2016-29680 Reso RESOLUTION NO. 2016-29680
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, TO CONSIDER APPROVAL,
FOLLOWING SECOND READING/PUBLIC HEARING OF A
DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER
SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 -
163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 1698
ALTON ROAD VENTURES LLC, A FLORIDA LIMITED LIABILITY
COMPANY, AND 1681 WEST VENTURES LLC, A FLORIDA
LIMITED LIABILITY COMPANY (COLLECTIVELY THE
"DEVELOPER"), WHICH DEVELOPMENT AGREEMENT: (1)
MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S
20 FOOT WIDE PUBLIC RIGHT-OR-WAY, RUNNING PARALLEL
TO ALTON ROAD, BETWEEN ALTON ROAD AND WEST
AVENUE, BETWEEN 17TH STREET AND LINCOLN ROAD ("CITY
PARCEL"); (2) GRANTS TO THE CITY A PERPETUAL UTILITY
AND ACCESS EASEMENT ACROSS THE CITY PARCEL; (3)
ENSURES THE PAYMENT TERMS FOR DEVELOPER'S PAYMENT
OF A VOLUNTARY MONETARY CONTRIBUTION TO THE CITY,
IN THE AMOUNT OF $665,000 (THE "VOLUNTARY
CONTRIBUTION"); AND (4) DELINEATES CERTAIN CONDITIONS
FOR THE CONSTRUCTION OF THE PROJECT, LOCATED AT
1698 ALTON ROAD AND 1681 & 1683 WEST AVENUE, MIAMI
BEACH, FLORIDA (COLLECTIVELY THE "DEVELOPER'S
PARCELS"), AS A MIXED-USE PROJECT WITH RESIDENTIAL
AND RETAIL/RESTAURANT USES AND STRUCTURED PARKING,
CONSISTENT WITH THE CD-2 ZONING DISTRICT REGULATIONS.
WHEREAS, 1698 Alton Road Ventures LLC, a Florida limited liability company, and
1681 West Ventures LLC, a Florida limited liability company (collectively the "Developer") owns
the properties located at 1698 Alton Road and 1681 & 1683 West Avenue, Miami Beach,
Florida (collectively the "Developer's Parcels") and intends to develop the Developer's
Parcels as a mixed-use project with residential and retail/restaurant uses and structured
parking, consistent with the CD-2 zoning regulations; and
WHEREAS, the City of Miami Beach holds a right-of-way dedication to a 20 foot wide
public right-of way, running parallel to Alton Road, between Alton Road and West Avenue,
between 17th Street and Lincoln Road ("Alton Court Property"); and
WHEREAS, Developer seeks to have the City vacate the north 100 feet of the Alton
Court Property located between Developer's Parcels, for the entire 20 foot width thereof
("City Parcel"); and
WHEREAS, the remainder of the Alton Court Property will not be vacated, and
WHEREAS, Developer has requested that the City vacate the City Parcel in order to
incorporate such property, (including, without limitation, the Floor Area Ratio ("FAR")
attributable thereto) into the Project, subject to the conditions and restrictions delineated in
the attached Development Agreement; and
WHEREAS, the City's Finance and Citywide Projects Committee analyzed the
appraised value of the City Parcel as set forth in the Appraisal Report by Waronker and
Rosen, Inc., dated April 20, 2016 addressed to the City, and recommended that a thirty
percent (30%) discount be applied to the appraised value set forth therein because the full
bundle of rights are not being utilized by the Developer, which is $665,000; and
WHEREAS, the developer has voluntarily proffered a voluntary contribution to the
City of$665,000 to the City; and
WHEREAS, based upon the foregoing, the parties seek to enter into a Development
Agreement; and
WHEREAS, the City is a Florida municipal corporation with powers and authority
conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida
Statutes and the Miami Beach City Charter and Code of Ordinances; and
WHEREAS, the City has all governmental, corporate and proprietary powers to
enable it to conduct municipal government, perform municipal and governmental functions,
and render municipal services, including the authority to adopt, implement and enforce
(together with any other required governmental approvals) comprehensive plans, zoning
ordinances, redevelopment plans, and other police power and legislative measures
necessary to assure the health, safety and general welfare of the City and its inhabitants;
and
WHEREAS, in contemplation of this Project, Developer will be seeking to enter into a
development agreement with the City pursuant to Sections 163.3220 - 163.3243, Florida
Statutes ("Development Agreement") to memorialize the terms and conditions of the
Project, including the vacation of the Vacation Parcel, and any other conditions imposed
by the City Commission; and
WHEREAS, the attached Development Agreement, among other things, is intended
to and shall constitute a development agreement between the parties pursuant to Sections
163.3220-163.3243, Florida Statutes 2014 commonly referred to as the "Florida Local
Government Development Agreement Act" (the "Act") and Section 118-4 of the City's Code;
and
WHEREAS, adoption of a Development Agreement, requires two duly noticed public
hearings in compliance with Section 163.3225 of the Act; and
WHEREAS, the City, in approving the Development Agreement must determine that
the Project and this Agreement are in compliance with the City's Comprehensive Plan and
Land Development Regulations as of the Effective Date; and determined that it is in the
City's best interest to address the issues covered by this Agreement in a comprehensive
manner, in compliance with all applicable laws, ordinances, plans, rules and regulations of
the City; and
WHEREAS, the City has determined that the Project, the vacation of the City Parcel,
and the Voluntary Contribution will benefit the City and the public; and
WHEREAS, Sections 163.3220 — 163.3243, Florida Statutes, and Section 118-4 of
the City's Code require two public hearings on the Development Agreement; and
WHEREAS, the Development Agreement shall provide, amongst other things, the
following terms and conditions:
(a) Developer shall pay a voluntary public contribution (hereinafter
the "Voluntary Contribution") of $665,000 to the City in
connection with the vacation of the City Parcel.
(b) City Commission shall have full discretion on its allocation and
use of the Voluntary Contribution.
(c) Developer shall designate a portion of the on-site project
parking, no less than 30 parking spaces, as public parking.
(d) Developer shall prohibit any habitable structures, parking
spaces, deck space or amenities from being placed in or
above the City Parcel. The City Parcel shall be used solely for
a pedestrian and or vehicular "bridge" to link the Developer's
Parcels, and as contemplated in the Design Review Board
and Planning Board approvals for the project.
(e) Developer's Project, shall be developed as a mixed-use
project with residential and retail/restaurant uses and
structured parking, [and in accordance with the Order, dated
May 3, 2016 of the City's Design Review Board], and
consistent with the CD-2 zoning regulations of the City's Land
Development Regulations (the Project),
(f) Developer will make the first payment of the Voluntary
Contribution, in the amount of $199,500, plus reimbursement
to the City for the cost of the Appraisal Report, in the amount
of $10,500, within ten (10) business days following the City
Commission's final approval of the Development Agreement.
(g) Developer will apply for a full Building Permit for the Project,
no later than June 16, 2017.
(h) Developer will pay the City the balance of the Voluntary
Contribution within ten (10) business days following the
issuance of the vertical/shell building permit for the Project.
Upon receipt of this payment, the City shall deliver a quit claim
deed to Developer for the City Parcel. The actual vacation of
the City Parcel shall only be effective as of the date Developer
makes the final payment of the Voluntary Contribution and
receives the deed. The payment shall be non-refundable.
(i) The City shall reserve a non-exclusive, perpetual, public
access easement over the entire portion of the City Parcel.
(j) The Developer shall pave the entirety of alley (Alton Court
between 17th and Lincoln Road), and replace, underground
power lines and utilities.
(k) The Developer shall resurface, hardscape and landscape of
the entirety of the City Parcel.
(I) The Developer shall install City-approved street signage;
including directional signage, beach access signage and
similar signs (including private signage).
(m)The Developer shall be solely responsible for and shall install
any necessary drainage structures, facilities or improvements
as may be necessary or required for the Project and City
Parcel.
(n) Developer shall install new water and sanitary sewer pipes,
along the north 145 feet of the City Parcel, to replace that
portion of the existing pipes located in the City Parcel. All
remaining existing utilities controlled by the City and located
underground within the City Parcel will be replaced or
improved by Developer at the direction and reasonable
discretion of the City's Public Works Director.
(o) There is a pole mounted transformer ("FP&L Equipment) and
other existing equipment ("Other Equipment") located in the
City Parcel that is related to the stormwater pump station
located on 17th Street. The Developer shall coordinate with
FP&L and the City's Public Works Department for the removal
and/or relocation of the FP&L Equipment and Other
Equipment, at the direction and reasonable discretion of FPL
(Florida Power & Light) and the City's Public Works Director,
or his designee. The existing overhead utility lines (electrical,
cable and telephone) and other pole mounted equipment shall
be relocated, with the direction of FPL or any other applicable
utility providers and the City's Public Works Director.
(p) The existing geometry of Alton Court between 17th and Lincoln
Road shall be substantially followed in the design of the Alton
Road Improvements. No change in the location of the
sidewalks, curbs and gutters shall be permitted without the
prior written consent of the City.
(q) The Developer shall pay for the City's reasonable outside
counsel fees.
WHEREAS, the City and Developer have negotiated the attached Development
Agreement.
NOW THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND
CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, the Mayor and City
Commission approve, following second reading/public hearing of the attached
Development Agreement as authorized under Section 118-4 of the City Code, and
Sections 163.3220 — 163.3243, Florida Statutes, between the City and 1698 Alton Road
Ventures LLC, a Florida Limited Liability Company, and 1681 West Ventures LLC, a
Florida Limited Liability Company (collectively the "Developer"), which Development
Agreement: (1) memorializes the conditions for vacating the city's 20 foot wide public right-of
way, running parallel to Alton Road, between Alton Road and West Avenue, between 17th
Street and Lincoln Road ("city parcel"); (2) grants to the city a perpetual utility and access
easement across the city parcel; (3) ensures the payment terms for developer's payment of a
voluntary monetary contribution to the city, in the amount of $665,000 (the "Voluntary
Contribution"); and (4) delineates certain conditions for the construction of the project, located
at 1698 Alton Road and 1681 & 1683 West Avenue, Miami Beach, Florida (Collectively The
"Developer's Parcels"), as a mixed-use project with residential and retail/restaurant uses and
structured parking, consistent with the CD-2 zoning district regulations.
PASSED and ADOPTED this y day of L?ctr e✓, 2016.
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MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager& Raul J. Aguila, City Attorney
DATE: December 14, 2016
2:00 p.m. Second Reading Public Hearing
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, TO CONSIDER APPROVAL, FOLLOWING SECOND
READING/PUBLIC HEARING OF A DEVELOPMENT AGREEMENT AS
AUTHORIZED UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS
163.3220 - 163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 1698
ALTON ROAD VENTURES LLC,A FLORIDA LIMITED LIABILITY COMPANY,AND
1681 WEST VENTURES LLC, A FLORIDA LIMITED LIABILITY COMPANY
(COLLECTIVELY THE "DEVELOPER"), WHICH DEVELOPMENT AGREEMENT:
(1) MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S 20 FOOT
WIDE PUBLIC RIGHT-OF-WAY, RUNNING PARALLEL TO ALTON ROAD,
BETWEEN ALTON ROAD AND WEST AVENUE, BETWEEN 17TH STREET AND
LINCOLN ROAD ("CITY PARCEL"); (2) GRANTS TO THE CITY A PERPETUAL
UTILITY AND ACCESS EASEMENT ACROSS THE CITY PARCEL; (3) ENSURES
THE PAYMENT TERMS FOR DEVELOPER'S PAYMENT OF A VOLUNTARY
MONETARY CONTRIBUTION TO THE CITY, IN THE AMOUNT OF $665,000 (THE
"VOLUNTARY CONTRIBUTION"); AND (4) DELINEATES CERTAIN CONDITIONS
FOR THE CONSTRUCTION OF THE PROJECT, LOCATED AT 1698 ALTON
ROAD AND 1681 & 1683 WEST AVENUE, MIAMI BEACH, FLORIDA
(COLLECTIVELY THE "DEVELOPER'S PARCELS"), AS A MIXED-USE PROJECT
WITH RESIDENTIAL AND RETAIL/RESTAURANT USES AND STRUCTURED
PARKING, CONSISTENT WITH THE CD-2 ZONING DISTRICT REGULATIONS.
RECOMMENDATION
The City Manager and City Attorney's Office recommends that the City Commission approve the
Resolution and attached Development Agreement, upon second reading/final public hearing.
ANALYSIS
On July 13, 2016, the City Commission approved Resolution No. 2016-29488, approving, with
conditions, the vacation of a 20 foot wide portion of a right-of-way, known as Alton Court
(hereinafter "City Parcel") in favor of 1698 Alton Road Ventures LLC, a Florida Limited Liability
Company, and 1681 West Ventures LLC, a Florida Limited Liability Company (hereinafter
collectively"Developer").
Page 838 of 1191
The City's Finance and Citywide Projects Committee analyzed the appraised value of the City
Parcel, as set forth in the Appraisal Report by Waronker and Rosen, Inc., dated April 20, 2016,
and recommended that a thirty percent (30%) discount be applied to the appraised value set
forth therein because the full bundle of rights are not being utilized by the Developer. As such,
the Developer and the Finance Committee agreed to a financial contribution to be paid by the
Developer as a voluntary contribution incident to the proposed vacation of the City Parcel, in the
amount of$665,000.
City and Developer have agreed to enter into a Development Agreement pursuant to Sections
163.3220 — 163.3243, Florida Statutes ("Development Agreement"), to memorialize the terms
and conditions of the Project, including the vacation of the City Parcel, and any other conditions
imposed by the City Commission. The material provisions of the attached Development
Agreement include:
(a) Developer shall pay a voluntary public contribution (hereinafter the "Voluntary Contribution")
of$665,000 to the City in connection with the vacation of the City Parcel.
(b) City Commission shall have full discretion on its allocation and use of the Voluntary
Contribution.
(c) Developer shall designate a portion of the on-site project parking, no less than 30 parking
spaces, as public parking.
(d) Developer shall prohibit any habitable structures, parking spaces, deck space or amenities
from being placed in or above the City Parcel. The City Parcel shall be used solely for a
pedestrian and or vehicular"bridge" to link the Developer's Parcels, and as contemplated in the
Design Review Board and Planning Board approvals for the project.
(e) Developer's Project, shall be developed as a mixed-use project with residential and
retail/restaurant uses and structured parking, [and in accordance with the Order, dated May 3,
2016 of the City's Design Review Board], and consistent with the CD-2 zoning regulations of the
City's Land Development Regulations (the Project),
(f) Developer will make the first payment of the Voluntary Contribution, in the amount of
$199,500, plus reimbursement to the City for the cost of the Appraisal Report, in the amount of
$10,500, within ten (10) business days following the City Commission's final approval of the
Development Agreement.
(g) Developer will apply for a full Building Permit for the Project, no later than June 16, 2017.
(h) Developer will pay the City the balance of the Voluntary Contribution within ten (10) business
days following the issuance of the vertical/shell building permit for the Project. Upon receipt of
this payment, the City shall deliver a quit claim deed to Developer for the City Parcel. The actual
vacation of the City Parcel shall only be effective as of the date Developer makes the final
payment of the Voluntary Contribution and receives the deed. The payment shall be non-
refundable.
(i) The City shall reserve a non-exclusive, perpetual, public access easement over the entire
portion of the City Parcel.
(j) The Developer shall pave the entirety of alley (Alton Court between 17th and Lincoln Road),
and replace, underground power lines and utilities.
(k)The Developer shall resurface, hardscape and landscape of the entirety of the City Parcel.
(I)The Developer shall install City-approved street signage; including directional signage, beach
access signage and similar signs (including private signage).
(m) The Developer shall be solely responsible for and shall install any necessary drainage
Page 839 of 1191
structures, facilities or improvements as may be necessary or required for the Project and City
Parcel.
(n) Developer shall install new water and sanitary sewer pipes, along the north 145 feet of the
City Parcel, to replace that portion of the existing pipes located in the City Parcel. All remaining
existing utilities controlled by the City and located underground within the City Parcel will be
replaced or improved by Developer at the direction and reasonable discretion of the City's
Public Works Director.
(o) There is a pole mounted transformer ("FP&L Equipment) and other existing equipment
("Other Equipment") located in the City Parcel that is related to the stormwater pump station
located on 17th Street. The Developer shall coordinate with FP&L and the City's Public Works
Department for the removal and/or relocation of the FP&L Equipment and Other Equipment, at
the direction and reasonable discretion of FPL (Florida Power & Light) and the City's Public
Works Director, or his designee. The existing overhead utility lines (electrical, cable and
telephone) and other pole mounted equipment shall be relocated, with the direction of FPL or
any other applicable utility providers and the City's Public Works Director.
(p) The existing geometry of Alton Court between 17th and Lincoln Road shall be substantially
followed in the design of the Alton Road Improvements. No change in the location of the
sidewalks, curbs and gutters shall be permitted without the prior written consent of the City.
(q)The Developer shall pay for the City's reasonable outside counsel fees.
Legislative Trackina
Office of the City Attorney
ATTACHMENTS:
Description
❑ Alton Court DA Rock Soffer- Reso 2nd Reading
❑ Alton Court Development Agreement
❑ Ad
Page 840 of 1191
This instrument was prepared by (record and return to):
Stacy H. Krumin, Esq
Squire Patton Boggs (US) LLP
200 S. Biscayne Boulevard, Suite 4700
Miami, Florida 33131
(Space reserved for Clerk)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of the
day of 2016 (the "Execution Date"), by and among the City of Miami
Beach, a Florida municipal corporation (the "City"), and 1698 Alton Road Ventures LLC, a Florida
limited liability company, and 1681 West Ventures LLC, a Florida limited liability company
(collectively the "Developer").
Recitals
A. The property that is the subject of this Agreement lies in the City of Miami
Beach, Miami-Dade County, Florida. This Agreement, among other things, is intended to and
shall constitute a development agreement between the parties pursuant to Sections 163.3220-
163.3243, Florida Statutes 2014 commonly referred to as the "Florida Local Government
Development Agreement Act" (the "Act") and Section 118-4 of the City's Code.
B. The Developer owns the properties located at 1698 Alton Road and 1681 & 1683
West Avenue, Miami Beach, Florida, and more particularly described in Exhibit "A" attached
(collectively the "Developer's Parcels").
C. The Developer intends to develop the Developer's Parcels as a mixed-use
project with residential and retail/restaurant uses and structured parking, consistent with the
City's CD-2 zoning regulations.
010-8254-2862/8/AMERICAS Page 846 of 1191
D. The City holds a right-of-way dedication to a 20 foot wide public right-of way,
running parallel to Alton Road, between Alton Road and West Avenue, and 17th Street and
Lincoln Road ("Alton Court Property") and more particularly described in Exhibit "B" attached.
E. Developer seeks to have the City vacate the north 100 feet of the Alton Court
Property, located between Developer's Parcels, for the entire 20 foot width thereof, such parcel
being more particularly described in Exhibit "C" attached hereto ("City Parcel"). The remainder
of the Alton Court Property will not be vacated. Developer has requested that the City vacate
the City Parcel in order to incorporate such property, (including, without limitation, the Floor
Area Ratio ("FAR") attributable thereto) into the Project, subject to the conditions and
restrictions as set forth herein.
F. The City is a Florida municipal corporation with powers and authority conferred
under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the
Miami Beach City Charter and Code. The City has all governmental, corporate and proprietary
powers to enable it to conduct municipal government, perform municipal and governmental
functions, and render municipal services, including the authority to adopt, implement and
enforce (together with any other required governmental approvals) comprehensive plans,
zoning ordinances, redevelopment plans, and other police power and legislative measures
necessary to assure the health, safety and general welfare of the City and its inhabitants.
G. Having fully considered this Agreement at two duly noticed public hearings, in
compliance with Section 163.3225 of the Act; having determined that the Project and this
Agreement are in compliance with the City's Comprehensive Plan and Land Development
Regulations as of the Effective Date; and having further determined that it is in the City's best
interest to address the issues covered by this Agreement in a comprehensive manner, in
compliance with all applicable laws, ordinances, plans, rules and regulations of the City, the
City has agreed to enter into this Agreement with the Developer.
H. The City has determined that the Project,the vacation of the City Parcel, and the
Voluntary Contribution will benefit the City and the public.
All capitalized terms used in the Recitals are defined in Section 3 or elsewhere in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
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Page 847 of 1191
1. Recitations. The foregoing Recitals are true and correct and are incorporated
herein by this reference.
2. Authority. This Agreement is entered into pursuant to the authority and
procedures provided by the Act.
3. Definitions. All capitalized terms in this Agreement shall have the definitions set
forth in this Section unless such terms are defined elsewhere in the body of this Agreement.
3.1 "Act" shall have the meaning set forth in Recital A.
3.2 "Alton Court Improvements" shall mean the improvements to be made
to the Alton Court Property as depicted in the Alton Court Plans, and as further described in
Section 7 of this Agreement.
3.3 Reserved.
3.4 "Alton Court Plans" shall mean the plans, designs, and drawings
including any revisions and enhancements thereto, depicting the Alton Court Improvements,
as further described in Section 8 of this Agreement.
3.5 "Alton Court Property" shall have the meaning set forth in Recital D.
3.6 "Building Permit" shall mean a permit issued by the designated building
official, his designee or authorized agency or department of the City which allows a building or
structure to be erected, constructed, demolished, altered, moved, converted, extended,
enlarged, or used, for any purpose, in conformity with applicable codes and ordinances.
3.7 "City Easement" shall have the meaning set forth in subsection 6.1.
3.8 "Closin " shall refer to the formal exchange of documents between the •
parties, as further described in Section 11 of this Agreement.
3.9 "Comprehensive Plan" shall mean the comprehensive plan which the
City has adopted and implemented for the redevelopment and continuing development of the
City pursuant to Chapter 163 Part II, of the Florida Statutes.
3.10 "Declaration of Restrictive Covenants" shall have the meaning set forth
in subsection 6.2.
3.11 "Deed" shall have the meaning set forth in subsection 6.1.
3.12 "Design Review Board Order" shall mean that certain Order dated May
3, 2016,from the City Design Review Board.
3
Page 848 of 1191
3.13 "Developer" means the person or entity undertaking the development
of the Property, as defined in the preamble to this Agreement, or any permitted successors,
assigns, or heirs thereof.
3.14 "Development Order" means any order granting, denying, or granting
with conditions an application for a Development Permit.
3.15 "Development Permit" shall have the meaning set forth in Section
163.3221(5), Florida Statutes (2014), which includes any building permit, zoning permit,
subdivision approval, rezoning, certification, special exception, variance, or any other official
action of local government having the effect of permitting the development of land.
3.16 "Effective Date" is the date when the City records the executed
Agreement in the Public Records of Miami-Dade County, as provided in Section 163.3239,
Florida Statutes (2014), and subection 17.1 of this Agreement.
3.17 "Escrow Agreement" shall have the meaning set forth in subection 11.1.
3.18 "Execution Date" is the date the last of the parties hereto executes this
Agreement.
3.19 "Land Development Regulations" shall have the meaning set forth in
Section 163.3221(8), Florida Statutes (2014) and shall also include, without limitation, the
definition of"land development regulations" in Section 114-1 of the City Code.
3.20 "Laws" means all ordinances, resolutions, regulations, the
Comprehensive Plan, Land Development Regulations, and rules adopted by a local government
having jurisdiction affecting the development of land, specifically including the City's
Comprehensive Plan and the City's Land Development Regulations.
3.21 Reserved.
3.22 "Planning Board Order(s)" shall mean that certain Order(s) dated May
24, 2016,from the City Planning Board.
3.23 "Project" shall mean the design, development, and construction of the
Property as a mixed-use project with residential and retail/restaurant uses and structured
parking, and in accordance with the Design Review Board Order, and consistent with CD-2
zoning regulations of the City's Land Development Regulations, and the following provisions
(with the stricter of the City's Design Review Board Order or the City's Land Development
Regulations prevailing):
(i) The maximum total floor area permitted on the Property shall not
exceed that provided by the CD-2 zoning regulations of the City's Land
4
Page 849 of 1191
Development Regulations for the purposes of determining population densities
and building intensities as required by the Act.
(ii) The height of any habitable building on the Property shall not
exceed 63 feet to the top of the roof, and architectural projections will comply
with the terms of the CD-2 zoning regulations of the City's Land Development
Regulations.
(iii) The uses permitted on the Property shall include all uses allowed
under the CD-2 zoning regulations as of the Effective Date.
(iv) The Project shall include on-site parking in accordance with the
provisions of the CD-2 zoning regulations of the City's Land Development
Regulations, except that no parking shall lie in or above the City Parcel.
(v) The Developer shall cause the completion of the Project and shall
obtain a certificate of occupancy or certificate of completion ("CO"), as
applicable, within five (5) years of the Effective Date.
(vi) No habitable structures, parking spaces, deck space or amenities
shall be placed in or above the City Parcel. The City Parcel shall be used primarily
for a ,pedestrian and/or vehicular "bridge" purposes to link the Developer's
Parcels and as contemplated in the Design Review Board Order and Planning
Board Order.
3.24 "Property" shall mean the parcel of real property described in Exhibit
"A" hereto. From and after the City Parcel Vacation Date, the Property shall include all of the
Developer's right, title and interest in and to the Property pursuant to the vacation of the City
Parcel as approved pursuant to, and subject to and conditioned upon, the terms of the
Vacation Resolution.
3.25 "Public Parking" shall mean parking spaces located within the Project
that will be unassigned and available for use by the general public on a first come, first serve
basis.
3.26 "Term" shall have the meaning set forth in subsection 17.2.
3.27 "City Parcel Vacation Date" shall mean the date when the actual
vacation of the City Parcel becomes effective in accordance with the terms of the Vacation
Resolution, and as set forth in Section 5 of this Agreement.
3.28 "Vacation Resolution" means the City's Resolution No. 2016-
, approving, with conditions, the vacation of the City Parcel, a copy of which is
attached hereto as Exhibit"D" and incorporated herein by reference.
5
Page 850 of 1191
4. Vacation of City Parcel and Voluntary Contribution.
4.1 Developer has offered a voluntary public contribution of $665,000 (the
"Voluntary Contribution") to the City in exchange for the vacation of the City Parcel. Further,
as a condition to such vacation, the Developer shall be required to designate no less than 30
spaces of the parking on site as Public Parking, which area and amount of spaces shall be
subject to approval of City staff. The City shall have full discretion on its allocation and use of
the Voluntary Contribution, in the City's sole discretion.
4.2 Developer hereby covenants, warrants, and agrees that no habitable
structures, parking spaces, deck space or amenities shall be placed in or above the City Parcel
at any time. The City Parcel shall be used primarily for a pedestrian and or vehicular "bridge"
purposes to link the Developer's Parcels and as contemplated in the Design Review Board
Order and Planning Board Order.
5. Payments and Timing. The Voluntary Contribution shall be paid to the City as
follows:
5.1 Developer will make the first payment, in the amount of $199,500, plus
reimbursement to the City for the cost of the Appraisal Report in the amount of $10,500,
within ten (10) business days following the City Commission's final approval of the
Development Agreement. This payment will be non-refundable.
5.2 Developer will apply for a full Building Permit for the Project, using
commercially reasonable efforts, no later than June 16, 2017.
5.3 Developer will pay the City the balance of the Voluntary Contribution
within ten (10) business days of the City's issuance of the vertical/shell building permit for the
Project.
5.4 The actual vacation of the City Parcel shall only be effective as of the
date Developer makes the final payment of the Voluntary Contribution and otherwise
complies with the conditions to release of the Closing Documents (defined below) pursuant to
the Escrow Agreement (defined below). The payment shall be non-refundable.
6. City Easement; Restrictive Covenants.
6.1 The City shall convey the City Parcel to Developer by delivering its quit
claim deed to Developer for the City Parcel, as more fully decribed below, the form of which is
attached hereto as Exhibit "E" (the "Deed"). The Deed shall contain a reservation of rights in
favor of the City for a non-exclusive, perpetual, public access easement over the entire portion
of the City Parcel, subject to the review and approval of City staff, not to be unreasonably
withheld, in order to provide access to the public and utility access to the City and any utility
provider to any and all utilities located under the City Parcel and rights to the City and utility
proviers to install new utility lines in the future (the "City Easement"). The City Easement may
be blocked during construction and for future repairs, as reasonably required for the
6
Page 851 of 1191
construction of the Project, Alton Court Improvements, or future utility installation, as more
fully set forth in the Deed.
6.2 Immediately after recording the Deed, the Developer shall record a
declaration of restrictive covenants (the "Declaration"), in the form attached hereto as Exhibit
"F", which shall run with the land, and require that:
(i) At least thirty (30) parking spaces in the Project be designated as
Public Parking at all times;
(ii) Developer shall be responsible for any and all maintenance to the
surface area within the City Parcel pursuant to the requirements of Section
Section 8.4 below; and
(iii) No habitable structures, parking spaces, deck space or amenities
shall be placed in or above the City Parcel, and the City Parcel shall be used
primarily for pedestrian and or vehicular "bridge" purposes to link the
Developer's Parcels and as contemplated in the Design Review Board Order and
Planning Board Order.
6.3 The Declaration of Restrictive Covenants shall be in the form attached
•
hereto as Exhibit "F".
7. Alton Court Improvements. The Developer shall design, construct and install the
Alton Court Improvements, unless otherwise paid for by any applicable utility provider.
Developer shall be solely responsible for all costs and work associated with the improvements
to the Alton Court Property (including, without limitation, the design, permitting and
construction). The Alton Court Improvements shall include, at a minimum, the following,
certain of which improvements are more particularly described in Exhibit "G" attached hereto:
7.1 The Developer shall install new lighting, hardscape and landscaping
within the City Parcel pursuant to the direction of the City's Public Works Director;
7.2 The Developer shall resurface the entirety of the Alton Court Property.
7.3 The Developer shall install City-approved street signage; including
directional signage, beach access signage and similar signs (including private signage).
7.4 The Developer shall be solely responsible for and shall install any
necessary drainage structures, facilities or improvements as may be necessary or required for
the Project and the City Parcel.
7.5 The Developer shall install new water and sanitary sewer pipes, along
the North 145 feet of the Alton Court Property, to replace that portion of the existing pipes
located in the Alton Court Property, as generally described in Exhibit "G" and to be constructed
pursuant to plans approved by the City's Public Works Director. All remaining existing utilities
7
Page 852 of 1191
controlled by the City and located underground within the City Parcel will be replaced or
improved by Developer at the direction and reasonable discretion of the City's Public Works
Director.
7.6 There is a pole mounted transformer ("FP&L Equipment) and other
existing equipment ("Other Equipment") located in the City Parcel that is related to the
stormwater pump station located on 17th Street. The Developer shall coordinate with FP&L
and the City's Public Works Department for the removal and/or relocation of the FP&L
Equipment and Other Equipment, at the direction and reasonable discretion of FPL (Florida
Power & Light) and the City's Public Works Director. The existing overhead utility lines
(electrical, cable and telephone) and other pole mounted equipment shall be relocated, with
the direction of FPL or any other applicable utility providers and the City's Public Works
Director.
7.7 The existing geometry of Alton Court shall be substantially followed in
the design of the Alton Court Improvements. No change in the location of the sidewalks, curbs
and gutters shall be permitted without the prior written consent of the City.
8. Alton Court Approvals, Permitted and Completion.
8.1 The Developer shall cause the Alton Court Plans to be prepared by an
architect or other design professional selected by the Developer and approved by the City
Manager.The Alton Court Plans shall be submitted to the City Manager within ninety (90) days
of the Effective Date. The City Manager shall have thirty (30) business days from the date of
submission to review the Alton Court Plans and provide its written comments, if any, to
Developer. The Developer shall address such comments and respond with revised Alton Court
Plans within twenty (20) business days of its receipt of the City comments. This process shall
be repeated until the City approves the Alton Court Plans (such approved plans, the "Alton
Court Plans"). Developer's failure to obtain the City's approval of the Alton Court Plans by the
date which is two hundred seventy (270) days from the Effective Date shall be deemed an
Event of Default under this Agreement. Approval of the Alton Court plans by the City Manager
shall be a condition precedent to Developer filing its application for the Building Permit for the
Project.
8.2 Within thirty (30) days after the City's approval pursuant to subsection
8.1 above, the Developer will apply for and diligently pursue, within One hundred fifty (150)
days thereafter, all required permits and final non-appealable approvals including, without
limitation, all required Development Orders and Development Permits, for the Alton Court
Improvements, as generally set forth in Exhibit "H" attached hereto.
8.3 The Developer shall complete the Alton Court Improvements on or
before 120 days after its receipt of all required permits and final non-appealable approvals
including, without limitation, all required Development Orders and Development Permits, for
the Alton Court Improvements. Completion of the Alton Court Improvements is a condition of
the issuance of a temporary or final certificate of occupancy or certificate of completion, as
Page 53 of 1191
applicable, for the Project. It is expressly understood and agreed that the City shall be
permitted to withhold the issuance of the TCO or CO for the Project until the Alton Court
Improvements are fully complete.
8.4 Developer shall be responsible for any and all maintenance to the
surface area within the City Parcel. The Developer intends to install pavers in certain areas of
the City Parcel, and Developer shall be responsible, in perpetuity, for all maintenance, upkeep
and replacement of the pavers. In the event of Developer's failure to perform adequate
maintenance of the pavers, the City may require the removal and replacement of the
pavers. In the event the Developer fails to follow the City's direction, the City may remove and
replace any and all pavers and replace with standard alley pavement and charge the Developer
or its successor for such work. In the event of a failure to pay any and all costs associated with
enforcement of this provision and/or actual work, the City may lien such property and collect
in the same manner as taxes.
9. Floor Area Ratio. As a result of the vacation of the City Parcel, an additional
approximately 2,000 square feet of floor area development rights shall be available for use
toward the entitlements needed for the Project.
10. Laws Governing this Agreement. For the entire term of this Agreement, the City
hereby agrees that the City's Land Development Regulations governing the development of the
Property as they exist as of the Effective Date of this Agreement shall govern the development
of the Property and the Project. Notwithstanding the foregoing, the City may apply
subsequently adopted laws or policies to the Property and the Project (particularly as they may
relate to quality of life issues such as, but not limited to noise, litter, and hours of operation) as
permitted or required by the Act, including, without limitation, Section 163.3233(2), Florida
Statutes, as same may be amended from time to time; provided, the City may apply
subsequently adopted laws and policies to the Project during the term of this Agreement only if
the City has held a public hearing and determines that (a) 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; (b) 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; (c) They are specifically anticipated and provided for in this
Agreement; (d) The local government demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this Agreement; or (e) this Agreement is
based on substantially inaccurate information supplied by the developer.
11. Closing. So long as there is no pending or uncured Event of Default, the parties
shall exchange (or deposit into escrow) those documents as set forth below to effect the
Closing hereunder. The Closing will occur within forty-five (45) days of the Effective Date.
11.1 At the Closing, the City shall execute and deliver into escrow the
following items, which shall be held in escrow pursuant to the Escrow Agreement, the form of
which is attached hereto as Exhibit "I" (the "Escrow Agreement"):
Page 84 of 1191
(i) A certified copy of the Vacation Resolution;
(ii) The Escrow Agreement;
(iii) The Deed;
(iv) Closing Statement; and
(v) Further reasonable documents required by Developer's title
insurance company and lender regarding Developer's ownership interest in the
Alton Court Property (collectively, the "City's Closing Documents").
11.2 At the Closing, the Developer shall execute and/or deliver (as
appropriate) to the City or into escrow the following items:
(i) The Escrow Agreement;
(ii) The Parking Restrictive Covenant; and
(iii) The Closing Statement (collectively, and together with the City's
Closing Documents, the "Closing Documents").
12. "As Is" Condition. Developer agrees to accept the City Parcel in "as-is" physical
condition without any representation or warranty by the City regarding physical condition. The
City agrees to accept the City Easement with the underlying land and improvements (if any) in
"as-is" condition, subject to Developer's subsequent compliance with the terms of Sections 7
and 8 of this Agreement.
13. Compliance with Local Regulations Regarding Development Permits. This
Agreement is not and shall not be construed as a Development Permit, approval or
authorization to commence any development, fill, or other land modification. The Developer
and the City agree that the failure of this Agreement to address a particular permit, approval,
procedure, condition, fee, term or restriction in effect on the Effective Date of this Agreement
shall not relieve Developer of the necessity of complying with the regulation governing said
permitting requirements, conditions, fees, terms or restrictions, subject to the terms of Section
9 of this Agreement.
14. Reservation of Rights. This Agreement shall not affect any rights that may have
accrued to any party to this Agreement under applicable laws and each party hereto reserves
any and all of such rights.
15. Consistency with the City's Comprehensive Plan. The City has adopted and
implemented the Comprehensive Plan.The City hereby finds and declares that the provisions of
this Agreement dealing with the Property and the Project are consistent with the City's
Comprehensive Plan and Land Development Regulations (subject to all applicable
requirements, permits and approvals).
Page 855 of 1191
16. Concurrency. Developer shall be solely responsible for obtaining all land use
permits, including, but not limited to, all permits and approvals required pursuant to Section
163.3180, Florida Statutes (2014), with respect to concurrency requirements for roads, sanitary
sewer, solid waste, drainage, potable water, parks and recreation, and schools (the
"Concurrency Requirements"). Prior to applying for its building permit for the Project,
Developer shall apply to the appropriate Governmental Authorities and obtain letters or other
evidence that Developer has obtained all applicable Concurrency Requirements, and shall
diligently and in good faith obtain such letters or other evidence that the Project meets all
applicable Concurrency Requirements and shall pay such impact fees as may then be due or
applicable to meet Concurrency Requirements. Payment of all concurrency/impact fees shall
be required prior to the issuance of the Building Permit.
17. Effective Date and Duration (Term).
17.1 Within fourteen (14) days following approval at two public hearings at
City Commission meetings, the Agreement shall be executed by the City and Developer and
the City shall record the Agreement in the Public Records of Miami-Dade County. The
Developer shall submit a copy of the recorded 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 (i) it has been recorded in the Public Records of Miami-Dade
County, Florida, and (ii) thirty (30) days have elapsed after the State of Florida land planning
agency's receipt of a copy of the recorded Agreement. The Developer 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.
17.2 This Agreement shall run for an initial term of six (6) years from the
Effective Date (the "Term"), and may be extended by mutual consent of the City and the
Developer subject to a public hearing pursuant to Section 163.3225, Florida Statutes. Consent
to any extension of this Agreement is within the sole discretion of each party to this
Agreement. No notice of termination shall be required by either party upon the expiration of
this Agreement, and thereafter the parties hereto shall have no further obligations under this
Agreement except for the maintenance obligations set forth in Section 8.4, and that in no
event shall the Developer's obligation to pay the Voluntary Contribution be extinguished by
the expiration of the term if it has not otherwise been paid.
18. Default.
18.1 Each of the following shall be an "Event of Default" by Developer:
(i) If Developer shall fail to observe or perform any material term,
covenant or condition of this Agreement on Developer's part to be observed or
performed and Developer shall fail to cure or remedy the same within ten (10)
days of Developer's receipt of written notice from the City, with respect to
monetary defaults, or within thirty (30) days of Developer's receipt of written
notice from the City with respect to non-monetary defaults (each, a "Default
Page Al of 1191
Notice"). If such non-monetary default is susceptible to cure but cannot
reasonably be cured within said thirty (30) day period, then Developer shall have
any additional sixty (60) day period to cure such failure and no Event of Default
shall be deemed to exist hereunder so long as Developer commences such cure
within the initial thirty (30) day period and diligently and in good faith pursues
such cure to completion within said sixty (60) day period.
(ii) If Developer shall fail to obtain all Development Orders and
Development Permits which are necessary for the Project and the Alton Court
Improvements by December 315t 2018.
(iii) If, during the construction phase of the Project or the Alton Court
Improvements, Developer shall stop work on any of the aforestated for a period
in excess of one hundred and twenty (120) consecutive days.
(iv) If, after the Effective Date, Developer has not obtained a final CO
for the Project by the time allowed in Section 3.21 (v) of this agreement
(v) If Developer shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as they become
due, or shall consent to the appointment of a receiver or trustee or liquidator of
all of its property or the major part thereof or if all or a substantial part of the
assets of Developer are attached, seized, subjected to a writ or distress warrant,
or are levied upon, or come into the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors.
(vi) If Developer shall commence a voluntary case under the Title 11
of the United States Code (the "Bankruptcy Code"); or an involuntary proceeding
is commenced against Developer under the Bankruptcy Code and relief is
ordered against Developer, or the petition is controverted but not dismissed or
stayed within one hundred twenty (120) days after the commencement of the
case, or a custodian (as defined in the Bankruptcy Code) is appointed for or takes
charge of all or substantially all of the property of Developer and is not
discharged or dismissed within one hundred twenty (120) days; or Developer
commences any other proceedings under any reorganization, arrangement,
readjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar Law of any jurisdiction whether now or hereafter in effect relating to
Developer; or there is commenced against Developer any such proceeding which
remains undismissed or unstayed for a period of one hundred twenty (120) days;
or Developer fails to controvert in a timely manner any such case under the
Bankruptcy Code or any such proceeding, or any order of relief or other order
approving any such case or proceeding is entered; or Developer consents to or
approves of, in any such case or proceeding or the appointment of any custodian
or the like of or for it for any substantial part of its property or suffers any such
Page 857 of 1191
•
appointment to continue undischarged or unstayed for a period of one hundred
twenty (120) days.
In the event the City shall claim any Event of Default shall have occurred hereunder, the
City's Default Notice shall state with specificity the provisions of this Agreement under which
the Default is claimed, the nature and character of such Default, the date by which such Default
must be cured pursuant to this Agreement, if applicable, and, if elected by the City, that the
failure of Developer to cure such Default by the date set forth in such notice will result in the
City having the right to terminate this Agreement.
18.2 Default. Each of the following shall be an "Event of Default" by City
hereunder:
(i) If City shall fail to observe or perform any material term, covenant
or condition of this Agreement on City's part to be observed or performed and
City shall fail to cure or remedy the same within thirty (30) days of City's receipt
of written notice from the Developer (each, a "Default Notice"). If such default is
susceptible to cure but cannot reasonably be cured within said thirty (30) day
period, then City shall have any additional sixty (60) day period to cure such
failure and no Event of Default shall be deemed to exist hereunder so long as
City commences such cure within the initial thirty (30) day period and diligently
and in good faith pursues such cure to completion.
(ii) If City shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become due,
or shall consent to the appointment of a receiver or trustee or liquidator of all of
its property or the major part thereof or if all or a substantial part of the assets
of City are attached, seized, subjected to a writ or distress warrant, or are levied
upon, or come into the possession of any receiver, trustee, custodian or assignee
for the benefit of creditors.
(iii) If City shall commence a voluntary case under the Title 11 of the
United States Code (the "Bankruptcy Code"); or an involuntary proceeding is
commenced against City under the Bankruptcy Code and relief is ordered against
City, or the petition is controverted but not dismissed or stayed within one
hundred fifty (150) days after the commencement of the case, or a custodian (as
defined in the Bankruptcy Code) is appointed for or takes charge of all or
substantially all of the property of City and is not discharged or dismissed within
one hundred fifty (150) days; or City commences any other proceedings under
any reorganization, arrangement, readjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar Law of any jurisdiction whether
now or hereafter in effect relating to City; or there is commenced against City
any such proceeding which remains undismissed or unstayed for a period of one
hundred fifty (150) days; or City fails to controvert in a timely manner any such
case under the Bankruptcy Code or any such proceeding, or any order of relief or
Page 88 o of 1191
other order approving any such case or proceeding is entered; or City consents
to or approves of, in any such case or proceeding or the appointment of any
custodian or the like of or for it for any substantial part of its property or suffers
any such appointment to continue undischarged or unstayed for a period of one
hundred fifty (150) days.
In the event the Developer shall claim any Event of Default shall have occurred
hereunder, the Developer's Default Notice shall state with specificity the provisions of this
Agreement under which the Default is claimed, the nature and character of such Default, the
date by which such Default must be cured pursuant to this Agreement, if applicable, and, if
elected by the Developer, that the failure of City to cure such Default by the date set forth in
such notice will result in the Developer having the right to terminate this Agreement.
19. Enforcement of Performance; Damages and Termination. If an Event of Default
occurs hereunder, the City may elect any one or more of the following remedies:
19.1 Enforce strict performance by Developer;
19.2 Terminate this Agreement; or
19.3 Pursue any other remedy available to the City at law or in equity.
The City's election of a remedy hereunder with respect to any one or more Events of
Default shall not limit or otherwise affect the City's right to elect any of the remedies available
to it hereunder with respect to any other Event of Default.
In the event the City or Developer elects to terminate this Agreement after an Event of
Default and such termination is stayed by order of any court having jurisdiction of any matter
relating to this Agreement, or by any federal or state statute, then following the expiration of
any such stay, the City or Developer shall have the right, at its election, to terminate this
Agreement with five (5) days' written notice to the other party, who as debtor in possession or
if a trustee has been appointed, to such trustee.
20. Strict Performance; Waiver. No failure by the City or Developer to insist upon
strict performance of any covenant, agreement, term or condition of this Agreement or to
exercise any right or remedy available to such party by reason of the other party's default or an
Event of Default hereunder shall constitute a waiver of any such default, Event of Default or of
such other covenant, agreement,term or condition hereunder.
21. Notices. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express) or mailed by certified or registered mail,
return receipt requested, in a postage prepaid envelope, and addressed as follows:
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Page 81t of 1191
Miami Beach, Florida 33139
Attn: City Manager
With a copy to: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
With copies to: Squire Patton Boggs (US) LLP
201 N. Franklin Street, Suite 2100
Tampa, Florida 33602
Attn: Stacy H. Krumin
If to Developer at: 1681 West Ventures
c/o Turnberry Associates
19501 Biscayne Blvd Suite 400
Aventura, Florida, 33180
Attn: Rock Soffer
With a copy to: Mickey Marrero, Esq.
Bercow Radell & Fernandez, P.A.
200 S. Biscayne Blvd.
Suite 850
Miami, Florida 33131
Notices personally delivered or sent by overnight courier shall be deemed given on
the date of delivery and notices mailed in accordance with the foregoing shall be deemed
given three (3) days after deposit with In the U.S. mails.
22. Governing Laws, Construction and Litigation. This Agreement shall be governed
and construed in accordance with the laws of the State of Florida, both substantive and
remedial, without regard to principles of conflict of laws. The Developer and the City agree that
Miami-Dade County, Florida is the appropriate and exclusive state court venue, and that the
U.S. District Court, Southern Division of Florida is the appropriate and exclusive federal court
venue, in connection with any litigation between the parties with respect to this Agreement. All
of the parties to this Agreement have participated fully in the negotiation and preparation
hereof; and accordingly, this Agreement shall not be more strictly construed against any of the
parties hereto. In construing this Agreement, captions, and section and paragraph headings
shall be disregarded and the use of any gender shall include every other and all genders. All of
the exhibits referenced in this Agreement are incorporated in, and made a part of, this
Agreement. In the event of any litigation between the parties under this Agreement for a
breach thereof, the prevailing party shall be entitled to reasonable attorney's fees, expenses
and court costs at all trial and appellate levels. BY ENTERING INTO THIS AGREEMENT THE CITY
AND DEVELOPER EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY WITH
Page 815 of 1191
RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The
terms of this Section 22 shall survive the termination of this Agreement.
23. Severability. In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.
24. Time of Essence. Time shall be of the essence for each and every provision
hereof.
25. Entire Agreement. This Agreement, together with the documents referenced
herein, constitutes the entire agreement and understanding among the parties with respect to
the subject matter hereof, and there are no other agreements, representations or warranties
other than as set forth herein. Neither party shall be bound by any agreement, condition,
warranty nor representation other than as expressly stated in this Agreement. This Agreement
may not be changed, altered or modified except by an instrument in writing signed by both
parties hereto, subject to the requirements for the amendment of development agreements in
the Act.
26. Other Agreements. This Agreement has no effect on any other agreement, the
City's development orders, or declaration of restrictions otherwise encumbering the Property.
Any and all agreements currently in the public records remain valid. The parties incorporate by
reference each and every requirement set forth in the Act.
27. Binding Effect. The obligations imposed pursuant to this Agreement upon the
Developer and upon the Property shall run with and bind the Property as covenants running
with the Property, and this Agreement shall be binding upon and enforceable by and against
the parties hereto, their personal representatives, heirs, successors, grantees and assigns.
28. Transfer and Assignment. The Developer shall not be entitled to assign or
transfer its rights under this Agreement without the prior written consent of the City, in the
City's sole and absolute discretion, except that the City will recognize a lender who has acquired
the Property through a foreclosure sale or deed-in-lieu of foreclosure. Any such transferee
(including through foreclosure or deed-in-lieu thereof) shall assume all remaining obligations of
the Developer under this Agreement including, without limitation:
28.1 The Developer's obligation to pay the Voluntary Contribution to the City;
28.2 The Developer's obligation to grant and improve the City Easement area;
28.3 The Developer's obligation to improve the Alton Court Property; and
28.4 The Developer's obligation to maintain the Alton Court Property;.
Page 8P of 1191
28.5 Notwithstanding the foregoing, the Developer shall be permitted to
assign this Agreement without the consent of the City after the issuance of the final CO for the
Project. The Developer shall be permited to assign this Agreement with the prior consent of
the City, not to be unreasonably withheld, upon (i) payment of the full $665,000 Voluntary
Contribution to the City, and (ii) completion of the Alton Court Improments. The Developer's
obligation to maintain the Alton Court Property shall survive any assignment of this
Agreement.
29. Force Majeure and Third Party Challenges. Except as to the Developer's
obligation to make the Voluntary Contribution payments in accordance with Section 5, above,
time periods and deadlines under this Agreement will be tolled due to force majeure (strikes,
lockouts, acts of God, and other causes beyond the control of either party), and delays in
obtaining permits from other governmental agencies, including but not limited to development
orders, development permits and construction time.
30. Indemnification of City. Developer shall defend, indemnify and hold harmless
the City, its agents, servants and employees, from and against any loss, cost, expense, claim,
demand or cause of action of whatever kind or nature arising out of or related to the conduct,
act or omission of Developer and/or its officers, directors, officials, employees, contractors and
agents, related to (i) this Agreement, and/or (ii) the Project, except not including City's gross
negligence or willful misconduct. The Developer shall directly pay all costs and expenses
related to any expense or cost charged, or legal defense required by the City, using legal
counsel reasonably acceptable to the City, pursuant to the foregoing. The City shall reasonably
cooperate and collaborate (but at no expense to the City) with the Developer in connection
with any legal proceeding in which the Developer is defending the City. This Section 30 shall
survive termination or expiration of this Agreement.
31. 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.
32. Outside Review. Developer agrees to reimburse the City for any attorney's fees
incurred by the City for outside counsel's review and negotiation of this Agreement, and related
Page 8�Z of 1191
agreements, not to exceed reasonable amounts, as mutually agreed upon by the Parties (which
counsel shall be selected and approved by the City Attorney).
33. No Conflict of Interest. Developer represents and warrants that no member,
official or employee of the City has any direct or indirect financial interest in this Agreement nor
has participated in any decision relating to this Agreement that is prohibited by law. Developer
represents and warrants that no officer, agent, employee, or representative of the City has
received any payment or other consideration for the making of this Agreement, directly or
indirectly, from Developer.
34. Police Power.
34.1 The parties hereto recognize and agree that certain provisions of this
Agreement require the City and its boards, departments or agencies, acting in their
governmental capacity, to consider governmental actions, as set forth in this Agreement. All
such considerations and actions shall be undertaken in accordance with established
requirements of state statutes and municipal ordinances, in the exercise of the City's
jurisdiction under the police power. Nothing contained in this Agreement shall entitle the
Developer to compel the City to take any such actions, save and except the consents, if
applicable, to the filing of such applications for Development Permits or Development Orders,
as more fully set forth herein, and to timely process such applications.
34.2 The parties further recognize and agree that these proceedings shall be
conducted openly, fully, freely and fairly in full accordance with law and with both procedural
and substantive due process to be accorded the applicant and any member of the public.
Nothing in this Agreement shall be construed to prohibit the City from duly acting under its
police power,to approve, approve with conditions, or reject any public hearing application
dealing with the Property.
35. Conflict. In the event of an inconsistency or conflict between the terms of this
Agreement and the Vacation Resolution, the terms of this Agreement shall control.
[Remainder of this page intentionally left blank;signature page follows.]
Page 883 of 1191
EXECUTED as of the date first above written in several counterparts, each of which
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered CITY OF MIAMI BEACH,
in the presence of: a Florida municipal corporation
Print Name:
By:
Print Name: Name:
Attest:
City Clerk
STATE OF FLORIDA
)SS
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
, 2016, by , as Mayor of the
City of Miami Beach, a municipal corporation, on behalf of the Corporation. He is personally
known to me or has produced as identification and who did (did
not) take an oath.
NOTARY PUBLIC
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
Page 864 of 1191
1698 Alton Road Ventures LLC,
a Florida limited liability company
By:
Rock Soffer, Managing Member
Print Name:
Print Name:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
2016 by David Martin, as managing member of 1698 Alton Road Ventures LLC , a Florida limited
liability company, on behalf of the company. He is personally known to me or has produced
as identification and who did/did not take an oath.
•
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
Page 2(i of 1191
1681 West Ventures LLC,
a Florida limited liability company
By:
Rock Soffer, Managing Member
Print Name:
Print Name:
STATE OF FLORIDA
SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
2016 by David Martin, as managing member of 1681 West Ventures LLC, a Florida limited
liability company, on behalf of the company. He is personally known to me or has produced
as identification and who did/did not take an oath.
NOTARY PUBLIC
Typed or printed Name of Notary
My Commission expires:
Serial No., if any
APPROVED.AS TO
FORM.& NGUAG E
F E ELUTION
City Attorney Date
21
Page 866 of 1191
EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPER'S PARCELS
LEGAL DESCRIPTION:
Parcel 1:
Lots 9 and 10, Block 40,of FIRST ADDITION TO COMMERCIAL SUBDIVISION,according to the Plat thereof,
recorded in Plat Book 6, Page 30,of the Public Records of Miami-Dade County, Florida.
Containing 14,952 Square Feet or 0.34 Acres (Net Area),more or less,and 27,000 Square Feet or 0.62
Acres (Gross Area), more or less,by calculations.
Property Addresses:
1698 Alton Road,Miami Beach, Florida 33139
Folio No.02-3234-017-0200
Parcel 2:
Lots 12, 13 and 14,inclusive, Block 40,ALTON BEACH REALTY COMPANY SUBDIVISION,according to the
Plat thereof,as recorded Plat Book 6,Page 165,of the Public Records of Miami-Dade County,Florida.
Property Area:22,366 square feet or 0.51 acres more or less,by calculations.
Property Addresses:
1683 West Avenue,Miami Beach,Florida 33139
Folio No.:02-3233-017-0030
1681 West Avenue,Miami Beach, Florida 33139
Folio No.:02-3233-017-0040
•
Page 8�2 of 1191
EXHIBIT B
LEGAL DESCRIPTION OF ALTON COURT PROPERTY
[see attached]
Page 868 of 1191
. •
•
EXHIBIT "B"
1, zz2:1 20' PLATTED ALLEY (A.K.A. ALTON COURT)
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Page 869 of 1191
i
EXHIBIT "B"
Ezzz?zi 20' PLATTED ALLEY (A.K.A. ALTON COURT)
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THE ALTON BEACH REALTY COMPANY'S
P LAT or
SUBDIVISION OF WEST I-IALF OF
BLOCKS 17.40 AND'15
.•, t.-,..t, 3,,.1.0v...m..li•5,7...,,.•"nr r,.....a•k C...>,
MIAMI BEACH.FLORIDA
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Page 870 of 1191
EXHIBIT C
LEGAL DESCRIPTION OF THE CITY PARCEL
rill, NDR1 H 100 EFT I OF AN 20 FOOT IN WIDTH ALLEY (A.K.A. AE.TON COURT) LYING WESTERLY of AND
ADIACENT TO LOTS 9 AND 10, BLOCK 40" "FIRST ADDITION TO COMMERCIAL SUBDIVISION" ACCORDING
TO THE PL AT THEREOF AS RECORDED IN PLAT 1300K 6, PAGE 30,OF THE PUBLIC RECORDS or MIAMI
DADE COUN FY, FLORIDA, SAID 100 FOOT LW 20 FOOT PARCEL ALSO LYING EASTERLY OF AND AI:)HACFNT
TO LOTS 12 AND 13. BLOCK 40'SUBDIVISION OF WEST HALF OF BLOCKS 17;40 AND 45, ACCORDING TO
TILE PLAT THEREOF AS RECORDED IN PLAT ROOK 6, PAGE 165, OF THE PUBLIC RECORDS OF MIAMI
DADE CCIk.1NTY, FLORIDA
CONTAINING 2,000 SQUARE FEET MORE OR LESS.
Page EM of 1191
EXHIBIT D
VACATION RESOLUTION
[see attached]
Page 8Aof1191
EXHIBIT E
THE DEED
This Document
Prepared By and Return to:
Stacy H. Krumin, Esquire
Squire Patton Boggs(US)LLP
201 N Franklin St.,Suite 2100
Tampa, FL 33602
(Reserved for Clerk of Court)
QUIT-CLAIM DEED
THIS QUIT-CLAIM DEED, made as of this day of , 2016 (the "Effective
Date"), by the City of Miami Beach, Florida, a municipal corporation whose address is 1700
Convention Center Drive, Miami Beach, Florida, 33139 (the "Grantor")to 1681 West Ventures
LLC, a Florida limited liability company, whose mailing address is: 19501 Biscayne Blvd Suite
400, Aventura, Florida (the "Grantee"):
WITNESSETH,that the Grantor, for and in consideration of the sum of TEN DOLLARS and
other good and valuable consideration ($10.00) in hand paid by Grantee,the receipt whereof is
hereby acknowledged, does hereby remise, release and quit-claim unto the said Grantee
forever, all the right,title, interest, claim and demand which the Grantor has in and to the
following described property being situated in Miami-Dade County, Florida, and legally
described as follows:
See attached Exhibit "A" (the"Property")
TO HAVE AND TO HOLD the same together with all the tenements, hereditaments and
appurtenances thereunto belonging.
It is the intent of the Grantor, by this instrument,to convey the Property to Grantee,
subject to and contingent upon the terms and conditions approving and granting the Grantor's
Page 873 of 1191
vacation of the Property to Grantee, as provided in Miami Beach resolution No.
, a certified copy of which is attached hereto and incorporated herein as
Exhibit "B" and that certain Development Agreement entered into on the day of
, 2016, by and between the Grantor and Grantee, which is recorded in Official
Records Book , Page of the Public Records of Miami-Dade County, Florida (the
"Development Agreement").
Further, pursuant to the Development Agreement, the conveyance of the Property by
the Grantor to Grantee herein is subject to the following reservation of rights in favor of the
Grantor:
1. The Grantor, its employees, contractors, or representatives, shall have a non-
exclusive, perpetual, public access easement over the entirety of the Property, in order to
provide access to the public and utility access to the Grantor and any public utility provider to
any and all utilities located under the Property for maintenance and installation rights (the "City
Easement").
2. The City Easement may be temporarily blocked for a reasonable amount of time
during construction and for future repairs, as reasonably required for construction activities on
adjacent property owned by the Grantee or its affiliates and for future utility installation.
3. The City Easement shall inure to the benefit of and be binding upon the heirs,
legal representatives, successors and assigns of the parties hereto, as applicable.
Page 874 of 1191
IN WITNESS WHEREOF, the Grantor has signed and sealed these presents the day and
year first above written.
Signed, sealed and delivered
in the presence of:
Witnesses: City of Miami Beach
By:
Print Name: Philip Levine, Mayor
Print Name:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE)
The foregoing instrument was acknowledged before me this day of
, 2016 by Philip Levine, as Mayor of the City of Miami Beach, who is personally
known to me or who has produced as identification and did (did not)take an
oath.
My Commission Expires: Notary Public, State of Florida
[exhibits reserved; to be attached to final document]
28
Page 875 of 1191
EXHIBIT F
DECLARATION OF RESTRICTIVE COVENANTS
This Document
Prepared By and Return to:
Stacy H. Krumin, Esquire
Squire Patton Boggs(US) LLP
201 N Franklin St.,Suite 2100
Tampa, FL 33602
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS ("Declaration"), made this day of
, 2016 by 1698 Alton Road Ventures LLC, a Florida limited liability company, and
1681 West Ventures LLC, a Florida limited liability company (together, the "Developer"), in
favor of the City of Miami Beach, Florida, a municipality of the State of Florida (the "City").
WITNESSETH:
WHEREAS, the Developer holds fee simple title to certain real property in the City of Miami
Beach, Florida, located at 1698 Alton Road and 1681 & 1683 West Avenue, Miami Beach,
Florida, and more particularly described in Exhibit "A" attached hereto (collectively, the
"Property");
WHEREAS, Developer seeks to undertake the construction and development of a mixed-use
project on the Property with residential and retail/restaurant uses and structured parking (the
"Project");
WHEREAS, the City of Miami Beach previously held a right-of-way dedication to a 20 foot wide
public right-of-way, running parallel to Alton Road, between Alton Road and West Avenue, and
17th Street and Lincoln Road (the "Alton Court Property");
WHEREAS, on November , 2016, the City Commission adopted Resolution No. 2016-
approving, among other things, the vacation of the north 100 feet of Alton Court Property
located between the Property, for the entire 20 foot width thereof, as such property is more
010-8254-2862/8/AMERICAS Page 876 of 1191
particularly described on Exhibit "B" attached hereto (the "City Parcel"), in exchange for certain
obligations of Developer, including, but not limited to, entering into the below described
Development Agreement;
WHEREAS, on , the City and Developer entered into the
Development Agreement, which is recorded in Official Records Book , Page of the
Public Records of Miami-Dade County, Florida (the "Development Agreement");
WHEREAS, in accordance with Section 6.2 of the Development Agreement, the Developer is
making a binding commitment to the City to assure that the Project shall be developed in
accordance with representations and commitments made to the City, which includes, among
other things: (i) designating at least thirty (30) parking spaces at the Project as public parking,
meaning that such spaces are unassigned and available for use by the general public ("Public
Parking"); (ii) maintaining the surface area within the City Parcel, which shall include
maintenance, upkeep and replacement of the pavers that Developer installs; and (iii) that no
habitable structures, parking spaces, deck space or amenities shall be placed in or above the
City Parcel and the City Parcel shall be used primarily for pedestrian and/or vehicular "bridge"
purposes to link the Developer's Parcels; and
NOW, THEREFORE, the Developer voluntarily covenants and agrees that the Property and
Project shall be subject to the following restrictions and covenants that are intended and shall
be deemed to be perpetual restrictive covenants running with the land and binding upon the
owner of the Property, its successors in interest and assigns, as follows:
1. The recitals and findings set forth in the preamble of this Declaration are hereby
adopted by reference thereto and incorporated herein as if fully set forth in this section.
2. All capitalized terms used but not otherwise defined herein shall have the
meaning ascribed thereto in the Development Agreement.
3. The Developer shall, at all times, provide at least thirty (30) parking spaces in the
Project that are designated as Public Parking at all times.
4. The City Parcel shall be used primarily for pedestrian and vehicular "bridge"
purposes to link the Developer's Parcels. No habitable structures, parking spaces, deck space
or amenities shall be placed in or above the City Parcel at any time.
5. Developer shall be responsible for any and all maintenance to the surface area
within the City Parcel. The Developer shall be responsible, in perpetuity, for all maintenance,
upkeep and replacement of of any and all pavers which are installed or used within the City
Parcel.
010-8254-2862/8/AMERICAS Page 877 of 1191
6. In the event of Developer's failure to perform adequate maintenance of the
pavers as determined by the City, the City may require the removal and replacement of the
pavers by Developer. In the event the Developer fails to comply with the City's requirements,
the City may remove and replace any and all pavers and replace with standard alley pavement
and Developer shall be responsible to pay for or reimburse the City for the cost of such work.
In the event of a failure to pay any and all costs associated with enforcement of this provision
and/or actual work, the City may lien such property and collect in the same manner as taxes.
7. This Declaration shall remain in full force and effect and shall be binding upon
the fee-simple owners (the "Owners") of the Property, their successors in interest and assigns
for an initial period of thirty (30) years from the date this instrument is recorded in the public
records, and shall be automatically extended for successive periods of ten (10) years, unless
modified amended or released prior to the expiration thereof.
8. This Declaration may be modified, amended or released as to any portion of the
Property by a written instrument executed by the then Owners of the fee simple title to the
land to be affected by such modification, amendment or release providing that same has been
approved by the City of Miami Beach City Commission, or such other board with jurisdiction
over the matter, at a public hearing, which public hearing shall be applied for by and at the
expense of the Owners. Should this instrument be so modified, amended or released, the City
Manager, or his successor, or other administrative officer with jurisdiction over the matter,
shall execute a written instrument in recordable form effectuating and acknowledging such
modification, amendment or release.
9. If any provision of this Declaration, or portion thereof, or the application thereof
to any person or circumstances, shall, to any extent be held invalid, inoperative or
unenforceable, the remainder of this Declaration, or the application of such provision or
portion thereof to any other persons or circumstances, shall not be affected thereby; it shall
not be deemed that any such invalid provision affects the consideration for this Declaration;
and each provision of this Declaration shall be valid and enforceable to the fullest extent
permitted by law.
10. This Declaration shall be recorded in the Public Records of Miami-Dade County,
Florida, at the cost of the Developer.
11. It is understood and agreed that any City official has a right during normal
business hours to enter and investigate the use of the Property, to determine whether the
conditions of this Declaration and the requirements of the City's building, zoning and land
development regulations are being complied with.
12. An action to enforce the terms and conditions of this Declaration may be
brought by the City and may be, at law or in equity, against any party or person violating or
attempting to violate any provision of this Declaration or provisions of the building, zoning, or
land development regulations, either to restrain violations or to recover damages. The
prevailing party in the action shall be entitled to recover costs and reasonable attorney's fees,
010-8254-2862/8/AMERICAS Page 878 of 1191
at all levels of trial and appeal. This enforcement provision shall be in addition to any other
remedies available under the law.
13. This Declaration shall be governed and construed in accordance with the laws of
the State of Florida, both substantive and remedial, without regard to principles of conflict of
laws. In connection with any litigation between the parties with respect to this Agreement,
Miami-Dade County, Florida is the appropriate and exclusive state court venue and the U.S.
District Court, Southern Division of Florida is the appropriate and exclusive federal court venue.
(SIGNATURE PAGES TO FOLLOW)
010-8254-2862/8/AMERICAS Page 879 of 1191
APPROVED AS TO FORM & LANGUAGE
City Attorney Date
Planning Director Date
010-8254-2862/8/AMERICAS Page 880 of 1191
IN WITNESS WHEREOF, the Parties have caused this Declaration to be executed as of the day
and year first above written.
WITNESSES: 1698 ALTON ROAD VENTURES LLC, a Florida
limited liability company
By:
Print Name: Rock Soffer, Managing Member
Date of Execution: , 2016
Print Name:
1681 WEST VENTURES LLC, a Florida limited
liability company
Printed Name:
By:
Rock Soffer, Managing Member
Date of Execution: , 2016
Printed Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by Rick Soffer, as Managing Member of
1698 Alton Road Ventures LLC, a Florida limited liability company on behalf of the company. He
is personally known to me or has produced , as identification.
Witness my signature and official seal this day of , 2016, in
the County and State aforesaid.
Notary Public-State of
34
010-8254-2862/8/AMERICAS Page 881 of 1191
Print Name
My Commission Expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by Rick Soffer, as Managing Member of
1681 West Ventures LLC, a Florida limited liability company, on behalf of the company. He is
personally known to me or has produced , as identification.
Witness my signature and official seal this day of , 2016, in
the County and State aforesaid.
Notary Public-State of
Print Name
My Commission Expires:
[exhibits reserved; to be attached to final document]
35
010-8254-2862/8/AMERICAS Page 882 of 1191
EXHIBIT G
Alton Court Improvements Scope of Work
• Replace and Upgrade Existing Utilities Within Vacated Section of Alton Ct
o Existing Underground Utilities
• 15" Sanitary Sewer Line/ Manhole(s) —145 I.f.
• Remove and replace existing with new in a sleeve.
• Remove un-needed lateral service lines to property line.
• 6" Gas Line —100 I.f.
• Replaced and Sleeved (if required/permitted by utility
company)
• 6" Watermain ^'100 I.f.
• Upsized (minimum 8"), Replaced and Sleeved.
• Storm Sewer Line (minimum 18") and associated catch basin(s)
• To be replaced, extended southwards, and relocated per the
direction of the Public Works Department.
• Above improvements are per the direction of the Department of
Public Works and the respective utility providers.
• Existing Stormwater Pump Equipment Located in Alton Ct
o Electrical Meter and Disconnect for the stormwater pump station is to
remain in service and relocated.
o Final location to be determined per the direction of Department of Public
Works, FP&L and Developer.
o Screening of the above ground electrical panel may be required.
• Existing Overhead Utilities
o Remove the three (3) most northern power poles along Alton Court and the
single pole on 17th Street between Alton Court and West Avenue.
• Additional utility poles may be required to be removed or relocated
per direction FP&L.
o Install New FP&L underground Duct Banks per the direction of FP&L&
Department of Public Works.
o Relocate existing FP&L transformer(s) and switch(s) into the projects FP&L
vault.
• Per direction of FP&L
o Relocate the existing overhead utility pole attachments to include cable and
telecommunication lines to underground.
• Modification to the Elevation of Vacated Section of Alton Court
o Final elevation to be determined by Department of Public Works.
36
010-8254-2862/8/AMERICAS Page 883 of 1191
• Alton Court alleyway pavement.
o Developer will mill and resurface that portion of the existing asphalt drive of
Alton Court alleyway from Lincoln Road to 17th Street (-500 I.f.) with an
inverted crown.
• Install Decorative Pavers on Northern Portion of Alleyway
o Decorative pavers meeting ADA requirements may be installed along the
northern 100' of Alton Court near 17th Street per the direction of the
Department of Public Works and as contemplated in the Design Review
Board approvals.
•
37
010-8254-2862/8/AMERICAS Page 884 of 1191
EXHIBIT H
REQUIRED DEVELOPMENT PERMITS AND VARIANCES
The following constitutes a generalized list of local permits anticipated as necessary to
be approved by the terms of this Agreement:
1. Design Review Board, Planning Board, and/or Board of adjustment approvals,
pursuant to Chapter 118 of the City of Miami Beach Code.
2. Utility Permits
3. Demolition Permits
4. Building Permits
5. Street vacations and related permits
6. Environmental Permits
7. Variances, pursuant to Chapter 118 of the City of Miami Beach Code
8. Hazardous Materials Removal Permit, if removal of hazardous materials is found
necessary.
9. Public Works Permit, Paving and Drainage
11. Public Works Permit, Water and Sewer
12. Certificates of Use and/or Occupancy
13. All other local governmental approvals as may be applicable to the subject
property from time to time pursuant to the terms of this Development
Agreement.
38
010-8254-2862/8/AMERICAS Page 885 of 1191
EXHIBIT I
ESCROW AGREEMENT
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is entered into the day of
2016 (the "Effective Date") by and between the CITY OF MIAMI BEACH, a Florida municipal
corporation (the "City") and 1698 ALTON ROAD VENTURES LLC, a Florida limited liability
company, and 1681 WEST VENTURES LLC, a Florida limited liability company (together, the
"Developer").
RECITALS
WHEREAS, pursuant to City Resolution No. 2016- (the "Vacation Resolution"), the
City approved the vacation of the north 100 feet of a 20 foot wide public right-of-way, running
parallel to Alton Road, between Alton Road and West Avenue, and 17th Street and Lincoln Road
(the "Alton Court Property") located between the properties located at 1698 Alton Road and
1681 & 1683 West Avenue, Miami Beach, Florida, for the entire 20 foot width thereof, subject
to and conditioned upon certain things as set forth therein; and
WHEREAS, in connection with the Vacation Resolution, the City and Developer entered
into a Development Agreement pertaining to the development of the mixed-use project located
at 1698 Alton Road and 1681 & 1683 West Avenue, Miami Beach, Florida (the "Development
Agreement"); and
WHEREAS, the Development Agreement contemplates that the City shall deliver into
escrow the Vacation Resolution and certain related documents, which are to be held in escrow
pending the satisfaction of certain things set forth in the Development Agreement and as
described herein; and
NOW, THEREFORE, in consideration of the mutual promises of the parties, together
with other good and valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the parties agree as follows:
1. Definitions. All capitalized terms used but not otherwise defined herein shall
have the meaning ascribed thereto in the Development Agreement.
•
2. Purpose of Agreement. The purpose of this Agreement is to appoint an escrow
agent and specify the conditions under which the escrow agent will be instructed to release the
Closing Documents (as defined below).
39
010-8254-2862/8/AMERICAS Page 886 of 1191
3. Appointment of Escrow Agent. The parties appoint Squire Patton Boggs (US)
LLP, 201 North Franklin Street, Suite 2100, Tampa, Florida 33602, as escrow agent under this
Agreement ("Escrow Agent").
4. Deposit of Closing Documents.
(a) At or before Closing, the City shall deposit the following, executed
original documents with the Escrow Agent:
(i) A certified copy of the Vacation Resolution;
(ii) The Deed;
(iii) The Parking Restrictive Covenant;
(iv) The Closing Statement; and
(v) Further reasonable documents required by Developer's title
insurance company and lender regarding Developer's ownership interest in the Alton Court
Property (collectively, the "City's Closing Documents").
(b) At or before Closing, the Developer shall deposit the following
documents with the Escrow Agent:
(i) The Parking Restrictive Covenant; and
(ii) The Closing Statement (collectively, and together with the City's
Closing Documents, the "Closing Documents").
5. Documentation to be Deposited with Escrow Agent. Upon the execution of this
Agreement, the parties will deliver this Agreement, fully executed, to the Escrow Agent. The
Escrow Agent will hold the Closing Documents and this Agreement in its files until the terms
and conditions of this Agreement are satisfied. The Escrow Agent's sole obligation under this
Agreement shall be to hold the Closing Documents in safekeeping and record, or provide to
Developer for recording, in the public records or return the Closing Documents in the manner
provided in this Agreement.
6. Escrow Agent's Recording or Delivery of Vacation Resolution. Upon such time
as the following conditions are satisfied, the Escrow Agent shall be permitted to either record
the Vacation Resolution, the Deed and the Parking Restrictive Covenant in the public records of
Miami-Dade County or provide such documents to Developer, for recording. Said conditions are
as follows:
(a) Written confirmation from the City that it has received the $665,000
Voluntary Contribution from Developer;
40
010-8254-2862/8/AMERICAS Page 887 of 1191
(b) Written confirmation from the City that it has received $10,500 to
reimburse the City for the cost of the appraisal report of the Alton Court Property;
(c) The City's issuance of a vertical/shell building permit for the Project; and
(d) Written confirmation from the City that there is no pending or uncured
Event of Default under the Development Agreement by Developer.
7. Escrow Agent's Return of Vacation Resolution. In the event that the
Development Agreement is terminated or expires prior to release of the Closing Documents
from escrow, then Escrow Agent shall reasonably promptly return the Closing Documents to
the City, or at the joint direction of the City and Developer, the Escrow Agent may destroy such
documents, and upon such return or destruction this Agreement shall automatically terminate.
8. Escrow Agent Indemnification. Escrow Agent shall incur no liability whatsoever
to either party in connection with its good faith performance under this Agreement. The
parties jointly and severally release and waive any claims they may have against Escrow Agent
which may result from its performance in good faith of its functions under this Agreement.
Escrow Agent shall be liable only for loss or damage caused directly by its acts of intentional
misconduct while performing as Escrow Agent under this Agreement. The parties acknowledge
that the Escrow Agent assumes no responsibility whatsoever for delays in delivering or
returning the documents as specified in paragraphs 5 and 6 of this Agreement due to delays
beyond the reasonable control of the Escrow Agent. If Escrow Agent is in doubt as to its duties
or liabilities under the provisions of this Agreement, Escrow Agent may interplead the Vacation
Resolution into the Circuit Court, whereupon after notifying all parties concerned with such
action, all liability on the part of Escrow Agent shall terminate. The City (to the extent allowed
by law) and Developer agree to indemnify and hold Escrow Agent harmless from any costs or
expenses, including, without limitation, reasonable attorney's fees, which may be occasioned
by or arise out of claims resulting from its performance as Escrow Agent except for a default
committed in bad faith.
9. Further Assurances. The parties agree to do, execute, acknowledge and deliver,
or cause to be done, executed, acknowledged and delivered all such further acts, assignments,
documents, instruments, transfers and assurances as shall reasonably be requested of them in
order to carry out and give effect to this Agreement.
10. Notices. All notices, demands and other communications under this Agreement
shall be in writing, and delivered by overnight, prepaid delivery service via overnight carrier. In
the alternative, notices may be delivered by telecopier, with confirmation of the original sent
by U.S. mail. Notices shall be deemed to have been delivered on the date the party to be
notified receives the notice if sent via overnight delivery services, and on the date of the
facsimile if delivered via telecopier, with confirmation sent by U.S. mail. All notices shall be
addressed to the parties at the following addresses, which may be changed only by written
notice given to the other party:
41
010-8254-2862/8/AMERICAS Page 888 of 1191
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
■ Attn: City Manager
With a copy to: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
With copies to: Squire Patton Boggs (US) LLP
201 N. Franklin Street, Suite 2100
Tampa, Florida 33602
Attn: Stacy H. Krumin, Esq.
If to Developer at: 1681 West Ventures
c/o Turnberry Associates
19501 Biscayne Blvd Suite 400
Aventura, FL 33180
Attn: Rock Soffer
With a copy to: Mickey Marrero, Esq.
Bercow Radell & Fernandez, P.A.
200 S. Biscayne Blvd.
Suite 850
Miami, Florida 33131
Escrow Agent: Squire Patton Boggs (US) LLP
201 N. Franklin Street, Suite 2100
Tampa, Florida 33602
Attention: Stacy H. Krumin, Esq.
Telephone: (813) 202-1300
Facsimile: (813) 202-1313
11. General Provisions.
(a) Applicable Law; Jurisdiction. This Agreement will be governed by and
construed under Florida law. The parties submit to the jurisdiction of any court having
competent jurisdiction in Miami-Dade County, Florida, in the event of a dispute under
this Agreement.
42
010-8254-2862/8/AMERICAS Page 889 of 1191
(b) Authority Representation. The parties represent and warrant that the
individuals who have signed this Agreement on their behalf have full power and
authority to sign for and bind the respective parties to this Agreement.
(c) Relationship Intent of the Parties. This Agreement is a contract for the
mutual provision of an escrow agent and related services. This Agreement does not
make either party the agent or legal representative of the other for any purpose
whatsoever and does not grant either party any authority to assume or to create any
obligation on behalf of or in the name of the other. Neither party owes the other any
fiduciary obligation. Moreover, the parties do not intend to establish a partnership
under federal, state, or local laws, either directly or indirectly, under this Agreement.
Nothing in this Agreement is intended to create or shall create a partnership, joint
venture, syndicate or other similar relationship among the parties hereto.
(d) Interpretive Provisions. This Agreement, including any exhibits,
schedules, and appendices, contains the complete agreement of the parties, and
supersedes any and all prior understandings, promises, representations and
agreements, oral or written, with respect to the subject matter contained herein. The
headings contained herein are for convenience only and shall not be considered in
construing or interpreting any provision hereof. Words in the singular shall include the
plural, and vice-versa, and words in the masculine shall include the feminine or neuter
or both, and vice-versa, where the context so requires for a reasonable interpretation of
this Agreement. If any provision is declared void or unenforceable by any court or other
authority, all other provisions hereof shall remain in full force and effect. Delay, failure,
or partial exercise by a party of any right or remedy under this Agreement will not
constitute a waiver of any right or remedy. This Agreement shall not be interpreted or
construed in favor of or against either party and neither party shall be deemed to be the
draftsman. This Agreement shall inure to and be binding upon any subsidiary, affiliate,
successor, or permitted assign of or to the business of such party; provided however,
that this Agreement shall not be transferable or assignable by that party without the
prior written consent of the other party. In the event of a conflict of terms between this
Agreement and the Development Agreement, the terms of this Agreement shall prevail.
(e) Time of Performance. Time is of the essence in the performance of this
Agreement.
(f) Counterparts; Copies. This Agreement may be executed by the parties in
several counterparts which when taken together shall be deemed to be one original,
and/or may be executed in multiple copies, each of which shall be deemed an original.
All true and accurate copies of this fully executed Agreement shall be valid and binding
evidence of the Agreement of the parties, whether the document and/or any or all of
the signatures are reproductions of an original by photocopy, email or facsimile
transmission, or other method commonly accepted as accurate.
43
010-8254-2862/8/AMERICAS Page 890 of 1191
[remainder of this page intentionally left blank]
44
010-8254-2862/8/AMERICAS Page 891 of 1191 -
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.
CITY OF MIAMI BEACH,
a Florida municipal corporation
By: - --
Name:
Attest:
City Clerk
1698 ALTON ROAD VENTURES LLC, a Florida
limited liability company
By:
Rock Soffer, Managing Member
1681 WEST VENTURES LLC, a Florida limited
liability company
By:
Rock Soffer, Managing Member
The above terms and conditions are accepted by the Escrow Agent:
Squire Patton Boggs (US) LLP
By:
Stacy H. Krumin, Partner
Date:
45
010-8254-2862/8/AMERICAS Page 892 of 1191
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