developer of the necessity of complying with the law governing said permitting requirements, conditions, term or restriction. MIAMI 4065935.6 80574/43097 9 ARTICLE 4 CONTRACT DOCUMENTS 4.1 The Contract Documents shall be followed as to Work, material, and dimensions except when the Contract Administrator may authorize, in his reasonable discretion, in writing, an exception. Developer shall be entitled to a Change Order for exceptions that result in a time delay or extra cost. 4.2 Dimensions given in figures are to hold preference over scaled measurements from the drawings; however, all discrepancies shall be decided upon by the Consultant with written notice to Contract Administrator. Developer shall not proceed when in doubt as to any dimension or measurement but shall seek clarification from the Consultant with written notice to Contract Administrator. 4.3 Developer shall maintain four (4) copies of the Contract Documents; two (2) of which shall be preserved and always kept accessible at the site to the Contract Administrator or his/her authorized representatives. 4.4 This Agreement incorporates by reference the Contract Documents defined in Section 1.14. In the event of a conflict in the Contract Documents, the documents for the Project shall have the following order of precedence, beginning with the most important: 1. Change Orders 2. This Agreement and all addenda, exhibits and amendments thereto 3. The Addendum to A111 between Developer and Contractor 4. The AIA A 111 Standard Form of Agreement between Owner and Contractor 5. The Plans and/or Specifications (Approved and Permitted) 6. Other Contract Documents ARTICLE 5 SCOPE OF WORK 5.1 The scope of the Work for the Project is the Work described in the Contract Documents and generally consists of the removal of the-planted area where Euclid Avenue intersects with Lincoln Road, including the electrical disconnect vault, and relocating the disconnects to the electrical vault in the Lincoln Center Parking Lot. The curb, sidewalk and roadway of Euclid Avenue, from Lincoln Road to the north side of Lincoln Lane South, will be replaced with a new designed black and white concrete pattern and new planting areas will be added. That part of Euclid Avenue within the Project Site will become a pedestrian mall. A pedestrian drop-off area shall also be designed for the Project, in a manner to be reviewed and approved by the City's Public Works Department. 5.2 Contract Administrator will provide, at a minimum, the following services: MIAMI 4065935.6 80574/43097 10 5.2.1 Contract Administrator shall inspect the Work. 5.2.2 Contract Administrator shall have the authority to reject Work that does not in his reasonable opinion conform to the Contract Documents. 5.2.3 Contract Administrator shall monitor the overall control and expediting of the construction of the Work to facilitate completion of the Work within the approved time frame and within the Contract Sum. 5.2.4 Contract Administrator shall develop a punch list or lists of items requiring corrective action. 5.2.5 Contract Administrator shall attend weekly progress meetings with the Developer, Consultant and Contractor to review Work progress and resolve issues relating to the prosecution of the Work. 5.2.6 Contract Administrator shall instruct Developer to commence the Work by written instructions in the form of a Notice to Proceed issued by Contract Administrator. 5.2.7 Contract Administrator shall initiate or approve Change Orders in accordance with the terms of this Agreement. 5.2.8 Contract Administrator shall review and approve applications for payment and submit same to the City for payment. 5.2.9 Contract Administrator shall approve or issue Field Orders. 5.2.10 Contract Administrator shall review Shop Drawings. 5.3 Consultant will provide, at a minimum, the following services: 53.1 Consultant shall perform all of the architectural and engineering services necessary to describe, detail and design the Project in accordance with the Contract Documents. 5.3.2 Consultant shall design the Project so as to comply with applicable codes and regulations. 5.3.3 Consultant shall prepare the Plans and Specifications, as well as review and approve (or take other appropriate action upon) submittals such as Shop Drawings, product data and samples. 5.3.4 Consultant shall prepare construction change directives, if necessary, and authorize minor changes in the Work as provided in the Contract Documents. 5.3.5 Consultant shall receive and review for compliance with the Contract Documents all written warranties and related documents required hereby to be assembled upon MIAMI 4065935.6 80574/43097 11 Substantial Completion letion and issue certificates for payment for Work performed in compliance with the requirements of the Contract Documents. 5.3.6 Consultant shall review Shop Drawing submittals prepared by the Contractor and its subcontractors and return to Contract Administrator for routing. 5.3.7 Consultant shall review and/or respond to Contractor and/or City inquiries regarding the intent of the Contract Documents with respect to written requests for information, requests for Change Orders,'and other communications between the Developer and the City requiring Consultant review. 5.3.8 Consultant shall prepare Contract Documents clarifications to address clarifications regarding the intent of the Contract Documents. 5.3.9 Consultant shall perform specialty site visits by various design disciplines upon request in the prosecution of the Work. 5.3.10 Consultant shall assist Contract Administrator with the development of a punch list or list of items requiring corrective action. 5.3.11 Consultant shall attend weekly progress meetings with the Developer, Contract Administrator, and Contractor to review Work progress and resolve issues relating to the prosecution of the Work. 5.3.12 Consultant shall have the authority to order or approve deviations from the Contract Documents, pursuant to approved Change Orders, so long as such deviations do not result in a change to the Contract Time or cause the Cost of the Work to exceed the Guaranteed Maximum Price (i.e. Contract Sum). In the event any such deviations are sought, prior written approval from the Contract Administrator must be obtained. ARTICLE 6 CONTRACT TIME 6.1 Time is of the essence for Developer's and Contractor's performance of the Work pursuant to the Contract Documents. Developer agrees to complete the Work in accordance with the Construction Schedule and to achieve Substantial Completion of the Work, in accordance with the Contract Documents, and within the Contract Time, provided the City responds timely to requests for information, Shop Drawings, and/or decisions and approvals required under this Agreement. 6.2 Developer shall be instructed to commence the Work by written instructions in the form of a Notice to Proceed issued by the Contract Administrator. 6.3 The Work shall be Substantially Completed within six (6) months after the City's issuance of the full building permit and the Notice to Proceed (as may be extended as a result of force majeure events, mutual agreement of the City and Developer, or by City caused delays). The Work shall have achieved Final Completion and be ready for final payment, in accordance MIAMI 4065935.6 80574/43097 12 with Article 10, within thirty (30) days from the date certified by Consultant as the date of Substantial Completion(the "Contract Time"). ARTICLE 7 DEVELOPER'S RESPONSIBILITY 7.1 The parties acknowledge and agree that the Developer and Contractor will be responsible for the construction of the Project in accordance with the terms of this Agreement and the Contract Documents. 7.2 It is Developer's responsibility to cause Contractor to have and maintain appropriate certificate(s) of competency, valid for the Work to be performed and for all persons working on the Project for whom a certificate of competency is required. 7.3 Until Final Completion, Developer shall be fully responsible for the performance of Contractor and Consultant and their respective subcontractors, subconsultants, and any other person or firm acting under the direction and/or control of Developer, under the terms of this Agreement. Upon Final Completion, (i) City shall hold only Contractor, Consultant and the other subcontractors and subconsultants (but not Developer) responsible for the performance of this Agreement and any warranties arising therefrom, (ii) City shall unconditionally and irrevocably release, satisfy and forever discharge Developer and all of its officers, shareholders, partners, directors, members, managers, employees or agents of and from any and all actions, causes of action, claims demands losses costs and expenses, whether direct contingent or consequential, liquidated or unliquidated, at law or in equity, relating to the design and construction of the Project, and (iii) provided full payment has been received by Developer, 'Developer shall unconditionally and irrevocably release, satisfy and forever discharge the City, and its officers, employees, contractors and agents, of and from any and all actions, causes of action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or unliquidated, at law or in equity, relating to this Agreement, the Contract Documents, the Project and/or the Improvements, and including, but not limited to the design and construction of the Project and/or the Improvements. 7.4 Developer agrees to bind specifically Contractor and Consultant, and require that Contractor and Consultant bind any and all of their respective subcontractors and subconsultants, to the applicable terms and conditions of this Agreement and the Contract Documents for the benefit of City. 7.5 Developer shall at all times enforce strict discipline and good order among its Contractor, employees and consultants, and require Contractor to enforce strict discipline and good order among its subcontractors at the Project Site; and, further, shall not employ (either directly or through Contractor and Consultant and their respective subcontractors and subconsultants on the Project) any unfit person or anyone not skilled in the work or services assigned to him or her. 7.6 Developer shall keep itself fully informed of, and shall take into account and comply with, all applicable state and national laws and county and municipal ordinances and MIAMI 4065935.6 80574/43097 13 regulations in any manner affecting those engaged or employed in the Project, or the materials used or employed in the Project, or in any way affecting the conduct of the Project, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same and of all provisions required by law to be made a part of this Agreement, all of which provisions are hereby incorporated by reference and made a part hereof. If any specification or contract for this Project is knowingly in violation of any such law, ordinance, regulation, order or decree, Developer shall forthwith report the same to the Contract Administrator, in writing. Developer shall cause all of its agents and employees and Contractor and Consultant, and their respective subcontractors and subconsultants, to observe and comply with all applicable laws, II ordinances, regulations, orders and decrees (hereinafter, collectively referred to as "Applicable Laws"). 7.7 In the event of a change after the Effective Date of this Agreement in any Applicable Law (or Applicable Laws) which becomes known to the Developer or the City, Developer or the City (as applicable) shall advise the Consultant and Contract Administrator, in writing, and the Consultant and/or Contract Administrator, may initiate a Change Order, the purpose of which shall be to bring the Project into compliance such Applicable Law (or Laws) as amended or enacted. 7.8 Developer shall pay as a Cost of the Work all applicable sales, consumer, use and other taxes required by law in effect as of the Effective Date of the Agreement. Developer is responsible for reviewing the pertinent State statutes involving State taxes and complying with all requirements. Notwithstanding the foregoing, the City, in its sole discretion, may provide a City issued debit card to Contractor in order for Contractor to purchase materials for the Project on behalf of the City without the payment of sales tax. 7.9 Developer shall contract the services of a licensed general contractor (Contractor) to execute the Work. 7.10 Developer shall submit a certified, monthly application for payment prepared by Contractor for review/approval by the Consultant and Contract Administrator. 7.11 Developer shall provide a location for, attend and participate in weekly construction progress meetings with the Contract Administrator, Consultant and Contractor. 7.12 Developer hereby agrees to complete the Project and the Improvements described by the Contract Documents, in accordance with the requirements and provisions of the Contract Documents. 7.13 Developer agrees to meet with Contract Administrator or his designee at reasonable times and with reasonable notice. 7.14 Prior to Final Completion of the Project and the Improvements, there shall be established a record set of Plans and/or Specifications, on bond paper and on CD Rom, noncompressed, formatted in the latest version of AutoCAD, which shall bear the approval of Developer and Contract Administrator. Such approval shall be indicated by the written signature of both parties. In addition, prior to, and as a condition precedent to the City's issuance of, the MIAMI 4065935.6 80574/43097 14 Notice to Proceed for the commencement of construction services under this Agreement, Developer shall submit to the Contract Administrator, for Contract Administrator's review and a pp roval (which a pp roval shall not be unreasonably withheld, conditioned or delayed), a CPM Schedule for the planning and execution of the Construction Phase of the Project. 7.15 Developer will provide overall technical and management services to assist the City in maintaining schedules, establishing budgets, controlling costs, achieving quality and minimizing operational disruptions. 7.16 If at any time the Developer observes or becomes aware of any fault or defect in the Project or of any nonconformance with the Contract Documents, Developer will notify the Consultant and Contract Administrator, and will direct that all reasonable steps be taken to correct such fault, defect or nonconformance. 7.17 During the course of the Work, Developer shall also be responsible for causing Contractor to provide quality assurance of the Work in accordance with the Contract Documents. 7.18 Developer shall coordinate all phases of the Work to facilitate completion of the Project within the Construction and the Guaranteed Maximum Price. ARTICLE 8 THE CONTRACT SUM 8.1 The Contract Sum, in the amount of$485,821, is the maximum amount, subject to additions or deletions by approved Change Orders, in accordance with this Agreement, agreed to by the City and Developer under this Agreement to complete the Work in accordance with the Contract Documents (the "Guaranteed Maximum Price"). Developer will comply with all requirements of funding sources provided by City for construction of the Improvements. The City confirms that the City Commission has approved the funding of the Contract Sum and that City Commission approval is not required for any approved Change Orders under this Agreement, so long as the Cost of the Work does not exceed the Guaranteed Maximum Price. 8.2 Developer shall enter into a Cost Plus with a Guaranteed Maximum Price contract With Contractor. At 60% Construction Drawings, Developer shall submit the costs of the Improvements for bids. If the bids for the proposed design of the Project exceed the Guaranteed Maximum Price, then the City Commission, at its sole discretion, may elect to: (a) have the Developer (and its Consultant and Contractor) value engineer the Project (at Developer's sole cost and expense, and at no cost to the City) to bring it back into budget, so that the expected cost of the Improvements will not exceed the Contract Sum; (b) add more money to the Project construction budget (i.e. increase the Contract Sum); or (c) terminate the Ddvelopment Agreement, without further liability to the City or Developer. If the City rejects the value engineered Project, and the City and Developer are unable to agree on a modified design of the Project or an increase in the Contract Sum to the extent necessary to complete the Work for such modified design within thirty (30) business days after the City's rejection of the value engineered Project, then either the City or Developer shall have the right to terminate this Agreement, without further liability to each other, by delivering written notice to the other party within ten MIAMI 4065935.6 80574/43097 15 (10) business days after the end of such thirty (3 0) business day period. Alternatively, Developer shall have the right, but not the obligation, to pay for the costs in excess of the Contract Sum, subject to the prior approval of the City Commission and so long as the increased cost of the Improvements is not likely to materially increase the future maintenance costs to be incurred by the City after completion of the Improvements, as determined by the City in its sole discretion. Notwithstanding the preceding, if the City Commission elects to value engineer the Project, and the resulting value-engineered Project reflects material changes to the Improvements from those described in the approved Conceptual Plan ("Material changes" shall be determined by the City Commission, in its sole and absolute discretion), and the City and Developer are unable to agree on a modified Project design, then either City or Developer shall have the right to terminate this Agreement, without further liability. 8.3 The City shall pay the Cost of the Work, as adjusted by approved Change Orders. The construction contract shall limit the grounds for approved Change Orders to City requested Change Orders, Developer requested Change Orders approved by the City, force maj eure events, City Building Department field inspector requirements, acts or omissions of the City, errors and omissions of the Consultant, material and substantial changes in the Work not caused by Developer, concealed or unknown conditions, and costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property. 8.4 Developer shall fund the soft costs of the Improvements, which are estimated to be approximately $100,000 in accordance with the estimated budget attached hereto and made a part hereof as Exhibit "F". Developer shall be responsible for 100% of the soft costs, even if the total sum exceeds $100,000. 8.5 The City shall pay Developer the Contract Sum plus all approved Change Orders in current funds for Developer's performance of this Agreement through the date of the latest approved requisition. The initial Contract Sum is the schedule of values which represents the sum of the Cost of the Work as defined herein. The Contract Sum may be adjusted only by signed and approved Change Orders issued in accordance with the terms of the Contract Documents. 8.6 Contractor's Fee. Contractor's Fee shall be set forth in the Contractor's GMP Contract (the "Contractor's Fee"). 8.7 Intentionally Deleted. 8.8 Adjustments to the Guaranteed Maximum Price on account of.changes in the in accordance with the terms of this Agreement. Work ma be determined only acco . Y Y � h Guaranteed Maximum Price the terms "cost" 8.9 In calculating adjustments to the Guar and "costs" as used in the above-referenced provisions shall mean the Cost of the Work as defined below. " k h mean costs necessarily 8.10 Cost of the Work. The term Cost of the Work" shall ll e y incurred by the Developer, Contractor, Consultant or the City in the proper performance of the MIAMI 4065935.6 80574/43097 16 Work. Such costs shall be at rates not higher than the reasonable and customary price paid for similar work on Miami Beach, Florida except with prior written consent of the City. The Cost of the Work shall include only the items set forth in this Article 8, as follows: 8.10.1 Wages of construction workers directly employed by the Developer or Contractor to perform the construction of the Work at the site or, with the City's written approval, at off-site workshops, provided such costs are not incurred as the proximate result of defects of deficiencies of the Work. 8.10.2 Wages or salaries of the Developer's and Contractor's supervisory and administrative personnel when stationed at the site as included in the schedule of values shall be included in the Cost of the Work. 8.10.3 Wages and salaries of the Developer's and Contractor's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work and only upon the written consent of the City. 8.10.4 Costs paid or incurred by the Developer or Contractor for training, taxes, insurance, contributions, assessments, profit sharing, pensions and all other benefits required by law or collective bargaining agreements or by corporate policy and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work. 8.10.5 Payments made by the Developer or Contractor to Consultant or other design professionals in accordance with the requirements of this Agreement, provided such costs are not incurred as the proximate result of defects of deficiencies in the Work. 8.10.6 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. 8.10.7 Costs of materials described in the preceding Section 8.6.6 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the City's property at the completion of the Work or, at the City's option, shall be sold by the Developer. Any amounts realized from such sales shall be credited to the City as a deduction from the Cost of the Work. 8.10.8 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers, that are provided by the Developer or Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Developer or Contractor. Cost for items previously used by the Developer or Contractor shall mean fair market value. MIAMI 4065935.6 80574/43097 17 8.10.9 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Developer or Contractor at the site, whether rented from the Developer or Contractor or others, and costs of transportation, installation, minor repairs and replacements, dismantling'and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. Rental charges for equipment owned by the Developer or Contractor shall be consistent with the lesser of those shown in the current Associated Equipment Dealers Manual or prevailing commercial rates. Rental charges from third-parties shall be at cost. Rental rates shall be inclusive of all charges. Lost equipment shall not be a Cost of the Work. 8.10.10 Costs of removal of debris from the site including loading and dump charges. 8.10:11 Costs of document reproductions, facsimile transmissions and long- distance telephone calls, postage and parcel delivery charges, telephone service at the site. 8.10.12 That portion of the reasonable expenses of the Developer's and/or Contractor's personnel incurred while traveling in discharge of duties connected with the Work. Without prior written consent of the City, travel and living charges including per diems for Developer's or Contractor's personnel such as the project manager and project superintendent that do not reside in South Florida shall not be a Cost of the Work. 8.10.13 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved.in advance by the City. 8.10.14 That portion of insurance and bond premiums that can be directly attributed to this Agreement. 8.10.15 Sales, use or similar taxes imposed by a governmental authority that are related to the Work at the rates that are in force as of the date of the Agreement. 8.10.16 Fees and assessments for the building permit and for other permits, licenses and inspections for which the City, Developer or Contractor are required by the Agreement to pay. 8.10.17 Fees of laboratories for tests required by the Contract Documents. 8.10.18 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Contract Documents; and payments made in accordance with legal judgments against the Developer or Contractor resulting from such suits or claims and payments of settlements made with the City's consent. 8.10.19 Deposits lost for causes other than the Developer's or Contractor's negligence or failure to fulfill a specific responsibility to the City as set forth in the Contract Documents. MIAMI 4065935.6 80574/43097 18 8.10.20 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. 8.10.21 Costs due to emergencies incurred in taking action to prevent threatened damage,. injury or loss in case of an emergency affecting the safety of persons and property. 8.10.22 The Contractor's Fee. 8.11 Costs Not to be Reimbursed. The Cost of the Work shall not include: 8.11.1 Salaries and other compensation of the Developer's or Contractor's personnel stationed at the Developer's or Contractor's principal office or offices other than the site office. 8.11.2 Expenses of the Developer's principal office and offices other than the site office. 8.11.3 Overhead and general expenses not associated with the Project. 8.11.4 Developer's or Contractor's capital expenses, including interest on the Developer's or Contractor's capital employed for the Work or bonding (except as set forth in Section 8.6 above). 8.11.5 Fees due to the Construction Manager. ARTICLE 9 PROGRESS PAYMENTS 9.1 Progress Payments. 9.1.1 Developer may make application for payment for Work completed during the Project at intervals of not more than once a month. The period covered by each application for payment shall be one calendar month ending on the last day of the month. 9.1.2 Based upon applications for payment prepared by Contractor and submitted by Developer to Consultant and Contract Administrator and-certificates for payment issued by the Consultant, (a) Contract Administrator shall have ten (10) days after it is presented with an application for payment to review and approve same or state in writing its reasons for non-approval; and (b) for approved applications for payment, the City shall make progress payments on account of the Contract Sum to Developer, as provided below and elsewhere in this Agreement, within thirty (30) days after the submittal of each such a pp lication for payment to Contract Administrator. 9.1.3 With each application for payment, Developer shall submit payrolls, receipted invoices or invoices with check vouchers attached, and any other evidence required by MIAMI 4065935.6 80574/43097 19 the City, Contract Administrator or Consultant to demonstrate that cash disbursements already made by the Developer or Contractor on account of the Cost of the Work. 9.1.4 Each application for payment shall be based on the most recent schedule of values submitted by Developer in accordance with this Agreement. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Consultant may reasonably require. This schedule, unless objected to by the Consultant or Contract Administrator, shall be used as a basis for reviewing the applications for payment submitted by Developer. 9.1.5 Applications for payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the application for payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by Developer on account of that portion of the Work for which Developer has made or intends to make actual payment prior to the next application for payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Substantiating backup including that for general conditions, vendors, rentals and sub-developers shall be provided to properly support each progress payment. 9.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: (a) take the total of the Cost of the Work and allocate it to each line item in the approved schedule of values subject to the amount not exceeding the then percent completion of the Work for that individual line item; and (b) subtract the aggregate of previous payments made by the City. 9.1.7 Unless otherwise provided in this Agreement, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved, in advance and in writing by the Contract Administrator, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by Developer and Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.1.8 The City may withhold payment of an-application for payment to such extent as may be reasonably necessary to protect itself from loss on account of Defective Work. The City shall only withhold payment of the portion of an application for payment for which it claims Defective Work. The City shall provide Developer with written notice of its rejection of an application for payment (or a portion thereof) as a result of Defective Work within ten (10) days after its receipt of such application for payment, failing which, the City shall be deemed to MIAMI 4065935.6 80574/43097 20 have waived its right to withhold payment of such application for payment on account of Defective Work. Such written notice shall include the City's basis for claiming Defective Work. If Developer disputes the City's claim of Defective Work, such dispute shall be resolved pursuant to the terms of Article 11 in this Agreement. ARTICLE 10 ACCEPTANCE AND FINAL PAYMENT 10.1 Upon receipt of written notice from Developer that the Work is ready for final inspection and acceptance, Consultant and Contract Administrator shall, within ten (10) days, make an inspection thereof. If Consultant and Contract Administrator find the Work acceptable; that the requisite documents have been submitted and the requirements of the Contract Documents have been fully performed; and all conditions of the permits and regulatory agencies have been met, a final certificate of payment shall be issued by Consultant and approved by Contract Administrator, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance. 10.2 On or before issuance of the final certificate of payment, Developer shall deliver to Consultant the following, evidencing Final Completion: 10.2.1 A final waiver and release, duly executed by the Developer. 10.2.2 An affidavit listing the name, address and telephone number of the Contractor and of all subcontractors who have performed Work on the Project, with such subcontractors identified as to the trade involved for the Work, along with amounts paid to said Contractor and subcontractors in connection with the Project; 10.2.3 Final waiver and release, duly executed by the Contractor; 10.2.4 One (1) original set and one (1) copy set of the As-Built Drawings; 10.2.5 Copies of pertinent test results, Assignment of all manufacturer's warranties, guarantees, City's manuals to the City, bound in a form acceptable to the City; and 10.2.6 Unconditional consent of Contractor's and Developer's surety to final payment. 10.3 If, after the Work has been Substantially Completed, full completion thereof is materially delayed through no fault of Developer, and Consultant and Contract Administrator so certify, City shall, and without terminating this Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 10.4 Developer's acceptance of final payment by the City shall constitute a waiver of all claims by Developer against the City under this Agreement, except those previously made in MIAMI 4065935.6 80574/43097 21 strict accordance with the provisions of the Contract Documents and identified by Developer as unsettled at the time of acceptance of final payment. 10.5 Developer's final application for payment and the Consultant's final certificate for payment shall constitute a representation to the City by the Developer and the Consultant, respectively, that all conditions precedent to Developer's entitlement to final payment have been excused, waived or satisfied. 10.6 The making of final payment shall not constitute a waiver of claims by the City as against Contractor and Consultant for: (a) faulty or defective Work, (b) failure of the Work to be in strict accordance with the requirements of the Contract Documents, and (c) terms of all warranties required by the Contract Documents. ARTICLE 11 RESOLUTION OF DISPUTES 11.1 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto that Consultant shall first decide all questions, claims, difficulties and disputes of whatever nature which may arise relative to the Contract Documents and fulfillment of this Agreement as to the character, quality, amount and value of any Work done and materials furnished, or proposed to be done or furnished under or, by reason of, the Contract Documents, and Consultant's estimates and decisions upon all claims, questions, difficulties and disputes shall be conclusive subject to Developer or the City's objection to the extent provided in Section 11.2. Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of City and Developer shall be submitted to Consultant in writing within ten (10) days of the discovery of the occurrence. Unless a different period of time is set forth herein, Consultant shall notify Developer and the City in writing of the decision within ten (10) days from the date of the submission of the claim, question, difficulty or dispute, unless Consultant requires additional time to gather information or allow the parties to provide additional information. Any request for additional time shall extend the time of substantial completion as between City and Developer for an equal period of time. All nontechnical administrative disputes shall be reasonably determined by the Contract Administrator pursuant to the time periods provided herein. During the pendency of any dispute and after a determination thereof, Developer and City shall act in good faith to mitigate any potential damages including utilization of construction schedule changes and alternate means of construction. 11.2 In the event the determination of a dispute under this Article is unacceptable to either party hereto, the party objecting to the determination must notify the other party in writing within twenty-one (21) days of receipt of the written determination. The notice must state the basis of the objection and must be accompanied by a statement that any Contract Documents price adjustment claimed is the entire adjustment to which the objecting party has reason to believe it is entitled to as a result of the determination, if such amount is reasonably calculable at such time. Within sixty (60) days after receipt of written determination as provided in this section, the parties may participate in mediation to address all objections to any determinations hereunder and to attempt to avoid litigation. The mediator shall be mutually agreed upon by the parties. The mediation shall be non-binding. MIAMI 4065935.6 80574/43097 22 11.3 Pending final resolution of a claim, including mediation, unless otherwise agreed in writing, Developer and Contractor shall proceed diligently with performance of the Contract Documents and the City shall continue to make payments in accordance with the Contract Documents, subject to the terms of Article 9 in this Agreement. In no event shall Developer be required to make any payments for the Work other than the payments provided under Sections 8.4 and 52.1 in the Agreement and any other payments set forth in this Agreement that are expressly provided to be part of the Cost of the Work. 11.4 Any mediator used shall be certified in accordance with Florida law. Mediation will be conducted in Miami-Dade County. 11.5 The City and Developer shall not be required to submit to arbitration any claim or dispute arising out of, or in connection with, this Agreement unless the City and Developer hereafter agree in writing to arbitrate that particular dispute. During the pendency of any dispute, by mediation, litigation or arbitration (if mutually agreed), provided the City has paid all monies due on non-disputed items, under the pay applications, Developer and Contractor shall carry on the Work and maintain the Construction Schedule, without prejudice to any of their rights, notwithstanding the pendency of any such dispute resolution proceeding, unless otherwise agreed by the City and Contractor in writing. 11.6 In connection with any dispute or litigation arising out of this Agreement, the prevailing party shall be entitled to recover all of its reasonable attorneys' fees and costs incurred, including all reasonable attorneys' fees and costs for litigation in any bankruptcy proceedings and at all trial and appellate levels. 11.7 The Agreement shall be governed and construed in accordance with the laws of the State of Florida. The Developer and City submit to the jurisdiction and venue of the State and Federal Courts in and for Miami-Dade County, Florida and such courts shall have the authority upon proper proof to award compensatory and/or consequential damages, as may be appropriate. ARTICLE 12 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 13 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 14 [THIS ARTICLE LEFT INTENTIONALLY BLANK] MIAMI 4065935.6 80574/43097 23 ARTICLE 15 SECURITY Developer shall cause Contractor to protect the Work, stored products and construction equipment from theft and vandalism, and to protect the Project Site from entry by unauthorized persons. ARTICLE 16 INSPECTION OF PROJECT 16.1 The Contract Administrator or designee shall at all times have access to the Project, and Developer shall provide proper facilities for such access, and such access shall be in accordance with the visitor's rules. 16.1.1 Should the Contract Documents, instructions, any laws, ordinances, or any public authority require any Work for the Project to be specially tested or approved, Developer shall give to the Contract Administrator timely notice of readiness of the Work for inspection.-If the testing or approval is to be made by an authority other than City, timely notice shall be given of the date fixed for such testing. Inspections shall be made promptly, and, where practicable, at the source of supply. Within a reasonable time from execution of this Agreement, City shall provide a letter listing the areas of Work the City will inspect. If defined Work for the Project should be covered up without required inspection/approval, it must, if required by the Contract Administrator, be uncovered for examination and properly restored at Developer's expense. 16.1.2 Reexamination and retesting of any Work for the Project may be reasonably ordered by the Contract Administrator; and if so ordered, Developer shall cause such Work to be uncovered by Contractor. If such Work is found to be in accordance with the Contract Documents, the=City shall pay the cost of reexamination, retesting and replacement. If such Work is not in accordance with the Contract Documents, Developer shall cause Contractor to pay such cost. 16.2 The payment of any compensation, regardless of its character or form, or the giving of any gratuity or the granting of any valuable favor by Developer to any inspector other than its consultant, is forbidden, and any such act on the part of Developer will constitute a breach of this Agreement. ARTICLE 17 SUPERINTENDENCE AND SUPERVISION 17.1 The orders of the City are to be given through the Contract Administrator, whose instructions are to be strictly and promptly followed in every case, provided that they are in accordance with-this Agreement. Developer shall cause Contractor to keep on the Project during its progress a competent supervisor, and any necessary assistants. MIAMI 4065935.6 80574/43097 24 17.2 re Developer shall are, or cause its Contractor or other designated Contract p prepare, Administrator or Contract Administrator representative to prepare, on a daily basis, and keep on the Project site, a bound log setting forth at a minimum, for each day: the weather conditions and how any weather conditions affected progress of the Work, Work performed, equipment utilized for the Work, any idle equipment and reasons for idleness, visitors to the Project site, labor utilized for the Work, and any materials delivered to the Project Site. The daily bound log shall be available for inspection by the Contract Administrator or designee at all times during the Proj ect. 17.3 If Contractor or Consultant, in the course of the Project, finds any discrepancy between the Contract Documents and the physical conditions of the site, or any errors or omissions in the Contract Documents including the Plans and Specifications and notifies Developer of such discrepancy, it shall be a Developer duty to immediately inform the Contract Administrator, in writing; and Contract Administrator will promptly verify the same. 17.4 Developer shall 'coordinate, supervise and direct the Project competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the Contract Documents. Developer shall cause Contractor to be responsible for the means, methods, techniques, safety, sequences and procedures of construction. Developer shall cause Contractor to give efficient supervision to the Work, using Developer's and Contractor's best skill,attention, and judgment. ARTICLE 18 CITY'S RIGHT TO TERMINATE AGREEMENT 18.1 If Developer (a) fails to cause Contractor to begin the construction of the Project within the time specified, or (b) fails to cause Contractor to perform the Project with sufficient workers and equipment or with sufficient materials to insure the prompt completion of the Project, in accordance with the Contract Documents and schedules, within the Contract Time, or (c) fails to cause Contractor to perform the Work suitably and without defects, or (d) discontinues the prosecution of the Project, except for excused delays in accordance with this Agreement, or (e) becomes insolvent or be declared bankrupt, or commits any act of bankruptcy or insolvency, or (f) makes an assignment for the benefit of creditors, or (g) shall not carry on the Project in accordance with the Contract Documents, the City shall give notice in writing to Developer and the surety of such delay, neglect or default, specifying the same. If Developer, within a period of ten (10) days after such notice, shall not proceed to commence to rectify such complaint in accordance therewith and thereafter diligently pursue the resolution of such complaint, then the City may, upon written certificate from the Contract Administrator of the fact of such delay, neglect or default and Developer's failure to comply with such notice: (i) terminate the services of Developer under this Agreement, exclude Developer and Contractor from site and take the prosecution of the Project out of the hands of Developer and Contractor, as appropriate. In such case, Developer shall not be entitled to receive any further payment until the Project is finished. In addition, the City may (ii) enter into an agreement for the completion of the Project according to the terms and provisions of the Contract Documents or use such other methods as in its opinion shall be required for the completion of the Project in an acceptable manner. Developer hereby collaterally assigns its rights under the Contract Documents to the MIAMI 4065935.6 80574/43097 25 City so that upon termination of this Agreement by the City in accordance with the terms of this paragraph, the assignment of the Contract Documents shall automatically become effective. Notwithstanding the assignment of the Contract Documents automatically becoming effective, Developer agrees, upon request of the City, to execute such documentation as may be reasonably necessary in order to effectuate such assignment; and/or (iii) sue Developer for the damages, costs and charges incurred by the City which shall be deducted from any monies due or which may become due to said Developer Actions will be instituted to recover on the posted bonds. 18.2 Upon receipt of a notice of termination pursuant to Sections 18.1 above, Developer shall promptly discontinue all affected Work unless the notice of termination directs otherwise and deliver to the City within seven (7) days of termination all data, drawings, specifications, reports, estimates, summaries and such other information as may have been required by the Contract Documents whether completed or in process. Compensation shall be withheld until all documents are provided to the City pursuant to this Article. ARTICLE 19 DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE CONTRACT Should Contract Administrator fail to review and approve or state in writing reasons for non-approval of any application for payment within ten (10) days after it is presented, or if the City fails either to pay Developer within thirty (30) days after presentation of such application for payment to Contract Administrator, or to notify Developer in writing of any objection to the application for payment, then Developer may, give written notice to the City, through Contract Administrator, of such delay, neglect or default, specifying the same. If City or Contract Administrator (where applicable), within a period of seven (7) days after such notice shall not remedy the delay, neglect, or default upon which the notice is based, then Developer may stop Work or terminate this Agreement and recover from the City payment for all Work executed and reasonable expenses sustained therein. ARTICLE 20 "OR EQUAL" CLAUSE 20.1 Whenever a material, article or piece of equipment is identified in the Contract Documents including drawings (plans) and specifications by reference to manufacturers' or vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to establish a standard, and, unless it is followed by words indicating that "no substitution is permitted," any material, article, or equipment of other manufacturers and vendors which will perform or serve the requirements of the general design will be considered equally acceptable provided the material, article or equipment so proposed is, in the opinion of the Consultant and Contract Administrator: 20.1.1 At least equal in quality, durability, appearance, strength and design; 20.1.2 Performs at least equally the function imposed in the general design for the Project; MIAMI 4065935.6 80574/43097 26 20.1.3 Conforms substantially, even with deviations, to the detailed requirements for the items as indicated by the Contract Documents; and 20.1.4 Carries the same guaranty or warranty of the specified equipment. All substitution requests will be made via written request which shall be attached to a Shop Drawing and/or Change Order which shall be attached to a detailed description of the specified item and a detailed description of the proposed substitution. A comparison letter itemizing all deviations from specified items.must be included for the Consultant and Contract Administrator to properly evaluate substitution. Failure to provide the deviation comparison sheet shall automatically deny the request. Any changes, inclusive of design changes, made necessary to accommodate substituted equipment under this paragraph shall be at the expense of Developer, Contractor or subcontractor responsible for the Work item. 20.2 Contract Administrator's prior written consent will be required as to acceptability, and no substitute will be ordered, installed or utilized without Consultant and Contract Administrator's prior written acceptance which will be evidenced by either a Change Order or an accepted Shop Drawing. City may require Developer to cause Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. ARTICLE 21 PLANS AND SPECIFICATIONS All plans, general and detail, are to be deemed a part of this Agreement, and the Plans and Specifications are to be considered together, and are intended to be mutually complementary, so that any Work shown on the Plans, though not specified in the Specifications, and any Work specified in the Specifications though not shown on the Plans, is to be executed by Developer as part of this Agreement. Figured dimensions are to prevail over scale. All things which in the opinion of the Contract Administrator may reasonably be inferred from this Agreement and Plans as developed by Consultant and mutually agreed upon and approved by Developer and City for the Project, are to be executed by Developer under the terms of the Agreement; and the Consultant shall determine whether the detailed Plans conform to the Contract Documents, except as may be otherwise determined by the Contract Administrator. In the event the Work requested under this Section expands the scope of the Project, Developer may seek a Change Order pursuant to Article 3 8. ARTICLE 22 CONTRACTOR TO CHECK DRAWINGS AND DATA Developer shall cause Contractor to take measurements and verify all dimensions, conditions, quantities and details shown on the drawings, schedules, or other data. Failure to discover or correct errors, conflicts or discrepancies shall not relieve Contractor of full MIAMI 4065935.6 80574/43097 27 responsibility for unsatisfactory Work, faulty construction, or improper operation resulting therefrom nor from rectifying such condition at Contractor's own expense. Contractor will not be allowed to take advantage of any error or omissions. ARTICLE 23 DIFFERING SITE CONDITIONS In the event that during the course of the Work Contractor encounters subsurface or concealed conditions at the Project Site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in Work of the character called for in the Contract Documents, or unknown physical conditions of the Project Site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in Work of the character called for in the Contract Documents and Contractor notifies Developer of such conditions, Developer shall notify or cause Contractor, without disturbing the conditions and before performing any Work affected by such conditions, to, within twenty-four (24) hours of their discovery, notify Contract Administrator and Consultant in writing of the existence of the aforesaid conditions. Consultant and Contract Administrator shall, within two (2) business days after receipt of Contractor's and/or Developer's written notice, investigate the site conditions so identified. If, in the opinion of Consultant and Contract Administrator, the conditions do materially so differ and cause an increase or decrease in Developer's cost of, or the time required for, the performance of any part of the Work, whether or not charged as a result of the conditions, Consultant and Contract Administrator shall recommend an equitable adjustment to the Contract Sum, or the Contract Time, or both. If City and Developer cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be referred for determination in accordance with the provisions of Article 11. Should Consultant and Contract Administrator determine that the conditions of the Project Site are not so materially different to justify a change in the terms of the Contract Documents, Consultant shall so notify City and Developer in writing, stating the reasons, and such determination shall be final and binding upon the parties hereto. No request by Developer for an equitable adjustment to the Contract Sum and/or Contract Time under this provision shall be allowed unless Developer has given written notice. No request for an equitable adjustment or change to the Contract Sum or Contract Time for differing site conditions shall be allowed if made after the date certified by Consultant as the date of Substantial Completion. ARTICLE 24 WARRANTY Developer shall require that Contractor warrant:to the City in the Contract Documents that all materials and equipment furnished for the Project will be new unless otherwise specified and that all Work for the Project will be of good quality, free from faults and defects and in conformance with the Contract Documents. The standard of quality shall be at least that employed by similarly qualified Contractor's that are duly qualified and licensed to perform MIAMI 4065935.6 80574/43097 28 similar projects. If materials or equipment is improperly stored and becomes altered as a result of such improper storage, Developer shall cause Contractor to replace said materials with new materials at no additional cost. Developer shall cause Contractor to be responsible for proper storage and safeguarding of all materials. If required by the Contract Administrator, Developer shall cause Contractor to furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranty requirements set forth. in the Contract Documents as herein defined shall govern warranty terms and conditions for all warranty items expressed or implied. The Contractor's warranty period under this Article shall be one (1) year from the date of Substantial Completion of each portion of the Project. However, this Section shall not abridge the times or impede the rights and remedies afforded the City against other entities or persons under this Agreement, or by law. ARTICLE 25 SUPPLEMENTARY DRAWINGS 25.1 When, in the opinion of Consultant, it becomes necessary to explain more fully the Work to be done, or to illustrate the Project further to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by the Consultant. 25.2 The supplementary drawings shall be binding upon Developer with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the estimated quantities of Work, appropriate adjustments shall be made pursuant to an approved Change Order in accordance with Article 8 herein. ARTICLE 26 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 27 GENERAL WORKMANSHIP 27.1 Articles, materials, and equipment specified or shown on drawings shall be new and shall be applied, installed, connected, erected, used, cleaned, and conditioned for proper forming, as per the manufacturer's directions. Contractor shall, if required, furnish satisfactory evidence as to kind and quality of the materials. Should materials arrive to the jobsite new and be improperly stored and deteriorate from new condition, the materials shall be replaced at no additional cost to City. 27.2 Developer shall cause Contractor to apply, install, connect, and erect manufactured items or materials according to recommendations of manufacturer when such recommendations are not in conflict with the Contract Documents. -If there is conflict between MIAMI 4065935.6 80574/43097 29 manufacturer recommendations and the Contract Documents, Consultant and Contract Administrator shall be notified and participate in the corrective actions. ARTICLE 28 DEFECTIVE WORK 28.1 Consultant and/or Contract Administrator shall have the authority to reject or disapprove Work for the Project which Consultant and/or Contract Administrator reasonably finds to be defective. If required by Consultant and/or Contract Administrator, Developer shall cause Contractor to promptly either, as directed, correct all Defective Work or remove it from the Project site and replace it with non-Defective Work. In the event it is determined that City was correct in its order, Developer and/or Contractor shall bear. all costs of such removal or correction. 28.2 If, within one (1) year after Substantial Completion, any Work is found to be defective or not in accordance with the Contract Documents, Contractor shall correct it promptly in accordance with the its warranties and without cost to City after receipt of written notice from City to do so, unless City has given Contractor a written acceptance of such conditions. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Contractor might have under the applicable State law. 28.3 Prior to Substantial Completion, should Developer fail to cause Contractor to remove-or correct any Defective Work performed for the Project or to make any necessary repairs in an acceptable manner and in accordance with the requirements of this Agreement within a reasonable time, indicated in writing, City shall have the authority to cause the unacceptable or Defective Work to be removed or corrected, or make such repairs as may be reasonably necessary to be made at Developer's or Contractor's expense. Continued failure or refusal on the part of Developer to cause Contractor to make any or all necessary repairs promptly, fully, and in acceptable manner shall be sufficient cause for City to declare this Agreement forfeited, in which case City, at its option, may purchase materials, tools, and equipment and employ labor or may contract with any other individual, firm or corporation, or may proceed with its own forces to perform the Work. All costs and expenses reasonably incurred thereby shall be charged against Developer or Contractor. 28.4 Failure to reject any Defective Work or material shall not in any way prevent later rejection when such defect is discovered or obligate City to final acceptance. 28.5 Upon Final Completion, City agrees to look solely to the Contractor, Consultant or both, but not the Developer, to perform any and all to repair or correct any and all Work considered or determined by the City to be non-conforming or defective or otherwise in breach of any warranty. 28.6 Upon Final Completion, the City shall become solely responsible and liable for the operation, security, maintenance, heat, utilities, damage to the Work, and insurance. The failure to include any items of corrective Work on such list does not alter the responsibility of Contractor to complete all of the Work in accordance with the Contract Documents. Warranties MIAMI 4065935.6 80574/43097 30 from Contractor required by the Contract Documents shall commence on the date of Final Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Completion. ARTICLE 29 SUBCONTRACTS 29.1 Until Final Completion, Developer shall be fully responsible for the performance of its agents and employees, and Contractor and Consultant under the terms of this Agreement. Until Final Completion, nothing in the Contract Documents shall create any contractual relationship between any subcontractor and City or any obligation on the part of City to pay or to see the payment of any monies due any subcontractor. City or Developer may furnish to any Contractor, subcontractor, subconsultant evidence of amounts paid to Developer on account of specific Work performed. 29.2 Developer agrees to bind specifically Contractor and require that Contractor bind every subcontractor and subconsultant to the applicable terms and conditions of the Contract Documents for the benefit of City. 29.3 Upon the occurrence of Final Completion and thereafter, as a third-party beneficiary of the Contract Documents and all warranties thereunder, City shall be deemed to be in a direct contractual relationship with the Contractor such that the Contractor shall be liable to the City to the same extent that Contractor is liable and responsible to the Developer for the acts and omissions of itself and all of its subcontractors, sub-subcontractors, materialman and laborers employed by the Contractor. ARTICLE 30 ENVIRONMENTAL MATTERS The City is responsible as a Cost of the Work pursuant to an approved Change Order for any required environmental remediation within the Project Site. Developer shall be responsible as a Cost of the Work for conducting environmental due diligence prior to construction to.assess the environmental site conditions and subsequent remediation needs, if applicable. Notwithstanding the foregoing, if the cost of such remediation is, in the sole and reasonable business judgment of the City, economically unfeasible, then the City shall have the right to terminate this Agreement upon written notice to Developer, in which case both parties shall be released from any further liability under this Agreement. ARTICLE 31 USE OF COMPLETED PORTIONS 31.1 City shall have the right at its sole option to take possession of and use any completed or partially completed portions of the Project. Such possession and use shall not be deemed an acceptance of any of the Work not completed in accordance with the Contract MIAMI 4065935.6 80574/43097 31 Documents. If such possession and use increases the cost of or delays the Work, Developer shall be entitled to reasonable extra compensation, or reasonable extension of time or both, as recommended by Consultant and approved by City, as a Change Order in accordance with Article 8 herein. 31.2 In the event City takes possession of any completed or partially completed portions of the Project, the following shall occur: 31.2.1 City shall give notice to Developer in writing at least thirty (30) days prior to City's intended occupancy of a designated area. 31.2.2 Developer shall complete to the point of Substantial Completion the designated area and request inspection and issuance of a Certificate of Substantial Completion from Consultant. 31.2.3 Upon Consultant's issuance of a Certificate of Substantial Completion, City will assume full responsibility for maintenance, utilities, subsequent damages of City and public, adjustment of insurance coverage's and start of warranty for the occupied area. 31.2.4 Developer shall complete all items noted on the Certificate of Substantial Completion within the time specified by Consultant on the Certificate of Substantial Completion, as soon as possible and request final inspection and final acceptance of the portion of the Work occupied. Upon completion of final inspection and receipt of an application for final payment, Consultant shall issue a final certificate of payment relative to the occupied area. 31.2.5 If City finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior to a time mutually agreed upon by City and Developer and to which the insurance company or companies providing the property insurance have consented by endorsement to the policy or policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or lapsed on account of such partial occupancy or use. Consent of Developer and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. ARTICLE 32 CONSTRUCTION AREA 32.1 Developer and Contractor shall use areas approved by the Contract Administrator for deliveries and personnel. 32.2 To provide for maximum safety and security, Contractor shall erect and maintain all necessary barricades, and any other temporary walls and structures as required, and boarding or fencing to protect life and property during the period of construction. 32.3 Construction staging for the Project will be confined to the Project Site, thereby not impacting adjacent commercial areas.- Developer shall develop a plan for construction staging in order for access to the adjacent commercial areas to be continually maintained with MIAMI 4065935.6 80574/43097 32 only minimal disruptions. Such plan shall be subject to City's prior approval which shall not be unreasonably withheld, conditioned or delayed. ARTICLE 33 LANDS FOR WORK City shall provide as indicated in the Contract Documents, the lands upon which the Project is to be performed, rights-of-way and easements for access thereto and such other lands as are designated for the use of Developer. No claim for damages or other claim other than for an increase in the Contract Sum or Contract Time shall be made or asserted against City by reason of any delay arising.as a result of any failure of City to provide such lands on the date needed by Developer. The provisions of Article 41 shall apply herein. ARTICLE 34 LEGAL RESTRICTIONS Developer shall conform to all applicable laws, regulations, or ordinances with regard to labor employed, hours of Work and Developer's general operations. ARTICLE 35 DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES 35.1 The City shall provide Developer with the documents, including, without limitation, a sonar study of all existing underground facilities, equipment and utilities within the Project Site, identified on the attached Exhibit "G" (collectively, the "Documents") within ten (10) days after the date of this Agreement. 35.2 The City shall, prior to commencement of the Work, identify to Developer any and all existing utilities and other underground facilities, equipment, or utilities at City's sole cost and expense. The City, as part of the Contract Sum, will be solely responsible for relocating any underground utilities now existing on the Project Site. Developer and Contractor shall be responsible to preserve all existing utilities identified in the Documents. If a utility conflict is encountered which was not identified in the Documents, Consultant or Developer shall be responsible for giving sufficient notice to the owners of the utilities so that the City may make the necessary adjustments. Any time delay or cost incurred will be the responsibility of the City and shall increase the Contract Time and Contract Sum through an approved Change Order. City, as a Cost of the Work through a Change Order, shall relocate any underground utilities existing as of the date of this Agreement on the Project Site, if necessary, that were not identified by City to Developer in the Documents. 35.3 Developer shall cause Contractor to exercise care and take all precautions during excavation and construction operations to prevent damage to any existing facilities, equipment, or utilities. Any damage caused by Contractor shall be reported immediately to the Contract Administrator and such Work shall be repaired and/or replaced by Contractor in a manner MIAMI 4065935.6 80574/43097 33 approved by City. In the event Contractor damages underground facilities, equipment, or utilities that were identified by City in the Documents, then all costs to repair and/or replace any damage to existing facilities, equipment, or utilities, shall be the sole responsibility of Contractor, and such repair or replacement shall be performed expeditiously without cost to City. In the event Contractor damages underground facilities, equipment, or utilities that were not identified by City in the Documents, then all costs to repair and/or replace any damage to existing facilities, equipment, or utilities, shall be the sole.responsibility of City, and such repair or replacement shall be performed expeditiously at the expense of the City as a Cost of the Work through a Change Order. 35.4 Developer shall cause Contractor to provide that type of required protection for finished Work at all times and protect adjacent Work during cleaning operations, and make good any damage resulting from neglect of this precaution. 35.5 Protection of Work shall include protecting of Work that is factory finished, during transportation, storage, during and after installation. Where applicable and as required, Developer shall cause Contractor to close off spaces of areas where certain Work has been completed to protect it from any damages caused by others during their operations. 35.6 To all applicable sections where preparatory Work is part of Work thereon, Developer shall cause Contractor to carefully examine surfaces over which finished Work is to be installed, laid or applied, before commencing with the Work. Developer shall not allow Contractor to proceed with said Work until defective surfaces on which Work is to be applied are corrected satisfactorily to the Contract Administrator. Commencement of Work shall be considered acceptance of surfaces and conditions. ARTICLE 36 CONTINUING THE WORK Provided City is current in its payments under this Agreement, Developer and Contractor shall carry on the Work and adhere to the Construction Schedule during all disputes or disagreements with City, including disputes or disagreements concerning a request for a Change Order, a request for a change in the Contract Sum or Contract Time. Provided City is current in its payments under this. Agreement, the Work shall not be delayed or postponed pending resolution of any disputes or disagreements. ARTICLE 37 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS 37.1 The Contract Administrator shall have the PP right to approve and issue Field Orders g (subject to Developer's approval) setting forth written interpretations of the intent of the Contract Documents and ordering minor changes in Contract Documents execution, providing the Field Order involves no change in the Contract Sum or the Contract Time. MIAMI 4065935.6 80574/43097 34 37.2 The Contract Administrator shall have the right to approve and issue to Developer reasonable supplemental instructions to Developer setting forth written orders, instructions, or interpretations concerning the Agreement or its performance, provided they make no material changes in Contract Documents execution and involve no change in the Contract Sum or the Contract Time. ARTICLE 38 CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK) 38.1 Changes in the quantity or character of Work within the scope of this Project which are not properly the subject of Field Orders or supplemental instructions, to include all changes resulting in changes in the Contract Sum or the Contract Time, shall be authorized only by Change Orders approved by the Contract Administrator and Developer. 38.2 Developer shall not start Work on any alteration requiring an increase in price or extension of time for completion until a Change Order setting forth the adjustments is approved in writing by the Contract Administrator and Developer, except for the provisions of Section 38.3, which governs disputed Change Order items. 38.3 In the event satisfactory adjustment cannot be reached for any item requiring a Change Order, the City reserves the right, at its own option, to either terminate the Agreement as it applies solely to the items in question and make such arrangements as may be deemed necessary to complete the item in question. Provided, however, if the arrangements made by the City to complete the item in question would delay Final Completion of the Work or result in additional expense to Developer, then the City shall either (1) issue a Change Order for such additional cost or time extension or (2) postpone the City's proposed work until after Final Completion of the Work or (3) submit the matter in dispute for resolution as set.forth in Article 11 herein. During the pendency of the dispute resolution, Developer shall proceed with the Work set forth within the Change Order on a time and materials basis, which Developer shall adequately document pending final resolution of such dispute(s). 38.4 On approval of any Change Order increasing the price, Developer shall direct Contractor to ensure that the applicable Performance and Payment Bonds, to the extent applicable under the provisions of Article 51 hereof, are each increased so that it reflects the total amount of the Project as increased. 38.5 Proposed Change Orders shall be prepared by the Contractor and submitted by Developer to Contract Administrator for approval. ARTICLE 39 VALUE OF CHANGE ORDER WORK In the event the City initiates a Change Order for Work to be performed or eliminated from the Contract Documents by Developer, Developer shall use its best efforts to negotiate with the Contractor for the most cost effective pricing with respect to a determination of the change in MIAMI 4065935.6 80574/43097 35 the Contract Sum, if any, or the amount of the time extension or reduction, if any, necessitated by the Change Order. The cost quoted by the Contractor for Change Orders shall be within standard industry rates and shall be submitted with a breakdown of labor, material, overhead and profit subtotal amounts. ; ARTICLE 40 CHANGE OF CONTRACT TIME OR CONTRACT SLIM 40.1 The Contract Time set forth in Article 6 or the Contract Sum may only be changed by a Change Order. Any claim for an extension of the Contract Time or for an increase in the Contract Sum shall be based on written notice delivered by the party making the claim to the Contract Administrator promptly (but in no event later than forty-five (45) days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the extent of the claim with supporting data shall be delivered within such forty-five (45) day period (unless Contract Administrator allows, in writing, an additional period of time to ascertain more accurate data in support of the claim). All claims for adjustment in the Contract Time or for an increase in the' Contract Sum shall be decided by the Contract Administrator pursuant to the terms of Article 11 in this Agreement. No claim for an adjustment in the Contract Time or for an increase in the Contract Sum will be valid if not submitted in strict accordance with the requirements of this Article. 40.2 The Contract Time will be extended in an amount equal to time lost due to days beyond the control of and through no fault or negligence of Developer if a claim is made therefore as provided herein. Such delays shall include, but not be limited to, acts or neglect by City, or by any employee of City, or any separate Contractor or consultant employed by City, fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God. ARTICLE 41 NO DAMAGES FOR DELAY NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM SHALL BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS. DEVELOPER SHALL NOT BE ENTITLED TO PAYMENT OF COMPENSATION OF ANY KIND FROM THE CITY FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER COSTS, EXPENSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF ACCELERATION OR INEFFICIENCY, RESULTING FROM ANY DELAYS, EXCEPT IN THE EVENT THAT SUCH DELAYS ARE DUE TO FRAUD, BAD FAITH, ACTIVE INTERFERENCE OR THE FAILURE TO TIMELY ACT BY THE CITY. OTHERWISE, DEVELOPER SHALL BE ENTITLED ONLY TO EXTENSIONS OF THE CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM AS ITS SOLE AND EXCLUSIVE REMEDY MIAMI 4065935.6 80574/43097 36 FOR SUCH DELAYS. DEVELOPER SHALL SPECIFICALLY INCLUDE THIS PROVISION IN ITS AGREEMENT WITH CONTRACTOR. ARTICLE 42 SUBSTANTIAL COMPLETION When Developer considers that the Work, or a portion thereof designated by the City, pursuant to Article 31 hereof, has reached Substantial Completion, Developer shall so notify Contract Administrator and Consultant in writing. Contract Administrator and Consultant shall then promptly inspect the Work. When Contract Administrator and Consultant, on the basis of such an inspection, determine that the Work or designated portion thereof is Substantially Complete, Consultant will then prepare a Certificate of Substantial Completion which shall establish the Date of Substantial Completion and shall list all Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The Certificate of Substantial Completion shall be subject to Contract Administrator's reasonable approval and shall be submitted to City through the Contract Administrator and Developer for their written acceptance of the responsibilities assigned to them in such Certificate. ARTICLE 43 SHOP DRAWINGS AND SCHEDULE OF VALUES 43.1 Developer shall submit Shop Drawings from Contractor for all equipment, apparatus, machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The purpose of a Shop Drawing is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the item and evidence of its compliance or noncompliance with the Contract Documents. 43.2 Developer shall promptly request of Contractor Shop Drawings from the various manufacturers, fabricators, and suppliers. 43.3 To the extent Shop Drawings are required by the Consultant or industry custom and standards would contemplate the preparation of Shop Drawings for certain items of the Work, subcontractors and/or materialmen shall be required by contract to submit Shop Drawings. Consultant shall thoroughly review and check the Shop Drawings and each and every copy shall show Consultant's approval thereon. 43.4 If the Shop Drawings show or indicate departures from the Contract Documents requirements, Developer shall cause Contractor to make specific mention thereof in its Shop Drawing submittal and a separate letter. Failure to point out such departures shall not relieve Contractor from its responsibility to comply with the Contract Documents. Contract Administrator shall determine acceptability of change and in considering said change, may require data, technical comparisons, cost comparisons, quality comparisons and/or calculations to determine the equality of deviations. Contract Administrator is not obligated to accept deviations. MIAMI 4065935.6 80574/43097 37 43.5 No Work called for by Shop Drawings shall be done until the said Drawings have been furnished to and accepted by the Contract Administrator or his designee. Contract Administrator shall respond to Shop Drawings pre-approved by Consultant with objections or acceptance within ten (10) days of receipt. Acceptance is for design intent only and shall not relieve Contractor and Consultant from responsibility for fit, form, function, quantity or for errors or omissions of any sort on the Shop Drawings. 43.6 No acceptance will be given to partial submittal of Shop Drawings for items which interconnect and/or are interdependent. It is Developer's responsibility to assemble the Shop Drawings prepared by Contractor for all such interconnecting and/or independent items, check them and then make one submittal to the Contract Administrator along with Consultant's comments as to compliance, noncompliance, or features requiring special attention. 43.7 If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. Catalog sheet with multiple options shall be highlighted to depict specific pertinent data including options. 43.8 Developer shall submit to Contract Administrator six (6) copies. Resubmissions of Shop Drawings shall be made in the same quantity until final acceptance is obtained. 43.9 Contract Administrator's acceptance of the Shop Drawings as approved by Consultant will be for general compliance with the plans and specifications design intent and shall not relieve Contractor of responsibility for the accuracy of such Drawings, nor for the proper fittings and construction of the Work, nor for the furnishing of the materials or Work required by the Contract Documents and not indicated on the Drawings. 43.10 Developer shall keep one set of Shop Drawings marked with the Contract Administrator's acceptance at the Project site at all times. 43.11 At least thirty (30) days prior to the commencement of construction, the Developer shall submit a schedule of values to the Contract Administrator. Developer shall submit to the Contract Administrator a separate schedule of values for demolition, abatement, and site Work thirty (30) days prior to commencing such portion of the Work. The schedule will be typed on 8-1/2" x 11" white paper listing: Title of pro)ect, location, proj ect number, architect, Contractor, Contract Documents designation, and date of submission. The schedule shall list the installed value of the component parts of the Work in sufficient detail to serve as a basis for computing values for progress payments during the construction. The table of contents of the specifications shall establish the format for listing the component items. Each line item will be identified by the number and title of the respective major section of the specifications. For each line item, Developer shall list the sub-values of major products or operations under the item. For any items for which progress payments will be requested for stored materials, the value will be broken down with: 43.11.1 The cost of materials delivered, unloaded, properly stored and safeguarded, with taxes paid; and MIAMI 4065935.6 80574/43097 38 43.11.2 The total installed value. ARTICLE 44 FIELD ENGINEERING 44.1 The Developer shall provide as a Cost of the Work, the engagement of Consultants for field engineering services required for the Project. This field engineering services shall include the following elements: 44.1.1 Survey Work required in execution of the Project. 44.1.2 Civil, structural or other professional engineering services specified, or required to execute the Contractor's construction.methods. 44.2 The survey completed by the survey Consultant will identify the qualified engineer or registered land surveyor, acceptable to the City, and it shall be retained by the Developer at the outset of this Project. 44.3 The survey will locate and protect control points prior to starting site Work, and will preserve all permanent reference points during construction. 44.3.1 No changes or relocations will be made without prior written notice to the Contract Administrator. i 44.3.2 A report shall be made to the Contract Administrator when any reference point is lost or destroyed, or requires relocation because of necessary changes in grades or locations. 44.3.3 The surveyor shall be required to replace Project control points which may be lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as required by state law. 44.3.4 Replacements shall be established based upon original survey control. ARTICLE 45 FIELD LAYOUT OF THE WORD AND RECORD DRAWINGS 45.1 The entire responsibility for establishing and maintaining a line and grade in the field lies with Contractor. Contractor shall maintain an accurate and precise record of the location and elevation of all pipe lines, conduits, structures, underground utility access portals, handholds, fittings and the like and shall deliver these records in good order to the Contract Administrator as the Work is completed. These records shall serve as a basis for "record" drawings. The cost of all such field layout and recording Work is included in the prices bid for the appropriate items. MIAMI 4065935.6 80574/43097 39 I 45.2 Contractor shall maintain in a safe place at the site one record copy of all Drawings (Plans), Specifications, Addenda, written amendments, Change Orders and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings will be available to Contract Administrator for reference. Upon completion of the Project, these record documents, samples and Shop Drawings shall be delivered to Contract Administrator. 45.3 At the completion of the Project, the Contractor shall turn over to the City a set of reproducible drawings (Mylars) and a complete set of all drawings in the latest version of the AutoCAD format on floppy disk not compressed which accurately reflect the "as built" conditions of the new facility. All changes made to the construction documents, either as clarifications or as changes, will be reflected in the plans. The changes shall be submitted on Mylar at least monthly to the Contract Administrator. These "as built" drawings on Mylar and the latest version of the AutoCAD format media must be delivered and found to be acceptable prior to final payments. ARTICLE 46 SAFETY AND PROTECTION 46.1 Developer shall require Contractor to be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. Developer shall require Contractor to take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 46.1.1 All employees on the Project and other persons who may be affected thereby; 46.1.2 All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and 46.1.3 Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 46.2 Developer shall use reasonable efforts to cause Contractor to (a) 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 (b) erect and maintain all necessary safeguards for such safety and protection. Developer shall notify owners of adjacent property and utilities when prosecution of the Work may affect them. All damage, injury or loss to any property referred to in Sections 46.1.2 and 46.1.3 above, caused directly or indirectly, in whole or in part, by Developer or Contractor, any subcontractor or consultant or anyone directly or indirectly employed by any of them or anyone for whose acts any of them- may be liable, shall be remedied by the responsible party; however, Developer and/or Contractor shall not be liable for injury or damage caused by City, its employees, consultants or its separate Contractors. Developer's and Contractor's duties and responsibilities MIAMI 4065935.6 80574/43097 40 for the safety and protection of the Project shall continue until such time as all the Project is completed and the Contract Administrator has issued a notice to Developer that the Project is acceptable except as otherwise provided in Article 28. 46.3 Contractor shall designate a responsible member of its organization at the Project site whose duty shall be the prevention of accidents. This person shall be Contractor's project representative unless otherwise designated in writing by Developer to City. ARTICLE 47 PAYMENT OF TESTS BY DEVELOPER Except when otherwise specified in the Contract Documents or this Agreement, the expense of.all tests and test reports shall be borne by Developer.. ARTICLE 48 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 49 CLEANING UP AND REMOVAL OF EQUIPMENT 49.1 Developer shall cause Contractor at all times keep the Project site free from accumulation of waste materials or rubbish caused by Contractor's operations. At the,completion of the Project, Developer shall cause Contractor to remove all of its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Developer fails to cause Contractor to clean up at the completion of the Project, City may do so; and the reasonable cost thereof shall be charged to Developer or Contractor. 49.2 In case of termination of this Agreement before completion for any cause whatever, Developer, if notified to do so by City, shall cause Contractor to promptly remove any part or all of Contractor's equipment and supplies from the property of City, failing which City shall have the right to remove such equipment and supplies at the expense of Developer or Contractor. ARTICLE 50 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 51 BONDS AND INSURANCE 51.1 Developer shall cause Contractor to furnish upon the execution of the construction contract with Contractor, a performance bond and payment bond of the form and containing all-the provisions set forth in this Section. Payment and performance bonds shall be MIAMI 4065935.6 80574/43097 . 41 in the form of dual obligee bonds from the Contractor in the amount of the Guaranteed Maximum Price, naming the City and Developer as dual obligees. 51.2 The bonds shall be in the amount of one hundred percent (100%) of the Contract Sum guaranteeing to City the completion and performance of the. Project covered in this Agreement as well as full payment of all suppliers, material persons, laborers, or subcontractors employed pursuant to this Project. Such bonds shall be with a surety company which is qualified pursuant to Section 51.4. 51.3 Such bonds shall continue in effect for one year after completion and acceptance of the Project with liability equal to one hundred percent (100%) of the Contract Sum, or an additional bond shall be conditioned that Developer will, upon notification by City, correct any defective or faulty Work or materials which appear within one year after completion of the Work. 51.4 The surety company shall have at least the following minimum ratings in the latest revision of Best's Insurance Report: Amount of Bond Ratings Category 500,001 to 1,02000 B+ Class I 1,020,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class III 55000,001 to 10, 0005 000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class VII 51.5 Indemnification Of City 51.5.1 The construction contract between Developer and Contractor and the architect's agreement between Developer and Consultant shall provide that Contractor or Consultant (as applicable) 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 Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or employees connected with the Project; or by or in consequence of any negligence of Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or employees (excluding negligence of City), in connection with the construction activities of Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or employees connected with the Project; or by use of any improper materials or by or on account of any act, error or omission of Contractor or Consultant (as applicable) or any subcontractor, subconsultants, agents, servants or employees, except to the extent caused by City. The construction contract between Developer and Contractor and the architect's agreement between Developer and Consultant shall further provide that Contractor or Consultant (as applicable) shall indemnify and save harmless City (a) against any claims or liability arising MIAMI 4065935.6 80574/43097 42 from or based upon the violation of any federal, State, County or City laws, bylaws, ordinances or regulations by Contractor, its subcontractors, agents, servants or employees (excluding negligence of City); and (b) from all such claims and fees, and from any and all suits and actions of every name and description that may be brought against City on account of any claims, fees, royalties, or costs for any invention or patent, and from any and all suits and actions that may be brought against City for the infringement of any and all patents or patent rights claimed by any person, firm, or corporation. 51.5.2 Developer shall 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 negligent misconduct of Developer and for which City, its agents, servants or employees, are alleged to be liable. 51.5.3 The indemnification provided above shall obligate Contractor, Consultant or Developer (as applicable) 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 the operations and activities under this Agreement whether the construction operations be performed by Developer, Contractor, Consultant, its subcontractors, its subconsultants, or by anyone directly or indirectly employed by any of the above. 51.6 Insurance. Developer shall as a Cost of the Work provide, or cause to be provided, and maintain, or cause to be maintained, in force at all times during the Project, such insurance, including 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. 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 the Comprehensive General Liability Insurance Policy hereinafter described. 51.6.1 Professional Liability Insurance to be carried by Consultant with limits of liability provided by such policy not less than One Million Dollars ($1,000,000.00) each claim to assure City the indemnification specified in Section 51.5. Such policy may carry a commercially reasonable deductible, not to exceed Fifty Thousand Dollars ($50,000.00) for each claim. The Certificate of Insurance for Professional Liability Insurance shall reference the applicable deductible and the Project. 51.6.2 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 $1,000,000.00 each accident. 51:6.3 Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and MIAMI 4065935.6 80574/43097 43 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 and must include: (i) Premises and/or Operations; (ii) Independent Contractors; (iii) Products and/or Completed Operations; (iv) The Developer shall cause Contractor to maintain in force until at least three (3) years after Final Completion of the Project coverage for Products and Completed Operations, including Broad Form Property Damage; (v) Explosion, Collapse and Underground Coverages; (vi) Broad Form Property Damage; (vii) Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement; (viii) Personal Injury Coverage with Employees and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability; and (ix) Notice of Cancellation and/or Restriction—The policy(ies) must be endorsed to provide the City with thirty (30) days notice of cancellation and/or restriction. 51.6.4 Business Automobile Liability with minimum limits of One Million Dollars ($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 Business Automobile Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: (i) Owned vehicles; and (ii) Non-owned and hired vehicles. 51.6.5 Notice of Cancellation, Expiration and/or Restriction: The policy(ies) must be endorsed to provide the City with thirty (30) days notice of cancellation, expiration and/or restriction, to the attention of the Risk Manager, 1700 Convention Center Drive, Miami Beach, Florida 33139. 51.6.6 Developer shall furnish to the Contract Administrator Certificate(s) of Insurance evidencing the insurance coverages required herein within ten (10) days after execution of the construction contract. Such certificate(s) shall reference this Agreement. City reserves the right to require a certified copy of such policies upon request. All certificates shall MIAMI 4065935.6 80574/43097 44 state that City shall be given thirty (30) days' prior written notice of cancellation and/or expiration. 51.6.7 Developer shall provide to City a Certificate of Insurance or a co of p p Y copy all insurance policies required under this Article. The City's Risk Manager reserves the right to require certified copies if requested. Endorsements and certifications shall state City is to be given thirty (3 0) days' written notice prior to expiration or cancellation of the policy. ARTICLE 52 MISCELLANEOUS 52.1 Art in Public Places (AIPP). Pursuant to Chapter 82 of the Miami Beach City Code, the City has determined that an AIPP contribution does not apply to the proposed Project because the Improvements are defined as streetscape beautification projects, which include, but are not limited to, one or all of the following elements: resurfacing, new curbs, gutters, pavers, sidewalks, landscaping, lighting, bus shelters, bus benches, street furniture and signage. 52.2 Public Benefits. The public will benefit in several ways from the proposed Project: (a) by removing delivery vehicles at the end of Euclid Avenue just south of Lincoln Road and establishing a delivery vehicle loading zone south of Lincoln Lane South that will permit such vehicles to travel east or west through Lincoln Lane South instead of having to back up and turn around to exit on Euclid Avenue; (b) by providing the Flamingo Park residents with an entrance to Lincoln Road off Euclid Avenue; and (c) by creating more space for performances at the Euclid Oval. 52.3 Easements. Developer shall cause Lincoln Center to grant to the City, upon completion of the Project, a permanent easement substantially in the form which is attached hereto and made a part hereof as Exhibit "II", for the new electrical disconnect vault that is being moved from City Property onto the Lincoln Center Parking Lot as part of the Improvements. 52.4 Pedestrian Drop-Off Areas. A pedestrian drop-off area at the Project Site shall be carefully designed in a manner to be reviewed and approved by City staff in accordance with the requirements of the Department of Public Works (the "Department"). The Department has already met with the Florida Department of Transportation and is completing studies requested to finalize the drop-off plan. 52.5 Operation of Project upon Substantial' Completion. City shall be solely responsible for operating and maintaining the Project upon Substantial Completion. 52.6 Maintenance Program. Developer shall perform the following maintenance of the Improvements: sweeping of the street that is part of the Project Site, trash removal within the Project Site, and maintenance of the landscaping in the Project Site (but not replacement of the landscaping). The balance of the maintenance shall be performed by the City. Developer and the City shall enter into a Maintenance Agreement substantially in the form with is attached hereto and made a part hereof as Exhibit "I" MIAMI 4065935.6 80574/43097 45 52.7 Royalties And Patents. All fees, royalties, and claims for any invention, or pretended invention, or patent of any article, material, arrangement, appliance or method that may be used upon or in any manner be connected with the construction of this Project or appurtenances, are hereby included in the prices stipulated in this Agreement for said Project. 52.8 Rights of Various Interests. Whenever Work being done by City's forces or by other Contractors is contiguous to Work covered by this Agreement, the respective rights of the various interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the Work in general harmony. 52.9 Assignment. This Agreement shall not be assigned or subcontracted as a whole or in part without the written consent of the City, nor shall Developer assign any monies due or to become due to it hereunder, without the prior written consent of the Contract Administrator. 52.10 No Interest. Any monies not paid by City when claimed to be due to Developer under this Agreement shall not be subject to interest. However, the provisions of City's prompt payment ordinance, as such relates to timeliness of payment, and the provisions of Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid and proper invoices. 52.11 Ownership of Documents. Drawing, specifications, design, models, photographs, computer AutoCAD disks, reports, surveys, and other data provided in connection with this Agreement and for which City has rendered payment, are and shall, subject to the terms of the Contract Documents, become and remain the property of City whether the Project for which they are made is executed or not. If this Agreement is terminated for any reason prior to completion of the Work, City may, subject to the terms of the Contract Documents, in its discretion, use any design and documents prepared hereunder for the purpose of completing the Project, provided that City has paid for same; and provided further that if such termination occurs prior to completion of documents and/or through no fault of Developer; Developer and Consultant shall have no liability for such use; and provided further that any reuse without the written verification or adaptation of Consultant for the specific purpose intended will be without liability or legal exposure to Consultant or Developer. At the completion of the Project, as part of the Project closeout, copies of all drawings on AutoCAD disks shall be transmitted from Developer to the Contract Administrator within seven (7) days of termination of this Agreement in addition to the record drawing. The provisions of this clause shall survive the completion of this Agreement and shall thereafter remain in full force and effect. Any compensation due to Developer shall be withheld until all documents are received as provided herein. Notwithstanding the foregoing, the City retains ownership of any and all documents provided to the Developer and has full use thereof without any further payment. 52.12 Records. Developer shall keep such records and accounts and require Contractor and Consultant to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement. Such books and records will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of the Project pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by City of any fees or expenses based upon such entries. MIAMI 4065935.6 80574/43097 46 52.13 Nondiscrimination, Equal Employment Opportunity, And Americans With Disabilities Act. Developer shall not unlawfully discriminate against any person in its operations and activities in its use or expenditure of the funds or any portion of the funds provided by this Agreement and shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act in the course of providing any services funded in whole or in part by City, including Titles I and 11 of the (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. Developer's decisions regarding the delivery of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully or appropriately used as a basis for service delivery. Developer shall comply with Title I of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment and further shall not discriminate against any employee or applicant for employment because of race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability. In addition, Developer shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. Developer shall take affirmative action to ensure that applicants are employed and employees are treated without regard to race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability during employment. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. Developer shall not engage in or commit any discriminatory practice in violation of the City's Human Rights Act in performing the Scope of Services or any part of the Scope of Services of this Agreement. 52.14 No Contingent_ Fee. Developer warrants that it has not employed or retained any company or person, other than a bona fide employee Working solely for Developer to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee Working solely for Developer, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, City shall have the right to terminate the Agreement without-liability at its discretion, to deduct from the Contract Sum, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 52.15 All Prior Agreements Superseded: Amendments. The Contract Documents incorporate and include all prior negotiations, correspondence, conversations, agreements or MIAMI 4065935.6 80574/43097 47 understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in the Contract Documents. Accordingly it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 52.16 Notices. Whenever either party desires to give notice unto the other, it must be given by written notice, (a) sent by certified United States mail, with-return receipt requested, (b) by personal delivery with a signed receipt, (c) by recognized national overnight courier service or (d) by facsimile, in any case, addressed to the party for whom it is intended, at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. Notices given by an attorney for the City or Developer shall be deemed effective notices. For the present, the parties designate the following as the respective places for giving of notice, to wit: FOR CITY: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager Fax: (305) 673-7782 With a copy to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney Fax: (305) 673-7002 City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Eric Carpenter, Public Works Director Fax: (305) 673-7028 FOR DEVELOPER: Jameck Development, Inc. 1300 Collins Avenue Suite 100 Miami Beach, FL 33139 MIAMI 4065935.6 80574/43097 48 Attn: Melvyn Schlesser Fax: 305 531-4173 With a copy to: Bilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attn: Adam D. Lustig, Esq. Fax: (305) 351-2235 52.17 Truth-In-Negotiation Certificate. Signature of.this Agreement by Developer shall act as the execution of a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of this Agreement are accurate, complete, and current at the time of Contracting. The original Contract Sum and any additions thereto shall be adjusted to exclude any significant sums by which City determines the Contract Sum was increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. All such adjustments shall be made within one (1) year following the end of this Agreement. 52.18 Interpretation. The parties hereto acknowledge and agree that the language used in this Agreement expresses their mutual intent, and no rule of strict construction shall apply to either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," ''hereunder," and "hereinafter" refer to this Agreement as a whole and not to the particular sentence, paragraph or section where they appear, unless the context requires otherwise. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections and subparagraphs of such Section or Article, unless the reference is expressly made to a particular subsection or subparagraph of such Section or Article. 52.19 Recycled Content. In support of the Florida Waste Management Law, Developer is encouraged to supply any information available regarding recycled material content in the products provided.. City is particularly interested in the type of recycled material used (such as. paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the product. City also requests information regarding any known or potential material content in the product that may be extracted and recycled after the product has served its intended purpose. 52.20 Public- Entity Crimes Act. In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a Contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a Public Entity Crime, may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public Work, may not submit bids on leases of real property to the City, may not be awarded or perform Work as a Contractor supplier, subcontractor or consultant under a contract with the City and may not transact any business with the City in excess of the threshold amount MIAMI 4065935.6 80574/43097 49 provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section shall result in cancellation of the City purchase and may result in debarment. 52.21 Waiver of Trial b y Jury. 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 THE PROJECT. DEVELOPER SHALL SPECIFICALLY BIND CONTRACTOR AND CONSULTANT AND REQUIRE THAT CONTRACTOR AND CONSULTANT BIND ANY AND ALL OTHER SUBCONTRACTORS AND/OR SUBCONSULTANTS TO THIS PROVISION OF THIS AGREEMENT. 52.22 Approvals. Whenever any matter set forth herein is made subject to the approval of the City or the Contract Administrator, the approval shall be expressed in writing and the City or the Contract Administrator (as applicable) shall not be unreasonably withhold, delay or condition any such approval, and the failure to grant or withhold any such approval within ten (10) business days after receipt of written notice requesting the same (or such other time period as may be expressly provided in this Agreement), shall be deemed approval of such matter if so stated in said notice. 52.23 Time. Time shall be of the essence for the performance of all obligations of Developer, the City and Contract Administrator under this Agreement. Whenever this Agreement provides for or contemplates a period of time for performance of any obligation, such time period shall be calculated using calendar days, except when such time period is expressly stated to be calculated in business days. Any date in this Agreement which falls upon a Saturday, Sunday or legal holiday (defined as any weekday upon which banks in Miami, Florida are not open for business) shall be deemed to be extended to the next business day. The term "business day" as used in this Agreement means any day that is not a Saturday, Sunday, or legal holiday. 52.24 Recording of Development Agreement. Within fourteen (14) days after the City executes this Agreement, the City shall record this Agreement with the Clerk of the Circuit Court of Miami-Dade County. Developer shall submit a copy of the recorded Development Agreement to the State of Florida's Land Planning Agency within fourteen (14) days after this Agreement is recorded. This Agreement shall become effective only after (a) it has been recorded in the Public Records of Miami-Dade County, and (b) thirty (30) days have elapsed after the State of Florida Land Planning Agency's receipt of a copy of the recorded Agreement. The City agrees that it shall be responsible for all recording fees and other related fees and costs related to the recording and delivery of this Agreement as described in this Section. The provisions hereof shall remain in full force and affect during the term hereto, and subject to the conditions of this Agreement shall be binding upon the undersigned, and all successors in interest to the parties to this Agreement. Whenever an extension of any deadline is permitted or provided for under the terms of this Agreement, at the request of either party, the other party shall join in a short-form recordable Memorandum of Agreement confirming such extension to be recorded in the Public Records of Miami-Dade County. MIAMI 4065935.6 80574/43097 50 52.25 Duration of this Development Agreement. The duration of this Agreement shall not exceed ten (10) years from the date first written above; provided, however, that the duration of this Agreement may be extended by mutual agreement of the City and Developer. During the term of this Agreement, the City's laws and policies governing the development of land in effect as of the date hereof shall govern development of the Project. The City may apply subsequently adopted laws and policies to the Project only if the City has held a public hearing pursuant to Section 163.3225, Florida Statutes, and determined: 52.25.1 they are not in conflict with the laws and policies governing this Agreement and do not prevent development of the land uses, intensities, or densities in this Agreement; or 52.25.2 they are essential to the public health, safety, or welfare, and expressly state that they shall apply to a development that is subject to a development agreement; or 52.25.3 they are specifically anticipated and provided for in this Agreement; or 52.25.4 the City demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of this Agreement; or 52.25.5 this Agreement is based on substantially inaccurate information supplied by Developer. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] MIAMI 4065935.6 80574/43097 51 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written.. WITNESSES: CITY: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: Sign Name: Philip Levine Title: Mayor Print Name Sign Print Name ATTEST: By: Name: Rafael E. Granado Title: City Clerk STATE OF FLORIDA )ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 20141 by Philip Levine, as Mayor, and Rafael E. 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. Notary Public, State of Florida My commission expires: APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ,y. MIAMI 4065935.6 80574/43097 -t._. City Attorney -� to DEVELOPER: JAMECK DEVELOPMENT, INC., a Florida corporation Sign By: Name: Melvyn Schlesser Title: President Print Name Sign Print Name STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2014, by Melvyn Schlesser, as President of Jameck Development, Inc., a Florida corporation, on behalf of such corporation. He is personally known to me or produced valid Florida driver's licenses as identification. Notary Public, State of Florida My commission expires: MIAMI 4065935.6 80574/43097 EXHIBIT "A" LEGAL DESCRIPTION OF PROJECT SITE MIAMI 4065935.6 80574/43097 SKECTH TO ACCOMPANY LEGAL DESCRIPTION PORTION OF EUCLID AVENUE RIGHT OF WAY BETWEEN LINCOLN ROAD & LINCOLN LANE SOUTH RIGHT OF WAY LINE OF LINCOLN ROAD(P.B.6,PG.33) 0 20 40 LINCOLN ROAD — N88000'48"E SCALE II = 401 Drain � Drain ® p LEGEND: to N P.O.C.=POINT OF COMMENCEMENT PC N88 000'48"E 100.00' - P.O.B.=POINT OF BEGINNING — — — i PT PC=POINT OF CURVATURE PT=POINT ON TANGENCY ,PT/ �i i PC" R=15.00' L- O.R.B.=OFFICIAL RECORDS BOOK / /� ® j I L=23.56' O } PG.=PAGE R=15.00' j /u I Tan=15.00' Z Z LL L=23.56' O / ® II D=90°00'00" CL O Ton=15.00' I al II ® / vi -2 00 00" . Z D=90 �+ �— > O O Q ICI L��— '= o � CIO o0 o►Ur) J / Q i r� C U I�/ -U d� Lm L=) >- (y) ? .o m/ _ w � V I > � Al � -- U w �m Qd 3 � /, 11� NO° I m = 0 � 0 w >Q U>� Co 0 � Q 0Om JCZ U-1 ��/ I//J I w � OQ UO 3w U � I� w U = o f �1 = I _In OQ w / � I U � I I,� I NORTH RIGHT OF WAY N I / / I LINE OF LINCOLN LANE i (P.B.6,PG.33) N�8°00149' 70.00' 1 I o LINCOLN LANE IN !f I ° I I I I LOT 7 LOT BLOCK 50A I I I III I BLOCK 51 A 35.0 35.01 1 LINCOLN SUBDIVISION LINCOLN SUBDIVISION I OF"THE ALTON BEACH OF"THE ALTON BEACH I I I I I REALTY COMPANY" REALTY COMPANY" I I (P.B.9,PG.69) (P.B.9,PG.69) I I I III I I 1' III I L'J'NCjlTtJDE S U R V E Y O R S 3900 NW 79TH AVENUE, SUITE 601 DORAL, FL. 33166 PHONE:(305)463-0912 FAX:(305)513-5680 cos No.:�as1a NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2 WWW.LONG ITUDESURVEYORS.COM L:\13314 Elucid Ave from Lincoln Ln to Lincoln Rd,Miami Beach,FL\dwg\Sketch and Legols\13314 SL 06-03-14.dw9 6/3/2014 4:20:11 PM EDT SKECTH TO ACCOMPANY LEGAL DESCRIPTION PORTION OF EUCLID AVENUE RIGHT OF WAY BETWEEN LINCOLN ROAD & LINCOLN LANE H1 17TH T SU JECT PA CEL Q LINCOLN RD z W J i U Lu ° > B O Q Z > Q > >16TH Q Q O O Q z U N U Z Q ~ � z P LEGAL DESCRIPTION: A portion of Euclid Avenue Right-of-Way as shown on the plat of"SECOND COMMERCIAL SUBDIDIVISION OF THE ALTON BEACH REALTY COMPANY",according to the plat trhereof,as recorded in Plat Book 6,at Page 33,and the plat of"LINCOLN SUBDIVISION",according to the plat trhereof,as recorded in Plat Book 9,at Page 69,both recorded in the Public Records of Miami-Dade County,Florida;bounded on the North by the extension of the South Right of Way Line of Lincoln Road;bounded on the South by the extension of the North Right of Way Line of Lincoln Lane;bounded on the East by the East Right of Way Line of Euclid Avenue and bounded on the West by the West Right of Way Line of Euclid Avenue. Said parcel of land lying and being in the City of Miami Beach,Miami-Dade County,Florida and containing 10,578 Square Feet,more or less,by calculations. PERTINENT INFORMATION USED FOR SURVEY: The Legal Description of the Subject Parcel was generated from the following record documents: 1.Lease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 339,Mimai-Dade County Records. 2.Lease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 334,Mimai-Dade County Records. Bearings as shown hereon are based upon the West Line of the NW 1/4 of Section 22,Township 52 South,Range 42 East,Miami-dade County,Florida, with an assumed bearing of S03100'04"E. EASEMENTS AND ENCUMBRANCES: No information was provided as to the existence of any easements other that what appears on the underlying Plat of record.Please refer to the Limitations item with respect to possible restrictions of record and utility services. RESTRICTIONS: Since no other information were furnished other than what is cited in the Sources of Data,the Client is hereby advised that there may be legal restrictions on the subject property that are not shown on this Sketch or contained within this report that may be found in the Public Records of Miami-Dade County,Florida or any other public and private entities as their jurisdictions may appear. This document does not represent afield boundary survey of the described property,or any part or parcel thereof. SURVEYOR'S CERTIFICATE: I hereby certify:That this"Sketch to Accompany Legal Description"and the Survey Map resulting therefrom was performed under my direction and is true and correct to the best of my knowledge and belief and further,that said"Sketch to Accompany Legal Description"meets the intent of the applicable provisions of the"Minimum Technical Standards for Land Surveying in the State of Florida",pursuant to Rule 5J-17.051 through 5J-17.052 of the Florida Administrative Code and its implementing law, Chapter 472.027 of the Florida Statutes. LONGITUDE SURVEYORS LLC.,a Florida Limited Liability Company Florida Certificate of Authorization Number LB7335 L9 60N GITUDE By' Date: Jose Senas,PSM S U R V E Y 0 R S Registered Surveyor and Mapper LS5938 State of Florida 3900 NW 79TH AVENUE, SUITE 601 NOTICE: Not valid without the signature and original raised seal of a Florida Licensed DORAL, FL. 33166 Surveyor and Mapper.Additions or deletions to Survey Maps by other than the signing party are PHONE:(305)463-0912 FAX:(305)513-5680 prohibited without the written consent of the signing•party. JOB NO.:13314. WWW.LONG ITUDESURVEYORS.COM NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2 L:\13314 Elucid Ave from Lincoln Ln to Lincoln Rd,Miami Beach,FL\dwg\Sketch and Legals\13314 SL 06-03-14.dwg 6/3/2014 4:20:11 PM EDT EXHIBIT "B" LEGAL DESCRIPTION OF LINCOLN CENTER PARKING LOT Lots 7 and 8 in Block 51-A, LINCOLN SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 9, at Page 69, of the Public Records of Miami-Dade County, Florida. Folio No. 02-3234002-0540 MIAMI 4065935.6 80574/43097 EXHIBIT "C" CONCEPTUAL PLAN MIAMI 4065935.6 80574/43097 # i f r .f � �IIIIIIIIIIIII i I � F V i I M V', W { _ ♦- o t. • C?C » F D a+o sruoio,uc i j ELIE LINCOLN ROAD OVAL AT THE INTERSECTION OF LINCOLN ROAD AND EUCLID AVENUE-IMAGE 1 5 I � v I I I I 1 I 1 VEHICULAR ACCESS EXISTING CITY VAULTTO BE RELOCATED-IMAGE 2 - i INTEGRAL CONCRETE COLOR(DARK GREY&WHITE STRIPES) I TYPICAL 1 EXISTING TREES TO REMAIN 5 CONCRETE SAW-OJT,TYPICAL ��+ `'•'. _P k )`f I L 1 I ( I I I I / EXISTING BUILDING _ / 9 I EXISTING TREES TO REMAIN(2)-IMAGE 3 I I I 7 1 EXISTING I BUILDING F I OF I 8 I 1 I i I I I I I PRIVATE I s I _ -�.• I I COURTYARD . .rY I I I EXPOSED CONCRETE I CURB,TYPICAL •,r.; ) I CITY PARKING LOT(WEST)-POSSIBLE LOCATION 1 NEW CITY VAULT-IMAGE 4 I I 1 I � i I I I I I I • 1 T. I I — r-. 1' I • I I 1 I I PRIVATE PARKING LOT(DST).EIQSfING DECO BIKE TO BE DECORATE/COLORED MOSAIC MOUND RE-LOCATED-IMAGE 5 TYPICAL VEHICULAR ACCESS I NON-REMOVABLE BOLLARDS I I 1 REMOVABLE BOLLARDS I I EXISTING BUILDING I I I I I 1 I I I I I I I N -- --- =- ---' g� a ------- --- - ---------- ------ ��o ALLEY LINCOLN LANE "o ALLEY ENTRMKF •: 1 POSSIBLE LOCATION / t (PRIVATE VAULT) YIELD SIGN I ` •\ CURB � IP PARKING LOT E I I f ffff AA PARKING LOT II f f f YA 1 f f BUIE METER Il fffff (LOADING METER-DAY POSSIBLE tt - -9II f or PARKING METER-NIGHT) LOCATION 1 �r W 1 ail fffff (NEW CITY VAULT) Ilfffff ------------------------------------------------------------------- min IF I I 0 6f4 4 Q 2LE I Ilf 9 HATCHED AREA DENOTES f FIRE TRUIX"T'NRNI�(p±�S PRIVATE r— — I AROUND II„f .f� PARKING LOT I III!r def"�i I IV~ff to 1 s 0 �a 1 1II 0 OF 41 f f f fi'I SCALE:I'-10r.(r REVISIONS roNAA]SAC RA,uo, I La :IR.1 I &ASSOC1vs ip I I -------------- ---------------------- d•rr�nerw tar�•rrrLr~_ LINCOLN ROAD-EUCLID I I W AI•�r Ylrr�M LIKOLN R ANA E 1. r r rtirq rr rarr Nw•ffAO6 R 331M 08:12:2013 PROPOSED SITE PLAN IN n �scAL[.t. t0'-o• ital+t-� • • PROPOSED SITE PLAN S ALfilOR7AT10M 1•, • r _ r r 11 ► v ` u ++ !EN•MOt � a g, � s D � as �_. STUDIO __ 110903-LINCOLN ROAD EUCLID B B f �� ate► �:��rre�. �.r 1 f� y Al 1��.•v■ sic.-- ,.; - O ♦�� _* �� M1 yf�6x�3l ul S� yr Min O 04 r2� • r �c. W r I. •� �r�r Yx � y s, J �L O,. lo .: ♦ v , " r z I/ { d A o° r Z n 0 r Z � a+o snmio,uc rn C n 1 `Nl • y e 7 '•� r a f ir � aw i smom �� `'f�' ►►►►► ss Q k.00 oo� r n - O r Z O D a+osruoio,uc rn c n 0 E X 4A IV arc. JMV 'v rrtis�. ti L t r�it■_ ; w _ 3 C w, r Z n O r Z 0 ato sruoto,uc D m C n 0 i EXHIBIT "D" CONSTRUCTION SCHEDULE (to be provided by Developer, once the GMP contract is executed with Contractor) MIAMI 4065935.6 80574/43097 EXHIBIT "E" DEVELOPMENT APPROVALS Certificate of Completion Demolition Permit Department of Environmental Protection Permit(if required) Department of Environmental Resource Management Permit FDOT Permit Building permits for: Electrical Plumbing Miami-Dade County Public Works Department Permit(if required) Public Works Permit, Paving and Drainage Public Works Permit, Water and Sewer Such other permits as may be required by Federal, State and local law Historic Preservation Board Certificate of Appropriateness MIAMI 4065935.6 80574/43097 EXHIBIT "F" ESTIMATED BUDGET MIAMI 4065935.6 80574/43097 PRELIMINARY BUDGET SUMMARY Cost of Construction Demolition 40,000.00 Landscape and Irrigation 85,000.00 Site work 210,000.00 Temporary Fencing and Protection 10,000.00 Dumpsters and Cleaning 12,000.00 Electrical 80,000.00 Electrical Fixtures 40,000.00 General Requirements/Contingency 25,000.00 Budget Price 502,000.00 * Note:The Cost of Construction includes profit and overhead to general constructor. Soft Costs Architectural drawings and engineering 55,000.00 Permit Costs 10,000.00 Miscellaneous Soft Costs 9,000.00 Construction Consultant/ Manager Fees 30,000.00 Utilities 3,500.00 Administration 8,500.00 Total Soft Costs 116,000.00 Total Project Cost 618,000.00 EXHIBIT "G" DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER 1. Water, sewer and stormwater utility drawings for Euclid Avenue between Lincoln Road and North Lincoln Lane. 2. Memoranda to Finance and Citywide Projects Committee meetings and Commission meetings. 3. Sonar study of all existing underground facilities, equipment and utilities within the Project Site. i I i MIAMI 4065935.6 80574/43097 EXHIBIT "H" EASEMENT FROM LINCOLN CENTER TO CITY I MIAMI 4065935.6 80574/43097 Prepared by and after recording return to: Gisela Nanson Torres,Esq. Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach,Florida 33139 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (this "Agreement") is made as of the day of , 20145 by and among CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida(the "City"), and LINCOLN CENTER ASSOCIATES, LLC, a Florida limited liability company ("Lincoln"). The City and Lincoln are each, a "Party", and collectively,the"Parties". RECITALS: A. The City owns those certain right of ways along a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, along with a portion of the adjacent right of ways, all lying in Miami Beach, Florida (the "City Property"), more particularly described in the attached Exhibit"A-1". B. Lincoln is the owner of certain land located adjacent to Lincoln Lane South and Euclid Avenue, on which a parking lot is located, more particularly described in the attached Exhibit "A-2" (the "Lincoln Center Parking Lot"). C. At the request of developer, Jameck Development, Inc. ("Jameck"),The Historic Preservation Review Board of the City, pursuant to an Order dated October 8, 2013, under DRB File No. 7385 (the "HPB Order") approved street scape improvements in the City's Property, including but not limited to, the removal of the disconnect vault and landscape, installation of new hardscape, landscape and street lighting and the closure of the portion of Euclid Avenue to vehicular traffic, from Lincoln Road to the north part of Lincoln Lane South, as part of an extension of the pedestrian mall, and creation of a new pedestrian drop-off area, subject to approval by .the City's Public Works Department (collectively, the "Euclid Project Improvements"). Part of these Euclid Project Improvements involves the removal of the electrical disconnect vault ("City Electrical Disconnect Vault"), located within the City Property, and relocating the City Electrical Disconnect Vault to the Lincoln Center Parking Lot, in functioning order. D. The City and Jameck, an affiliate of Lincoln (Jameck and Lincoln are under common control), have entered into a Development Agreement simultaneously herewith providing for Jameck to design and construct the Euclid Project Improvements. MIAMI 1275569.5 7713726901 I E. As part of the scope for the work related to the construction of the Euclid Project Improvements, pursuant to the Development Agreement, Jameck agreed to cause Lincoln to grant the City a permanent easement in connection with the future maintenance of the City Electrical Disconnect Vault. NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Parties hereto agree as follows: 1. Recitals. The above and foregoing recitals are true and correct; nd incorporated herein by reference thereto. w 2. Grant of Easements. Lincoln hereby grants to the qty a permanent, non- ^`S3 revocable maintenance easement, including the right of entry and the ngt�to matam,'repair, replace and/or relocate (City Maintenance Easement), as needed, the City Elftrical Disconnect y 'e, rya Vault, within the electrical vault building in the Lincoln ter Parking Lots,` the location shown in the attached Exhibit"B". 3. Maintenance. In its continuing Viper n :s intenance of the City Electrical Disconnect Vault, City shall use reasonable p:.; mme . efforts to avoid causing any damage to, or any material interference withe use of inc' n Center Parking Lot. (a) In making use of the Cif: Malnte ce Easement, City shall: (i) To the tent '„ a reasonable commercial efforts to coordinate its repair, maintenance rep l `- men d relocation activities within the Lincoln Center Parking Lot with Linco 4 (ii . Use reasonable commercial efforts to minimize interference with the use of the Lincoln C r Parking Lot; a er the performance of any work in connection with the City Maintenance Easem t, re, required, at City's sole expense, the portion of the Lincoln Center Par t w' ` n ;'sturbed by such work to substantially the same condition of such area or pro �.:.. ents before the performance of such work, responsible even after excepted 11 q3 iv) In no event, other than an emergency, repair, replace, remove, relocate©r othe ise take any action at any time within the Lincoln Center Parking Lot, without first providi '¢Jncoln with three(3) calendar days prior written notice; and :&� �V. ��;:. (v) At all times, keep the Lincoln Center Parking Lot free from obstruction of any kind or nature whatsoever, except as may be required from time to time to effect the maintenance, repair, replacement and/or relocation of the City Electrical Disconnect Vault. 4. Nature of Easement. The burdens and benefits of the easements created herein shall run with the land and shall inure to the benefit of, and be binding upon the Parties and their respective successors and/or assigns, and all persons claiming under them. Any transferee 2 MIAMI 1275569.5 7713726901 of a Party and/or Parties, or its/their successors or assigns, as the case may be, shall be bound by all terms and conditions of this Agreement. For purposes of a transfer and/or assignment of this Agreement, a Party and/or Parties shall only be permitted to assign a Party's and/or Parties' rights hereunder to (and a Party and/or Parties' successors shall only include) successor owner(s) or mortgage lenders of Lincoln Center Parking Lot and/or association(s) designated with the responsibility of maintenance of the common areas in connection with the development or operation of the Lincoln Center Parking Lot. 5. Governing_ Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, both substantive and remedz0 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 U.S,District Court, Southern District of Florida, if in federal court. BY ENTERING INTO WIS AGREEMENT, CITY AND DEVELOPER PARTIES EXPRESSLY WAIVE ANY * GHTS EITHER M PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LIT GATW RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. : : r M, n� 6. Counterparts. This Agreement may be signed cp erparts with the same force and effect as if all required signatures were contained in-a".. sgle, original instrument. 7. Term. The easements, covenants, condit�ons and'restrictions contained in this Agreement shall be effective commencing on the date of recordation of this Agreement in the office of the Clerk of Court of Miami od County and shall remain in full force and effect thereafter in perpetuity, unless this Agreement i.....modified amended, canceled or terminated by the written consent of the Parties .,, vp �x x; 8. Development of Lincoln CMW parking Lot. Notwithstanding anything contained in this Agreeldnt to the contrary, the granting of this Maintenance Easement to the City shall not prevent or preclude Lincoln from developing or redeveloping the Lincoln Center Parking Lot, so long as<"h ty electrical Disconnect Vault remains in the electrical vault building or any other portion f the Lincoln Center Parking Lot. 9 Remedies and Enforcement; Self-Help. In the event of a breach by either Party of any of the terms, covenants, restrictions or conditions hereof, the other Party shall provide wntte notice of such breach to the defaulting Party. If the defaulting Party fails to cure such br ach -,W%n thirty (30) calendar days following written notice thereof by the non-defaulting Part (unless..such.breach creates an emergency requiring immediate action, in which case either rty my take action to correct the problem after such reasonable notice to the other n. Party as m ,y be possible under the circumstances, or with respect to any such breach the nature of which cannot reasonably be cured within such thirty(30)-day calendar period, the defaulting Party commences such cure within such thirty (30)-day calendar period and thereafter diligently and continuously prosecutes such cure to completion), the non-defaulting Party shall have the right to pursue any one or more of the following remedies: (a) perform such obligation contained in this Agreement on behalf of such defaulting Party and be reimbursed by such defaulting Party upon demand for the reasonable costs thereof; (b) full and adequate relief by injunction and/or all such other available legal and equitable remedies from the consequences of such breach, including payment of any amounts due; (c) specific performance; 3 MIAMI 1275569.5 7713726901 and/or (d) record a lien against the Lincoln Center Parking Lot . Notwithstanding anything contained herein to the contrary, no breach hereunder shall entitle any Party to cancel, rescind, or otherwise terminate this Agreement. 10. No Waiver. No waiver of any default of any obligation by any Party hereto shall be implied from any omission by the other Party to take any action with respect to such default. 11. No Agency. Nothing in this Agreement shall be deemed or construed by either Party or by any third person to create the relationship of principal and agent or of limited or general partners or of joint venturers or of any other association between the partie _ 12. Severability. Each provision of this Agreement 41 fi by de larec to be independent of and severable from the remainder of this Agreement. If any-provision contained herein shall be held to be invalid or to be unenforceable not to run wi land, such holding shall not affect the validity or enforceability of the rmainder of this Agreement. In the event the validity or enforceability of any provision off` th ,Agreement is held to be dependent upon the existence of a specific legal description, 1111 V ies agree to promptly cause such legal description to be prepared. 13. Force Majeure Events. Except in the.event of any emergency requiring immediate action, whenever a period of time.,is herein prescribed for the taking of any action by either Party, neither Party shall be tibe or responsible for and there shall be excluded from the computation of such period of tune, any Id.elays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions, or any other cause whatsoever beyond the contra of such Part 14. No Dedication. Neher this Agreement nor City's limited rights to use of the Lincoln Center Parking Lot, as set forth herein, shall be deemed a dedication, either express or implied, of all or any portJon cif the Lrt%coln Center Parking Lot to City and/or its successors n and assigns. a :ty 1 Entire Ageen� nt. This Agreement contains the complete understanding and agreement.of the parties hereto with respect to all matters referred to herein, and all prior representation,negotiations, and understandings are superseded hereby. Amendment. The Parties agree that the provisions of this Agreement may be modified.or amended, in whole or in part, or terminated, only by the written consent of the City and Lincoln-:fit` their respective successors and/or assigns, evidenced by a document that has been fully<` ecuted and acknowledged by the City and Lincoln, and or their respective successors and/or assigns and recorded in the Official Records of Miami-Dade County, Florida. The Parties agree that they shall not unreasonably withhold completion or delay their written consent and approval of any amendment to this Agreement which is for the purpose of complying with any applicable law or necessary for the development of the Lincoln Center Parking Lot but only to the extent that such amendment to this Agreement does not adversely affect, limit or modify the covenants and restrictions contained in this Agreement. 4 MIAMI 1275569.5 7713726901 17. Attorneys' Fees. In the event any Party institutes any legal action or proceeding for the enforcement of any right or obligation herein contained, the prevailing Party after a final adjudication shall be entitled to recover its costs and reasonable attorneys' fees incurred in the preparation and prosecution of such action or proceeding, at trial and at all appellate levels. 18. Notices. Whenever either party desires to give notice unto the other, it must be given by written notice, (a) sent by certified United States mail, with return receipt requested, (b) by personal delivery with a signed receipt, (c) by recognized national overnight courier service or (d) by facsimile, in any case, addressed to the party for whom it intended, at the n h 1 for giving of notice shall remain such until all have been place last specified, and the place o g g changed by written notice in compliance with the provisions of this paragrap a t• es given by an attorney for the City or Lincoln shall be deemed effective no . For ^ent, the parties designate the following as the respective places for giving of n tic o w FOR CITY: City of Miami Beach 1700 Convention Center Drive Miami Beach Florida 33139 Attn: City Manager Fax: (305) 673-7782 s With a copy to: - s, s. City of Miami Bach 1700 Convention Center Drive Miami Beach, Florid 139 Attn: City Attorney Fax...- .05) 673„,7002 pity o is ach z > 1' J Co tionA enter Drive ct:Be , Florida 33139 Ain Brig arpenter, Public Works Director ax`s='=w (305) 673-7028 R LINCOLN: c/o Lincoln Center Associates, LLC 1300 Collins Avenue, Suite 100 Miami Beach, Florida 33139 Attn: Melvyn Schlesser Fax: (305) 5 MIAMI 1275569.5 7713726901 With a copy to: Bilzin Sumberg Baena Price&Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attn: Adam Lustig, Esq. Fax: (305) 351-2235 19. Estoppel Certificates. Either Party hereto, within ten (10) business days of its receipt of a written request from the other Party shall from time to time provide the requesting Owner with a written estoppel certificate duly executed stating: al. (a) to the best of such Party's knowledge, whether t h o e x Pi °default or violation of this Agreement and setting forth with specificity the default or Vlation; and (b) that this Agreement is in full force an effect and tifying any amendments to the Agreement as of the date of such ce to w ...............wVa'n..'A,yx., :,. 20. Further Assurances. From time to e, a request of either Party and without further consideration, either Party shall execute del r any further instruments and take such other actions as the other Party M4 reasonably,; o accomplish the purposes of this Agreement. a [REMAINDER OF PACE INT O LLY LEFT BLANK] 6 MIAMI 1275569.5 7713726901 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. WITNESSES: CITY: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: Sign Name: Philip Levine Title: Mayor Print Name Sign Print Name ATTEST: By: Name: Rafael Granado Title: City Clerk STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) i The foregoing instrument was acknowledged before me this day of , 2007, by Philip Levine, 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. Notary Public, State of Florida My commission expires: MIAMI 1275569.5 7713726901 WITNESSES: LINCOLN CENTER ASSOCIATES, LLC, a Florida limited liability company: Sign By: Name: Melvyn Schlesser Title: Managing Member Print Name Sign Print Name STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 20145 by Melvyn Schlesser, the Managing Member of LINCOLN CENTER ASSOCIATES, LLC, a Florida limited liability company. He is personally known to me or produced valid Florida driver's licenses as identification. Notary Public, State of Florida My commission expires: MIAMI 1275569.5 7713726901 EXHIBIT "A-1" LEGAL DESCRIPTION OF CITY PROPERTY I MIAMI 1275569.5 7713726901 SKECTH TO ACCOMPANY LEGAL DESCRIPTION PORTION OF EUCLID AVENUE RIGHT OF WAY BETWEEN LINCOLN ROAD & LINCOLN LANE 10 SOUTH RIGHT OF WAY LINE OF LINCOLN ROAD(P.B.6,PG.33) O 20 40 LINCOLN ROAD N88°00'48"E SCALE o Drain o LO 0 LEGEND: LO I I P.O.C.=POINT OF COMMENCEMENT PC N88 000'48"E 100.00' - P.O.B.=POINT OF BEGINNING — — — COT PC=POINT OF CURVATURE \� PT=POINT ON TANGENCY PT PC R=15.00' LL O.R.B.=OFFICIAL RECORDS BOOK PG.=PAGE R=15.00' L=23.56' O Ton= Z' Z L=23.56' I Q Tan=15.00' E 0 14 II D=90°00'00" O CL D-90 0000" O !I z I _— � � O IL 'Fr----,,�' -�,� LL-n on U 11 LL-N c7 I ° LO }- 07 omU z� i 11 Z 3 �� 0QWCL w �- ! Qm mom = UQ < <� ' II > G I; i 3: 2:_ wU O d w 1 Q 0 OD F-- C Qm mom = CZ �� O i 1- w O � ma: r= LU LU z j t (D Q U Z co � o I� t ;l No 00 0 0 Q U z w .-� w Q 0 3 w U I w O 2 LIJ Z Q N ~ w I Ll! I U = L NORTH RIG HT OF WAY cwi� �' I LINE OF LINCOLN LANE (P.B.6,PG.33) a - 8°00'48" 70.00' 1 0 1 LINCOLN LANE o '1 1 9 ° x I ! ; I LOT 7 LOT 6 I , BLOCK 51 A BLOCK 50A 1 35.0 35.0 LINCOLN SUBDIVISION LINCOLN SUBDIVISION OF"THE ALTON BEACH OF"THE ALTON BEACH I I� } REALTY COMPANY' REALTY COMPANY" 4 I I (P.B.9,PG.69) (P.B.9,PG.69) i L� NGITUDE J S U R V E Y O R S 3900 NW 79TH AVENUE, SUITE 601 DORAL, FL. 33166 PHONE:(305)463-0912 FAX:(305)513-5680 JOB NO.:13314 J.. NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2 WWW.LONG I TUDESURVEYORS.COM L\13314 Elucid Ave from Lincoln Ln to Lincoln Rd,Miami Beach,FL\dwg\Sketch and Legols\13314 SL 06-03-14.dwg 6/3/2014 4:20:11 PM EDT SKECTH TO ACCOMPANY LEGAL DESCRIPTION PORTION OF EUCLID AVENUE RIGHT OF WAY BETWEEN LINCOLN ROAD & LINCOLN LANE 1 TH T SU JECT PA CEL Q ME __fU F-9 LINCOLN RD z > U Z L/) Q o e 0 Q Q > >16TH ¢ z Q O o N 0 < f490 Z U J U Z Q 3 Z Q 1 � P Z F— (T1= LEGAL DESCRIPTION: A portion of Euclid Avenue Right-of-Way as shown on the plat of"SECOND COMMERCIAL SUBDIDIVISION OF THE ALTON BEACH REALTY COMPANY",according to the plat trhereof,as recorded in Plat Book 6,at Page 33,and the plat of"LINCOLN SUBDIVISION",according to the plot trhereof,as recorded in Plat Book 9,at Page 69,both recorded in the Public Records of Miami-Dade County,Florida;bounded on the North by the extension of the South Right of Way Line of Lincoln Road;bounded on the South by the extension of the North Right of Way Line of Lincoln Lane;bounded on the East by the East Right of Way Line of Euclid Avenue and bounded on the West by the West Right of Way Line of Euclid Avenue. Said parcel of land lying and being in the City of Miami Beach,Miami-Dade County,Florida and containing 10,578 Square Feet,more or less,by calculations. PERTINENT INFORMATION USED FOR SURVEY: The Legal Description of the Subject Parcel was generated from the following record documents: 1.Lease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 339,Mimai-Dade County Records. 2.Lease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 334,Mimai-Dade County Records. Bearings as shown hereon are based upon the West Line of the NW 1/4 of Section 22,Township 52 South,Range 42 East,Miami-dade County,Florida, with an assumed bearing of S03a00'04"E. EASEMENTS AND ENCUMBRANCES: No information was provided as to the existence of any easements other that what appears on the underlying Plat of record.Please refer to the Limitations item with respect to possible restrictions of record and utility services. RESTRICTIONS: Since no other information were furnished other than what is cited in the Sources of Data,the Client is hereby advised that there may be legal restrictions on the subject property that are not shown on this Sketch or contained within this report that may be found in the Public Records of Miami-Dade County,Florida or any other public and private entities as their jurisdictions may appear. This document does not represent a field boundary survey of the described property,or any part or parcel thereof. SURVEYOR'S CERTIFICATE: I hereby certify:That this"Sketch to Accompany Legal Description"and the Survey Map resulting therefrom was performed under my direction and is true and correct to the best of my knowledge and belief and further,that said"Sketch to Accompany Legal Description"meets the intent of the applicable provisions of the"Minimum Technical Standards for Land Surveying in the State of Florida",pursuant to Rule 5J-17.051 through 5J-17.052 of the Florida Administrative Code and its implementing low, Chapter 472.027 of the Florida Statutes. LONGITUDE SURVEYORS LLC.,a Florida Limited Liability Company Florida Certificate of Authorization Number LB7335 L . NGITUDE By' Date: Jose Senas,PSM S U R V E Y 0 R S Registered Surveyor and Mapper LS5938 State of Florida 3900 NW 79TH AVENUE, SUITE 601 NOTICE: Not valid without the signature and original raised seal of a Florida Licensed DORAL, FL. 33166 Surveyor and Mapper.Additions or deletions to Survey Maps by other than the signing party are PHONE:(305)463-0912 FAX:(305)513-5680 prohibited without the written consent of the signing party. JOB NO.:13314 WWW.LONG I TUDESURVEYORS.COM NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2 AA_L•\13314 Elucid Ave from Lincoln Ln to Lincoln Rd,Miami Beach,FL\dwg\Sketch and Legals\13314 SL 06-03-14.dw9 6/3/2014 4:20:11 PM EDT ►►A-2►► LEGAL DESCRIPTION OF LINCOLN CENTER PARKING LOT Lots 7 and 8 in Block 51-A, LINCOLN SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 9, at Page 69, of the Public Records of Miami-Dade County, Florida. Folio No. 02-3234002-0540 MIAMI 1275569.5 7713726901 EXHIBIT "B" SKETCH OF EASEMENT AREA I MIAMI 1275569.5 7713726901 a 4 t s£ s+ L # g s°e :'�t£};s6 t"b•'�Y+s1?dt.#Mk�'S.t..x.�x?,��r,}z3<�s'k�+gr's i_e.x.K a:�"`a£:•x�'a �s.��.„.'�ab��xi£s t�4 i£y,�kr iw�k♦a:f»fir>�;a'gL z-,_lY}sj:p_.�a.:`=jf 3.N::xi+,,£f.,F o'^R ex)r xa B Amiw�C.4 Y�`Y,k t z�•.'s e.8 1�...'4,,.:r.'s 3 da�'1'„�.s,a'�B£�J8 8 z Y,�t s�e,x a#,5 x�'�i'B�Se e 3s i{"y r°r,i°tr;r.�'e�r.'N.r%:� �dc)�A a h AS §�$�x`s E e a�•fit��a?g}.,a>K:'.:,:',f�.Y�1 s g F xu^^t:sags A1£*." r�.£�"e`'l:"iss R f`S.:.(t=.✓£''�t y'R Y'I��°4.r�.+S R�'��t rS'g.'r'.4 s Y f a k e.a f.p-Y,3.<:S...F,�c p fax�;s}"�e^4.k a"g�4�Y�[$�k M!2 A a)y ss c•ix'��amk f�s a£Vi„,�i"`'�'�4 gx w 6rerk K.t t5�'.a.�°`,s:.''y;a�.r i8 g,�c;.�£k€S�r r t s>' �,c,�.G�:_y.•a �),'�£�x��•"'iE<,.L,�.s�Cc``.F..i.'S s c,'.p,i$9s yS.1B pp r.x a$♦.��7 nk. ` k f 01 1Z 144t Ail f. i£ M i Ax s Too �� i r ee^A INN 41,� 1 :�¢ ' s�a . �-. '. Asl WINE! MEN Y 8qr C ,y H x J e} Z 7K Tf ,- A 1 g€. . • a.'., ,. !, Y 4 c:fl p txy 4 „Y y R• 3. 3 lY:, EXHIBIT "I" MAINTENANCE AGREEMENT MIAMI 4065935.6 80574/43097 MANAGEMENT AGREEMENT FOR MAINTENANCE OF EUCLID STREET END PEDESTRIAN MALL THIS MANAGEMENT AGREEMENT FOR MAINTENANCE OF THE EUCLID STREET END PEDESTRIAN MALL is made and entered into as of the day of June, 2014, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida (the "City"), and JAMECK DEVELOPMENT, INC., a Florida corporation ("Manager"). RECITALS: A. The City is the owner of certain right o a along a portion of Euclid Avenue, between Lincoln Road and Lincoln Lane South, alp®ng with a portion of the adjacent right of ways, all lying in Miami Beach, Florida, more particularly describe; in the attached Exhibit "A" (the "City Property" "Project Site"). B. On June 5, 2013, the City Co : sKon a.opted Resolutia5 o. 2103-282365 approving a conceptual plan for strecape improvements in the City's Prop. but et s not limited to, the removal of the di-connect vault and f dscape, installation of new hardscape, landscape and street lighting and the clesur of the portion o.; Euclid Avenue to vehicular traffic, from Lincoln Road to the north part Linea Lane SoutT as part of an extension of the pedestrian mall at the Property (ca electively re.,erred to a -rein as the "Euclid Project Improvements"). C. On u>e 11, 20145 the C':t>y Commission adopted Resolution No. approving a Development Agreement between the City and Manager- oWr <<e design develop;:`ent, and cons uction of the Euclid Project Improvements at the Cib� 1'ro erts hich is -"facent to z zo ert owned b Lincoln Center Associates LLC Y p Y? J p Y Y ("Lincoln Center"), an =frh'ate o ' ager, located at 670 Lincoln Road, Miami Beach, Florida ("the Lincoln Center Prope " D. O: , the City and Manager entered into a Development Agreement, reco ded in Officia. Records Book , Page of the Public Records of Miami-Dade County, `,orida(the "Original Development Agreement"). E. Section 52..6 0> the Development Agreement provides that: Developer shall perform the following maintenance of the Euclid Project Improvements: (i) sweeping of the street located within the Project Site; (ii) trash removal within the Project Site; and (iii) maintenance of the landscaping contained within the Project Site. F. In accordance with Section 52.6 of the Development Agreement, the City and Manager desire to enter into this Agreement to set forth the terms and conditions of Manager's management and oversight of the Project Maintenance Responsibilities (as defined below) of the City Property. 1 MIAMI 1987129.6 7713726901 i G. In accordance with Section 52.6 of the Development Agreement, the City and Manager desire to enter into this Agreement to set forth the terms and conditions of Manager's management and oversight of the Project Maintenance Responsibilities (as defined'below) of the City Property. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The above recitals are true and correct and incorpor ted herein by reference. 2. Retention. The City hereby retains Manager, and anager hereby agrees to provide management and oversight of the Project Maintenance Respon �flit es, as more particularly set forth herein. Manager shall use its reasofflifte efforts; skill, judgment and abilities in the discharge of its duties under this Agreement. 3. Services to be Performed by Manager. anager agrees to perform the following functions and services with respect to the maintenance of the project Site (the Project Maintenance Responsibilities): (a) Pursuant to the His 0, reservation Boards Certificate of Appropriateness, dated October 8, 2013 ("8�'BF�i e No. 385"), Manager, in connection with the development of the Euclid Project Improvements,, is re-uired to comply with various conditions including, without limitations, submitting an in' I landscape plan ("Initial Landscape Plan"), which includes, without limi >on, (i) r g th e two large Copper Pod trees located at the planter closest to Lincoln Road, ;,,ess the Cit determines that they need to be replaced, (ii) large canopy trees which are to be introduced within the northern portion of the southernmost oval planter; and (iii) other malt size accent palms trees, other shade trees, and other landscape which may be intro used- sim,ltaneously with or subsequent to the implementation of the Initial Landscape Plan, a cTU of which ,s attached hereby as Exhibit"B". (b) Section 52.6 of the Development Agreement provides that: Developer shall perform th f0,1 owi maintenance of the Euclid Project Improvements: (i) sweeping of the stee 1cated wit = the Project Site; (ii) trash removal within the Project Site; and (iii) maintenance o the hndscaping contained within the Project Site, including but not limited to the initialEnds cap which Manager is required to provide, pursuant to the "Initial Landscape Plan, as said dscape Plan may be replaced and/or modified by the City in the future. Notwithstandthe foregoing, Manager shall not be responsible for sweeping or trash removal of any areas within the Project Site, in which there is outdoor seating utilized by restaurants. Thereafter, Manager will only be required to maintain the landscaping and the City shall be responsible for replacement of the landscape, as needed, in the City's reasonable discretion. (c) The Director of the Public Works Department of the City, or his designee, shall be designated as the "Contract Administrator" for matters concerning this Agreement. The City agrees that a single person shall serve as Contract Administrator under this Agreement and 2 MIAMI 1987129.6 7713726901 the City shall notify Manager of the person who shall serve as Contract Administrator and of any changes in who serves as Contract Administrator. (d) Manager will be responsible to ensure that the Project Maintenance Responsibilities meet the Cleanliness Index standards established by the City of Miami Beach, which are set forth in the attached Exhibit "C". (e) Manager will be responsible for the Maintenance Program meeting the City of Miami Beach Grounds Maintenance Service standards, which are set forth in the attached Exhibit "W'. 4. Manager's Responsibilities. The liability and responshi sty of Manager for a default by it under the terms of this Agreement will be limited to the actualdamages incurred by the City, its officers, directors, agents, and employees resulting from Manager's breach under this OW Agreement (after expiration of any applicable notice and cure perio or pager's willful misconduct or gross negligence. Manager shall be responsible for the negligence of Manager's employees, agents, and/or contractors. In no event v�-�l Manager be 1'iable or responsible for consequential, incidental or punitive damages. It is under=stoo= tha the responsibility for compliance with laws in connection with the Maintenance of theCty Property, as lies within the Manager's Project Maintenance ResponsibilAes, shall be the responsibility of the Manager. Except as expressly set forth in this Agreemen Manager has made no representation whatsoever to the City with respect to the maintenanc. of FoRDen of the Project Site, which does not fall within the purview of Manager's Project.Maintenance Responsibilities. 5. Indemnification :from Con, ctors. All contracts entered into by Manager with Contractors performing Maiance of the C'ty =roperty shall provide that such Contractors indemnify and hold harmless anldta'�,gree to defend the City from any and all actions, causes of action, claims, liabilities, demands, losses and expenses of any kind whatsoever for damage to property or injury to or de :#s o s ersons, including, without limitation, reasonable attorneys' fees and court costs at ri'al and appellate levels, which may be filed or made against Manager and/or the City, and '. espe ltive officers, directors, partners, agents, affiliates, employees, successors and for assi g.n , as result of the actions or inactions of such Contractors in connection with the Ma�nte ce o the City Property performed or required to be performed by such Contract s, "'%c ',In s to the extent such claims result from Manager's and/or the City's gross neg Bence or wi'rKil misconduct. M Indemnification from Manager. Manager hereby indemnifies and holds harmless and agrees to defend the City from any and all actions, causes of action, claims, liabilities, demands, losses and expenses of any kind whatsoever for damage to property or injury to or death of persons, including, without limitation, reasonable attorneys' fees and court costs at trial and all appellate levels, which may be filed or made against the City, and its respective officers, directors, partners, agents, affiliates, employees, successors and/or assigns, as a result of the actions or inactions of Manager in connection with the maintenance of the City Property performed or required to be performed by this Management Agreement, except to the extent such claims result from the City's gross negligence or willful misconduct. 3 MIAMI 1987129.6 7713726901 7. Cooperation. Should any claims, demands, suits or other legal proceedings be made or instituted by any person against the City or Manager which arise out of the matters relating to this Agreement, Manager or the City shall provide the other party all pertinent information and reasonable assistance, in the defense or other disposition thereof. 8. Term. This Agreement shall commence on Final Completion of the Work and continue until the date that is ten (10) years following the date thereof (the "Term"), unless terminated sooner in accordance with the terms of this Agreement. am 9. Default. a If Manager breaches its obligations as specified hr�ei.�n, thNtl", 'ty shall ( ) give Manager written notice specifying the nature of the default and Maner shall have thirty g g (30) days after receipt of such notice within which to cur the specified&-fault; provided, however, if the nature of such default is such that the same �a 3 of reasonably - cured within such thirty (3 0) day period, Manager shall not be deemed to be i=n default if Manager shall, within such period, commence such cure and therea Z, dil ent� prosecute the same to completion; provided further, however, that the maxiAm cure e 4 fo any default hereunder shall not exceed ninety (90) days from the date of the iil tten notice of default from the 2i5 City to Manager. If the default is not cured A,'thin the applicable cure period, or if Manager becomes the subject of any bankruptcy or, insolvency pr�oceedi g, then the City may, on written notice to Manager, terminate this Agreement. (b) If the City breaches its of IL1 atio s as specified herein (and same are not waived in writing by Manager), then Manager shaH give the City written notice specifying the nature of the default and the..,, all have ten 0) days after receipt of such notice, in the case of a monetary default, or thirty (,RD) days after receipt of such notice, in the case of a non- 1%1, monetary default, withi< which to cure the specified default; provided, however, if the nature of such default is such that the same cannot seasonably be cured within-such thirty (3 0) day period, the City shall not be deemed t 2 be in default if the City shall, within such period, commence such cure and thereafter di gan Zl_ pr,secute the same to completion; provided further, however, that the maxim fe e er#:o ar default hereunder shall not exceed ninety 90 da s from the . . p Y Y ( ) Y date of the initial written notice of default from Manager to the City. If the default is not cured within the appl'c ' le cure period, then Manager may, on written notice to the City, terminate this Agreement. 10. Termination for Convenience by City. The City shall have the right to terminate this Agree;}ent for convenience at any time upon ninety (90) days' prior written notice to Manager. 11. Representations and Warranties by the City. The City represents and warrants to Manager that (a) the City has all necessary power to execute and deliver this Agreement and perform all its obligations hereunder, (b) this Agreement has been duly authorized by all requisite action on the part of the City and is a valid and legally binding obligation of the City enforceable in accordance with its terms, and (c) neither the execution and delivery of this Agreement by the City nor the performance of its obligations hereunder will result in the 4 MIAMI 1987129.6 7713726901 violation of any law, rules or regulations or any other agreement to which the City is a party or is otherwise bound. 12. Representations and Warranties by Manager. Manager represents and warrants to the City that (a) Manager is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida, is authorized to transact business under the laws of the State of Florida and has all necessary power to execute and deliver this Agreement and perform all its obligations hereunder, (b) this Agreement has been duly authorized by all requisite action on the part of the Manager and is a valid and legally binding obligation of Manager enforceable in accordance with the terms, and (c) neither the execution and delivery of this�Agreement by Manager nor the performance of its obligations hereunder will result 'n the Bola{ion of any provision of its articles of incorporation or any other organizational or g5 verni g d'oc 5 s ent as amended to date, or will conflict with (i) any law or any order or decree ofany court or governmental instrumentality having jurisdiction or(ii) any other agreement tohich Manager is a party or is otherwise bound. 13. Assignment. This Agreement and all ri=ghh ts ereunder, shall not be assignable by either Manager or the City without prior written consedl,of th other, except that Manager shall be permitted to assign this Agreement to an entity cont �lin , controlled b or under common p g g tY g Y control with Manager. s h benefit of and be 14. Successors and Assigns. his Agreement shall inure to the b , binding upon, the parties hereto and the respecte successors and assigns. 15. Notice. All notices, demand`srequets, consents and approvals which may, or are required to, be given by any V-R5 to any other party thereunder shall be in writing and either (a) personally delivered, (b) fransmtfed by fax, (c sent by United States mail, registered or certified, postage prep W, return reee'pt requested, or (d) sent by a nationally recognized overnight delivery service, freight pred, return receipt requested, and addressed as follows, and shall be deem given > n receipt if delivered personally, upon the sending machine printing a confirmati of ans: sion, if transmitted by fax, or upon the date of delivery (or refusal to edelivey ona business day (or the next succeeding business day, if not delivered o; a business d ), as evidenced by the return receipt if sent pursuant to subsection (c) or (d) above, a the�addressspecified below, or to such other addresses as either party may from ti e to time lest ate in sting and delivery in a like manner. Notice given by an attorney for either z arty shah be emed as effective notice given by such party. he City: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager Fax: (305) 673-7782 With a copy to: City of Miami Beach 1700 Convention Center Drive 5 MIAMI 1987129.6 7713726901 Miami Beach, Florida 33139 Attn: City Attorney Fax: (305) 673-7002 City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Eric Carpenter, Public Works Director Fax: (305) 673-7028 Manager: Jameck Development, Inc. 1300 Collins Avenue, Suite 100 Miami Beach, Florida 33139 Attn: Melvyn Schlesser, Preside,t. Fax: 305-531-4173 16. Insurance. (a) City Election to Self-Ine. Theity has elected to self-insure the City Property against physical damage and against liabilit far loss, damage or injury to property or persons that might occur on the City ro e or o the Improvements located on the City Property. The City shall be responsib404 e og r p yin for the cost of repairing any damage to the p Improvements located on the City Property; prodedowever, that in the event that the City Manager, in his sole and reasonable discretion, determines that there are insufficient (or no) funds to repair the City Property and/or the Improvements to their existing condition immediately prior to the ourrence or event which caused the damage, then the City shall only be obligated to initiate OAK repairs to the xtent that funding is available and identified and, even then, the City's priority in r akig.such repairs (before any aesthetic consideration) shall first be to assure that neithe ,s e ::damaged portion(s) of the City Property nor the Improvements pose a serious threat to the pubY% earth%safety, or welfare. The City shall notify Manager within a reasonable };f ,ollo I e occurrence or event of damage, the repairs to be made and the proposed t 'eline for sa:=e; notwithstanding, the City shall have sole and absolute control over the means methods, nAaterials, as it deems necessary, to prosecute any repairs, and shall have no li tytoo anager as result of same (nor shall any City determination or decision in prose uin e p a��s be deemed a City default under this Agreement). Mana er shall not be responsible or H le for making or paying for any such repairs, unless they relate to Manager's Project Marntenance Responsibility. (b) Contractor's Insurance. Manager shall provide, or cause to be provided and thereafter maintain insurance coverage, in the following minimum amount unless otherwise set forth in the construction contract between the City and the Contractor: (i) Workmen's Compensation- Statutory Amount; (ii) Employer's Liability ($100,000 minimum); 6 MIAMI 1987129.6 7713726901 (iii) Broad Form Commercial General Liability (naming the City and Manager as additional insured): $1,000,000 per occurrence, combined single limit; $2,000,000 in the aggregate; (iv) Auto Liability ($1,000,000 minimum); and (v) Property Insurance: coverage for tools and equipment brought onto or used on the City Property by the Contractors in an amount equal to replacement costs of sp all tools and equipment. All insurance policies required pursuant to this section shall have the tarty listed in such,policies WO as additional insureds. Each policy shall be primary and non-contribiffonyand shall e 4 tain an endorsement requiring thirty (3 0) days written notice from the insurance company to the City before cancellation or any change in the coverage, scope or amount of anyoli-y. Renewal certificates or copies of renewal policies shall be delivered b ayor to she C7_1yai least thirty 30 days prior to the expiration date of an policy. The Contract-or_ hall t procure an appropriate ( ) Y p P Y P Y p clause in, or endorsement on, each of its insurance po ici'.s require= hereunder whereby the insurer waives subrogation. 17. Partial Invalidity. In the even hat any one or more of the phrases, sentences, clauses, or paragraphs contained in this Agreement sha11 be declared invalid by final and unappealable order, decree, or judgment of any court, this Agreement shall be construed as if such phrases, sentences, clauses, or paragrap� ha not'peen inserted in this Agreement, it being intended by the parties that the remaining provions ®f tis Agreement shall remain in full force and effect notwithstanding such in alidatio 18. No Joint Venture. ITtis not intende by this Agreement to, and nothing contained in this Agreement shall, create any p ,s nership,joint venture, limited liability company-or other arrangement between the C.t. d Main er other than that of owner and independent contractor. g Y go P No term or provis, of this greement is intended to be, or shall be, for the benefit of any person not a party hereto, an s o such other person shall have any right or cause of action thereunder. 19. Goaverrun Law. This Agreement and the rights of the parties hereto shall be gov =ed anconstrued ' accordance with the laws of the State of Florida and all claims related to this A reeinenhall be brought and prosecuted in Miami-Dade County, which shall g g p tY� Florida, be the ex siv enue for all such matters. Before resorting to litigation, the parties agree to use commercially reasonable, good faith efforts to resolve disputes without litigation as hereinafter provided. I ffe event of a dispute which the parties cannot resolve directly between themselves within ten (10) days, the parties agree to submit to non-binding mediation for up to a period of thirty (30) days after either party sends written notice to the other party demanding mediation (but no longer unless the parties mutually agree) to resolve the dispute using an independent, trained mediator agreed to by both parties. If the dispute remains unresolved after such thirty (30) day period or if the parties cannot agree upon a mediator within fifteen (15) days after the demand for mediation, either party may proceed to commence litigation. The parties shall equally split the cost of the mediator. 7 MIAMI 1987129.6 7713726901 20. Enforcement. In the event of any dispute under this Agreement concerning the meaning or interpretation of any provision of this Agreement, the party not prevailing in such dispute shall pay any and all costs and expenses reasonably incurred by the other party in enforcing or establishing its rights thereunder, including, without limitation, court costs and reasonable attorney's fees before and at trial and through all appellate levels. 21. Entire Agreement. This Agreement constitutes the entire agreement between the City and Manager with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous discussions, negotiations, letters, memoranda or other co ,,unications, oral or written, with respect to the subject matter hereof. This Agreement may on a 6- subsequently modified or amended in a writing signed by both the City and Manager. 22. Amendments. No change, amendment or modification of this Agreement shall be valid or binding upon the parties hereto unless such change, amendment, or moUnfication shall be in writing and duly executed by all parties hereto. The City and Mager, b..y mutual written agreement, can expand the scope of this Agreement to c over m e ent of the maintenance of other sections of Lincoln Road and/or the future Linco 5.Par 23. No Waiver. Any waiver by any party o a breach of any provision of this Agreement shall not operate as, or be constmed to be, a waive of any other breach of such provision or of any breach of any other provision of t 1 Agreement. The failure of a party to insist upon strict adherence to any term o his W reement on one or more occasions shall neither be considered a waiver nor deprive at arty of any right thereafter to insist upon strict adherence to that term or any other term of this Agree nt. Any waiver must be in writing and signed by the party to be charge 5 therewith. 24. Waiver of JA TrialThe parties to this Agreement hereby agree not to elect a trial by jury of any issu triable of right by jury, and waive any right to trial by jury fully to the extent that any such right s;all =ow-or hereafter exist with regard to this Agreement or any action or proceeding in w}u< more t one of such parties may be involved. This waiver of right to trial by jury is given l�nowingland voluntarily by the parties hereto, and is intended to encompass V dually eac ink ce and each issue as to which the right to trial by jury would otherwise accrue. The parties hereto are each hereby authorized to file a copy of this paragraph in an ceedng s conch ive evidence of this waiver. 25. xM wation of Manager. Notwithstanding anything contained in this Agreement to the contrary, on the occurrence of any claim under this Agreement or termination caused by -Vpkl Manager's d A Hit, the recourse of the City against Manager shall be limited to the actual damages incurred by the City resulting from Manager's material breach under this Agreement (after expiration of any applicable notice and cure period) or Manager's willful misconduct or gross negligence for the recovery of any judgment from Manager, it being agreed that any officers, shareholders, partners, members, managers, directors, employees or agents of Manager, any members in the entity comprising Manager and any subsidiaries or affiliates of Manager shall never be personally liable for any such judgment and are hereby unconditionally and irrevocably released, satisfied and forever discharged of and from any and all actions, causes of action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or unliquidated, at law or in equity, that the City has or may or shall have. 8 MIAMI 1987129.6 7713726901 I 26. Exculpation of the City. Notwithstanding anything contained in this Agreement to the contrary, upon the occurrence of any claim under this Agreement or termination caused by the City's default, the recourse of Manager against the City shall be limited to the actual damages incurred by Manager resulting from the City's material breach under this Agreement (after expiration of any applicable notice and cure period) or the City's willful misconduct or gross negligence, it being agreed that any employees or agents of the City shall never be personally liable for any such judgment and are hereby unconditionally and irrevocably released, satisfied and 'forever discharged. of and from any and all actions, causes of action, claims, demands, losses, costs and expenses, whether direct, contingent or consequeal, liquidated or unliquidated, at law or inequity, that Manager has or may or shall have. ke- paRibits each 27. Counte arts• Facsimile. This A reement ma be execu e s Nin of which shall be deemed an original and all of which together shall constituff one and the same instrument. A facsimile signature shall be deemed for all purposes to be an original. SIGNATURES TO FOLLOW ®N ¢XT ` vnm AiN- 9 MIAMI 1987129.6 7713726901 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, by and through their duly authorized representatives, as of the date first written above. WITNESSES: CITY: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: Sign Name: Philip Levine Title: Mayor Print Name Sign Print Name ATTEST: By: Name: Rafael Granado Title: City Clerk MIAMI 1987129.6 7713726901 WITNESSES: MANAGER: JAMECK DEVELOPMENT, INC., a Florida corporation Sign Print Name Sign By: Melvyn Schlesser President Print Name MIAMI 1987129.6 7713726901 EXHIBIT "A" CITY PROPERTY MIAMI 1987129.6 7713726901 SKECTH TO ACCOMPANY LEGAL DESCRIPTION PORTION OF EUCLID AVENUE RIGHT OF WAY BETWEEN LINCOLN ROAD & LINCOLN LANE SOUTH RIGHT OF WAY LINE OF LINCOLN ROAD(P.B.6,PG.33) 0 20 40 LINCOLN ROAD N88000'48"E SCALE 1 " = 40' Drain to o ® o 0 LEGEND: 1 �, P.O.C.=POINT OF COMMENCEMENT PC N88°00'48''E 100.00' - P.O.B.=POINT OF BEGINNING _ — — ' L PT PC=POINT OF CURVATURE PT=POINT ON TANGENCY O.R.B.=OFFICIAL RECORDS BOOK PC R=15.00' U- ".. =PAGE ' 1 L=23.56' 0 ::- j R=15.00' I N' Ton=15.00' Z Z LL L=23.56' L,'1 II ` F` II D=90°00'00" O T CL an=15.00' # ( JI O D=90°00'00" i I 1 J Rm — ZQ { � �_ - �= — > 0 � a I mp —1� �� mU > O o� I /;� f o � J o � Z� � I" ! I Z � 2 � UQ ¢ � om ° _ 1 �I J � OU � CL J Qm ,{ I: lJ LL- LU �! O U P a; o� I o' i t °z 0 Lij � LU = ; 11 zI Ilz 1 � Q J � z CIO vL I O Ohm ° � o ! Q � J O W J < Q UZ 3U =~ ®' Ow U „=,O w U D 1`-- 1 Ly __j E O U w F W NORTH AY HT N LINE OF LINCOLN LANE (P.B.6,PG.33) N88°00'48'E 0.00 ,1 °LINCOLN LANE o LOT 7 LOT 6 1 'I I I BLOCK 51 A BLOCK 50A i' 35.0 35.0 AIµ j LINCOLN SUBDIVISION LINCOLN SUBDIVISION 'N OF"THE ALTON BEACH OF"THE ALTON BEACH I I 1 111 I REALTY COMPANY" REALTY COMPANY" I I I (P.B.9,PG.69) (P.B.9,PG.69) I it III 1 84 rLrqV NGITU ODE S 3 U R V E Y O R S 3900 NW 79TH AVENUE, SUITE 601 DORAL, FL. 33166 PHONE:(305)463-0912 FAX:(305)513-5680 JOB NO.:13314 WWW.LONG I TUDESURVEYORS.COM NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2 L:\13314 Elucid Ave from Lincoln Ln to Lincoln Rd,Miami Beach,FL\dwg\Sketch and Legals\13314 SL 06-03-14.dwg 6/3/2014 4:20:11 PM EDT SKECTH TO ACCOMPANY LEGAL DESCRIPTION PORTION OF EUCLID AVENUE RIGHT OF WAY BETWEEN LINCOLN ROAD & LINCOLN LANE N21 HS T SU JECT RU L-fu PA CEL Q LINCOLN RD z U� L > U P > 8 p W J Q Q Q Q > >16TH — O x O Q D z (� J N ILL I K U Q LL ER z I.Vmvd > < f- ® Q LEGAL DESCRIPTION: A portion of Euclid Avenue Right-of-Way as shown on the plat of"SECOND COMMERCIAL SUBDIDIVISION OF THE ALTON BEACH REALTY COMPANY",according to the plat trhereof,as recorded in Plot Book 6,at Page 33,and the plat of"LINCOLN SUBDIVISION",according to the plat trhereof,as recorded in Plat Book 9,at Page 69,both recorded in the Public Records of Miami-Dade County,Florida;bounded on the North by the extension of the South Right of Way Line of Lincoln Road;bounded on the South by the extension of the North Right of Way Line of Lincoln Lane;bounded on the East by the East Right of Way Line of Euclid Avenue and bounded on the West by the West Right of Way Line of Euclid Avenue. Said parcel of land lying and being in the City of Miami Beach,Miami-Dade County,Florida and containing 10,578 Square Feet,more or less,by calculations. PERTINENT INFORMATION USED FOR SURVEY: The Legal Description of the Subject Parcel was generated from the following record documents: 1.Lease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 339,Mimai-Dade County Records. 2.Lease Agreement of the State of Florida,Board of Trustees of the Internal Improvement Fund,recorded in Official Records Book 11793,at Page 334,Mimai-Dade County Records. Bearings as shown hereon are based upon the West Line of the NW 1/4 of Section 22,Township 52 South,Range 42 East,Miami-dade County,Florida, with an assumed bearing of S03°00'04"E. EASEMENTS AND ENCUMBRANCES: No information was provided as to the existence of any easements other that what appears on the underlying Plat of record.Please refer to the Limitations item with respect to possible restrictions of record and utility services. RESTRICTIONS: Since no other information were furnished other than what is cited in the Sources of Data,the Client is hereby advised that there may be legal restrictions on the subject property that are not shown on this Sketch or contained within this report that may be found in the Public Records of Miami-Dade County,Florida or any other public and private entities as their jurisdictions may appear. This document does not represent a field boundary survey of the described property,or any part or parcel thereof. SURVEYOR'S CERTIFICATE: I hereby certify:That this"Sketch to Accompany Legal Description"and the Survey Map resulting therefrom was performed under my direction and is true and correct to the best of my knowledge and belief and further,that said"Sketch to Accompany Legal Description"meets the intent of the applicable provisions of the"Minimum Technical Standards for Land Surveying in the State of Florida",pursuant to Rule 5J-17.051 through 5J-17.052 of the Florida Administrative Code and its implementing low, Chapter 472.027 of the Florida Statutes. LONGITUDE SURVEYORS LLC.,a Florida Limited Liability Company Florida Certificate of Authorization Number LB7335 L rw N C3'T U By' Date: Jose Senas,PSM S U R V E Y 0 R S Registered Surveyor and Mapper LS5938 State of Florida 3900 NW 79TH AVENUE, SUITE 601 NOTICE: Not valid without the signature and original raised seal of a Florida Licensed DORAL, FL. 33166 Surveyor and Mapper.Additions or deletions to Survey Maps by other than the signing party are PHONE:(305)463-0912 FAX:(305)513-5680 prohibited without the written consent of the signing party. JOB NO.:13314, WWW.LONG ITUDESURVEYORS.COM NOTICE:Not full and complete without all two(2)pages. PAGE 1 OF 2 L:\13314 Elucid Ave from Lincoln Ln 10 Lincoln Rd,Miami Beach.FL\tlwg\Sketch and Legals\13314 SL 06-03-14.dwg 6/3/2014 4:20:11 PM EXHIBIT "B" CLEANLINESS INDEX STANDARDS MIAMI 1987129.6 7713726901 I EXHIBIT "C" GROUNDS MAINTENANCE SERVICE STANDARDS MIAMI 1987129.6 7713726901 NE THURSDAY,KAY 29,2014 I I M I AN I B EAC H CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARINGS NOTICE tS HEREBY given that public hearings wig be held by the Mayor and City Commis sum of the City of Ward Beach,Florida,in the Gor�tssia i Chambers,3rd fioof;City Hag,170O Conventicri, Center Drive,Miami Beach,Florida,an Vkdneaday,June il,2014,to oornidw the folkwing: am&UL Request ForAppmvalTokEaeAReWeetFarCq&M,.-aticm(RFO)No.2014-223-AD Far Comprehensive Program Re%,Lmw Of Nautilus Middle School hiquIrLss may be d*-° to 0r9whm&n Deveippment Pedarmarxe latFaHves W30-11;-473-7020. %45 a.m. A Resolution Adopairtig The Frith Amendment To The Capital Budget For Fiscal'leer(Fn 201114. Inquirfes may be&-ected to tt&-Oftoe,of Elud�f&Performance LOprowneent at 305-673-75 1CL lIkEO am. A Resolution Adop;ing T1*Third Amendment To The General Fund,Enterprise Fwxd,Internal Smice Fund,And Special Revue Fund EkAge;s For Fiscal Year Fr 2013114.Inquiries rwy be dYwfed to ft Office of Sud�e f&Pantrmarxe Imp provef neent at 305-673-751€ I&GS a.[TL A Resolution AppruOng And Accepting,I'dUming A Duly Noticed Public Hearkig,As Redo red Pursuant To Section 82-504 01 The City Code,The Recommaindation Of The Neighborhood/Ccaununity Affairs Committee At Its March 2°9,24314 Meeting To Place A.Plaque Honoring Jerry Mcss inside The Flamlwjo Park Tennis Center kiquWes may be deecLed to the Part&Recres thn Departments at 3135-673-77X 11:06 a.ffL Euclid Mot OfWayPfqect:A Resolution To C-onsiderApproval,Faftwing First ReadIngPub(m Hearing, Of A 13•-mvek4miena Agreement Between The City Of Miami Beach(Cigyj Pad Jameck Devefopment, h)c.(Jamack,Developer)For The Desfgn,Development,And Cons9nmlion Of Certain Streetacape kriprovemera In The CIr^Eight Of Way,At The Portion Of Euclid Avenue Bemeen Lincoln Road And Lk=tn Lane South(Euclid Right Of Way Project).bxhidirig,Without Untation.Removal(N The Discorine,=Value And Lo pe,Installation Of New Haidscape,Landscape,Strest Lighting,And Closue Of A Portion Of EWPJ Avenue To VehwAdar Traffic-As Part Of An Extenslon Of Lincoln Road Ped—astrian Ntall;Said ProjoKft Hziring A Total Budget Cost To The City,In The Tat.J-Sum Of$485,8211. Appropriated From Miami Beach Redei4lopmentAgency ffisloric Convention Village City Center RDA) Fwpds;And Further Setting The Second And FkiaJ Reading Of The Development Agreement For A Terre Certain On July 23,2014.Inquees msy be directed to the Tour f&rn,Cwft�m&Eccn=.L-DavE4opment Depatnent al 305-673-7577. IX Stanky SuMick Citizen's Forwn - The times for the Dr. Saaritey Sutnick Gitizen's Forum are 8-313 a.m.and 1-00:p.m.,,,of as scan as possible th*reafter.Apps&nalely thirty mkwtr--s WN be allocated to each session,with incliOduals being limited to no more ttian three minutes or for a pe mid e•-.tabll--I*d by Ihe?Aayur.tic appoi rte seunt or advance notification Is needed in order to speak to the Comn*-,-.ion during this Forum. INTERESTED PARTIES are kwiled to appear at this meeting,or be represented by an agent,or to express their vbms in%%Ti?jrtg addressed to t1w City Commission,do the Gity Clerk,1700 Convention Center OrNe,1"Floor,City Hall.Miami Beach,Florida 33139.Copies of these items are arailalate for pubffc inspection during normal business hours in the City Clerk's Office,1700 Ccavemion CenterDrWe, 1°Floor,City Hall,Miami Eleach,Fbwjda 33139.This nweting,or any Item herein,may be conlinued, and under such circumstances,addhmnal k-<Ial nofice,need oat be provided. Pursuant to Section 286L01 05,FLa.Stat,the Citj hereby acNises the public that:if a person decides to appeal any clecisicri made by the City Comn7ftalonwfth respect to any matter considered at its meeting or its hearing,such person must enswe that a verbatim retard of the proceedings Is made,wi-kh record krludes the testimony and evidence upon Atitch the appeal Is to be based.This notice does not constitute ccnserit by the City for the Intruoducti-on or admission of off em 'inadmissible or irrelewaril evidence,nor does ft authorize chaenges or appeals not otherwise alkwed by rarer. To reclLest this mater)In accessible format,sign language interpreters,information on amass for persons with d1s-abifffies andlor any aDc-cirrimodatlion to revLew any dowmeM or participate in any City-sponsored pruce--ding,please crxtacl us five days in advance at 3{1S-,673-741 I ,oicej or TTY users may also call the Flcrida Relay Service at 711. Rafael E.auto,City Ck-rk 896 City dML;Tni Beach a ' 1 A.,,\VV` 1BEACH CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARING NOTICE IS HEREBY given that a First Reading/Public Hearing will be held by the Mayor and City Commission of the City of Miami Beach,Florida, in the Commission Chambers,3rd floor,City Hall,1700 Convention Center Drive,Miami Beach,Florida,on Wednesday,June 11,2014,to consider the following: 11:05 a.m. Euclid Right Of Way Project:A Resolution To Consider Approval,Following First Reading/Public Hearing,Of A Development Agreement Between The City Of Miami Beach(City)And Jameck Development,Inc.(Jameck,Developer)For The Design,Development,And Construction Of Certain Streetscape Improvement In The City's Right Of Way,At The Portion Of Euclid Avenue Between Lincoln Road And Lincoln Lane South(Euclid Right Of Way Project),Including,Without Limitation,Removal Of The Disconnect Vault And Landscape,Installation Of New Hardscape,Landscape, Street Lighting,And Closure Of A Portion Of Euclid Avenue To Vehicular Traffic As Part Of An Extension Of Lincoln Road Pedestrian Mall;Said Project Having A Total Budget Cost To The City,In The Total Sum Of$485,821,Appropriated From Miami Beach Redevelopment Agency(Historic Convention Village/City Center RDA)Funds;And Further Setting The Second And Final Reading Of The Development Agreement For A Time Certain On July 23,2014. Inquiries may be directed to the Tourism,Culture&Economic Development Department at 305-673-7577. A copy of the proposed Development Agreement is available for inspection and may be obtained by inquiring at the City Attorney's Office 305-673-7470,1700 Convention Center Drive,41"Floor,Miami Beach,Florida 33139. Interested parties are invited to appear at this meeting,or be represented by an agent,or to express their views in writing addressed to the City Commission,c/o the City Clerk,1700 Convention Center Drive,1"Floor,City Hall,Miami Beach,Florida 33139.Copies of this item is available for public inspection during normal business hours in the City Clerk's Office,1700 Convention Center Drive,1°Floor,City Hall,Miami Beach,Florida 33139.This meeting,or any item therein,may be continued,and under such circumstances,additional legal notice need not be provided. Pursuant to Section 286.0105,Fla.Stat.,the City hereby advises the public that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at its meeting or its hearing,such person must ensure that a verbatim record of the proceedings is made,which record includes the testimony and evidence upon which the appeal is to be based.This notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence,nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in accessible format,sign language interpreters,information on access for persons with disabilities and/or any accommodation to review any document or participate in any City-sponsored proceeding,please contact us five days in advance at 305.673.7411(voice)or TTY users may also call the Florida Relay Service at 711. Rafael E.Granado,City Clerk 898 City of Miami Beach