2017-29920 Resolution RESOLUTION NO. 2017-29920
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE
CITY CLERK AND CITY MANAGER TO EXECUTE THE
ATTACHED AGREEMENT BETWEEN THE CITY OF MIAMI
BEACH AND 4701 NORTH MERIDIAN, LLC, (DEVELOPER),
ATTACHED HERETO AS EXHIBIT 1, IN WHICH THE
PARTIES AGREE TO CERTAIN IMPROVEMENTS FOR W 48TH
STREET WHICH INCLUDES BUT IS NOT LIMITED TO: (1)
DEVELOPER PROVIDING THE CITY A TWENTY (20) FOOT WIDE
PUBLIC UTILITY ACCESS AND USE EASEMENT ACROSS
DEVELOPER'S PROPERTY LOCATED AT 4701 NORTH
MERIDIAN AVENUE; (2) THE DEVELOPER TO PAY A
VOLUNTARY CONTRIBUTION TO THE CITY OF $209,000.00, (3)
THE CITY TO REMOVE CERTAIN PARKING METERS THAT ARE
NOW OBSOLETE; (4) FOR THE CITY TO RAISE WEST 48TH
STREET; (5) FOR THE CITY TO COMPLETE CERTAIN
DRAINABLE IMPROVEMENTS; AND (6) FOR THE DEVELOPER
TO PROVIDE CERTAIN GREEN SPACE IMPROVEMENTS
WITHIN THE RIGHT-OF-WAY.
WHEREAS, the Developer is the owner of certain parcels of land located in the
subdivision of the Nautilus Addition of Miami Beach Bay Shore Co. Block 10 Lots 1-16 and
Block 13 Lots 11-17 in the City of Miami Beach, Florida as recorded in Plat Book 8, Page 130,
of the Public Records of Miami-Dade County (the "Property"); and
WHEREAS, the Developer has received all required design approvals from the City to
construct improvements on the Property for the Ritz-Carlton Residences (the "Project"),
including Design Review Approval under File no: 22942; and
WHEREAS, as part of the Project, the Developer has agreed to design, develop,
construct, and fund basic milling/resurfacing, sidewalk, curbing, street lights, and landscaping
improvements along West 48th Street, from Alton Road to West 47th Street, as more particularly
described in the Project plans attached hereto and incorporated herein by reference as "Exhibit
A" to the attached Agreement The City is the owner of the streets and right-of-way areas
specified in Exhibit A to the attached Agreement; and
WHEREAS, the Developer, as part of the approval of the Project, recorded a Declaration
of Restrictive Covenants, Recorded in the Official Records Book of Miami-Dade County, at Book
28765, Pages 3452-3481, recorded on August 9, 2013 (hereinafter "Declaration of Restrictive
Covenants"). Paragraph 5 of the Declaration of Restrictive Covenants states: "[t]he Owner
shall, at its own expense, and prior to the issuance of any certificate of use or occupancy for the
Property, improve the existing green space located at the intersection of West 48th Street, West
47th Court and Meridian Avenue, provided that the City of Miami Beach agrees to the
improvement and eliminates the existing parking adjacent to the Property. The green space
shall be enlarged as described on the attached Exhibit "D" to the Attached Agreement if
approved by the appropriate governmental authorities;" and
WHEREAS, paragraph 6 of the Declaration of Restrictive Covenants states: "[p]rior to
the issuance of any certificate of use or occupancy for the Property, if authorized by the City of
Miami Beach, and, if necessary, Miami-Dade County, the Owner shall reduce the width of West
48th Street, and construct a roadway median, improved landscaping, and expand sidewalks
within the road right-of-way for the segments of West 48th Street and N. Meridian Avenue
adjacent to the property"; and
WHEREAS, Item B.2.b of the Design Review Board File No. 22942, states: "[a] clear
definition of the private and public property along the south property line shall be designed, in
order to minimize any public perception that portions of the public property are actually private.
This shall include the incorporation of a low seating wall, fence, secondary sidewalk, or other
design solution following the property line along the south side of the site, in a manner to be
reviewed and approved by staff."
WHEREAS, Item B.2.c of the Design Review Board File No. 22942 states: "[t]he final
design and details of the proposed public park shall be further developed and detailed to include
appropriate lighting, seating, and bike racks, in a manner to be reviewed and approved by staff;"
and
WHEREAS, Item B.9.b of the Design Review Board File No. 22942 requires the
developer to "[r]emove/replace sidewalks, curbs and gutters on all street frontages, if applicable.
Unless otherwise specified, the standard color for city sidewalks is red, and the standard curb
and gutter color is gray;" and
WHEREAS, Item 11 of the Design Review Board File No. 22942 requires that "[t]he
project shall comply with any landscaping or other sidewalk/street improvement standards as
may be prescribed by a relevant Urban Design Master Plan approved prior to the completion of
the project and the issuance of a Certificate of Occupancy;" and
WHEREAS, the improvements identified in the above referenced Paragraphs less any
reference to the proposed public park or its improvements, shall hereinafter be collectively
referred to as the "W 48th Street Improvements;" and
WHEREAS, reference to the "Work" shall be to the W 48th Street Improvements, the
area under construction and staging of the W 48th Street Improvements, including all design,
architectural, engineering and other professional services, permitting, demolition and
construction services, testing and inspection services, supervision, administration and
coordination services and the provision of all drawings, specifications, labor, materials,
equipment, supplies, tools, machinery, utilities, fabrication, transportation, insurance, bonds,
permits and conditions thereof, government approvals, licenses, tests, quality assurance and/or
quality control inspections and related certifications, surveys, studies, traffic
control/maintenance of traffic, public information officer, and other items, work and services that
are necessary or appropriate for the total design, construction, installation, furnishing,
equipping, and functioning of the W 48th Street Improvements, together with all additional,
collateral and incidental items, and work and services required for delivery of a completed, fully
functional and functioning W 48th Street Improvements project, in accordance with this
Agreement (collectively, the "Work"); and
WHEREAS, both the Developer and the City acknowledge that the W 48th Street
Improvements do not include raising the centerline of the road to the minimum elevation and do
not include significant drainage improvements nor a storm water pumping station; however, the
Developer has agreed that, in view of the City's intent to improve the stormwater system and
increase the elevation of the road (the "City Project"), Developer will contribute the amount of
$209,000.00, toward the City Project.
WHEREAS, In addition, the Developer, as a condition of this Agreement, agrees to
convey to the City, on or before the issuance of a final certificate of occupancy for the
Developer's Project, a twenty (20) foot wide public utility access and use easement, in a form
acceptable to the City, along the southeasterly portion of the property along W 47th Street for the
City to construct, operate and maintain a public storm sewer pumping station, outfall, seawall
and necessary appurtenances The City shall be responsible for negotiating any related
easement or other agreement with FPL that may be required with respect to the installation of
City's proposed pump station. AND
WHEREAS, Both the Developer and City benefit if the W 48th Street Improvements are
completed as soon as possible, as time is of the essence, and as per the Declaration of
Restrictive Covenants, Developer is precluded from obtaining a Final Certificate of Occupancy
without first completing the W 48th Street Improvements; and
WHEREAS, the Developer has contracted with Plaza Construction (the "General
Contractor") to construct the W 48th Street Improvements at a current contract price of
$209,000.00; and
WHEREAS, Developer and City have agreed to execute this Agreement for the purpose
of memorializing their agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission authorize
the City Clerk and City Manager to execute the attached agreement between the City and
4701 North Meridian, LLC, (Developer), attached hereto as Exhibit 1, in which the parties
agree to certain improvements for West 48th street which includes but is not limited to: (1)
Developer providing the City a twenty (20) foot wide public utility access and use easement
across Developer's property located at 4701 North Meridian; (2) the Developer to pay a
voluntary contribution to the City of $209,000.00, (3) the City to remove certain parking meters
that are now obsolete; (4) for the City to raise West 48th Street; (5) for the City to complete
certain drainable improvements; and (6) for the Developer to provide certain green space
improvements within the right-of-way.
PASSED AND ADOPTED this o day of July, 2017.
ATTEST: ' `����W '.4.
• • ORAT` J„ G
Rafael E. Gran.do, City lerk 'APPROVED AS TO
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Resolutions- C7 K
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 26, 2017
SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY CLERK AND CITY
MANAGER TO EXECUTE THE ATTACHED AGREEMENT BETWEEN THE CITY
OF MIAMI BEACH AND 4701 NORTH MERIDIAN, LLC, (DEVELOPER),ATTACHED
HERETO AS EXHIBIT 1, IN WHICH THE PARTIES AGREE TO CERTAIN
IMPROVEMENTS FOR W 48TH STREET, WHICH INCLUDES BUT IS NOT
LIMITED TO: (1) DEVELOPER PROVIDING THE CITY A TWENTY (20) FOOT
WIDE PUBLIC UTILITY ACCESS AND USE EASEMENT ACROSS DEVELOPER'S
PROPERTY LOCATED AT 4701 NORTH MERIDIAN AVENUE; (2) THE
DEVELOPER TO PAY A VOLUNTARY CONTRIBUTION TO THE CITY OF
$209,000.00, (3) THE CITY TO REMOVE CERTAIN PARKING METERS THAT ARE
NOW OBSOLETE; (4) FOR THE CITY TO RAISE WEST 48TH STREET; (5) FOR
THE CITY TO COMPLETE CERTAIN DRAINABLE IMPROVEMENTS; AND (6)
FOR THE DEVELOPER TO PROVIDE CERTAIN GREEN SPACE
IMPROVEMENTS WITHIN THE RIGHT-OF-WAY.
ANALYSIS
Lionheart Capital, LLC aka 4701 North Meridian, LLC ("Ritz-Carlton Residences") is the owner of
certain parcels of land located in the subdivision of Nautilus Addition of Miami Beach Bay Shore Co.
lots 1-16 Block 10 and lot 11-17 Block 13, as recorded in Plat Book 8, Page 130, Miami Beach,
Florida.
The City of Miami Beach ("The City") is the agent for the public right-of-way(ROW)along West 48th
Street, West 47th Court, North Meridian Avenue and West 47th Street.
The Ritz-Carlton Residences would like to enter into an Agreement with the City to construct
improvements in that portion of the City rights-of-way on West 48th Street, and West 47th Court,
North Meridian Avenue, West 47th Street(the"Project").
The Developer has received all required design approvals from the City, including a Design Review
Approval under File no: 22942. As part of the Project, the Developer has agreed to design, develop,
construct, and fund basic milling/resurfacing, sidewalk, curbing, street lights, and landscaping
improvements along West 48th Street, from Alton Road to West 47th Street, as more particularly
described in the Project plans attached.
The City is the owner of the streets and right-of-way areas specified in the attached Agreement; and
the Developer, as part of the approval of the Project, recorded a Declaration of Restrictive
Page 732 of 2495
Covenants, in the Official Records Book of Miami-Dade County, at Book 28765, Pages 3452-3481,
on August 9, 2013(hereinafter"Declaration of Restrictive Covenants").
Both the Developer and the City acknowledge that the W 48th Street Improvements do not include
raising the centerline of the road to the standard minimum elevation and do not include significant
drainage improvements nor a storm water pumping station. However, the Developer has agreed that,
in view of the City's intent to improve the stormwater system and increase the elevation of the road
(City Project), the Developer will make a voluntary contribution in the amount of$209,000.00, toward
the City Project. However, should the City not proceed with the City Project within ten (10) years of
the effective date of the Agreement, the contribution will be refunded to the Developer.
In addition, the Developer, as a condition of this Agreement, agrees to convey to the City, on or
before the issuance of a final certificate of occupancy for the Developer's Project, a twenty (20) foot
wide public utility access and use easement, in a form acceptable to the City, along the southeasterly
portion of the property along W 47th Street for the City to construct, operate and maintain a public
storm sewer pumping station, outfall, seawall and necessary appurtenances. The City shall be
responsible for negotiating any related easement or other agreement with FPL that may be required
with respect to the installation of City's proposed pump station.
Both the Developer and City will benefit if the W 48th Street Improvements are completed as soon as
possible, as time is of the essence, and as per the Declaration of Restrictive Covenants, Developer
is precluded from obtaining a Final Certificate of Occupancy without first completing the W 48th
Street Improvements. The Developer has contracted for the construction of the roadway
improvements and have agreed to execute this Agreement for the purpose of memorializing the terms.
Legislative Tracking
Public Works
ATTACHMENTS:
Description
❑ Ritz Carlton West 48 Street Agreement- Plans
o Ritz Carlton West 48 Street Agreement- Exhibit B- Declaration of Restrictive Covenants Recorded
o Ritz Carlton West 48 Street Agreement-Exhibit C- 4701 North Meridian_Original Recorded
❑ Form Approved 48 Street Agreement
o UPDATED RESO
Page 733 of 2495
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i RECORDED 08/09/2013 11:13039
I HARVEY RUt1IN, CLERK OF COURT
This instrument prepared by,and after recording return to: NIAI1i—DARE COUNTY FLORIDA
Name: Nelsen O.Kasdin,Esq.
• Address' Akerman Senterfitt
One Southeast Third Avenue
25`"Floor
Miami,FL 33131
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(Space reserved for Clerk)
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS ("Declaration") , made
this. [S day of -11\nufl ,)013, by 9701 North Meridian LLC ("4701
LLC") , Surprise Lake Partners LLC ("Surprise Lake LLC") and West 47th
• - Court Associates LLC ("West 47th. LLC and, together with 4701 LLC and
• Surprise Lake LLC, and collectively, the "Owner") , in favor of the
City of-Miami Beach, Florida, a municipality of the State of Florida
("City") , and Nautilus Area Homeowners Association, Inc. , the Lake
View Subdivision Homeowners Association, Inc. , and the Orchard Park
Association (the "Associations") .
WITNESSETH :
WHEREAS, the Owner holds fee-simple title to certain property
in the City of Miami Beach, Florida, (i) located at 4701 North
Meridian Avenue, Miami Beach, Florida, legally described in Exhibit ' -
"A" attached hereto and made a part hereof ("HD P►,.t • 012.IN title to
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Page 735 of 2495 ��
which is held by 4701 LLC, (ii) certain parcels adjacent to West 48th
Street, Miami Beach, Florida, legally described in Exhibit "B"
attached hereto and made a part hereof ("RM-1 Property") , title to
which is held by Surprise Lake LLC, (iii) certain parcels adjacent
to West 47th Court and N. Meridian Avenue, Miami Beach, Florida,
legally described in Exhibit "C" attached hereto and made a part
hereof, title to which is held by West 47th LLC ("RS-4 Property") ,
and (iv) submerged lands adjacent to the HD Property and the RM--1
Property, Miami Beach, Florida, legally described. in Exhibit "C--1"
attached hereto and made a part hereof (the "Submerged Lands") ,
title to. which, is held by 4701, LLC (the HD Property, the RM-1
Property, the RS-4 Property and the Submerged Lands are hereby
collectively referred to as the "Property") ; •
WHEREAS, the Owner seeks to change the HD Property' s
comprehensive plan designation from PF-HD, "Public Facilities -
Hospital District" to RM-1, "Low Density Multi Family Residential"
(Land Use Element) and/or "Residential Multifamily, Low Intensity"
(Future Land. Use Map) , and zoning classification from HD "Hospital
District" to RM-1, "Residential Multifamily, Low Intensity" (Zoning
District and Map) (together, "Comprehensive Plan and Zoning
Amendments") ; and
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Page 736 of 2495 O �
WHEREAS, the Owner is desirous of making a binding commitment
to assure that the Property shall be developed in accordance with
the provisions of this Declaration;
NOW, THEREFORE, the Owner voluntarily covenants and agrees that
the Property shall be subject to the following restrictions that are
intended and shall be deemed to be 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 maximum allowable height of three (3) Villas on the
{
RM-1 Property shall not exceed thirty-three (33) feet above the base
flood elevation and the remainder of the Villas shall not exceed
thirty-six (36) feet above base flood elevation. Any mechanical
equipment or other items identified in Subsection 142-116 (a) shall
not be visible from 48th Street or the properties on Lake View Drive
directly across the canal from the Villas.
3. The Property shall only be developed for residential use,
with a maximum density of 137 total units, based on the following
maximum density for each property: the maximum density of the HD
Property shall not exceed 122 - residential dwelling - `. the
maximum density of the RM-1 Property shall not exceed e. r-s :j*-n
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dwelling units; and the maximum density of the RS--4 Property shall
not exceed 7 residential dwelling units. No portion of the Property
may be developed, constructed or used for any commercial purpose,
including, without limitation, a restaurant, coffee shop, or sundry
shop, although a private dining club for the exclusive use of the
residences would be allowed if permitted by the City. Any gym or
spa may only be located in the HD Property and shall only be
available as an amenity to residents of the Property; no public use
of or membership in any gym or spa shall be permitted. Other than
guests or invitees of the residents, there shall be no public access
to spas, gyms, meeting rooms, banquet rooms, or any other facilities
located within the HD Property. Additionally, no promoter, corporate
or commercially sponsored or ticketed events will be permitted
whether by resident, guest or invitee, and no "Special Events"
pursuant to the Miami Beach City Code may be held on the Property
and the Owner will not seek or authorize applications for such
permits. Any such use of the Property and its facilities is subject
to the provisions of this Declaration, including but not limited to
the provisions of Paragraphs 9, 10 and 11 below.
4 . Subject to the restrictions set forth in Paragraphs 2 and
3 above, subject to approval by the City of Miami Beach Design
Review Board, the requirements of the Code of the City of Miami
Beach, conditions imposed by permit and subject to -`.� y�`s'owing
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Page 738 of 2495
restrictions, the Owner may develop up to eight (8) single-family
villas on the RM-1 Property (each, a "Villa") :
a) Each Villa shall be constructed upon a lot containing
a minimum of 7, 500 square feet of gross area;
b) Each Villa shall be constructed upon a lot having a
minimum width of fifty (50) feet;
c) A maximum building height of the lesser of thirty-
three (33) feet above base flood elevation for three
(3) Villas and thirty-six (36) feet above base flood
elevation for the remainder of the Villas, or three
(3) stories;
d) The third story of each Villa shall encompass no more
than forty (40) percent of the allowable building
footprint;
e) A front yard setback of twenty (20) feet for the first
story and thirty (30) feet for the second and third
stories;
f) The sum of the side interior yards shall be at least
twenty-five (25) percent of the lot width;
g) The rear setback shall be fifteen (15) percent of the
lot depth, provided that the setback shall be no less
than twenty (20) feet, and no more than fifty (50)
feet;
h) The floor area of each Villa shall not exceed 6, 000
square feet of enclosed building area (excluding
underground garage) ; and
i) Although Villas are detached, they are joined by an
underground garage.
-
Owner shall not develop the RM-1 Property with any improvements
other than up to eight (8) Villas and an underground parking
structure .
5. The Owner shall, at its own expense, and prior to the
issuance of any certificate of use or occupancy for the Property,
improve the existing green space located at the interse• 'fie-st
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Page 739 of 2495
City of Miami Beach agrees to the improvement and eliminates the
existing metered parking adjacent to the Property. The green space
shall be enlarged as described on the attached Exhibit "D" if
approved by the appropriate governmental authorities.
6. Prior to the issuance of any certificate of use or
occupancy for the Property, if authorized by the City of Miami
Beach, and, if necessary, Miami-Dade County, the Owner shall reduce
the width of West 48th Street, and construct a roadway median,
improve landscaping, and expand sidewalks within the road right-of-
way
for the segments of West 48th Street and N. Meridian Avenue
adjacent to the Property. As part of this proposed roadway
( reconfiguration, Owner shall also use reasonable commercial efforts
to obtain the agreement of the Miami-Dade Transit agency to remove
the bus stop currently located adjacent to the HD Property and
relocate any bus routes currently serving the Property to Alton Road
or other major arterial roads. Other than the proposed improved
enlarged green space as discussed in paragraph 5 above, Owner shall
not directly or indirectly propose or apply for the closure or
vacation of the right of way, or any portion thereof, for West 48th
Street between Alton Road and N. Meridian Avenue.
7 . The Owner shall not be permitted to develop improvements ,
on the Property intended for use as rental apartments. Without
limiting the foregoing, the Owner' s initial con/Ala •f
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Page 740 of 2495 416ECwE rause OM '
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residential dwelling units on the Property shall be through an
offering to the general _public _either as attached residential
condominium units, or as fee simple villas or single-family homes,
subject to the applicable government approvals.
{ 8. Notwithstanding the restriction contained in Paragraph 7
of this Declaration, . individual condominium unit owner (s) and
individual Villa or single-family home owners may rent their units
or homes, as applicable, provided that any such leases shall not be
for a period of less than six (6) months and one day. There shall
be no short term rentals, as defined by Section 142-905 (b) (5) and
142-1111 (a) of the Code of the City of Miami Beach, permitted
anywhere on the Property at any time.
9. The Owner shall prohibit social functions on all outdoor
decks and terraces between 11:00 P.M. and 8: 00 a.m. , seven (7) days
{ a week. No outdoor bar counters shall be permitted on the common
amenity pool deck on the Property.
10. The Owner shall prohibit all noise, as defined in Chapter
46, Article IV, "Noise" of the Code of the City of Miami Beach,
Florida, as amended (the "noise ordinance") , including the use of
}
speakers on all outdoor decks and terraces, the roof, and dock areas
}
in a manner that is plainly audible at a distance of 100 feet from
the building. The Owner shall prohibit all poise, as defined in the
noise ordinance, including the ' use of all speakers on al - T -•or
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Page 741 of 2495
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decks and terraces, the roof, and dock areas between the hours of
11: 00 P.M. and 8 :00 a.m. , seven (7) days a week. Any outdoor
speakers located on the HD Property thatare not for emergency
servides shall be limited to ambient, background music only.
"Ambient background music" means music, whether live or recorded,
which does not interfere with normal conversation.
11. A violation of the noise ordinance shall be deemed a
material violation of this Declaration of Restrictions and subject
to the remedies as described in sections 46-158 through 46-160;- Code
of the City of Miami Beach, Florida, and/or the enforcement
provisions of this Declaration. This provision applies to the
entirety of the Property, including without limitation all outdoor
decks and terraces, the roof, and any docks and boats moored at the
docks.
12. The HO Property shall be developed substantially in
accordance with the site plan approved by the City of Miami Beach
Design Review Board at its January 8, 2013 hearing under Design
Review File No. 22942 (the "HD Property Site Plan") . Notwithstanding
the foregoing, the Owner may obtain approval from the. Planning
Director, or his designee, for minor modifications to an approved
site plan (including the HD Property Site Plan) consistent with the
procedures contained in Section 118-260 of the City' s Code of
Ordinances ("Section 1187260") . The Owner must obtain rom
8 J�. CLERK
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Page 742 of 2495
i
the . Design Review Boardfor substantial modifications, which are
those modifications not enumerated under Section 118-260 (a) (1) - (8) .
•
However, unless this Declaration is modified consistent with
Paragraph 18, the Owner shall not modify an approved site plan
(including the HD Property Site Plan) by increasing density, floor
area ratio, or height, or decreasing setbacks, parking spaces, or,
open space.
13. This Declaration supersedes all prior covenants and
agreements running with the land.
14 . Dock Conditions.
� -•--..---__ .-................._...�a.-)_.._Any-. -Gtecrks-- --s-Dips-►
piers) located on or adjacent to the HD or RM-1
Property, including the Submerged Lands, may only be
sold or rented to owners or renters in the Property,
while they maintain that status. Each dock or slip
may only be sold or rented to a single owner or renter
in the Property. Provided, however, that no docks can
be sold to a renter in the Property, and docks may
only be used by residents of the Property, their
guests and invitees. Guests or invitees shall not use
the docks or slips for a period in excess of seven (7)
consecutive days and in no event more than thirty (30)
days during any calendar year.
(b) No commercial marina or docks shall be permitted on or
adjacent to the Property.
(c) The mooring of commercial vessels shall be strictly
prohibited along the HD Property or the RM-1 Property,
= or on or adjacent to the Submerged Lands.
j (d) Only marginal docks shall be located on the Submerged
Lands adjacent to the RM--i Property and adjacent to
the west 545 feet of the north boundary of the HD
Property (hereinafter, the "N HD Property Boundar ) .
Such marginal docks shall be constructed -- el to
the north boundary of the RM-1 Property/ . 8 -' lel
to the N HD Property Boundary, and :,u, u . es
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9 �' Z� q,
MIA 182,611,397v7 I•
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Page 743 of 2495
shall not extend into the canal for a distance
exceeding ten (10) feet from the seawall on the north
edge of the RM-1 Property and the N HD Property
Boundary. In addition, the seaward side yard setbacks
for such marginal docks shall not be less than seven
and one-half feet. Owner must obtain all necessary
governmental approvals for such structures, but no
application for a conditional use or other approval
shall be filed to permit a marginal dock to extend
beyond the maximum projection set -forth in this
subparagraph.
(e) Only marginal docks shall be located on the Submerged
Lands adjacent to the south 216 feet of the east
boundary of .the HD Property (hereinafter, the "SE HD
Property Boundary") . Such marginal docks shall be
constructed parallel to the SE HD Property Boundary,
and such structures shall not extend into the canal or
• Surprise Lake for a distance exceeding ten (10) feet
from the seawall on the east edge of the HD Property.
Owner must obtain all necessary governmental approvals
for such structures, but no application for a
conditional use or. other approval shall be filed to -_
permit a marginal dock to extend beyond themaximum
projection set forth in this subparagraph.
(f) Finger piers and associated perpendicular mooring may
be constructed on the Submerged Lands located between
(i) the Submerged Lands located adjacent to the N HD
Property Boundary, and (ii) the Submerged Lands
located adjacent to the SE FID Property Boundary (such
•
area is hereinafter referred to as the "Perpendicular
Mooring Area") . Such structures may extend into
Surprise Lake a distance not to exceed thirty-five
(35) feet from the seawall; provided, however, mooring
piles for each finger pier may be located at a
distance not to exceed forty (40) feet from the
seawall . Owner must obtain all necessary governmental
approvals for such structures, but no application for
a conditional use or other approval shall be filed to
permit finger piers and associated perpendicular
mooring to extend beyond the maximum projection set
forth in this subparagraph.
(g) No vessel shall be docked or moored -so t .,t its
projection into the waterway would be ,!T�,*!~"r, e
following -maximum permissible linear pro ' f cork .
the seawall: adjacent to the RM-1 Prop: 4'7 •'{ 0�.
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MIA 182,619,397x7 ='% New wog c,
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Page 7441102495
than fifteen (15) feet; adjacent to the SE HD Property
Boundary, no more than fifteen (15) feet; and adjacent
to the Perpendicular Mooring Area, no more than forty
(40) feet-- ....,No _application..._for _B._._cond,ibianal_u.se_sar___
other approval shall be filed to permit any vessel to
extend beyond the maximum projection set forth in this
subparagraph.
(h) The use of any dock for dockage, mooring, storage,
servicing or launching of personal watercraft such as
jet skis or waverunners shall be prohibited, unless
buoys with signage limiting speed, prohibiting wake,
and indicating "Manatee Zone" are permanently
installed in Surprise Lake by the state or local
governmental agency having jurisdiction.
(i) The only lights permitted shall be those required by
Miami-Dade County Department of Regulatory and
Economic Resources - Division of Environmental
Resources Management (RER-DERM) or it successor
agency, the U. S. Coast Guard and any other permitting
agency for navigational safety, including but not
limited to navigational reflectors on the mooring
piles. One electric light equipped with a motion
sensor may be, installed at the terminal platform for
security purposes. Lights and reflectors shall be
indicated on the plan and shall be subject to the
review of staff prior to the issuance of a building
permit, and shall be the minimum height and number
required to meet the standards of RER-DERM, the U.S.
Coast Guard, or any other permitting agency.
(j ) Lighting associated with, but not limited to, the
dock, vessel or marine structures shall be installed
in such a manner as to minimize glare and reflection
on surrounding properties and not to impede
navigation. All lighting shall be erected so as to
direct light away from single family residences
located across Surprise Lake or the canals from the
Property.
(k) No electric, hydraulic, manual or other type of
davit, lift, sling, fixed or floating platform or
other system designed to transport a boat, marine
vessel or other watercraft between two water hei.hts
or above the water level shall be permitted
docks, slips, finger piers and associate./„ fr•
located adjacent to the Property or on the II*_,• d . ;
Lands. 1134
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MIA 182,611,397v7 ,
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Page 745 of 2495
(1) . No. more than one .(1) . vessel of any kind. may. be. moored
• at each dock, slip . or pier. Such vessel shall be
registered in the name of the owner or renter of the
dock, slip or pier.
(m) No more than twenty--four (24) docks, . slips or piers
may be constructed adjacent to the RM--1 Property and
the HD Property, or on the Submerged Lands. Provided,.
however, the total number of docks, slips or piers may
be increased up to forty-one (41) upon Owner' s
compliance with both of the conditions set forth
below:
(i) Owner shall obtain approval for, and shall
install three (3) signs, each of which shall be
substantially similar in size and content to the
signs currently posted on bridges at the
entrances to Surprise Lake, stating "Manatee Zone
/ Slow. Speed / Minimum Wake " . One sign shall be
posted at the west end of the marginal docks
adjacent to the RM-1 Property and shall face
north; onesign shall be posted on the marginal
docks adjacent to the SE HD Property Boundary and
shall face east; and one sign shall be posted at
the end of a finger pier in the Perpendicular
. . . Mooring. Area and shall face east.
(ii)Owner shall secure the establishment of a regular
patrol program by marine law enforcement
services, hereinafter referred to as "Services",
which shall be in addition to the level of law
enforcement services currently provided by the
City of Miami Beach, Miami-Dade County, and the
Florida Fish and Wildlife Conservation
Commission, or their successor agencies. The
Services shall specifically include a regular
program for law enforcement officer(s) of any of
the foregoing agencies (or a combination thereof)
to patrol the waters of Surprise Lake a minimum
of four (4) times between sunrise and sunset on
Saturday, Sunday and holidaysl, and the
enforcement of all applicable laws . The
Services, within the Surprise Lake area, shall
include, as applicable, enforcement of State
1 Holidays shall include the following: New Year's Eve, New Year's Day, Martin Luther King �x ��,-.`
President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving D. .$p.� , ;
Thanksgiving, Christmas Eve, and Christmas Day. /0 elas* "I-
12
12
MIA 182,611,397v7 F4 "� '
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I �
Page 746 of 2495
statutes, administrative rules, City and County
ordinances related to vessel operation, marine
resource protection, and manatee protection;
assist in the investigation, apprehension, and
prosecution of violators of existing boat and
manatee protection speed zones; and assist
through such enforcement in educating boaters
about manatee and boater safety issues. In the
event the Services are discontinued or the
frequency of patrol decreases below the levels
set forth in this subparagraph, all use of the
additional docks, slips or piers permitted by
these subparagraphs (m) (1) and (ii) (i.e. , the
docks, slips or piers added over and above the
initial 24 slips) shall be subject to revocation
or other remedy after hearing by a hearing
officer designated by the City Manager, or other
remedy determined by mediation between the
parties to the Covenant .
•
_.._...._-T) Winer h-as sufaitt-ET or wi17"subm�.t to all -the-
governmental agencies• with permitting jurisdiction
over dock construction, an application or applications
(collectively, the "Marina Application") to locate
eight (8) slips to be constructed as marginal mooring
in the Submerged Lands adjacent to the RM-1 Property;
twelve (12) slips to be constructed as marginal
mooring in the Submerged Lands adjacent to the N HD
Property Boundary; five (5) slips to be constructed as
marginal mooring in the Submerged Lands adjacent to
the SE HD Property Boundary; and sixteen (16) slips to
be constructed as perpendicular mooring in the
Perpendicular Mooring Area (collectively, the
foregoing description of docks shall be referred to as
the "Proposed Mooring Plan. ") Construction of the
Proposed Mooring Plan is contingent upon Owner' s
compliance with both of the conditions set forth in
• subparagraph 14 (m) , above. Owner will process the
Marina Application with due diligence and in good
faith (including agreeing to commercially reasonable
mitigation of any adverse impacts) in order to obtain
approvals of the Proposed Mooring Plan. If, after the
Owner undertakes such efforts with due dilige' - : .•
in good faith, any of the applicable gov'. �� . O
agencies refuse to approve the Proposed Moo /4. • 11. . n, G'�w
13
MIA 182,611397v7 k.,
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Page 747 of 2495
due to the presence of benthic resources or other
similar reasons, then the Perpendicular Mooring Area
may be extended a maximum of forty (40) feet to the
west along the north boundary of the HD Property, and
a maximum of eighty-one (81) feet to the south along
the east boundary of the HD Property, in order to
allow construction of a maximum of forty-one (41)
docks on the Submerged Lands adjacent to the Property.
In such event, all other provisions of this Paragraph
14 shall be applicable to such construction, including
but not limited' to the provisions of Subparagraph
14 (m) , above.
15. Miscellaneous use and operational restrictions.
(a) All outdoor lighting shall be directed away from
single family residences located adjacent to or near
the Property. - Rooftop lighting fixtures shall be
designed to deflect light from spilling over to
•
adjacent and nearby properties. Nighttime
illumination for any parking areas shall not exceed
the- minimum illumination required by code.
(b) Valet parking for vehicles shall be exclusively for
the use of residents of the Property, and their
.......,,-...._—_-- guests . - V-a-l:et—drop-off--and-- ri-c uup--shat-l— take p±-a-ce
on the driveways located on the HD Property.
(c) No residential condominium unit, Villa or single
family home shall' be used for commercial purposes,
except , for home-based businesses, as permitted by
Section 142-1411 of the City of Miami Beach Code.
(d) Except as may be required for Fire or Building
Code/Life Safety Code purposes, no speakers other than
for ambient background music shall be affixed to or
otherwise located on the exterior of the Property.
(e) The Owner shall submit an MOT (Maintenance of Traffic)
to Public Works Department staff for review and -
approval prior to the issuance of any building permit
' for construction on the Property. The MOT shall
address any traffic flow disruption due to
construction activity on the site.
(f) No more than sixteen (16) individually owned rooftop
decks or terraces shall be constructed on the HD
Property, as shown on the plans approved by ~'-= " gn
Review Board. Each rooftop deck or terrac- '. -c�itc\
be accessible to the adjacent , unit r+.,, er
loudspeakers may be affixed to or otherw' .a ,.;;740,:d .;l\
44
14 ' -- L 7
MIA 82,611,397v7 �'! xi000wE /
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Page 748 of 249,5
such rooftop deck or terrace. Railings for such decks
or terraces shall be installed no closer than four (4)
feet from the edge of such deck or terrace. No
outdoor live music on the roofto decks or terraces
shall be permitted at any time, inclusive of
percussion, musical instrument, or vocal. The rooftop
decks or terraces, inclusive of any pool or spa and
pool or spa deck, shall be for the exclusive use of
residents of the Property and their invitees .
16. Construction management conditions. The following
conditions in this Paragraph 16 shall apply to any construction
activities on the Property:
(a) Owner agrees that construction work associated with
exterior demolition and foundation pours, shall be
limited to Mondays - Fridays, during the permitted
hours as defined by Section 46--156 (a) (2)b, of the City
of Miami Beach Code. None of the foregoing will take
place during weekend hours. Provided, however, that
demolition and foundation pours may occur on weekends
if approved by the City after consultation with the
Associations. Interior demolition and construction of
the concrete shell is permitted on the weekend so long
as the work does not create excess noise or dust, and
complies with Section 46-156 (a) (2)b.
(b) During the concrete pouring and building of any
concrete structural component of the project, the
Owner agrees to maintain a designated personto assist
with street clean-up and site maintenance. Owner will
ensure that any debris associated with the foregoing
will not be placed in any public right-of-way or
neighboring properties.
(c) During construction, the Owner will maintain waste
receptacles on-site and will perform daily clean-ups
and walk-throughs of the Property to ensure the job-
site is maintained in a safe and sanitary condition.
(d) Construction screens will be maintained ound the
Property, as necessary, to prevent mat/- ,p verse
effects on neighboring properties. A / c+•g ���u . �1ely,
any materially adverse effects of co r •,•n st,
w
15 k} ,:
MIA 182,611,397v7 'sem IM oop wt of°�
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OgiPage 749 of 2495
splatter) on to neighboring properties will be
cleaned-up in a timely manner (within 24 hours of
occurrence Or receiving notice of the necessity
therefor, whichever - is earlier) by the Owner
designated individual.
(e) Except as permitted by the MOT, no vehicles associated
with the construction will be parked on the public
right-of-way. • The MOT will only allow major
construction vehicles (3 axles or larger) to be parked
within the public right-of-way and only if the Owner
demonstrates that it is physically and economically
unfeasible to park the vehicle within the Property.
(f) Owner will assign a full-time superintendent to the
construction, whose contact information will be
provided to the Associations and owners of neighboring
_Er perties and who can be contacted toresolve any
questions and address any concerns related to the
' construction. Such superintendent will have quarterly
meetings with the Associations and owners of
neighboring properties to be made aware of any
concerns of such neighbors related to the construction
activities.
(g) During construction, Owner will provide nighttime
security on the site.
(h) Prior to commencing any substantial construction work,
Owner shall submit a bond or other approved instrument
to the City of Miami Beach for maintenance and
security purposes in accordance with sections 118-801
through 118-803 of the Code of the City of Miami -
Beach.
(i) Using commercially reasonable efforts, the Owner must
cause to be buried the overhead utility lines on West
48th Street from Alton Road to North Meridian Avenue,
and provide the underground connections to the
affected residences fronting the same street, as long
as the requirements (further outlined below) , can be
performed for $200, 000 or less. If this overhead to
• underground conversion is going to cost more than
$200, 000, then the decision to proceed with the
conversion will be up to the Owner, at its sole
discretion, but if the- Owner-proceeds, -ALL- financial -
costs
ALB financial -costs for the conversion, including those in excess of
$200, 000 will be borne by Owner. While all of the
utility lines going East from the cement u - lity pole
on the North East corner of Alton Road 48th
16 ~P` 'WOK �'je
MIA 182,611,397v7 ei '+`r v'
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7 of 2495 �o
Page 50
street must be buried, the pole itself is not required
to be removed. If the overall underground conversion
cost is greater than $200, 000, and the Owner still
decides to move ahead with the work, the
responsibility of the Owner shall still include, but
not be limited to, all work and all costs associated
with removal of the utility poles, relocation of all
of the utility cables and wires underground, including
paying for all deposits, engineering study, fees,
securing all permits, supplying all materials,
equipment, machinery, paying for all costs incurred
for construction/placement of new transformer boxes,
all hook ups, structural work, digging,
reconnection/rewiring of all lines underground to the
affected houses, upgrading any necessary electrical
connections/wiring for the affected homes and any and
all work that is required to make the transfer of
services complete, effective and fully functioning
including repairing affected roadwork and landscaping
in the aforementioned areas.
17. This voluntary Declaration shall remain in full force and
effect and shall be binding upon the Owner, 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 as provided herein.
18. 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
tts
17
MIA 132.811;397v7"41
r1 *, j
Page 751 of 2495
i
which public hearing shall be applied for by and at the expense of
the Owners. In addition to the foregoing, no application for a
modification, amendment or release of any provision of this
Declaration shall be filed unless the Owner has (a) previously
secured the written consent of . sixty (60) percent of the owners of
condominium units, villas and single-family homes within the
Property; and (b) ;previously secured the written consent of sixty
(60) percent of the owners of property located within three hundred
fifty- '135U1. _£eel ofthePloper-y;--W and - "-given written nofice Ti-
the
f the proposed modification, amendment or release to the Associations.
19. 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.
20. Invalidation of any provision of this Declaration by
judgment of Court shall not affect any of the other provisions of
this Declaration, which shall remain in full force and effect.
21. This Declaration shall be executed by the Owner and all
other required persons or entities, if any, and submitted to the
City Attorney' s Office to be held in trust pending adoption of the
fI Comprehensive Plan and Zoning Amendments by the City
O • 01.9;;\
shall be recorded, at the cost of the Owner, in the P) s. c 1 o�:_,
18 u
ii
MIA 982,619,397x7 ,
•
�'ra�covr�,
- Page 752 of 2495 ,
of Miami-Dade County, Florida, no later than five (5) days after the
expiration of all appeal periods in which no appeals or other legal
challenge has been filed. If an appeal or other legal challenge is
instituted against the Comprehensive Plan or Zoning Amendment, then
this Declaration shall be recorded within five (5) days of a final
non-appealable decision of that appeal and/or challenge upholding
the approval of the Comprehensive Plan and Zoning Amendments.
22 . It is understood and agreed that any official of the City
of Miami peach has the right at any time 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.
23. An action to enforce the terms and conditions of this
Declaration may be instituted by the City, or by any property owner
that is aggrieved or adversely affected, as defined in Section
163. 3215 (2) , Florida Statutes (2012) (including that " (tjhe alleged
adverse interest may be shared in common with other members of the
community at large but must exceed in degree the general interest in
community good shared by all persons") , and/or the Associations, at
law or in equity, against any party or person violating or
attempting to violate any provision of this Dec -=-- ' on or
i 7:7,0 COQ ,
provisions of the building, zoning or land developm= 0 re•'
191° ,i.
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Page 753 of 2495
•
either to restrain violations or to recover damages . The prevailing
party in the action shall be entitled to recover costs and
reasonable attorneys' fees, at all levels of trial and appeal. This
enforcement provision shall be in addition to any other remedies
' available under the law.
IN WITNESS WHEREOF, the undersigned have set their hand and
seal this 15"° day of ifts.c,.r , ade3
A PRO ED
20
Planning Director Date
APPROVED AS TO
FO• m LANGUA E
& 4 0' EXECU • f
Cor At .. `ey Date
•
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J.t eua na
lat at
20
MIA 182,611,397v7 141
710, am �y
Page 754 of 2495
Declaratian of Re,'rictive Covenants
I
West 47th Cour,,Associates LLC
Witne -. .
/
..i 13y: Alftmillifi
- ry. -me: SA1411O R 1G-ibt ht.utn j
Print Name: II41nI!: 5 eery - '
Title: 1i L: --
P r, name
\E
STATE OF FLORIDA )
SS: .
COUNTY OF MIAMI-DADE )
The foregoing instrument was ac nowledbefore me this 64-7,6.,--
day
3'f,,.,,--day of 17,11,04,,,f ii-ci , 20f3 ,bY (J'.•1 •,,:".&P...64/. • .. ----,
He(she) personally appeared before tee, !'pe sonally known to me or
produced as identifi ,` onr and dT take an oath.
• i
Notary 4 ' „ _
[NOTARIAL SEAL] Print Name: /- ° , ,
Notary Public, State o Flow 4.-
Notary Public Stated Florida My commission expires: )=E o -4,32_
Jahn R Petersen
NIy Commis E£08530Z
iEo: Expires 0710e12015
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Page 755 of 2495
Declaration of Restrictive Covenants'
•
Witnesses: • 4701 North Merid' =n LLC
`rrr By:
••r ••\n e: shitta"64-A tcAt1a!Ldta
� :Print Name: t i • ti
41 4 Title:
Prin, name- . aff
STATE OF FLORIDA
SS: •
COUNTY OF MIAMI—DADE
The foregoing instrument was ao nowledged ,before me this /.5 -
day of .20/. ,bY o hrk.
He(she) personally Appeared before me, 's•p rsona+liy known' to me or
produced as identifi - lon, an. •i• take an oath.
1)1Notary ,
Print Nam- : 44
NotaryPubfiaStatoofFbrtda Notary Pumlic, State of
John R Petersen11, Fre--
MyCommoston EEOBe3O2 My commis-ion expires: Fe (i [e tt;jam
$ Expr.sO71pet2O15
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Page 756 of 2495
Declaration of" Restrictive Covenants
. Witnesses: Surprise Lake Partntars LLC
r: .
..
_,�ri!'t�illi.�' By:
Prv li na e: C.A kfil t A It A ti A tLO(A _f!
Print Name: ,« ,� 1• ,t; .., ` ll��
_ Title: A., ` �, , I t ,, tf. SYR/d -
ST-TE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The fob/ oing instrument was ac nowle•'ed before me this /$�
day of ",.✓,1•.•-G.1--wui , 21/I,by 0:, 4 'r- - •_.._. -:t
He(she) personally appeared befor me, ism,• 7 on ly knower to me or
produced as identifi _I 'on; arts 'moi -rake an oath.
Notary ` 4
• 4:1 A A Print Nam :r " `"'
.9.0i Notary.Public State of Florida Notary Pu,liC, xta e of j4,
IciJohn R Petersen My conimi.s.ion expires: 1--.4 t-,-,“')is.].
I, My Cernrnixaion EE086302
n,arsir Expires 07/06/2015
•
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Page 757 of 2495
1 •
I
. CONSENT OF MORTGAGEE AND SUBORDINATION OF MORTGAGE
The undersigned, holder of that certain Mortgage Deed dated
July 16, 2012 and recorded in Official Records Book 28194, at Page
4930, of the Public Records of Miami-Dade County, Florida, as
amended, encumbering ' the real property to be . subjected to the
foregoing Declaration of Restrictive Covenants made by 4701 North
Meridian LLC, Surprise Lake Partners LLC and West 47th Court
Associates LLC, in favor of the City of Miami Beach, Florida, hereby
consents to said Declaration of Restrictive Covenants and agrees
. that the lien of said Mortgage Deed shall be subject and subordinate
to the terms of said Declaration of Restrictive Covenants.
IIWITNESS WHEREOF, the undersigned has set his hand and seal
' this e day of nu.ry, 2013.
City Natio ,. 49:nk .f Florida
B y: AmmimMr
Name,: Wil""'j . Gallagher
Title: Seni.r Vice President
STATE OF FLORIDA ) .
y SS:
COUNTY OF MIAMI-DADE y
Th foregoing instrument was acknowledged before. me this/3 e4
day of , 2013 by William T. Gallagher, in his capacity as
Senio ViceI2esident of City National Bank of Florida. He
personally appeared before me and is personally known to me or
produced as identification and did take an
oath.
1
Notary/I %t/ _,,L„/, 1ar
[NOTARIAL SEAL] Print Na e: Ir
i Notary Public, State of $'4
My commission expires:
Ii
,,u.+Ia• MAYRA A.ESPINOLA
t`> ,��. -Nam pot lc•Stats of Florida f .
4 z My Coma. Oct 8 2013
11 ,j C •OD 903796 r
1 '••r4,; ' bonded Through National Notary Assn. I
evimamemiresmatmertwormwoarvi
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EXHIBIT "A"
Legal Description of HD Property
Lots 8 through 16, Block 10, Nautilus Addition, according to the
Plat thereof, recorded in Plat Book 8, Page 130,. Public Records of
Dade County, Florida.
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MIA 182,611,397v7 y aoo►6 0
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Page 759 of 2495
EXBIBIJf. "B"
Legal. Description of RM-1 Property
Lots 1 through 7, Block 10, Nautilus Addition, according to the Plat
thereof, recorded in Plat Book 8, Page 130, Public Records of Dade
County, Florida.
"-0.I D CdGlyri
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Page 760 of 2495 �Cd�f %�
•
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EXHIBIT r'C"
Legal Description of RS-4 Property
•
Lots 11 through 17, Block 13, NAUTILUS ADDITION, Plat Book 8, Page
130 of the Public Records of Miami-Dade County, Florida.
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MIA 182,671,397v7
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Page 7.61 of 2495. •
EXHIBIT C-1
The following legal description of the Submerged Lands is taken
from Exhibit "A" to that certain Quitclaim Deed from. Mount Sinai
Medical Center of Florida, Inc. to 4701 North Meridian, LLC, dated
February 8, 2012, and recorded in Official Records Book 27993 at
page 3946 of the Public Records of Miami-Dade County, Florida:
A parcel of submerged land being the Other Property's(as defined below)proportionate share of the
water bodies acacent to the Other Property,the inner boundary of which is coincident with the face
of the seawall which rte along the Northwesterly,Northerly and Northeasterly boundaries of the
Other Property, the Northwesterly boundary being the Northeasterly prolongation of the
Northwesterly litre of Lot I,Block 10 of saki Other Property,the Soupy boundary being the
Northeasterly prolonger of the Southeasterly line of Lot 16,Block 10 of said Other Properly and
the outer boundary of which extrais out at least 35 feet from the face of the aeawnill which asci
along the Northwesterly,Northerly end Northeasterly boundaries of the Other Property,as
measured at right,azo es to tete Thee of said seawall.
As used herein,the term'Other Property"shall mean the following property(which is otzt included
in the conveyance under this Quitclaim Deed):(1)Lots 9 through 16,inclusive,in Block 10,of
NAUTILUS ADDITION,according to the Plat thereof,as recorded in Nat Book 8,Page 130,
Public Records of.i mi-Dude County,Florida;and (ii)Lots 1 through 8,inclusive, in Block 10,
of NAUTILUS ADDITION,according to the Peat thereof,as recorded in Nat Book 8,Page 130,
Public R.econis of Miami-Dade County,Florida.
UG,` err„ Com\
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MIA 182,611,397v7
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Page 762 of 2495 pFCauNi'�
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EXHIBIT "D"
Plan showing green space enlargement per para. 5.]
FIATTO‘FIELGTorrns covenants1CovenantsWiami HeartlDeclaration of Restrictive Covenant 10442 rev.doc
cltiK
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29 ,,usH 4
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ANA 182,611,397v7
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Page 763 of 2495
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RECORDED 01/27/2015 09:34:19
HARVEY MIN? CLERK Or COURT
ftIAMI-DAE'E COUNT'{, FLORIDA
DESIGN REVIEW BOARD
City of Miami Beach, Florida
MEETING DATE: January 06, 2015
CURTIfICATION
THIS IS TO MINT THAT THE ATTACHED OOCUMt IT
IS A TflUE N Q ACCURATE COPY Of TIE MIK ON
FILE NO: 22942 RE IN ^ ,, THEPIAMO
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AAPLICANT: 4701 North Meridian, LLC Nota PUpeie of Rodeo E pnPrinboNalle:„74--14 r.n it/ta•A"/4 $
My Corrision E>Oire9:(Seen ” ►¢
PROPERTY: 4701 North Meridian Avenuenisdcarint2 4�':
1.
Former Miami Heart institute
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LEGAL: Lots 1 thru 16, Block 10 and Lots 11 thru 17, Block 13 of "Nautilus
Addition of Miami Beach Bay Shore Co." According to the Plat Thereof,
as Recorded in Plat Book 8, Page 130, of the Public Records of Miami-
Dade County, Florida.
IN RE: The Application for Design Review Approval for modifications to a
previously approved Design Review Approval for the partial demolition,
renovation, and adaptive re-use of the former hospital site as a new
multifamily residential development, retaining existing nonconforming
height, setbacks, floor area, and off-street parking. Specifically, the
applicant is requesting design modifications to the exterior finishes and
architectural treatments of the elevations to the previously approved
plans.
MODIFIED ORDER
The applicant filed an application with the City of Miami Beach Planning Department for Design
Review Approval,
The City of Miami Beach Design Review Board makes the following FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
H. Dd`�eu Vli &Pi �Jldll`u anci UUGUIII+rIiIS SULHIIillCU WIUI liiO dpp1IlaUUll, lestlulcny anti
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is consistent with Design Review
Criteria in Section 118-251 of the Miami Beach Code.
•
Page 765 of 2495
Page 2 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
B. The project would remain consistent with the criteria and requirements of section 118-
251 if the following conditions are met:
1. Revised elevation, site plan and floor plan drawings shall be submitted to and
approved by staff; at a minimum, such drawings shall incorporate the following:
a. The width of the width of the vertical architectural metal screens shall be
decreased from 8'-0"to 6'-0".
b. The proposed glass vertical fins in the Tower Budding shall be replaced
with a frosted glass railing, in a manner to be reviewed and approved by
staff.
c. The permanent planters located along the exterior elevation of building D
shall be eliminated and replaced with a portable planter system, in a
manner to be reviewed and approved by staff. The permanent planters
located along the exterior elevation of the parking garage structure shall
be eliminated and replaced with a portable planter system, in a manner to
be reviewed and approved by staff.
d. The final design and details, including materials,finishes, glazing, railings,
and any architectural projections and features, shall be provided, in a
manner to be reviewed and approved by staff.
e. The roof top, including any canopies, and stairwell or elevator bulkheads,
shall be further developed and detailed to include any and all such
elements that may be proposed above the main roof level, and shall be
lowered in height to the extent possible, subject to the review and
approval of staff.
f. The final design and details, including landscaping, walkways, fences,
and architectural treatment, shall be provided, in a manner to be reviewed
and approved by staff.
g. The final design and detailing of all exterior lighting shall be provided, and
all exterior light fixtures shall be designed so as to preclude the spillage of
lighting off the subject site, in a manner to be reviewed and approved by
staff
h. The docks shown on the plans are approved for design purposes only.
The number of slips or docks, and the use thereof, shall be governed by a
separate covenant to be proffered to the City Commission. All other
government approvals for the docks shall be obtained.
3 h�+ rrr-1ifiari to r}acrrihra the eleven (11! nrnri rl finer
terraces and sixteen (16) roof-top terraces as being accessible only by
the adjacent unit owners.
Page 766 of 2495
Page 3 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
j. All roof-top fixtures, air-conditioning units and mechanical devices shall
be clearly noted on a revised roof plan and shall be screened from view,
in a manner to be approved by staff.
k. Prior to the issuance of a Certificate of Occupancy, the project Architect
shall verify, in writing, that the subject project has been constructed in
accordance with the plans approved by the Planning Department for
Building Permit.
2. A revised landscape plan, prepared by a Professional Landscape Architect,
registered in the State of Florida, and corresponding site plan, shall be submitted
to and approved by staff. The species type, quantity, dimensions, spacing,
location and overall height of all plant material shall be clearly delineated and
subject to the review and approval of staff. At a minimum, such plan shall
incorporate the following:
a. The applicant shall explore the design and construction of a public
viewing platform at the eastern end of the site, located between the
applicant's property and the abutting bridge, and report back to the Board
at the time of the first progress report.
b. A clear definition of the private and public property along the south
property line shall be designed, in order to minimize any public perception
that portions of the public property are actually private. This shall include
the incorporation of a low seating wall, fence, secondary sidewalk, or
other design solution following the property line along the south side of
the site, in a manner to be reviewed and approved by staff.
c. The final design and details of the proposed public park shall be further
developed and detailed to include appropriate lighting, seating, and bike
racks, in a manner to be reviewed and approved by staff.
d. Segregated pedestrian access to the primary entrances of the building
shall be provided with the further development of the hardscaping and
landscape plan, in a manner to be reviewed and approved by staff.
e. The proposed spa areas located at the ground level of units D5 and D6
shall be reduced in size and the landscaped planting areas expanded, in
a manner to be reviewed and approved by staff.
f. The deck areas adjacent to the area on the western end of the building
labeled as 'back of house', shall be reduced and the landscaped areas
increased, in a manner to be reviewed and approved by staff,
g. An environmental impact study shall be provided by an environmental
tune,ii+-, aYivif rir, of any erl»aree imnant of tine rrnnnenri marina nn
Surprise Lake or on Surprise Waterway which shall require mitigation.
Page 767 of 2495
Page 4 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
h. Irrigation, up-lighting and the City's standard bound aggregate system
with fertilization trench may be required for all street trees located within
the sidewalk, subject to the review and approval of staff.
Along the north elevation in the areas where the stairway access to the
first level of residential units is not in conflict with the partially
underground parking, such stairs shall be further refined and detailed in
order to increase the available landscape area for at-grade landscaping in
the common outdoor areas, in a manner to be reviewed and approved by
staff.
j. A fully automatic irrigation system with 100% coverage and an automatic
rain sensor in order to render the system inoperative in the event of rain.
Right-of-way areas shall also be incorporated as part of the irrigation
system.
k. The utilization of root barriers and/or structural soil, as applicable, shall be
clearly delineated on the revised landscape plan.
The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all backflow preventors and all other related devices and
fixtures; such fixtures and devices shall not be permitted within any
required yard or any area fronting a street or sidewalk. The location of
backflow preventors, siamese pipes or other related devices and fixtures,
if any, and how they are screened with landscape material from the right-
of-way, shall be clearly indicated on the site and landscape plans and
shall be subject to the review and approval of staff.
m. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all applicable FPL transformers or vault rooms; such
transformers and vault rooms, and all other related devices and fixtures,
shall not be permitted within any required yard or any area fronting a
street or sidewalk. The location of any exterior transformers, and how
they are screened with landscape material from the right-of-way, shall be
clearly indicated on the site and landscape plans and shall be subject to
the review and approval of staff.
n. Prior to the issuance of a Certificate of Occupancy, the Landscape
Architect or the project architect shall verify, in writing, that the project is
consistent with the site and landscape plans approved by the Planning
Department for Building Permit.
3. All building signage shall be consistent in type, composed of flush mounted, non-
plastic individual letters and shall require a separate permit. No illuminated
signage shall be permitted facing north.
4. The final exterior surface color scheme, including color samples, shall be subject
to the review and approval of staff and shall require a separate permit.
Page 768 of 2495
Page 5 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
5. A traffic mitigation plan, which addresses all roadway Level of Service (LOS)
deficiencies relative to the concurrency requirements of the City Code, if
required, shall be submitted prior to the issuance of a Building Permit and the
final building plans shall meet all other requirements of the Land Development
Regulations of the City Code.
6. Manufacturers drawings and Dade County product approval numbers for all new
windows, doors and glass shall be required, prior to the issuance of a building
permit.
7. All roof-top fixtures, air-conditioning units and mechanical devices shall be clearly
noted on a revised roof plan and shall be screened from view, in a manner to be
approved by staff.
8. All new and altered elements, spaces and areas shall meet the requirements of
the Florida Accessibility Code(FAC).
9. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based
on a preliminary review of the proposed project, the following may be required by
the Public Works Department:
a. A traffic and neighborhood impact study shall be conducted as a means
to measure a proposed development's impact on transportation and
neighborhoods. The study shall address all roadway Level of Service
(LOS) deficiencies relative to the concurrency requirements of the City
Code, and if required, shall be submitted prior to the issuance of a
Building Permit. The final building plans shall meet all other requirements
of the Land Development Regulations of the City Code. The developer
shall refer to the most recent City of Miami Beach's Traffic and
Neighborhood Impact Methodology as issued by the Public Works
Department.
b. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city
sidewalks is red, and the standard curb and gutter color is gray.
c. Mill/resurface asphalt in rear alley along property, if applicable.
d. Provide underground utility service connections and on-site transformer
location, if necessary.
e. Provide back-flow prevention devices on all water services.
f. Provide on-site, self-contained storm water drainage for the proposed
rl��ptnnm�nt
g. Meet water/sewer concurrency requirements including a hydraulic water
model analysis and gravity sewer system capacity analysis as determined
Page 769 of 2495
Page 6 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
by the Department and the required upgrades to water and sewer mains
servicing this project.
h. Payment of City utility impact fees for water meters/services.
i. Provide flood barrier ramps to underground parking or minimum slab
elevation to be at highest adjacent crown road elevation plus 8".
j. Right-of-way permit must be obtained from Public Works.
k. All right-of-way encroachments must be removed.
All planting/landscaping in the public right-of-way must be approved by
the Public Works and Parks Departments.
10. The Applicant agrees to the following operational conditions for all permitted uses
and shall bind itself, lessees, permittees, concessionaires, renters, guests, users,
and successors and assigns and all successors in interest in whole or in part to
comply with the following operational and noise attenuation requirements and/or
limitations. The applicant shall ensure through appropriate contracts,
assignments and management rules that these restrictions are enforced and the
applicant agrees to include the rules and regulations set forth in these conditions
in any contract or assignment.
a. NOISE CONDITIONS
No commercial outdoor bar counters shall be permitted on the
premises.
ii. The Design Review Board (DRB) or the Planning Director shall
retain the right to call the owners and/or operators back before the
DRB, at the expense of the owners and/ or operators, to impose
and/or modify the hours of operation, or amend or impose other
conditions, should there be a valid violation (as determined by
Code Compliance) about loud, excessive, unnecessary, or
unusual noise or other conditions of this approval. An adverse
adjudication of a violation against the owner or operator is not
necessary for the board to have jurisdiction over the matter under
this condition. This condition vests jurisdiction independent of any
other condition hereof.
iii. A violation of Chapter 46, Article IV, "Noise," of the Code of the
City of Miami Beach, Florida (a/k/a "noise ordinance"), as
amended, shall be deemed a violation of this approval and subject
the approval to modification in accordance with the procedures for
mndif ntiOn of r.rinr m.rnrn!!arc IS nrn'0irle' fnr in the f eme
iv. Except as may be required for fire or building code/Life Safety
Code purposes, no loudspeakers shall be affixed to or otherwise
Page 770 of 2495
Page 7 of 10
Meeting Date:January 06, 2015
DRB File No. 22942
located on the exterior of the premises, including all outdoor roof
top decks and terraces.
v. No Commercial (paid or unpaid) outdoor live music shall be
permitted at any time, inclusive of percussion, musical instrument,
or vocal.
vi. Special events pursuant to the Miami Beach City Code may not be
held on the premises and the applicant agrees that it will not seek
or authorize applications for such permits.
b. OPERATIONAL CONDITIONS
All trash containers shall utilize inflated or other noise mitigating
rubber wheels, or the path for the trash containers shall consist of
a surface finish that reduces noise, in a manner to be reviewed
and approved by staff.
ii. Adequate trash room space, air conditioned and noise baffled,
shall be provided, in a manner to be approved by the Planning
and Public Works Departments. Sufficient interior space must be
provided so that doors can remain closed while trash and trash
bags are being deposited in dumpsters. Doors shall remain
closed and secured when not in active use.
iii. Trash room(s)Jgarbage room(s) shall be large enough, or
sufficient in number to accommodate enough dumpsters so that
no more than one pick up of garbage per day will be necessary.
iv. Garbage dumpster covers shalt be closed at all times except when
in active use.
v. Garbage pickups and service deliveries shall not take place
between 6PM and 8AM.
vi. Ail kitchens and other venting shall be chased to the roof and
venting systems shall be employed as necessary to minimize or
dissipate smoke, fumes and odors.
vii. Equipment and supplies shall not be stored in areas visible from
streets, alleys or nearby buildings.
11. The project shall comply with any landscaping or other sidewalk/street
improvement standards as may be prescribed by a relevant Urban Design
Master Plan approved prior to the completion of the project and the issuance of a
�'Artifirat� of Clr itra"v
12. The applicant shall provide a progress report to the Design Review Board
regarding Conditions 8.1, B.2, B.4, and B.7 of this Final Order, which are subject
to the review and approval of staff. The progress reports shall be provided to the
Page 771 of 2495
Page 8 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
Board after the final completion of the design development drawings, and again
after the completion of the construction drawings but before the issuance of the
first Building Permit for the construction of the residential tower.
13. The Design Review Board approval is conditioned upon the approval of the
Comprehensive Plan Amendment and rezoning by the City Commission.
14. The Final Order shall be recorded in the Public Records of Miami-Dade County,
prior to the issuance of a Building Permit.
15. At the time of completion of the project, only a Final Certificate of Occupancy
(CO) or Final Certificate of Completion (CC) may be applied for; the staging and
scheduling of the construction on site shall take this into account. All work on
site must be completed in accordance with the plans approved herein, as well as
any modifications approved or required by the Building, Fire, Planning, CIP and
Public Works Departments, inclusive of all conditions imposed herein, and by
other Development Review Boards, and any modifications required pursuant to
field inspections, prior to the issuance of a CO or CC. This shall not prohibit the
issuance of a Partial or Temporary CO, or a Partial or Temporary CC.
16. The Final Order is not severable, and if any provision or condition hereof is held
void or unconstitutional in a final decision by a court of competent jurisdiction, the
order shall be returned to the Board for reconsideration as to whether the order
meets the criteria for approval absent the stricken provision or condition, and/or it
is appropriate to modify the remaining conditions or impose new conditions.
17. The conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
18. Nothing in this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations which were adopted by the Board, that the Application for Design Review
approval is GRANTED for the above-referenced project subject to those certain conditions
specified in Paragraph B of the Findings of Fact (Condition Nos. 1-18, inclusive) hereof, to
which the applicant has agreed.
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Design Review Board, as determined by staff, entitled "Design Review Board Resubmission
Ritz Carlton Residences" as prepared by Add Inc., signed and sealed 11/10114 and 12108/14,
modified in accordance with the conditions set forth in this Order and staff review and approval.
No building permit may be issued unless and until all conditions of approval that must be
satisfied prior to permit issuance as set forth in this Order have been met. The issuance of
Design Review Approval does not relieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning approval. If adequate
Page 772 of 2495
Page 9 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
handicapped access is not provided on the Board-approved plans, this approval does not mean
that such handicapped access is not required.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved by the Board, modified in accordance with the
conditions set forth in this Order.
If the Full Building Permit for the project is not issued within eighteen(18)months of the meeting
date at which the original Design Review Approval was granted, the Design Review Approval
will expire and become null and void, unless the applicant makes application to the Board for an
extension of time, in accordance with the requirements and procedures of Chapter 118 of the
City Code; the granting of any such extension of time shall be at the discretion of the Board. At
the hearing on any such application,the Board may deny or approve the request and modify the
above conditions or impose additional conditions. If the Full Building Permit should expire for
any reason (including but not limited to construction not commencing and continuing, with
required inspections, in accordance with the applicable Building Code), the Design Review
Approval will expire and become null and void.
In accordance with Section 118-264 of the City Code, the violation of any conditions and
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the City Code.
Dated this day of ,Jarl c/a ry._ , 20 .
U
DESIGN REVIEW BOARD
THE CITY OF MIAMI BEACH, FLORIDA
BY: ... _I/ ''...
DEBOI 'CKETT
DESIGN AND PRESERVATION MANAGER
FOR THE CHAIR
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE ) q
The f regoing instrument was acknowledged before me this / day of
c.........,.."-7,--7_. 20/p by Deborah Tackett, Design and Preservation Manager,
PI nning Department, City of Miami Beach, Florida, a Florida Municipal Corporation, on behalf
of the Corporation. He is personally known to me.
(
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* ,A," , MY COMMISSION 1FFA12183 ARY PUBLIC
',1r' EXPIRES:December 2,2017
1,,„fti Bondedlin avtige,NgarySmfol Miami-Dade County, Florida
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My commission expires: / — ---/7
Page 773 of 2495
ty Page 10 of 10
Meeting Date: January 06, 2015
DRB File No. 22942
1.7
Ct. Approved As To Form: �.
City Attorney's Office: /�f �� ( �' u'/
Filed with the Clerk of the esign Review Board on t-S- Z015
41: F:'PLAN1$DRB\DRB 15101-06-20151JAN Final OrderssDRB 22942 4701 N Meridian.JAN 15.fo.docx
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Page 774 of 2495
AGREEMENT REGARDING
THE RENOVATION OF WEST 48T11 STREET
BETWEEN ALTON ROAD AND WEST 47TH STREET
THIS AGREEMENT regarding the renovation of West 48th Street between Alton Road and
West 47th Street (the "Agreement"), dated this day of , 2017, is entered into by 4701
NORTH MERIDIAN,LLC,a Florida limited liability company, whose address is 4218 NE 2"d Avenue,
2"d Floor Miami, Florida 33137 (the "Developer"), and the CITY OF MIAMI BEACH (the "City"), a
Florida Municipal Corporation whose address is 1700 Convention Center Drive, Miami Beach, Florida,
33139. The City and the Developer may each be referred to herein as a "Party" or, collectively, the
"Parties."
RECITALS:
A. The Developer is the owner of certain parcels of land located in the subdivision of the
Nautilus Addition of Miami Beach Bay Shore Co. Block 10 Lots 1-16 and Block 13 Lots 11-17 in the
City of Miami Beach,Florida as recorded in Plat Book 8, Page 130,of the Public Records of Miami-Dade
County(the"Property").
B. The Developer has received all required design approvals from the City to construct
improvements on the Property for the Ritz-Carlton Residences(the"Project").
C. As part of the Project, the Developer has agreed to design, develop, construct, and fund
basic milling/resurfacing,sidewalk, curbing, street lights, and landscaping improvements along West 48th
Street, from Alton Road to West 47`h Street, as more particularly described in the Project plans attached
hereto and incorporated herein by reference as"Exhibit A." The City is the owner of the streets and right-
of-way areas specified in Exhibit A.
D. The Developer, as part of the approval of the Project, recorded a Declaration of
Restrictive Covenants, Recorded in the Official Records Book of Miami-Dade County, at Book 28765,
Pages 3452-3481, recorded on August 9, 2013 (hereinafter "Declaration of Restrictive Covenants").
Paragraph 5 of the Declaration of Restrictive Covenants states: "[t]he Owner shall, at its own expense,
and prior to the issuance of any certificate of use or occupancy for the Property, improve the existing
green space located at the intersection of West 48th Street, West 47th Court and Meridian Avenue,
provided that the City of Miami Beach agrees to the improvement and eliminates the existing parking
adjacent to the Property. The green space shall be enlarged as described on the attached Exhibit"D" if
approved by the appropriate governmental authorities."See"Exhibit B,"attached hereto and incorporated
by reference herein.
E. Paragraph 6 of the Declaration of Restrictive Covenants states: "[p]rior to the issuance of
any certificate of use or occupancy for the Property, if authorized by the City of Miami Beach, and, if
necessary, Miami-Dade County, the Owner shall reduce the width of West 48th Street, and construct a
roadway median, improved landscaping, and expand sidewalks within the road right-of-way for the
segments of West 48th Street and N.Meridian Avenue adjacent to the property". See"Exhibit B."
F. Item B.2.b of the Design Review Board File No. 22942, states: "[a] clear definition of
the private and public property along the south property line shall be designed, in order to minimize any
public perception that portions of the public property are actually private. This shall include the
incorporation of a low seating wall, fence, secondary sidewalk, or other design solution following the
property line along the south side of the site, in a manner to be reviewed and approved by staff." See
"Exhibit C."attached hereto and incorporated by reference herein.
Page 775 of 2495
G. Item 13.2.e of the Design Review Board File No. 22942 states: "[t]he final design and
details of the proposed public park shall be further developed and detailed to include appropriate lighting,
seating,and bike racks, in a manner to be reviewed and approved by staff."See"Exhibit C."
H. Item B.9.b of the Design Review Board File No. 22942 requires the developer to
"[r]emove/replace sidewalks, curbs and gutters on all street frontages, if applicable. Unless otherwise
specified,the standard color for city sidewalks is red,and the standard curb and gutter color is gray". See
"Exhibit C."
I. Item 11 of the Design Review Board File No. 22942 requires that "[t]he project shall
comply with any landscaping or other sidewalk/street improvement standards as may be prescribed by a
relevant Urban Design Master Plan approved prior to the completion of the project and the issuance of a
Certificate of Occupancy."See"Exhibit C."
J. The improvements identified in the above referenced Paragraphs "C" through "1", less
any reference to the proposed public park or its improvements, shall hereinafter be collectively referred to
as the "W 48'1' Street Improvements." Hereinafter,reference to the "Work" shall be to the W 48"' Street
Improvements,the area under construction and staging of the W 48th Street Improvements, including all
design, architectural, engineering and other professional services, permitting, demolition and construction
services, testing and inspection services, supervision, administration and coordination services and the
provision of all drawings, specifications, labor, materials, equipment, supplies, tools,machinery, utilities,
fabrication, transportation, insurance, bonds, permits and conditions thereof, government approvals,
licenses, tests, quality assurance and/or quality control inspections and related certifications, surveys,
studies, traffic controlmaintenance of traffic, public information officer, and other items, work and
services that are necessary or appropriate for the total design, construction, installation, furnishing,
equipping,and functioning of the W 48th Street Improvements,together with all additional,collateral and
incidental items, and work and services required for delivery of a completed, fully functional and
functioning W 48th Street Improvements project, in accordance with this Agreement (collectively, the
"Work").
K. Both the Developer and the City acknowledge that the W 48`t' Street Improvements do
not include raising the centerline of the road to the minimum elevation and do not include significant
drainage improvements nor a storm water pumping station; however, the Developer has agreed that, in
view of the City's intent to improve the stormwater system and increase the elevation of the road (the
"City Project"),Developer will contribute the amount of$209,000.00,toward the City Project.
L. In addition,the Developer,as a condition of this Agreement,agrees to convey to the City,
on or before the issuance of a final certificate of occupancy for the Developer's Project,a twenty(20)foot
wide public utility access and use easement, in a form acceptable to the City, along the southeasterly
portion of the property along W 47'x' Street for the City to construct, operate and maintain a public storm
sewer pumping station, outfall, seawall and necessary appurtenances The City shall be responsible for
negotiating any related easement or other agreement with FPL that may be required with respect to the
installation of City's proposed pump station. The public utility access and use easement granted in favor
of the City shall terminate in the event that the City Commission makes a determination that the proposed
pump station is not feasible or otherwise cannot be installed at the easement location specified in this
subsection L.
M. Both the Developer and City benefit if the W 481h Street Improvements are completed as
soon as possible,as time is of the essence, and as per the Declaration of Restrictive Covenants,Developer
is precluded from obtaining a Final Certificate of Occupancy without first completing the W 48'h Street
Improvements.
2
Page 776 of 2495
N. The Developer has contracted with Plaza Construction (the "General Contractor") to
construct the W 48"' Street Improvements at a current contract price of$209,000.00.
O. Developer and City have agreed to execute this Agreement for the purpose of
memorializing their agreement.
AGREEMENTS:
Accordingly, in consideration of the foregoing and of the respective agreements and covenants
contained herein,and intending to be legally bound hereby,the Parties agree as follows:
1. Recitals. The above Recitals are true, correct, and form a material part of this
Agreement,and are hereby incorporated by reference and made a part hereof.
2. W 48th Street Improvements. Developer shall be solely responsible for designing,
developing and constructing the W 48th Street Improvements. Developer shall be solely responsible
for the payment of all costs and expenses related to the design,development and construction of the
W 48`" Street Improvements,except as specified in Section 4 below with respect to City's waiver of
certain City-related fees. In the event the actual costs to complete the W 48`x' Street Improvements
exceed the estimated costs of $209,000, whether due to unforeseen conditions or for any other
reason whatsoever,the Developer shall be solely responsible for all such costs as may be required to
complete the W 48'h Street Improvements. In no event shall City be responsible for paying or
otherwise reimbursing Developer for any costs to design, develop or construct the W 48th Street
Improvements, except as specified in Section 4. Developer shall direct the construction process and
be responsible for entering into all contracts necessary for the construction of the W 48th Street
Improvements. Developer shall secure all required permits and approvals for the W 48`h Street
Improvements on its own behalf and, to the extent appropriate, on behalf of the City and with the
City's cooperation. Any approval, consent, or joinder required from the City (in its proprietary
capacity as Owner of the property identified in Exhibit A)shall be given to Developer within fifteen
(15) days of the request by Developer, unless, within that time, City provides Developer with a
written statement setting forth in detail the City's reasons for not so providing, or otherwise
conditioning Developer's request, including, without limitation, in the event that the City requires
additional time for the City Commission or the applicable City board to consider Developer's
request.
3. Developer's Contribution to City. Developer shall pay to the City the amount of
$209,000.00 prior to obtaining the final Certificate of Occupancy for the Project,which funds shall
be used for the design or construction of the City Project. In the event the costs for the City Project
exceed $209,000, the City shall be solely responsible for all costs and expenses relating to the City
Project. If the City Commission ultimately does not proceed with the City Project within ten (10)
years of the effective date of this Agreement contribution shall be refunded to the Developer. Aside
from the financial obligation described in this section, Developer shall have no further obligation or
liability associated with the City Project.
4. City's Contribution Toward W 48"' Street Improvements Project. The City shall
waive(i)all Department of Public Works permit fees associated with closing the 48th Street right-of-
way during construction of the W 48"' Street Improvements; and(ii)all parking fees associated with
removal of on-street parking spaces during and after construction of the 48th Street Improvements.
5. The City acknowledges that the W 48th Street Improvements will result in the
removal of (A) twelve (12) parking meters and stalls located within the median island at the
3
Page 777 of 2495
intersection of West 48th Street and West 47th Court and (B)the road on the north side of the
median island. From and after December 1, 2016, neither the Developer nor the Project shall be
responsible for the payment of rent or any other parking charges associated with the twelve (12)
parking meters and/or stalls,and the City waives all fees related thereto.
6. The City shall remove or relocate, at its cost and expense, the seven (7) existing
parking stalls along the south side of West 48th Street and West 47th Court.
7. In all respects,City's obligations and performance under this Agreement is pursuant
to City's status as the owner of the property identified in Exhibit A,acting in its proprietary capacity.
In the event City exercises its regulatory authority as a governmental body including,but not limited
to, its regulatory authority for code inspections and issuance of Building Department permits,Public
Works Department permits, or other applicable permits within its jurisdiction, the exercise of such
regulatory authority and the enforcement of any rules, regulations, laws and ordinances shall be
deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall
not be attributable in any manner to City as a party to this Agreement.
8. The City's participation, facilitation and/or assistance to the Developer, including,
without limitation, assisting with obtaining permits or with coordination with utilities, or other
matters related to the Work, shall be at the City's sole discretion and shall not, in any way, be
construed, interpreted and/or constitute an assumption by the City of Developer's obligations, a
waiver of Developer's obligations andlor excuse any breach by Developer of its obligations under
this Agreement,nor shall it limit, in any way,the City's rights and remedies in connection therewith.
9. Any information provided by the City to the Developer or to Developer's
Contractors(as that term is defined in Section 11(b)of this Agreement)relating to the Work or the
property identified in Exhibit A andlor existing conditions upon, about, beneath or adjacent to the
Work site including, without limitation, any geotechnical or environmental reports, or other
information pertaining to subsurface exploration and conditions, borings, test pits, tunnels, as-built
drawings and other conditions affecting the Work site, are provided only for the convenience of the
Developer and Developer's Contractors. The City makes no representations or warranties as to,and
assumes no responsibility whatsoever with respect to, the sufficiency, completeness or accuracy of
such information and makes no guarantee, either express or implied,that the conditions indicated in
such information or independently found by the Developer or Developer's Contractors as a result of
any examination, exploration or testing, are representative of those existing throughout the
performance of the Work or the Work site, and there is no guarantee against unanticipated or
undisclosed conditions.
10. The City's Director of Public Works shall be the City's Representative for all
purposes under this Agreement. The City's Representative may include any duly authorized
representatives designated in writing by the City's Director of Public Works with respect to any
specific matter(s)concerning the Work.
11. Developer's Obligations With Respect to the Work.
(a) Developer shall cause for all architectural and engineering Work related to the W 486 Street
Improvements to be performed by a duly qualified professional licensed to provide such services
in the State of Florida("Architect/Engineer").
(b) Developer warrants and represents that its General Contractor holds all requisite licenses to
perform the Work in the State of Florida. For all purposes in this agreement, reference to the
4
Page 778 of 2495
"Developer's Contractors" shall include the Architect/Engineer and any sub-consultants, the
General Contractor and any subcontractors, vendors or suppliers thereof, and any other third-
parties engaged by the Developer to perform any aspect of the Work.
(c) Developer shall construct the Work in conformance with the renderings, diagrams and/or plans
set forth in Exhibit"A,"which shall be subject to the City's approval(the"Approved Plans"), as
may be modified in accordance with this Agreement. Developer, through its Architect/Engineer,
shall be responsible for finalizing all plans and specifications for the W 481° Street Improvements,
in accordance with the Approved Plans, and any applicable laws, codes (including, but not
limited to, building codes), ordinances, rules, regulations, lawful orders and decrees or
requirements of governmental authorities having jurisdiction over the Work or the Parties
("Applicable Laws"). Prior to commencement of any construction of the Work, Developer shall
submit to the City any proposed modifications to the Approved Plans(which shall be indicated by
"ballooning,"highlighting, blacklining or describing such modifications in reasonable detail), for
City's approval, in its sole discretion. Any approval of proposed modifications by the City shall
be for its own benefit in its proprietary capacity, and shall not be construed to mean approval as
to compliance with any Applicable Laws. Within twenty-one (21) days of receipt of any
proposed modifications to the Approved Plans,the City Representative shall notify Developer, in
writing,that he approves such modifications, or the basis for any disapproval thereof. If the City
disapproves of any proposed modifications, Developer shall submit revised proposed
modifications that address the City's concerns. Any dispute regarding proposed modifications to
the Approved Plans must be resolved prior to the commencement of the construction of the Work.
(d) Developer shall, or shall cause for the Developer's Contractors to, diligently perform and
complete the Work in accordance with this Agreement, the Approved Plans, and Applicable
Laws. The Developer shall furnish sufficient forces, offices, facilities and equipment, and shall
work such hours, including night shift and overtime operations, as necessary to ensure the
prosecution of the Work in accordance with the proposed progress schedule for the Work. If, in
the opinion of the City Representative, the Developer, due to its own action, falls behind in
meeting the baseline schedule as presented in the current monthly updated progress schedule,the
Developer shall take such steps as may be necessary to improve its progress, at Developer's sole
cost and expense.
(e) Developer shall be responsible for coordination of the Work, as identified in "Exhibit A," and
shall cause for Developer's Contractors, including, without limitation, all architectural, civil,
structural, mechanical, electrical and other subcontractors to be responsible for coordination of
their portions of the Work with Developer and with each affected trade.
(0 Developer shall employ on the Project during its progress a full-time competent English-
speaking superintendent satisfactory to the City. The superintendent shall not be changed
without the written consent of the City, unless the superintendent proves to be unsatisfactory to
Developer and ceases to be in its employ.
(g) Developer shall provide and pay for all materials, labor, water, tools, equipment, light, power,
transportation and other facilities and services necessary for the proper execution and completion
of the Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work.
(h) Developer shall at all times enforce strict discipline and good order among its employees and
subcontractors at the Work site and shall not employ on the W 48th Street Improvements project
any unfit person or anyone not skilled in the Work to which they are assigned.
5
Page 779 of 2495
(i) Developer shall supervise the Work, using best practices and industry standards. Developer
and Developer's Contractors shall be solely responsible for the means, methods, techniques,
sequences and procedures of construction.
(j) Developer shall provide, at Developer's own expense and without liability to City, any
additional land or facilities that may be required for temporary construction facilities, or for
storage of materials,and shall furnish,erect,maintain and remove such temporary work as may be
required for the proper performance of the Work. Developer shall order and have all materials
required for the Work and shall be responsible for all materials so delivered to remain in good
condition.
(k) Developer shall conduct its operations so as not to close any thoroughfare, nor interfere in any
way with pedestrian, vehicular, marine or air traffic without the written consent of the proper
authorities having jurisdiction.
(I) Developer shall identify and locate all underground and overhead utility lines, facilities,
structures, or equipment affecting or affected by the Work. Any inaccuracy or omission in such
information will not relieve the Developer of its responsibility to protect such existing features.
(m)The Developer shall notify each utility, facility, structure, or equipment company involved at
least thirty (30) days prior to the start of construction to arrange for positive underground
location, relocation or support of its utility, facility, structure, or equipment which may be in
conflict with or endangered by the proposed construction of the Work. Relocation of water
mains or other utilities for the convenience of the Developer shall be paid by the Developer. All
charges by companies for temporary support of their utilities, facility, structure, or equipment
shall be paid for by the Developer. All costs of permanent relocation to avoid conflict shall be
the responsibility of the company involved or the Developer, as necessary to complete the Work.
All relocations are to be approved by the respective owner prior to backfilling.
(n) All overhead, surface or underground structures and utilities encountered are to be carefully
protected from injury or displacement. Should the Developer damage or interrupt the operation
of a utility service or facility, Developer shall immediately notify the proper utility service or
facility owner and the City Representative. Developer shall take all reasonable measures to
prevent further damage or interruption of service.
(o) The Developer shall immediately repair all utilities, cables and other facilities that are damaged
by its workers, equipment, or Work at its own expense, with appropriate new material by skilled
workers. The Developer shall obtain prior approval of the appropriate utility service and/or
facility owner for the materials, workers, time of day or night, method of repairs, and any
temporary or permanent repairs the Developer may propose to any cables or utility service
damaged by the Developer during the course of the Work. The City may remedy such damage by
ordering outside parties to make repairs, at the expense of the Developer. All damaged utilities
must be replaced or fully repaired to the satisfaction of the utility or facility owner. The
Developer, in such events, shall cooperate with the utility service or facility owner and the City
Representative continuously until such damage has been repaired and service restored to the
satisfaction of the utility service or facility.
(p) Developer shall be solely responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Work. Developer's General Contractor shall
maintain a hurricane plan for the protection of the Work site, and provide a copy of same to the
City for the City's review and approval.
6
Page 780 of 2495
(q) Developer shall protect all Work against all loss or damage sustained until Substantial
Completion, whichever comes first, and shall promptly repair any damage to the Work.
Developer shall preserve all properties adjacent and leading to the Work site, and restore and
repair any such properties damaged as a result of construction of the Work, whether such
properties are publicly or privately owned.
(r) The Developer shall not be responsible for normal wear resulting from the City's use of the Work
after Substantial Completion, and Developer's responsibility following completion of the Work
shall be limited to that set forth in this Agreement.
(s) All damage, injury or loss to the Work or any property referred to herein, caused directly or
indirectly, in whole or in part, by Developer, its contractors or subcontractors, or anyone
directly or indirectly employed by any of them, or anyone for whose acts any of them may be
liable,shall be remedied by Developer.
(t) Developer shall designate a responsible member of its organization at the Work site whose
duty shall be the prevention of unsafe activities or practices which may lead to accidents.
(u) In the event of an emergency constituting an immediate hazard to the health or safety of
employees, property, lessees, or the general public, the City may undertake, at the Developer's
expense without prior notice,all work necessary to correct such hazardous condition when it was
caused by work of the Developer not being in accordance with the requirements of this
Agreement.
(v) Cleaning Up and Removal of Equipment. Developer shall keep the W 48th Street Improvements
construction site free from accumulation of waste materials or rubbish caused by Developer's
operations. Upon the written acceptance of the W 48"' Street Improvements, Developer shall
remove all its waste materials and rubbish from and about the site as well as its tools,construction
equipment, machinery and surplus materials. If Developer fails to clean up upon the completion
of the W 48th Street Improvements, City may do so, and the cost thereof shall be charged to
Developer,but not without first notifying the Developer in writing and allowing seven(7)days to
cure.
(w)Safety and Protection. Developer, if required by any Applicable Laws, or at Developer's
election, shall erect and maintain all necessary barricades, and any other temporary walls,
boarding, or fencing, throughout construction of the W 48th Street Improvements. Developer
shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with its use of the W 48th Street Avenue right of way, and any other
adjacent public property and/or right of ways used in conjunction with construction of the W 48th
Street Improvements. Developer shall take all necessary precautions for the safety of, and shall
provide the necessary protection to prevent damage, injury or loss to:
i. All contractors and subcontractors for the W 48th Street Improvements,and their
respective employees, agents, and servants, and/or other persons who may be
affected thereby;
ii. All the Work and all materials or equipment to be incorporated for the W 48th
Street Improvements,whether in storage on or off the site;and
iii. Developer shall comply with all Applicable Laws, ordinances, rules, regulations
and orders of any public body having jurisdiction for the safety of persons or
7
Page 781 of 2495
property or to protect them from damage, injury or loss, and shall erect and
maintain all necessary safeguards for such safety and protection. Developer shall
notify owners of adjacent properties and utilities when prosecution of the work
may affect them. Developer's duties and responsibilities for the safety and
protection of the 48th Street Improvements shall continue until such time as all
the 48th Street Improvements is completed.
(x) Prior to commencement of any construction Work, Developer shall deliver to the City a
Performance Bond and Payment Bond with a penal sum in the amount required to complete
the W 48`h Street Improvements, with all premiums paid and in favor of Developer and
Developer's General Contractor,with a co-obligee rider in favor of the City.
(y) Developer agrees to complete the W 48 Street Improvements prior to the issuance of a final
certificate of occupancy for the Project.
12, City Inspection.
(a) The City has the right (but not the obligation) to regularly inspect and monitor the design,
permitting and construction process with respect to the W 48n Street Improvements, for general
conformance and compliance with the intent of this Agreement,the Approved Plans, or Applicable Laws,
provided, however, that City's failure to monitor any aspect of the W 486 Street Improvements shall not
relieve Developer of its obligations to perform and deliver the W 48`h Street Improvements in accordance
with this Agreement,the Approved Plans,and Applicable Laws.
(b) The City's observation or monitoring of the progress of the Work shall be for its internal purposes
only,and in no way is intended to,nor shall be treated as, any approval or rejection of the Work on behalf
of the City or any other entity,and shall not be construed as direction of the Work in any way. The City's
review, evaluation, or comment as to any documents prepared by or on behalf of the Developer shall be
solely for the purpose of the City's determining for its own satisfaction the suitability of the W 481h Street
Improvements, or portions thereof, and may not be relied upon in any way by the Developer or
Developer's Contractors as a substantive review thereof.
(e) In the event that any aspect of the W 48`h Street Improvements project is not proceeding in
accordance with the Approved Plans,or if the quality of the construction is materially deficient, then the
City, through its Public Works Director or his designee, shall promptly notify the Developer in writing,
specifying any deviations from the Approved Plans and/or any significant deficiencies in the construction
of the Work. The Developer shall have a reasonable period of time in which to cure the noted
deficiencies, to implement the Architect/Engineer's recommendation of the actions that are necessary to
remedy such condition, provided that any such actions must ensure that the Work will be fully functional,
suitable and sufficient for its intended purposes. If the Developer does not cure the noted material
deficiencies or provide a response reasonably satisfactory to the City, then the City shall have the right,
but not the obligation,to cure such material deficiencies, at the Developer's cost, if doing so is necessary
to ensure the Work is fully functional,suitable and sufficient for its intended purposes.
(d) If within one(1)year after the closure of the permits for the W 48'" Street Improvements any of
the Work is found to be materially defective or significantly not in accordance with the W 48th Street
Improvements Approved Plans, Developer, after written notice from the City, shall promptly correct, or
cause to be corrected such materially defective or significantly non-conforming Work,without cost to the
City. Ultimately, the City shall be entitled to withhold the issuance of a temporary or final Certificate of
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Page 782 of 2495
Occupancy for Developer's failure to comply with this Agreement, or if the Developer otherwise fails to
complete the W 48"'Street Improvements in accordance with the Approved Plans or Applicable Laws.
(e) The City shall at all times have access to the Work, and Developer shall provide proper facilities
for such access and for inspecting, measuring and testing. Developer shall notify the City Representative
or his or her designee,in writing,of any Work that has been or is being installed,before allowing it to be
covered.
(f) Field instructions from the City shall not be effective to authorize deviations from the Agreement;
any modifications to this Agreement must be set forth in a written amendment to this Agreement, duly
executed by the Parties.
(g) Should the Agreement, any laws,ordinances, or any public authority require any of the Work to
be specially tested or approved, Developer shall give the City timely notice of readiness of the Work for
testing. if the testing or approval is to be made by an authority other than the City, at least three (3)
days' notice must be given to the City prior to each test. Testing shall be made promptly, and, where
practicable,at the source of supply. Work covered without approval of the City must,if required by the
City,be uncovered for examination and properly restored at Developer's expense.
(h) For cause,which shall be determined in the reasonable discretion of the City,the City may order a
reexamination of any of the Work and, if so ordered, the Work must be uncovered by Developer.
Developer shall be responsible for any costs associated with the re-examination and/or correction of the
Work.
(i) Developer shall perform its own quality control testing at its own expense.
(j) For road construction projects, the procedure for making tests required by the City will be in
conformance with the most recent edition of the State of Florida, Department of Transportation Standard
Specifications for Road and Bridge Construction.
• 13. Defective Work.
(a) Developer's Architect/Engineer for the W 48`h Street Improvements shall be responsible for
rejecting materially defective Work. All materials and equipment furnished will be new unless otherwise
specified and all of the Work will be of good quality, free from material faults and defects, and in
conformance with the Agreement. Any Work not conforming in any material way to these requirements
(including substitutions not authorized) or which does not conform to the Developer's obligation to
deliver a fully functional and suitable W 48"'Street Improvements project that is sufficient for its intended
purposes,may be considered defective.
(b) Developer shall promptly either correct all materially defective Work or remove such materially
defective Work and replace it with non-defective Work. Developer shall bear all direct, indirect and
consequential costs of such removal or corrections including the cost of testing laboratories and
personnel.
(c) Should Developer fail or refuse to remove or correct any materially defective Work in accordance
with the requirements of the Agreement within the time indicated in writing by the City and agreed to by
the Developer, the City may cause the materially defective Work to be removed or corrected at
Developer's expense. Any expense incurred by the City in making such removals, corrections or repairs
shall be paid for out of any monies due or which may become due to Developer, or may be charged
against the Performance Bond.
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Page 783 of 2495
(d) If,within one(1)year after Substantial Completion(as such term is defined herein below)or such
longer period of time as may be prescribed by the Agreement, any of the Work is found not to be in
accordance with the Agreement, Developer, within ten (10) days after written notice from the City, shall
take steps to correct such materially defective or nonconforming Work without cost to the City, or shall
provide a plan acceptable to the City for the prompt correction of such materially defective or
nonconforming Work. If Developer fails to correct materially defective or nonconforming Work timely,
the City may charge Developer for the cost of correction. Nothing contained herein shall be construed to
establish a period of limitation with respect to any other obligation which Developer might have under the
Agreement.
(e) Failure to reject any materially defective Work or material shall not in any way prevent later
rejection when such material defect is discovered, or obligate the City to final acceptance, or waive the
City's rights with regard to latent defects.
(f) Within ten (10) days after written notice from the City, Developer will correct all latent defects
discovered within three (3) years of Substantial Completion. Developer will restore any Work disturbed
in connection with the correction of defective work at no cost to the City.
(g) The provisions of Florida Statutes Chapter 558 shall not apply to this Contract.
14. Substantial Completion. When it is determined that the Work is substantially
complete in accordance with the Agreement, a Certificate of Substantial Completion will be issued in
the form included in the Agreement. As a condition of Substantial Completion, all of the following
shall occur:
(a) The Developer's architect/engineer of record shall develop, and the Developer and the City shall
review, the list of items of Work to be completed or corrected by Developer. The failure to include any
items of corrective Work on such list does not alter the responsibility of Developer to complete all of the
Work in accordance with the Agreement,the Approved Plans,and Applicable Laws.
(b) Developer shall deliver all executed warranties.
(c) Developer shall deliver one complete set of as-built drawings in a digitallelectronic format, for
City's review and comment. Following City's approval thereof, Deliver shall deliver one final set of as-
builts in a digital/electronic format for the file.
(d) Developer shall deliver operation and maintenance manuals,as required.
(e) Developer shall deliver evidence that all permits have been satisfied and closed, and that a final
certificate of completion has been issued by the applicable agency(ies).
(0 The Work can be used for its intended purpose.
(g) Developer shall satisfy all other requirements of the Agreement not specifically listed above.
15. Warranties. Developer makes no representations or warranties with respect to the
W 48`'' Street Improvements. As more fully set forth in Section 9 hereof, City makes no
representations or warranties with respect to the physical condition of the properties described in
Exhibit A,including,without limitation,the subsurface conditions thereof.
10
Page 784 of 2495
(a) As a condition of closing the building or Department of Public Works permit for the W 48th Street
Improvements, the Developer shall assign to the City any warranties provided by the Developer's
Contractors in the construction of the W 48th Street Improvements (including, without limitation, the
General Contractor).
(b) Guarantees and Warranties required by the Agreement shall commence on the date of
Substantial Completion of the Work unless otherwise provided and will be for a period of one(1)year
unless otherwise provided in the Agreement.
(c) The Developer will correct all defects discovered within one(1)year or longer period if provided
in the Agreement or if agreed to in writing by the City of the date of Substantial Completion. Developer
will commence repairs within ten(10) days after being notified by the City in writing of the need for the
repairs and will prosecute the repairs diligently until completed.
(d) If the Developer fails to act within ten (10) days, the City may have the repairs performed by
others at the expense of the Developer.
(e) Written warranties furnished to the City are in addition to implied warranties,and shall not limit
the duties, obligations,rights and remedies otherwise available under the law or the Agreement.
(t) The Developer shall also furnish any special guarantee or warranty called for in the Agreement.
16. Additional Terms.
(a) Indemnification of City. Developer shall indemnify, defend and save harmless the City, its
officers, agents and employees, from liabilities,damages, losses and costs including, but not limited to,
reasonable attorney's fees, including injuries or damages, received or sustained by any person or persons
during or on account of any construction activities of Developer, Developer's Contractors,or Developer's
agents, servants, or employees connected with the W 48th Street Improvements, to the extent caused by
the negligence, recklessness, or intentional wrongful misconduct of Developer and persons employed or
utilized by Developer in the performance of this Agreement. Developer agrees to indemnify, defend and
save harmless City against any claims or liability arising from or based upon the violation of any
Applicable Laws by Developer and persons employed or utilized by Developer in the performance of this
Agreement.
The indemnification provided in this Section 16(a), shall obligate Developer to defend,at its own
expense,to and through appellate,supplemental or bankruptcy proceeding,or to provide for such defense,
at the City's option, any and all claims of liability and all suits and actions of every name and description
that may be brought against the City which may result from Developer's operations and activities under
this Agreement from any construction activities of Developer, its General Contractor, or any
subcontractors,consultants,agents,servants,or employees.
The execution of this Agreement by Developer shall obligate Developer to comply with the
foregoing indemnification provision. This indemnification shall survive termination or expiration of this
Agreement,but shall terminate four(4)years following the date the City's Public Works permit for the W
48th Street Improvements is closed.
17. Insurance. Developer shall provide, or cause to be provided, pay for, and maintain
in force at all times during construction of the W 48th Street Improvements,the following insurance
coverage: Workers' Compensation Insurance, Employer's Liability Insurance, Comprehensive
11
Page 785 of 2495
General Liability Insurance, and Professional Liability Insurance, as will assure to City the
protection contained in this Agreement.
Such policy or policies shall be issued by companies approved to do business in the State of
Florida,and having agents upon whom service of process may be made in the State of Florida. Developer
shall specifically protect the City by naming the City as an additional insured under all policies
hereinafter described:
i) Professional Liability Insurance with limits of liability provided by such policy
not less than One Million Dollars($1,000,000.00)
ii) Workers'Compensation Insurance to apply for all employees in compliance with
the "Workers' Compensation Law' of the State of Florida and all applicable
federal laws. In addition,the policy(ies)must include:
Employer's Liability with a limit of$100,000.00 each accident.
iii) Comprehensive General Liability with minimum limits of Two Million Dollars
($1,000,000.00 primary and excess of$1,000,000.00) per occurrence combined
single limit for Bodily Injury Liability and Property Damage Liability. Coverage
must be afforded on a form no more restrictive than the latest edition of the
Comprehensive General Liability Policy, without restrictive endorsements, as
filed by the Insurance Services Office.
The policies must be endorsed to provide the City,with thirty(30)calendar days written notice of
cancellation, expiration and/or restriction, to the attention of the City's Risk Manager, 1700 Convention
Center Drive, Miami Beach, Florida 33139. Developer shall provide to the City a Certificate of
Insurance or a copy of all insurance policies required herein. The City's Risk Manager reserves the right
to require certified copies if requested.
18. Termination For Cause. If the Developer fails to comply in any material respect
with any of the terms of this Agreement, or otherwise fails to perform or complete the Work(each
such failure,an"Event of Default")in accordance with this Agreement,the City shall deliver written
notice to Developer specifying the Event of Default("Notice of Default"). If, following delivery of
a Notice of Default,the Developer fails to promptly commence and thereafter complete the curing of
such Event of Default to the satisfaction of the City within a reasonable period of time,not to exceed
thirty (30) days after the delivery of the Notice of Default, the City may thereafter terminate this
Agreement for cause by written notice to the Developer, with a copy to the surety, rendering
termination effective immediately, without prejudice to any other rights or remedies of the City,
whether provided by this Agreement or otherwise provided at law or in equity.
(a) In the event of any such termination for cause, subject to the prior rights of the
surety, Developer shall, if directed by the City: (i) deliver possession of the Work site and all materials,
equipment of all materials, equipment, tools, construction equipment and machinery thereon owned by
Developer; (ii) assign to the City all of Developer's right, title and interest in contracts or subcontracts
relating to the Work as well as any warranties or guarantees for Work already installed or purchased; (iii)
deliver to the City the plans, specifications or other design materials relating to the Work, in their
original/native electronic format; (iii) transfer title and deliver to the City the fabricated and non-
fabricated parts,Work in progress,completed Work, supplies and other material produced or required for
the Work terminated; and the completed or partially completed records relating to the Work that, if this
12
Page 786 of 2495
Agreement had been completed, would be required to be furnished to the City; and (iv) take any action
that may be necessary or that City may direct for the protection or preservation of the Work site.
(b) Recourse to Performance Bond and Payment Bond. Without prejudice to any of
its rights and remedies, City may also make demand upon the surety to perform its obligations under the
Performance Bond and Payment Bond, including completion of the Work, without requiring any other
agreement or takeover agreement with respect thereto.
(c) Remedies Not Exclusive. No remedy under the terms of this Agreement is
intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and
shall be in addition to any other remedies, existing now or hereafter, at law, in equity or by statute. No
delay or omission to exercise any right or power accruing upon any Event of Default shall impair any
such right or power nor shall it be construed to be a waiver of any Event of Default.
19. Waivers. Any waiver by any party hereto of any breach of or failure to comply with
any provision of this Agreement by any other party hereto shall be in writing and shall not be
construed as, or constitute, a continuing waiver of such provision,or a waiver of any other breach of,
or failure to comply with such provision or any other provision of this Agreement.
20. Assignment and Performance. Neither this Agreement nor any interest herein shall
be assigned,transferred,or encumbered by Developer without prior written approval of the City.
21. Headings. The headings in this Agreement are solely for convenience of reference
and shall not be given any effect in the construction or interpretation of this Agreement. Unless
otherwise stated,references to Sections are references to Sections of this Agreement.
22. Third Parties. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person or entity, other than Developer and the City,
any rights or remedies under,or by reason of'this Agreement.
23. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall constitute a single
instrument.
24. Modification. This Agreement may only be modified by a writing signed by all of
the parties hereto,and no waiver hereunder shall be effective unless in writing signed by the party to
be charged.
25. Attorneys' Fees. Each Party shall bear its own costs, fees and expenses in
connection with this Agreement and any disputes or actions relating thereto.
26. Effective Date. This Agreement shall become effective upon the mutual execution
hereof.
27. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida, both substantive and remedial,without regard to principles of
conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be
Miami-Dade County, Florida, if in State court, and the U.S. District Court, Southern District of
Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, DEVELOPER AND
CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY
13
Page 787 of 2495
JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT.
28, Severability. If any provisions of this Agreement are held to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall not be affected or impaired and
each remaining provision shall remain in full force and effect. In the event that any term or
provision of this Agreement is determined by appropriate judicial authorities to be illegal void or
otherwise invalid, said provision shall be given its nearest legal meaning or be construed as deleted
as such authority determines and the remainder of this Agreement shall be construed to be in full
force and effect.
29. Interpretation. The Agreement is made up solely of the documents and exhibits
attached hereto, The Agreement must be read as a whole, and anything in one such document must
be read as included in all other documents, unless the context requires otherwise. Where there is a
conflict between any provision in the Agreement and a more stringent state or federal provision
that is applicable to this Project,the more stringent state or federal provision shall prevail.
30. Notices. All notices and communications in writing required or permitted hereunder
may be delivered personally to the representatives of the Developer and the City listed below or may
be mailed by registered mail,postage prepaid(or airmailed if addressed to an address outside of the
city of dispatch).
Until changed by notice in writing, all such notices and communications shall be addressed as
follows:
TO DEVELOPER:
4701 North Meridian,LLC
Attention: General Counsel
4218 NE 2nd Avenue
Miami, Florida 33137
With Copy To:
Greenberg Traurig, P.A.
Attention:Alfredo J. Gonzalez,Esq.
333 S.E.2"d Avenue
Miami,Florida 33131
TO THE CITY: City of Miami Beach
Attn: Eric T.Carpenter,P.E.
Assistant City Manager/Public Works Director
1700 Convention Center Drive
Miami Beach,Florida 33139
(305)673-7000,Ext. 6399
With Copy to:
City Attorney
City of Miami Beach
Office of the City Attorney
Attn: Eve Boutsis. Esq.
1700 Convention Center Drive 41h Floor
Miami Beach, FL 33139
(305)673-7000 Ext.6471
14
Page 788 of 2495
Notices hereunder shall be effective:
If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following
the date mailed;and if mailed to an address outside the city of dispatch on the seventh(7"')day following
the date mailed.
[Signatures on next page]
15
Page 789 of 2495
[Continued from previous page'
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed;all as of this day and year first written above.
Attest: CITY OF MIAMI BEACH
Rafael Granado,City Clerk Philip Levine, Mayor
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
la ' 7//07-
'' 1 24\1/ DYgI
16
Page 790 of 2495
Attest:
4701 NORTH MERIDIAN,LLC
By: LIONHEART MH,LLC
Operating Member
By: LIONHEART CAPITAL, LLC,
Sole Member
By:OZ HOLDINGS OF MIAMI,LLC,
Managing Member
By:
Name: Ophir Sternberg
Title: Managing Member
[Both party signatures notarized on next pages]
17
Page 791 of 2495
[Continued from previous page]
STATE OF FLORIDA }
} SS:
City OF MIAMI-DADE }
The foregoing instrument was acknowledged before me this day of
2017 by , City of Miami Beach Mayor, on behalf of the CITY OF MIAMI
BEACH, known to me to be the persons described in and who executed the foregoing instrument, and
acknowledged to and before me that they executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal,this day of ,2017
Notary Public,State of Florida at Large
Commission No.:
My Commission Expires:
18
Page 792 of 2495
STATE OF FLORIDA )
SS:
City OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
2017 by , in his capacity as Managing Member of Oz Holdings of Miami,LLC,the managing
member of Lionheart Capital, LLC, , the sole member of Lionheart MH, LLC, the operating member of
4701 North Meridian, LLC, known to me to be the persons described in and who executed the foregoing
instrument, and acknowledged to and before me that they executed said instrument for the purposes
therein expressed.
WITNESS my hand and official seal,this day of ,2017.
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
19
Page 793 of 2495
Exhibit A
20
Page 794 of 2495
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Page 795 of 2495 _,_ ____.____—
Exhibit B
21
Page 796 of 2495