Maintenance Agreement for 87th Street East of Collins Avenue MAINTENANCE AGREEMENT FOR 87 STREET EAST OF COLLINS AVENUE
THIS MAINTENANCE AGREEMENT FOR 87 STREET EAST OF COLLINS
AVENUE (this Agreement ) is made and entered into as of the 2-00L_ day offs-tla�� ,
20141 by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of
the State of Florida (the "City"), and 8701 COLLINS DEVELOPMENT, LLC, a Delaware
limited liability company("Developer").
RECITALS:
A. 87th Street east of Collins Avenue in Miami Beach, Florida is a dedicated City
right-of-way and is more particularly described in the attached Exhibit "A" (the "City
Property")
B. On September , 2014, the City Commission adopted Resolution No. 2014-
28754, approving, among other things, the vacation of 87th Terrace east of Collins Avenue in
exchange for certain obligations of Developer, including, but not limited to, entering into the
below described Development Agreement.
C. On , the City Commission adopted Resolution No.
2014- XXXXX, approving a Development Agreement between the City and Developer, which
includes, among other things, the requirement that Developer design, develop, construct and
maintain certain improvements to the City Property, in conjunction with the project being
developed by the Developer at 8701 Collins Avenue (the "Developer's Property").
D. On , the City and Developer entered into the
Development Agreement, which is recorded in Official Records Book XXXXX, Page XXXX of
the Public Records of Miami-Dade County, Florida(the " Development Agreement").
E. In accordance with Section XX of the Development Agreement, the City and
Developer desire to enter into this Agreement to set forth the terms and conditions of
Developer's construction and installation of improvements and maintenance 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 incorporated herein by
reference.
2. Installation of Improvements. Subject to necessary City approvals, the Developer
shall design, fund, and install the following improvements within the City Property:
(a) Lighting;
(b) Resurfacing, drainage, hardscaping,paving;
(c) Landscaping and related irrigation;
(d) Outdoor seating and other outdoor furniture;
(e) Pedestrian sidewalk, including pavers;
(f) Fences and gates to control access (so long as at least a ten (10) foot
access to the beach always remains open); and
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(g) City-approved street signage; including directional signage, beach access
signage and similar signs (including private signage) (collectively, the "87th Street
Improvements").
The existing geometry of the City Property shall be substantially followed in the
design of the improvements. No change in the location of the sidewalks, curbs and gutters shall
be permitted without the consent of the City. The design of the improvements shall be in
substantial accordance with the plans entitled XXXXX and attached hereto as Exhibit"B."
Developer shall expend at least Seven Hundred Fifty Thousand Dollars
($750,000) for the 87" Street Improvements, which obligation shall be separate and apart from
the Developer's obligation to make the Voluntary Contribution pursuant to the Development
Agreement. All of the'foregoing improvements shall be completed on or before the date of
issuance of the certificate of occupancy for the Project, as such term is defined in the
Development Agreement. During construction of the 87th Street Improvements Developer shall
be permitted to restrict access to the City and the public as is reasonably necessary for safety and
in order to efficiently complete the 87th Street Improvements.
3. Maintenance and Restoration. Developer shall, at its cost, perform daily sweeping
of leaves from the City Property as needed and perform pressure cleaning of the City Property as
needed. The maintenance ro am shall be consistent with the City's Cleanliness Index and
p �' Y
Miami Beach Grounds Maintenance Service standards. Developer shall ensure that the City
Property provides a continuous level walking surface that is compatible with the concrete
sidewalk located along Collins Avenue.
Developer shall bear all costs of restoring the City Property following a necessary
and permitted utility cut for replacement, construction or maintenance work of utilities or a major
natural disaster; provided, however, that any art pieces provided by Developer shall not be
required to be replaced or restored following a natural disaster. Upon notice from the City, the
Developer shall have thirty (30) days to commence undertaking any necessary restoration work.
This time period may be reasonably extended by the City to account for the impact of permitting
delays, unanticipated delays caused by utility providers, and/or Acts of God (including, but not
limited to, fire, flood, earthquake, storm, hurricane or other natural disaster). If the restoration
work is not complete in the timeframe established in this paragraph, the City may, at its sole
option, take action to complete.the restoration work. The City's actual costs for the restoration
work shall be reimbursable to the City by Developer.
4. Developer Use of City Property. Developer shall be permitted to utilize the City
Property for the following purposes:
(a) pedestrian and vehicular (subject to obtaining all applicable permits and
approvals) access to and from the Developer's Property;
(b) sidewalk cafe seating;
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(c) City-approved special events, as long as public pedestrian access across
the City Property is not adversely affected; and
(d) Encroachment of balconies on the City Property.
The execution of this Agreement following the necessary City Commission
review shall constitute a grant of all easements necessary for the Developer's approved used of
the City Property.
5. Public Use of City PropertL. The City shall not allow the use of the City Property,
other than by members of the general public (for public purposes consistent with the public's use
of the City Property as a pedestrian plaza providing access to and from the Atlantic Ocean beach
and North Shore Open Space Park), without prior written notice to and coordination with
Developer. In addition to use by the general public for public purposes, the aforestated
restriction on the use of the City Property (or any portion thereof) shall also not apply to public
or third party uses in conjunction with the following: (a) any City issued and/or approved film
and print permit or artist vendor and/or street performer permit; (b) any City and/or City
sponsored special event; or (c) any exercise of constitutionally protected First Amendment
rights of free speech and/or assembly. The City or third parties who use the City Property fog
such public or third party uses shall be responsible for paying for all costs and expenses in
connection with such use of the City Property.
6. Hours of Access. The City Property shall generally be open to the public and/or
guests or invitees of the Developer from sunrise to sunset daily. Access to the City Property during
a City-approved special event shall be governed by the conditions of the permit.
7. Cooperation. Should any claims, demands, suits or other legal proceedings be
made or instituted by any person against the City or Developer which arise out of the matters
relating to this Agreement, Developer or the City shall provide the other party all pertinent
information and reasonable assistance, in the defense or other disposition thereof.
8. Recording and Term. This Agreement shall be recorded in the Public Records of
Miami-Dade County, Florida, at the cost of the Developer. The obligations associated with the
installation of improvements in Paragraph 2 shall terminate upon the City's acceptance of the
improvements through the opening of the pedestrian access to the public. The easement,
security, and maintenance obligations in Paragraphs 3, 4, 5, and 6 shall remain in full force and
effect and shall be binding upon the parties, their successors in interest and assigns for an initial
period of ten (10) years from the date this instrument is recorded in the public records, and shall
be automatically extended for successive periods of one (1) year, unless modified, amended,
terminated or released prior to the expiration of such period or if within a one-year renewal
term, the City may terminate this Agreement at any time upon at least thirty (30) days advance
written notice. Provided, however, upon termination of this Agreement the City shall grant the
Developer an easement for any encroachment of balconies as described in Paragraph 4(d) above.
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9. Default.
(a) If Developer breaches its obligations as specified herein (and same are not
waived in writing by the City), then the City shall give Developer written notice specifying the
nature of the default and Developer shall have thirty(30) days after receipt of such notice within
which to cure the specified default; provided, however, if the nature of such default is such that
the same cannot reasonably be cured within such thirty (30) day period, Developer shall not be
deemed to be in default if Developer shall, within such period, commence such cure and
thereafter diligently prosecute the same to completion; provided further, however, that the
maximum cure period for any default hereunder shall not exceed ninety (90) days from the date
of the initial written notice of default from the City to Developer. If the default is not cured
within the applicable cure period, or if Developer becomes the subject of any bankruptcy or
insolvency proceeding, then the City may, on written notice to Developer, terminate this
Agreement.
(b) If the City breaches its obligations as specified herein (and same are not
waived in writing by Developer), then Developer shall give the City written notice specifying
the nature of the default and the City shall have ten (10) days after receipt of such notice, in the
case of a monetary default, or thirty (30) days after receipt of such notice, in the case of a non-
monetary default, within which to cure the specified default; provided, however, if the nature of
such default is such that the same cannot reasonably be cured within such thirty(3 0) day period,
the City shall not be deemed to be in default if the City shall, within such period, commence
such cure and thereafter diligently prosecute the same to completion; provided further, however,
that the maximum cure period for any default hereunder shall not exceed ninety (90) days from
the date of the initial written notice of default from Developer to the City. If the default is not
cured within the applicable cure period, then Developer may, on written notice to the City,
terminate this Agreement.
10. Representations and Warranties by the City. The City represents and warrants to
Developer 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
violation of any law, rules or regulations or any other agreement to which the City is a party or
is otherwise bound.
11. Representations and Warranties by Developer. Developer represents and warrants
to the City that (a) Developer is a limited liability company 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 Developer and is a valid and legally binding
obligation of Developer enforceable in accordance with the terms, and (c) neither the execution
and delivery of this Agreement by Developer nor the performance of its obligations hereunder
will result in the violation of any provision of its articles of incorporation or any other
organizational or governing document as amended to date, or will conflict with (i) any law or
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any order or decree of any court or governmental instrumentality having jurisdiction or (ii) any
other agreement to which Developer is a party or is otherwise bound.
12. Assignment. This Agreement and all rights hereunder, shall not be assignable by
either Developer or the City without prior written consent of the other, except that Developer
shall be permitted to assign this Agreement to an entity controlling, controlled by or under
common control with Developer, a successor in interest to the Developer's Property, or a
homeowners' or condominium association created to maintain common areas on the
Developer's Property.
13. Successors and Assigns. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns.
14. Notice. All notices, demands, requests, consents and-approvals which may, or are
required to, be given by any party to any other party thereunder shall be in writing and either(a)
personally delivered, (b) transmitted by fax, (c) sent by United States mail, registered or
certified, postage prepaid, return receipt requested, or (d) sent by a nationally recognized
overnight delivery service, freight prepaid, return receipt requested, and addressed as follows,
and shall be deemed given upon receipt if delivered personally, upon the sending machine
printing a confirmation of transmission, if transmitted by fax, or upon the date of delivery (or
refusal to accept delivery) on a business day (or the next succeeding business day, if not
delivered on a business day), as evidenced by the return receipt if sent pursuant to subsection (c)
or (d) above, at the address specified below, or to such other addresses as either party may from
time to time designate in writing and delivery in a like manner. Notice given by an attorney for
either party shall be deemed as effective notice given by such party.
The 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
and City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric Carpenter, Public Works Director
Fax: (305) 673-7028
and Squire Patton Boggs (US) LLP
201 North Franklin Street, Suite 2100
Tampa, Florida 33602
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J_�
Attn: Stacy Krumin, Esq.
Fax: (813) 202-1313
Developer: 8701 Collins Development, LLC
c/o Terra Group
2675 S. Bayshore Drive
Miami, FL 33133
Attn: David Martin
With a copy to: Jeffrey Bercow, Esq.
Bercow Radell & Fernandez, P.A.
200 S. Biscayne Blvd.
Suite 850
Miami, Florida 33131
15. Insurance; Bonding.
(a) City Election to Self-Insure. The City has elected to self-insure the City
Property against physical damage and against liability for loss, damage or injury to property or
persons that might occur on the City Property or to the improvements located on the City
Property.
(b) Developer's Insurance. Developer shall obtain and maintain a liability
insurance policy in the covered amount of at least $1,000,000 per incident, $2,000,000 in the
aggregate, to provide compensation for personal injuries or related claims stemming from any
error, omission, negligence, or misconduct on the part of the Developer, or any of its respective
officers, agents, servants, employees, contractors in the installation or maintenance of the
improvements on the City Property.
(c) Developer shall furnish, or shall cause its contractor to furnish, prior to
commencement of any of the work contemplated by this Agreement, a payment and l
performance bond of the form and containing all the provisions set forth in this Section.
Payment and performance bonds shall be in the form of dual obligee bonds from the Developer
and/or contractor (if Developer is not self-performing) in the full amount of the cost of the 87th
Street Improvements, naming the City and Developer (if applicable) as dual obliges and shall
guarantee to the City the completion and performance of the 87th Street Improvements as well
as full payment of all suppliers, material persons, laborers, or subcontractors employed therefor.
Such bond(s) shall continue in effect for one year after completion and acceptance of the 87th
Street Improvements. The surety company shall have at least the following minimum ratings in
the latest revision of Best's Insurance Report
Amount of Bond Ratings Cate ory
50001 to 1,020,000 B+ Class I
1,020,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class III
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16. Indemnification by Developer. Developer shall indemnify, hold and save the
City, and its officers, agents, contractors, and employees, whole and harmless and, at City's
option, defend same (using legal counsel reasonably acceptable to City), from and against all
claims, demands, actions, damages, loss, cost, liabilities, expenses, and judgments of any nature
recovered from or asserted against City on account of injury or damage to person(s) or property,
to the extent that any such damage or injury may be incident to, arise out of, or be caused, either
proximately or remotely, wholly or in part, by any act, error, omission, negligence, or
misconduct on the part of Developer, or any of their respective officers, agents, servants,
employees, contractors in the installation or maintenance of the improvements or any other use
of the City Property by Developer. Developer ,shall and will pay all costs and expenses,
including reasonable attorney's fees and court costs, incurred by or imposed upon the City by
virtue of any litigation brought by third parties against the City, including appeals, alleging
injury or damage to person(s) or property due to the installation or maintenance of the
improvements or any other use of the City Property by Developer.
17. Partial Invalidity. In the event that any one or more of the phrases, sentences,
clauses, or paragraphs contained in this Agreement shall 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 paragraphs had not been inserted in this Agreement, it being
intended by the parties that the remaining provisions of this Agreement shall remain in full force
and effect notwithstanding such invalidation.
18. No Joint Venture. It is not intended by this Agreement to, and nothing contained
in this Agreement shall, create any partnership,joint venture, limited liability company or other
arrangement between the City and Developer other than that of owner and independent
contractor. No term or provision of this Agreement is intended to be, or shall be, for the benefit
of any person not a party hereto, and no such other person shall have any right or cause of
action thereunder.
19. Governing Law. This Agreement and the rights of the parties hereto shall be
governed and construed in accordance with the laws of the State of Florida and all claims related
to this Agreement shall be brought and prosecuted in Miami-Dade County, Florida, which shall
be the exclusive venue 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. In the 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
(3 0) 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.
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
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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 Developer with respect to the subject matter hereof, and supersedes and replaces all
prior or contemporaneous discussions, negotiations, letters, memoranda or other
communications, oral or written, with respect to the subject matter hereof. This Agreement may
only be subsequently modified or amended in a writing signed by both the City and Developer.
22. Amendments. No change, amendment or modification of this Agreement shall be
valid or binding upon the parties hereto unless such change, amendment, or modification shall
be in writing and duly executed by all parties hereto.
- 23. No Waiver. Any -waiver by any party of a breach of any provision of this -
Agreement shall not operate as, or be construed to be, a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any .term of this Agreement on one or more occasions shall
neither be considered a waiver nor deprive that party of any right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be in writing and
signed by the party to be charged therewith.
24. Waiver of Jury Trial. The parties to this Agreement hereby agree not to elect a
trial by jury of any issue triable of right by jury, and waive any right to trial by jury fully to the
extent that any such right shall now or hereafter exist with regard to this Agreement or any
action or proceeding in which more than one of such parties may be involved. This waiver of
right to trial by jury is given knowingly and voluntarily by the parties hereto, and is intended to
encompass individually each instance 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 any proceeding as conclusive evidence of this waiver.
25. Corporate Obligations. It is expressly understood that this Agreement and the
obligations issued hereunder are solely corporate obligations, and that no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, elected
or appointed officials (including, without limitation, the Mayor and City Commissioner of the
City) or employees, as such of Developer, any of any successor corporation or any of them,
under or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any of all such rights and claims against, every such
incorporator, stockholder, officer, director, elected or appointed official (including, without
limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by
reason of the obligations, covenants or agreements contained in this Agreement or implied
therefrom are expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement.
26. Counterparts; Facsimile. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute one and the same
instrument. A facsimile signature shall be deemed for all purposes to be an original.
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I
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed
as of the date set forth above.
Witnesses: THE OWNER
8701 COLLINS DEVELOPMENT, LLC
a Florida limited liability company
Sign Name:
Print Name: �tJi�'�u�/r B
D id Martin , Manager
Sign Name:
Print Name: �i �'S'
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
'I
The foregoing instrument was acknowledged before me this `� day f N®V., 2014
g g g
Y
by David Martin, as manager of 8701 COLLINS DEVELOPMENT, LLC a
Florida limited
liability company, on behalf of the company. He is personally known to me or has produced
-Tq CA as identification.
ej V i Ve r I C'e-0 se Z(
NOTARY PUBLIC
11103;-61 ) 671 Q i'7 S(�
Typed or Printed Name of Notary
My Commission Expires:
Serial No., if any:
� VP ,,, DINORAN ALONSO
Notary Public-State of Fiorida
• My Comm.Expires Sep 18,2018
Commission 8 FF 125324
TP h iai0W Notary►Assn.
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Witnesses: CITY OF MIAMI BEACH, FLOR1QA,
a municipal corporation
Sign Nai e: By:
Mayor
Print NameSG YVNC\n
Sign Na
Print Name:\1-'z'� G`Y\CkV0 I/\G(C
ATTEST: B I `
City Clerk � ? =
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 2,5 day of V ; 2014
by Philip Levine, as mayor of the City of Miami Beach, Florida, a Florida municipal corporation,
on behalf of the City. He is personally known to me or has produced as
identification.
N Y PUBLIC
LAMA HERNANDEZ L ei.-
o�`Y P�eG MY COMMISSION#FF025489
' EXPIRES:JUN 09,2017 Typed or Printed Name of Notary
Bonded through 1st state Insurance
My Commission.Expires:
Serial No., if any:
APPROVED AS TO
FORM & LANGUAGE
& , R EXECUTION
285976/4/TAMPA City Attorney DC.te