Development Agreement with 1698 Alton Road Ventures LLC ao f -.,19 6,80
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 Jana a vvl 201,1, 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 on Exhibit "A" attached
(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.
C. 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 more particularly described on
Exhibit "B" attached.
010-8254-2862/6/AMERICAS
D. 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 on Exhibit "C" attached hereto ("Vacation Parcel"). The
remainder of the Alton Court Property will not be vacated. Developer has requested that the
City vacate the Vacation 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.
E. 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. 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.
F. 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.
G. The City has determined that the Project, the vacation of the Vacation Property,
and the Voluntary Contribution will benefit the City and the public.
H. 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:
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.
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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 Road Improvements, as
further described in Section 8 of this Agreement.
3.5 "Alton Court Property" shall have the meaning set forth in Recital C.
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 "Closing" 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 "Deed" shall have the meaning set forth in subsection 6.1.
3.11 "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.
3.12 "Development Order" means any order granting, denying, or granting
with conditions an application for a Development Permit.
3.13 "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.
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3.14 "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 18(a) of this Agreement.
3.15 "Escrow Agreement" shall have the meaning set forth in subection 11.1.
3.16 "Execution Date" is the date the last of the parties hereto executes this
Agreement.
3.17 "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.
3.18 "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.
3.19 Reserved.
3.20 "Parking Restrictive Covenant" shall have the meaning set forth in
subsection 6.2.
3.21 "Project" shall mean the construction and development of the Property
as a mixed-use project with residential uand 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 CD-2 zoning regulations of the City's Land Development Regulations and the
following provisions (with the stricter of the two prevailing):
(i) The maximum total floor area permitted upon the Property shall
— not exceed that provided by the City's Land 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 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 date hereof.
(iv) The Project shall include on-site parking in accordance with the
provisions of the City's Land Development Regulations, except that no parking
shall lie in or above the Vacation Parcel.
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(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.
3.22 "Property" shall mean the parcel of real property described in Exhibit
"A" hereto. From and after the Vacation 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
Vacation Parcel as approved pursuant to, and subject to and conditioned upon, the terms of
the Vacation Resolution.
3.23 "Public Parking" shall mean parking spaces located within the Project
that will be unassigned and available for use by the general public.
3.24 "Term" shall have the meaning set forth in subsection 17.2.
3.25 "Vacation Parcel Vacation Date" shall mean the date when the actual
vacation of the Vacation Parcel becomes effective in accordance with the terms of the
Vacation Resolution, and as set forth in Section 5 of this Agreement.
3.26 "Vacation Resolution" means the City's Resolution No. 2016-
39 , approving, with conditions, the vacation of the Vacation Parcel.
4. Vacation of Vacation 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 Vacation Parcel. The
City's Finance and Citywide Projects Committee analyzed the appraised value of the Vacation
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. Further, as a condition to such vacation, the Developer shall be required to
designate a portion 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 acknowledges and agrees that no habitable
structures, parking spaces, deck space or amenities shall be placed in or above the Vacation
Parcel. The Vacation 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 and
Planning Board approvals.
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,
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within ten (10) business days following the City Commission's (i) final approval of the City
Resolution authorizing the vacation of the Vacation Parcel and (ii) final approval and the
parties' execution of the Development Agreement.This payment will be non-refundable unless
the Development Agreement is not recorded due to a failure to approve or act by the City or
the State's land planning agency.
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 issuance of the vertical/shell building permit for the
Project.
5.4 The actual vacation of the Vacation 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; Public Parking.
6.1 The City shall convey the Vacation Parcel to Developer by delivering its
quit claim deed to Developer for the Vacation Parcel, as more fully decribed below, the form of
which is attached hereto as Exhibit "D" (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 Vacation 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 Vacation 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 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
perpetual restrictive covenant that shall run with the land, requiring that at least thirty (30)
parking spaces in the Project be designated as Public Parking at all times (the "Parking
Restrictive Covenant"). The Parking Restrictive Covenant shall be in the form attached hereto
as Exhibit "E".
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 on Exhibit "F" attached hereto:
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7.1 The Developer shall install new lighting, hardscape and landscaping
within the Vacation Parcel pursuant to the direction of the City's Public Works Director, or his
or her designee;
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 Vacation Parcel.
7.5 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 on Exhibit "F" and to be
constructed pursuant to plans approved by the City. All remaining existing utilities controlled
by the City and located underground within the Vacation Parcel will be replaced or improved
by Developer at the direction and reasonable discretion of the City's Public Works Director, or
his designee.
7.6 There is a pole mounted transformer ("FP&L Equipment) and other
existing equipment ("Other Equipment") located in the Vacation 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, or his designee.
7.7 The existing geometry of Alton Court 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.
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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.The
Alton Court Plans shall be submitted to the City within ninety (90) days of the Effective Date.
The City shall have thirty (30) business days from the date of submission to review the Alton
Road 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.
8.2 Within thrity (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 on Exhibit "G" attached hereto.
8.3 The Developer will complete the Alton Court Improvements by the date
of the issuance of a temporary or final certificate of occupancy or certificate of completion, as
applicable, for the Project. The City may condition and withhold the issuance of the TCO or CO
for the Project pending completion of the Alton Road Improvements.
8.4 Developer shall be responsible for any and all maintenance to the
surface area within the Vacation Parcel. The Developer intends to install pavers in certain
areas of the Vacation 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 Vacation 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 Execution 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
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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 "H" (the "Escrow Agreement"):
(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 Vacation 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
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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 Execution 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).
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
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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
Y P Y (
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) da y period eriod 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 31St 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,
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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
in or Bankruptcy Code or any such proceeding, any_o y 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
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.
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(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
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.
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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
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.
14
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
RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The
terms of this Section 24 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.
15
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;
and
28.3 The Developer's obligation to improve the Alton Court Property;.
28.4 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 lmproments.
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. Notwithstanding the foregoing, in the
event that a third party (unrelated or unaffiliated with the City or the Developer) institutes a
legal proceeding in a court of competent jurisdiction (the "Law Suit") challenging the validity of
the Vacation Resolution or this Agreement then, if the Law Suit remains pending for more than
eighteen (18) months after filing, the City may request that the Developer pay the remainder of
the Voluntary Contribution then due, with sixty (60) days' notice to Developer. In such event,
Developer shall pay the remainder of the Voluntary Contribution, and the actual vacation of the
Vacation Parcel shall become effective. Additionally, the Developer shall defend, any Law Suit
at its sole cost and using legal counsel reasonably acceptable to the City. Developer shall
further indemnify and hold the City harmless from and against all claims, injury, damage, loss
and liability, cost and expense (including attorneys' fees, costs and expenses) of any and every
kind arising out of or relating to any Law Suit, except not including City's gross negligence or
16
willful misconduct. This Section 29 shall survive the termination or expiration of this
Agreement.
30. Indemnification of City. In addition to Developer's obligations set forth in
Section 29 (including Developer's obligation to indemnify the City pursuant to that Section),
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
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.
17
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.]
18
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 corpora;
Print Name: - )∎11; 54_4 to
By:
• I i ame:R i S 7c7;r Name: //y
Attest.; -111111114/10 1_ b N
City Clerk
• a
•
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE
The foregoing instrument w s acknowledged before me this' r- ,i4w
7c1 n t4 r y , 204,f by ptM lip ket i•2 , as IVl. or of the
City of Miami Beach, a municipal corporation, on behalf of the Corporation. He ispersonally
known to mP or has produced as identification and who did (did
not) take an oath.
NOTAR PUBLIC
a r .., MIA CARDILLO
ra ..: MY COMMISSION 0 FF 155322 yp T ed or Printed Name of Notary
�.. EXPIRES:August 27,2018
•u;e qF r$:• Bonded Thru Notary Public Underwriters
My Commission expires:
Serial No., if any:
APPROVED AS 10
FORM & LANGUAGE
& FOR EXECUTION
i -- '////�
City Attorney Date
1698 Alton Road Ventures LLC,
a Florid. Imit d liability company
./ / B :
Roc. Soffer, Managing Member
Print Name: Teri/__ . // / •__,
/i " ,
�—j
Print Name: AFAIEW, 4'Stzr'
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this -'day of tiluAsAr
2016 by Rock Softer, as managing member of 1698 Alton Road Ventures LLC , a Florida limited
liability company, on beha f of the company. He is personally known to me or has produced
!'v,la I„ !1l A as identification and p,i dr;I/..d not take an oath.
II 11 i
t1sye�.41/
NOTARY PU':IIvC ( c
, ,, ,,, ANAL,ROJAS Typed or printed Name of Notary a - aS
A:714:
:+ MY COMMISSION#FF 00 9005 'Q n I
i^,7,.,,a-'- EXPIRES:May 17,2017 My Commission expires: La t��� -
a ',1,-,.,:p'/CPS Bonded Thru Notary Public tJndery/niers 1
Serial No., if any —
20
1681 West _ tures LLC,
a Florid. -d liability company
By:
`//.,.,tom, r.. .o Soffer, Managing Member
Print Name: Age". �W I .
Print Name:A/74, , 5-1.,11- v
STATE OF FLORIDA
SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this a0 day of
2016 by Rock Soffer, as managing member of 1681 West Ventures LLC, a Florida limited
liability company, on b-half of the company. He is personally known to me or has produced
' �,I'.� as identification and v . • /did not take an oath.
NOTARY PU:LIC
i .ti'pY�Py••, ANAL ROJAS Typed or printed Name of Notary _ a,S
MY COMMISSION#FF 009005 `'
* My Commission expires: N� 0-1 2Q(
y..���.,:P EXPIRES;May 17,2017
a;1 R 0,1 Bonded Thru Notary Public Undervinters
..- . _ Serial No., if any
21
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 Plot thereof,
recorded in Plat Book 6,Page 30.of the Public Records of Miami-Dade County,Flonda.
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
22
EXHIBIT B
LEGAL DESCRIPTION OF ALTON COURT PROPERTY
[see attached]
23
EXHIBIT "B" .
oz.= 20' PLATTED ALLEY (A.K.A. ALTON COURT)
,F
' ' a-........-- .c,. .n<'.,a. Tn<ae F•ea<nra;'A../T.?e.417*.'A/>.;/,
•/`j I�� aeo//y Company, a oa poiofion daly organised and axis/tag
/'' ���- under /he/an,' Of MO. fafe of f/'d hereby /lca /n:o
i mop of Sirs Properly to 5.ino,.'.,na .owar Aao,r,o.v r
Cosa.,e•.c,4c Suaa/ws,on,,sane baing a sabd,v,s/0,7 of por4
/ ',` ' m of fra,tia/Ja/ BeCtion Tnirly-threw(.W ,,d-7.e/ion Th,rry-
ur/'sy,......'rrahip />fry-rn'<a.(r.�.cairn.ir nqe fa-/y-r,ve
5 ,/r/A i.• N,r,eea .6✓.veaeor /he sold The a/fan Beach Aeal/y
i /` I9 " 3 Company has ccasad,'a names fa o.signed 0y i/a y:a,den?
d it's co fo.r,la soar/.to ha affi:s.d F,.re% by ,Y.Sec.-el.1y
/'I_I , 18 ,'h.a 'F'-'day of' Afore a, AO/V2 a.
...� lr� e v r e sago.. 6c.c.. Roads/ Co.-rvn,,..
17. o ' 1 �.__ __._
\. F. : L
-ut
� J a
. II A ltos/ r: '� t .. -.
-Co ./ay
r /7'--' S72Yft7
F d
5/o1< f l't-u/a:
St 'a 1 ' h.-oh_,, ca■/.%y /.4o/on/h,i N'-`day f.b.'o-ch.
-_—,f_--'I -'- -i i A.?,920 bet:*tea•--'a O<roono//y gppcared Car/ G.�'ahar
n I nd air.' O� 6b,.0era.,, fie s/eo,i/ '„d.%ac,x/o y,
i___.T.____' n rI I resp••e/ive y,of rho "//on 600rl, l/y. Co.,parry,a
ca,-pero/,bn undar fhb, laws of Me Sfofa of f/hr,da, Par
r ,na ri-.v a,-sa /o Dar t/,a parsons d<a.,,criAad and who er.ca/cd
I 1 /b./w +.s/r....,.../ ono' ,v//y.c.F.,o.✓/.dged,Nc
.y.-,n,
• `_... �1�. _ `” execa,r;-^.n /,3•erea/far be /ha i/Sae arc/ and deed,as such
1p .,I I ' rfl cers. o.ad /hd1 they ofjired/here/o/he or'ti is Sb.'
1 ,I .f/h. so:d cc par o/ie,- one /ha aoid insfr..rnan/is lb.
AF • ' I' n', or/o,.d Je'i/ of--calif ear p a/,e
a"I iei/noas y hood and ofric/b/sea/of MibmrBeaCh.
Ood< Coa.oty,f/or,i' , /4.•:,=-•:doy of/torah. ,•'.O/TOO.
■• ' k r
..�__. y/
0 Q Worm-y P✓d.ic 2//e of fler.r.ifa of
. „... !` ,Yy co,.,a,s„o., ova's., dorch 22,192/
el
L//YCOL/Y., • ROAD
^r • .
i3.* !,i; N
•
•”— f''' FIRST ADD/T/ON
I °( COM/y1ERC/AL SUED/V AS/ON
I ;,'j !f}', of
i;3 THE.4Z TON DE,E/Ch' A'fAL.TY COMPANY
f:?47.5 of fR.IcT/O/VFL SCOT/ON iMJRTY-TNRC.!
y. o.V'r SCGT,O.V TN/RTY-.-Or'P• Tarn vJd/p/lfTy-
'''+ /_., /„- ;y:;.a Th'RGG 3O1/2"/I, ,PANGC FORTY-TWO£AST .
•; ,, 6 „4/.... ....7/ BfAGH, FL OR/DA
j `'J v \
!Y. . ,
,.9. 24"ie,,,.:. . ,5C.4 LC / '/Oar' /r74RGH,/9ZO 1
O
EXHIBIT "B" .. . i
Eazm 20' PLATTED ALLEY (A.K.A. ALTON COURT) . 1
....-,..
of1H1* .1.o.v.,Rego',cce,r.rf....,,.f,Z2C,..0 ...airy ev-Irrn.•3 odor,"
I.II,,,,,I...•IT r.Zw..•Ie ra,,,,er el..,,,,oro,,......2. .
-..,...4.,,,,-et...tr........,......t•••raw,Co.-.•••■,./...,....,..... .
'I,.o..,,,,s,of 2..10 fr•5,:ex i:7 and t•II/ef.C/c.r,.1
tris JO' I
,..1..- e .,-.1...../-,,,,,.....pew-.1-••••••rlf la.oke rres.-st or'...`..air
...,... ...0 ,,,,,,-1.4 P7,4,,•er n•-•■••Arts;so",r"...noc•dea'..,,,r,
t.,
. '.1 • 1 ...e.-.-a”.”.........,/,r*,a,,..,17....,7•••••■77.r e••••7,-","
, , ...,.-....4,•.....•,.......,,e•1,7,',•••■•.,....,:a7-• el,
) ,..,....,-•,'es,v a....,,ear-•-.ro:,..,..!v e.....,,,.....
r■-••......,N,..:-...,.-',.,,,,,
.
'; - : -il .. I f!..•,:.ione.
0 p AP' ii :1 .1,1,:f 0.- -,-.' ■'- (7 'I '''•
,-,/,.,..,1,1.1E...-..i,-.......q2.--...r:-1,1.•.
r, ,—......-...
. . , - '■.i:1 ...?e......er..4.4.:::-f:4-4.....----
•.;L:1, ........„..,.....<-../.2-:-.....-,:zz,-
. ' '• '
A,
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15 . -•-•,....,-....^,,,,,,•,...,45.,51,1;,-...,...1,7,..:
, 1 1 Cr
'i i.,.•I .7,:7.•:7,-..T..rnZer,re a,'f e.,,...w?,,perl,s4,el r-e
-,-...,.nr .r.t.,.,4•......w...-,....,,e..-...,..-Noe-.....ama
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0
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0. ,44 1 I ,,
. ...,-e,r+o..."PI...lop r.■a,,,...-.....■••••••••■•...,e,.....
,,,,,,,I....,,,,',...,:.oa trIre r..”.■nr.r e,•••"1..nr,/e4...,,
...-.--.....,..a,,.......-.41.or..m.....,....p....-,...r...e.a..r,..-e,
.f,.2..■,..,.,1c,,on'etiorovi of t...,+/Zit,it-.,a-•
--....,............-ea•••••,..,•..,..:.•........,,,..........,,,,....a.,....
.....,•-..o:.■••■•■•••••1*••••••••••,A,t2',.•.f,e0G,',To•
--I .4._......
..,-...1-,...,..........,..,.........,.e....r....,.....-..:........
27,-,..7S 1,',ii,,ca..elcra,!eq.,f 9:.,
LINC.01-11 1 rioAD ,.
.,
.."'.1,r e e j,!";7 te•...,.7.'s e7Yr r•
7.. I
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,....--,....,,......,"..,,,,,,,,,_...;,,,,...,....Ade.,,,•re
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z'
ST.
i r I I 1 r_16 T•11 :.■ .
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7..,,,,.......,..o,,,,•-•,..■•••■..-1.01•••••./•1.7 La..,ro
e.....,..7'........,,.-..,..•-,.451 riy■,..c.r.,...."0,20
, .
• .o..,•,■-•,.,•,...,,1„-.....,
, .
i; c,,7.4..1_•?..lor. ...c.--..-.-
Crry LA..;
• e•,,,',a-v.,,.......-.sr.......,F..,
THE ALTON BEACH REALTY COMPANY'S
PLAT OF
SUBDIVISION OF WEST HALF OF
BLOCKS 17,40 AND 45
in 5‘ST■0 n 33,TOWM5n1P 53,01.11.11,1RAII.C.a..C....Z.7.
MIAMI BEACH.FLORIDA
.....\".
V.C EfnawN.ENGINEER.- 1.-14R01.19E1
t.c.....,a 1......i ,.....!
—---
EXHIBIT C
LEGAL DESCRIPTION OF THE VACATION PARCEL
That portion of a a 20 foot wide alley. commonly known as Alton Court,lying between the West
Boundary of Block 40 of said Plat of"FIRST ADDITION TO COMMERCIAL SUBDIVISION", according to the
Plat thereof as recorded in Plot Book 6,at Page 30 of the Public Records of Miami-Dade County.
Florida and the East Boundary Line of said Plat of'THE ALTON BEACH REALTY COMPANY'S PLAT OF
SUBDIVISION OF WEST HALF OF BLOCKS 17,40 AND 4S'. according to the Plat thereof as recorded in
Plat Book 6,at Page 165 of the Public Records of Miami-Dade County,Florida,and bounded on the
North by the South Right of Way Line of 17th Street,and bounded on the South by the Westerly
prolongation of the South Boundary Line of Lot 9. Block 40 of said Plot of"FIRST ADDITION TO
COMMERCIAL SUBDIVISION"and up to the East Boundary Line of said Plat of'THE ALTON BEACH
REALTY COMPANY'S PLAT OF SUBDIVISION OF WEST HALF OF BLOCKS 17.40 AND 45".
Containing 2.000 Square Feet or 0.05 Acres,more or less,by calculations.
24
•
EXHIBIT D
THE DEED
This Document
Prepared By and Return to:
Stacy H. Krumin,Esquire
Squire Patton Boss(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
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
25
,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.
26
IN WITNESS WHEREOF,the Grantor has signed and sealed these presents the day
and year first above written. ,
ATTEST:
Signed, sealed and delivered ..44 I's 1 r7
Raitc E.Gran, •,,,,ee Clerk
in the presence of:
Witnesses: City of Miami Beac
By: „....
.
Print NameTPA kA ,?■A "vc) ..i 'hi..ahi s vine, Mayor
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, VED AS TO
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FoAPRIDI\AR°8( LANGUAGE
&FOR EXECUTION i
/
STATE OF FLORIDA )
....-‘,..... - --
COUNTY OF MIAMI-DADE) --- -.. • m Dot
city °
e/
The foregoing i strument was acknowledged before me this /e) day of
J44144.7 ,201 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]
. .
. .._. . ... . .
! /077k. ..1 ILIA CARDILLO
LIUA CARDILLO
.• AO■ '..; -•:'l., 7,16:-..ION#FF 155322
• . COMMISSION 0 FF 155322 F..,,::..TI t.: .:.. c:-', August 27,201B
EXPIRES August 27,2018 •..go.%v a o BA"s
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27
EXHIBIT E
PARKING RESTRICTIVE COVENANT
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
PARKING RESTRICTIVE COVENANT
THIS PARKING RESTRICTIVE COVENANT ("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, between 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
particularly described on Exhibit "B" attached hereto (the "Vacation Parcel"), in exchange for
certain obligations of Developer, including, but not limited to, entering into the below described
010-8254-2862/6/AMERICAS
•
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, 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"); and
NOW, THEREFORE, the Developer voluntarily covenants and agrees that the Property and
Project shall be subject to the following restrictions 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. The Developer will provide at least thirty (30) parking spaces in the Project that
will be designated as Public Parking at all times.
3. No parking, public or private,shall lie in or above the Vacation Parcel.
4. 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.
5. 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.
6. 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,
010-8254-2862/6/AMERICAS
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.
7. This Declaration shall be recorded in the Public Records of Miami-Dade County,
Florida,at the cost of the Developer.
8. 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.
9. 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, at all levels of trial
and appeal. This enforcement provision shall be in addition to any other remedies available
under the law.
10. 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)
010-8254-2862/6/AMERICAS
APPROVED AS TO FORM & LANGUAGE
/4'4-
Attorney Date
/ fi, r 7
P 9rning Directo r Date
010-8254-2862/6/AMERICAS
IN WITNESS WHEREOF, the Parties have caused this Declaration to be executed as of the day
and year first above written.
WITNESSES: 1698 ALTO `,OAD VENTURES LLC,a
Florida li ' ted 1 ability company
i 4 ////1,,tid.v,_____By: `
Print Na -1s Ro- Soffer, Managing Member
.■dle- eLsZe-e- Date of Execution: ,2016
Print Name//44t- /6-457->");4/1.) .
1681 WEST V TURES LLC,a Florida
limited liab• • company
Pri d Name i. /= /Le,/ ` i — _
By:
,i'L(-€ C,12:c /4 ' • k Soffer, Managing Member
• / Date of Execution: ,2016
Printed Name:!//1/✓/0- 57- ¢/t)
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by Rak Soffer, as Managing Member of
1698 Alton Road Ventures LLC,a Florida limit-d liability company oo behalf of the company.
He is personally known to me or has produced !...iii AA,. MAW. ,as identification.
Witness my signature and official seal this ! day of NM • ,2016, in
the Count .to aforesaid.
' ,11,401/1,11,
N ary 'ubl' St n 4 rPy„% .._. .:._
vl ":' ANA L.ROJAS
�, ti. I .•_ MY COMMISSION#FF 009005
: orc EXPIRES:May 17 2017
Print Name
FP •• Bonded Thru Notary Public Undcrwrders
My Commission Expires: I(,� w� 1T
Y
32
010-8254-2862/6/AMERICAS
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by R$ck Soffer,as Managing Member of
1681 West Ventures LLC,a Florida Iimite. liability,c,�^mn pany,on behalf of the company. He is
personally known to me or has produced �; n �XX,1 .1 I ,as identification.
p
Witness my signature and official seal this • ) day of ! ' T1 ,2016,in
the Cou at Agri n ate aforesaid.
Notary 'ub lc-State 04. Oi ��'[� t *'Py• ANAL ROJAS
• y I a; MY COMMISSION#FF 009005
EXPIRES:May 17,2017
Print Name -4,jgg's Bonded Thru Notary Public Underwr1ers
My Commission Expires: Uai 141 ( J-
[exhibits reserved;to be attached to final document]
33
010-8254-2862/6/AMERICAS
EXHIBIT F
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.
34
010-8254-2862/6/AMERICAS
• 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.
35
010-8254-2862/6/AMERICAS
EXHIBIT G
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.
36
010-8254-2862/6/AMERICAS
EXHIBIT H
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, between 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:
11. Definitions. All capitalized terms used but not otherwise defined herein
shall have the meaning ascribed thereto in the Development Agreement.
12. 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).
13. 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").
37
010-8254-2862/6/AMERICAS
14. 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").
15. 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.
16. 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;
(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
38
010-8254-2862/6/AMERICAS
(d) Written confirmation from the City that there is no pending or
uncured Event of Default under the Development Agreement by Developer.
17. 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.
18. 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.
19. 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.
20. 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:
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive
Miami Beach, Florida 33139
39
010-8254-2862/6/AMERICAS
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 RadeIl & 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
21. 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.
(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.
40
010-8254-2862/6/AMERICAS
(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.
[remainder of this page intentionally left blank]
41
010-8254-2862/6/AMERICAS
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.
CITY OF MIAMI BEACH,
e��. �4p q a Florida municipal,c•r• tion
4. • 71/
_ By; -
g+ '.INCORP ORATED: Name:
7 '`. Attest:/ L a (.
�� ��� � Clerk
1698 AL •N •OAD VENTURES LLC, a Florida
limit- • liab. ity company
By f
R. k Soifer, Managing Member
1681 WE 'VENTURES LLC, a Florida limited
liabilit co pany
By: %j _--
• .ck 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:
42
010-8254-2862/6/AMERICAS