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94-21167 Reso. . �t�:� '` � � � � '� � i• , - r RESOLUTION NO. 94-21167 A RESOLUTION OF THE MAYOR AND CITY COMHIISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORTZING THE MAYOR AND CITY CLERK TO ENTER INTO AN AGREEMENT BETWEEN THE CITY AND PACIFIC INTERNATIONAL CONSTRUCTION, INC. ("PACIFIC"), REGARDING INFRASTRUCTURE IMPROVEMENTS TO SUNSET HARBOUR DRIVE AND AUTHORiZING THE CiTY ADMIlVISTRATION TO TAKE ' ALL ACTIONS NECESSARY FOR THE CITY TO PERFORM UNDER THE AGREEMENT. WHEREAS, the City of IvLami Beach, on June 1, 1989, issued a building permit concerning the development of a residential project known as Sunset Harbour on that parcel of land generally located at 1928 Purdy Avenue, Miami Beach, Dade County, Florida; and WHEREAS, lawsuits were filed by property owners against, among other parties, City and Pacific, contesting, among other things, the issuance of the building permit; and WHEREAS, that litigation was settled and the parties executed that certain Settlement Agreement, approved by City Resolution No. 93-20803, which directed the parties to use their best efforts towards the establishment of an infrastnzcture improvement program for the area from 20th Street to Alton Road and from Purdy Avenue to the Venetian Causeway (also now known as Sunset Harbour Drive); and WHEREAS, the City desires to comply with that Sett(ement Agreement; and WHEREAS, Pacific has agreed to pay to the City up to a total ma�cimum amount of 1 million dollars ($1,000,000.00) to pay for a portion of the infrastructure improvement program; and WHEREAS, the implementation of the City's scope of services under the infrastructure improvemern program will enhance the infrastnxcture of the area and Pacific's scope of services under the progam will substantially beautify and improve the infrastructure of the area. � t� � 1 �` � . ' � � �. . � . � . . NOW, THEREFORE, BE TT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE C1TY OF MIAMI BEACH, FLORIDA: Section 1. That the Mayor and City Commission of the City of Miami Beach hereby authorize the Mayor and City Clerk to e�cecute the Ageement, attached hereto as Exhibit "A", between the City of M�ami Beach and Pacific International Construction, Inc. for the provision of infrastructure improvements to Sunset Harbour Drive. Section 2. That the Mayor and City Commission of the City of 11�iami Beach hereby authorize the City Administration to take all actions necessary for the City to perform under the Agreement. PASSED and ADOPTED thia isth � ATTEST: . �/�� . -12��- CITY CLERK c. �:ro.�.,.o� 2 I�ORM APPROVED LEG�',� UEPT. � ^ By � �� Date S � �� 1� � CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH F�ORiDA 33139 OFFICE OF THE CITY MANAGER COMMISSION MEMORANDUM T0: Mayor Seymour Gelber and Members of the Cky Commission FROM: Roger M. £�d City Manager 1 ! / )' i � TELEPHONE: (305) 673-7010 fAX: (705) 673-]792 DATE: May 18, 1994 SUBJECT: BIINSET H7IRBOOR DRIVE PIIHLIC IN8RA8'PAIICTIIRE IMPROVEMB�T'P PRO�iRAM 11DMINISTRATION The Administration recommends that the City Commission adopt the attached resolution authorizing the Mayor and the City Clerk to execute the attached agreement between the City and Pacific International Construction, inc. to implement the Sunset Harbour Drive Infrastructure improvement Program (the Program) to provide infrastructure improvements on Sunset Harbour Drive. SAC1C(iROUND : On May 19, 1993, the City adopted Resolution 93-20803 (Exhibit Aj, approving a set�lement aqreement with Yacht Club Southeastern, Inc. (Yacht Club) and Pacific International Construction, Inc., the developers Por the Sunset Harbour townhouse and condominium project alonq Purdy Avenue and Twentieth Street. As a provision of this agreement, the City Commission on September 22, 1993, passed Resolution 93-20892 to co-name Purdy Avenue and Twentieth Street as Sunset Harbour Drive. Another provision of this aqreement is to implement a public infrastructure improvement program alonq Purdy Avenue from the Venetian Causeway to Twentieth Street and along Twentieth Street to Alton Road includinq the triangular public area and the entrance to Sunset Islands 3 and 4(Exhibit B). The Proqram will consist of placing utilities underground, expanding water and sewer services, street improvements landscaping, and other related improvements. The Program was presented to the Capital Improvement Committee on October 14, 1993. The Committee referred it to the City Commission for consideration. On October 20, 1993 the City Commission adopted Resolution No. 93-20938, appropriatinq $30,000 for enqineerinq studies and cost estimates. The completed studies for placing the utility services underqround estimates this portion of the project to cost $1,040,000. With these cost estimates the revised cost of the Program is estimated to be $2.6 million. The attached aqteement reflects the new estimated cost and proposed funding. A(iENDA ITEM DATE 1 .�-1'�- 1� Commission Memorandum - May 18, 1994 Sunset Harbour Infrastructure Program Page 2 7�NALYSIB: The agreement provides for the following: o The City's participation in the Program will be to provide for the infrastructure improvements which will include burying the utility services in the area, expanding water and sewer services, drainage, curb and gutter and road resurfacing. (Exhibit Cj o Pacific's participation in the Program will include landscaping, irrfqation, decorative paving, plus sharinq in 50 percent of the cost of the relocation of utilities underqround.(Euhibit C) o Pacific will pay to the City a maximum amount of $1,000,000 as its portion of the cost for the Program. This amount will be paid over a period of 12 years at an annual rate of interest of six percent. o Pacific will execute a promissory note to the City for its portion of the cost for the Proqram. This note shall be guaranteed by its parent corporation, Pacific International Equities, Inc. (Exhibit "D"). Schedules A and B Fundinq for the project will be advanced from the Sunshine State Loan Pool. The estimated annual debt service cost for twelve (12) years will be $300,000 which will be repaid as follows: Source of Fq� Payment from Pacific Water/Sewer Fund Storm Water Utility Gas Tax General Fund (increase in licenses, permits, lees qenerated from development in the area) Total Annual Debt Service CONCL�SIONs Amount 135,000 21,000 16,200 63,000 C��:iiii] $300,000 The City Commission should adopt the attached aqreement which provides for a joint effort by the City and PaciPic to implement a public infrastructure improvement proqram on Sunset Harbour Drive. The one million dollar contribution to the Program is the largest contribution by a developer participatinq in a public project with the City in our history. The Program will increase the value of existinq property within the area as well as encourage further development. Furthermore, the $110 million Sunset Harbour development of townhomes, condominium and apartment towers will qenerate an estimated $1.2 million in tax revenues annually to the City based on a recent real estate tax analysis by the firm of Dixon and Friedman, Inc. (Exhibit F) This residential complex with a marina and health club, which will be opened to the public, will create jobs and other economic benefits to the local economy. RMC:KM l.� � , ; : RESOLUTION NO. 93-20803 71 RESOLtTTIOIi Op TiLB �I71YOR J►2ID CITY CO}tKI88Z0Ii OT THE CITY O! KI71MI HSJ►CH� ?IARIDJ► 71IITHORI3IDTa T8B M71YOR 112:D CITY CL8R1( TO Eil'PSR I?ITO J►N 71aR88lt8NT BBT1f88N T8E CITY 71liD Y71C8T CLIIS 80IITHEA8T8RN� IIiC� ('�Y71C$T CLOB��) � A�iD PI►C=Y1C IiiTBRN71TI0lUI+ CONBTRIICTION� IHC. (��P71CIlIC��) REGJ►RDIiiG T8E DBVELOBI�EDi'P OT T88 8QN8ET 8l1R80IIR PAOJECT. . ' ; , • R88RE7►8, the Ci�y of Miami Beach, on June 1, 1989, issued a building penoit under Activity No. 88800095, which permitted the development of a project of 800 residential units known as Sunset Harbour on that parcel of land generally located at 1928 Purdy Avenue, Miami Beach, Dade County, Florida; and 1rHEREAB, based upon this action, Complaints were filed by Sunset Island 3 and 4 Property Owners, Inc., and several of the association's individual members in the Circuit Court of the Eleventh Judicial circuit in and for Dade County, Florida, styled Sunset Isl�,nd 3 and 4 Pro�ertv Owners,�,nc. v C��v of Miami Beach. Case No. 90-305430-CA-01 aqafnst the Yacht Club, PaciPic, the City and Dade County, Florida, alleginq that the issuance of the building permit by the City was invalid as inconsistent with the applicable Comprehensive Plan, amonq other assertions generally challenging the Sunset Harbour project; and 1�AERE]►e, the parties to the above deacribed action desire to resolve the claims among them without further lenqthy and costly litigation, and without admission of liability by any party hereto for itself or for the aots of any other partyt and 1PHEREAB, each party to the above described action wishes to enter into a Settlement Agreement on the assurance and representation that all other parties have full and complete power and authority to execute same and bind themselves and, to the extent provided by law, those in privity with them to the mutual covenants, conditions and agreements contained therein. 2ioN, THEREFORE, B8 IT RE80LVED by the Mayor and City Commission of the City of Miami Beach, Florida: EXHIBIT �� A �r Section 1. That the Mayor and City Commiesion of the City oi Miami Beach hereby authorize the Mayor and City Clerk to execute the settlement attached hereto as Exhibit "A" • and all documents deemed necessary by the City Attorney's office to resoive all matters in connection with the Sunset Harbour Development. P7188ED 811d 7�DOPTED this 19th ATTEST: /''��.ss�:� �—:�,,,� CITY CLERK jm:jcd:sunset.na LEGAL DEPT. By 'S"G'� oate `� - /! - �i'' 3 0 . :c i , � 1. a -" s F�t� •tir' t� sx' ,' � �-�i {+,a !�F"; t`�►�., y� � "'- � ` w . - �.. � 1 , «�� .��,;► . � � .� . � :► � �, � +.• �y '� S �, t'� �+{ �� . 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' . , ;. _� . ^k' � . _ ' . � - _ , .. � i.,y ' � S ��`� ♦ _ J �,� r � r � � ,+ � .�. � �j�w �-'1K v ( .�:�;: � ��S , 4- �.��^ � ��,, s S , - . , r , r . LXHIBIT "C" SUNSET iiAR,SOUR IN�RAST'RUCTURIS gROCiRAM +��,p's co�� ot servi�es [ i��l„�di.�g "PZrg�eion�l 8ervi��, Cc�tr�.4'�g" � vtili.ty Relo�ation �l+aatric�l Telsphons Cuble toleviaion (ta b� ahared equa2ly by the City and paci�ia} Drainage/drainaqe weils tfl include a�ll drai�age pre�a�ratian euch ae yas, oii intero�ptors�, catchbasins, sto�,n s�wer Asph�tlt p�tvinq {including campacCed base, xt�of drains, hazxicane shuttex t3e dor�m, zuanhale caatings, and adjustors) Corivrete �av�.nq ineluding compaated bttse, �ertt�r �aeriians, WalkW8y9, drivew�ty� Cancretp Curb • Qurb and gutter streetliqhting including poles, �ixture$, lampe Si�s d�+moli�ion including sidewalk remava�l Si.gnage in�ludine� pavement markinqg, traffic signa].s and street e�.gns Trattia maintenance Watexls►ewex' re�o�ati.on incsluding da�ign and cot��truction of wate� main, removal at lead services; canstruotion ot sewer for�ae ma�.n i�ats��io!, "PL'OYlas� Utiiity Relovaticn �lectrical Telephone Cable tie�levieion forae excluding desiqn and {ta be sharsd equslly by the City and �aa3.fic) pecorative paving and driveways Deaorativ� 3iqhtinq Canarete s�eppi,nq atanes Landsc+�pinq af msdiane a�d swala areas �rriq�tion Na�es Tha Cez�m "Pro�eseianal serviae contracts", as referred ti.o a�bove, �.nc�luds� pro ject desiqn, all �t�rvsy costg, grsparation c�� Complet+�d plane and speczitice�tion�, all reguired p�s�rtit�ing, contract �nd project administration and m�n+agement �or al�, phasee of the projeat. . s � BXHIBIT "D" PROMI3SORY NOTL $ Miami, Florida , 1994 FOR VALUE RECEIVED, the undersigned promise to pay to the order of City of Miami Beach ("Holder") at 1700 Convention Center Drive, Miami Beach, Florida 33139, or at such place as may be designated by the holder hereof, the principal sum of * /100 ($ * ) DOLLARS, with interest thereon accruing at the rate of eight percent (8.00�) per annum. Commencing on *, 199_, and continuing thereafter on (month/day) or the next soonest business day of each subsequent year through and including *, 19*, annual payments of principal in the amount of * /100 ($*) DOLLARS shall be due and payable, together with all accrued and unpaid interest on the outstanding principal balance as of the date of such principal balance. The entire unpaid principal balance of this Promissory Note, together with all interest accrued thereon, shall be due and payable on *, 199_. This Promissory Note may be prepaid at any time without permission and/or penalty. All payments shall be applied when received first to the payment of interest on the principal balance of this Promissory Note from time to time remaining unpaid and then to reduce the principal debt. This Promissory Note will be considered in default when any payment required to be made hereunder shall not have been received by Holder within fifteen (15) days after receipt by the undersigned of written notice from Holder specifying the amount of the payment that was due and not paid. The holder of this Promissory Note, in the event of such default, may declare the entire unpaid principal balance of this Promissory Note, together with all accrued interest thereon, to be immediately due and payable without notice or demand and assess default interest at the rate of eighteen percent (18%) per annum. The undersigned waives demand, notice of nonpayment and protest and agrees if this Promissory Note goes into default and litigation or arbitration is commenced to collect this Promissory Note, to pay reasonable attorneys' fees and all other costs incurred in making such collection including, but not limited to, attorneys fees and costs of appeal of any judgment or order. The undersigned consents to the exclusive venue of Dade County, BED20W, KORN. I(AN & 6LASER, P.A.. 20803 818CAYNE BOULEVARD. BURE 200, P.O. BOX 8020, HALLANDALE, FL •(3061 936-68B8 Florida, for any and all legal proceedings based upon or arising out of this Promissory Note. Notwithstanding anything to the contrary contained herein and/or within any other agreement between the undersigned and the holder of this Promissory Note, the effective rate of interest on the obligation evidenced by this PromissQry Note shall not exceed the maximum effective rate of interest permitted to be paid under the laws of the State of Florida (hereinafter collectively referred to as the "Applicable Laws"). Without limiting the generality of the foregoing, in the event the calculation of interest or the imposition of the increase in the rate of interest after acceleration due to default or the payment of any fees or other charges which are construed to be interest under the Applicable Laws result in an effective rate of interest higher than that permitted to be paid under the Applicable Laws, then such interest, fees or charges shall be reduced by a sum sufficient to result in an effective rate of interest no greater than the maximum effective rate of intereat permitted to be paid under the Applicable Laws. Upon maturity of this Promissory Note, whether by acceleration or in due course, interest shall be recalculated over the actual term of the Promissory Note, based upon the amounts outstanding, and if the total amount of interest theretofore paid, inclusive of the sums hereinabove referred to, exceeds the amount permitted to be paid under the Applicable Laws, the excess shall be credited to principal, or if such excess exceeds the principal amount then due. hereunder, refunded to the underaigned. This Promissory Note is to be construed and enforced in accor- dance with the laws of the State of Florida. PACIFIC. INTERNATIONAL CONSTRUCTION, INC., a Florida corporation By: * The payment of this Promiasory Note is hereby guaranteed by the undersigned this day of , 199_ PACIFIC INTERNATIONAL EQUITIES, INC., a Florida corporation By: MB/501-0/15]�4.01/0394 r.a BED20W, KOFMI, KAN & OLASER. P.A.. 20803 BISCAYNE BOULEVYID. SURE 200. P.O. BOX 8020, HAWNDALE. FL •(3061 936-6888 � , � ' : : , �IiiBI'i tF��e $UN$ET �pUR INFRA3TRUCTURE IMF'ROVEMENT PR4GRAM PitOJLGT SCiiEDiTLE �'HX$E Ca»t�avt with srchitaotural/engir�auring aansultant to pxc�vida proje�ot p3.a�s� and sp�tsitSastSonas Ex+�tzuts agreetaent� with u�ility cori►p�tli�st to proc�ssd wit�,ii oon�Cruotiort Compiste �rroj�rct desig» and prspara�ion o! pla►r�e► bia �pecitiaa�tiar�s, obta�.n rsquired gsr�s►it�x Utility c�am�a�i�s� award aonst�ruc�ion contracrt� City �wards canstrna�ion von�racts for 3.nlrt�struaturv wor]c Re2ocsatio� of utiliCia� comp�.ete CitY �►ward� landsaapeJirrigation ao»��aCt Water, sa►wer, G!Y'aj.lZdq�r curb and gutter, msdian in�talla�lon, irrigt�tion, road work a�tc, aomp2et+� Ltiad��sap�,nq, signage a�d vtarea� markings eta. camplete DATE May 31, 1994 Augu�t 31, 299� �i�apCember 30, 1994 OtstObB� 30, 1994 NC►vamber 30, 1994 M�irCh 31 r 1998 April 30, 1995 June 30, 1895 July 31, 1995 , • AGREEMPNT BETWEEN THE CITY OF MIAMI BEACH PACIFIC INTERNATIONAL CONSTRUCTION, INC. FOR THFs PROVISION OF INFRASTRUCTURE IMPROVEMENTS TO SUNSET HARBOUR DRIVE . { ; � e ♦ ♦ � � i • .� . �r e THI3 A �TT {the ^Agreement") dated as af the �^'�k. day af t.1 uL�� . 1994, between: THE CITY OF MIAMI BEACH, a Florida municipal corparatian (the "City"?, located at 1?00 Convention Center Drive, Miami Beach, Florida 33139, and PACIFIC INTERNATIONAL CONSTRUCTiON, INC., a Florida corporation t"Pacifia°), located at 11098 Biscayne Boulevard, Suite 402, Narth Miami, Florida 33161 (hereinafter collectively referred to ae the "parties"}. R 8 C I T A L S: WHEREAS, pursuant to the terms of that certain Settlement Agraement entered into between the parties, approved by City Resolution Na. 93-20803, a copy of which is attached hereto as Z:xhibit �'A", which authorized the parties to use their best efforts tawards the establishment of a public infrastructure improvement prograrn for the area from 20th S�reet ta Alton Road and from Purdy Avenue to the Venetian Causeway {also nJkJa Sunset iiarbour Drive) (the "Sunset Harbaur Drive Area"), which includea the area in the map attached hereta as Sxhibit °8•; and WHEitEAS, Pacific agreed to pay to the City an amount equal to fifty percent (50�) af the cost of the afarementioned infra- s�ructure impravement pragram, rag to a maximum af FIVE HUNDRED THOUSAND AND NO/1Q0 ($500,000.00) DOLLARS; and WHEREAS, the parties have n.aw agreed to modify the scope of the proposed Sunset Fiarbaur Drive Area Znfrastructure improvement Program whereby Pacific shall pay to the City up to the total . , . ' S � } i r � } � • ( i r • � � � maximum amaunt of One Million and no/100 i$2,aoo,oao.aa) Dollars, payable in the manner set forth herein; and WHEREAS, all the funds which sha21 be used far the purposes set forth herein shall be separately acaounted for in t�he books and recards of the City, and shall be used on3y for the implementation of the infrastructure improvement pragram as set forth herein; and WFiEREAS, the parties hereto intend to create the infrastruceure impravement pragram and hereby desire to enter into an Agreernent pursuant to which the infrastructure program for the Sunset Harbour Drive Area shali be implemented. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I. GFSIJERAL PROVISS4Z3S 1.1 Pracrram, Subject to the provisions of paragraph 5.1 of this Agreement, the City and Pacific hereby agree to engage certain professionals and cons�ructian companies as necessary �o perfarm the public services and public impravements set forth on Exhibit °Cp of this Agreement, such services and improvements ca3lectively referred to as �he "Sunset Harbour Drive Area Infrastructure Improvement Program". 1.2 Schedule. The parties hereto agree to nse their best effar�s ta undertake and perform the Sunset Harbour Drive Area Znfrastructure Impravement Program in accardance with the schedule attached hereto as Exhibit ��E," 1.3 Au�horitv of the P�,zties. The implementation and determination by City and Pacific of �he cost of the Sunset Fiarbour 2 . . . , , � ; � , , . • ; , ,. . , � Drive Area Infrastructure Improvement Program as set forth in Sxhibit "C" shall at all times be subject to the review and reasonable direction and control of the City. Paoifia will locate and negotiate with professionals with respect to doing any work under this Agreement. iiowever, the City will have final authority with respect to which entities and/or individuals are hired by the City andfor Pacific to perfarm the work contemplateci by the Sunset Harbor Drive Area Infrastructure Impravement Program. As set farth herein, the City shall have the absolute right to determine the amount, quaiity, acceptance anfl fitness of the worls being performed by the groieasionals and contractors retained under this Agreement, and sha1Z have the absolute right to withhold any City proceeds for payment thereaf, if the City determines that the provisions of such agreements with said proieseionals and/or con- tracts have r�ot beerx materially camplied with; and any persan or agent duly authorized to act for and on behalf af the City shall not, by virtue of such action or authority be lialale in any manner whatsoevar ta Pacific. ARTICLE II. 2'IiE SC4FE OF' SEi2ViCE8 2.1 Pavment for Proaram. The City agrees to pay for the Stxnset Harbour Drive Area Infrastructure Improvement Program in accardance with the contracts er�tered into with �.he prafessianals and contraators retained to perform the services and improvements as�set forth on Tarhibit "C°. Unless this Agreement is arnended as provided herein, and notwithstanding any other pravision of this 3 Y � 4 0 i Agreement, the total payment the City agrees ta make under this Agreement shall not exceed the sum of TWO MILLION SIX HUNDRED TH4USAND AND AT4/140 {$2,604,0OO.OQ} DOLLARS, pravideci,�howeuer, that (1) City's total payment for its scope of services shall not exceed ONE MILLION SIX HUNDRED THOUSAND DOLLARS {$1,600,000.00); t2} p�ci.fic's total payment for its scope of services shall not exceed ONE MILLION DOLLARS ($1,000,000.00); and (3) Pacific shall pay City for Pacific's scops af services as described in Section 2.2 below. 2.2 Pacific's Scone of Services. PaciEic shall assist the City in the negatiation and implementation of contracts with the aforernentioned profesaibnals and contractors and assist in implementing the improvements sgecified in this Agreement. Unless this Agreement is amended as provided herein and notwithstanding any other pravision of this Agreement, Pacific agrees to pay for its scope of services as deseribed on Exhibi� "C", provided, however, that Pacific's total payment shall no� exceed ONE MILLION AND NQ/104 ($1,440,004.44) DOLLARS. Such tatal payment (as adjusted for any advance payments by Pacific} {the "�riginaT Total Amount") shall be paid ta City over a period nat to exceed fifteen (15) years commencing on the date {the."Date°} which is thirty-one (31) days after the completion of the Sunset Harbour Drive Area Infrastructure Zmprovement Program. On that Date, and each year thereafter, Pacific shall pay to the City in additian to accrued interest at eight (8�) percent per annum, the greater of one- fifteenth {1j15thi of the Original Tatal Amaunt, and the amount, 4 � • � 1 � • � • after crediting Pacific with any prior payments made to reduce the , � Original Total_Amount, which ia the percentage of the Original Total Amount that ia the percentage of the number of residential unita of the Sunset Hsrbour development that have closed as of the date that the yearly payment ia due. F'or �xample, if the Original Total Amount due ie $1,000,000 and Pacific haa not closed on any unita in yeara one and two, then, as of year 2 of the note, Pacific will have paid the Ci�y $66,66'� per year for a total of $133,334 (�1/15 x$1,000,000 -$66,667 per year; $66,667 x 2=$133,334). Uaing the same example, if, as of the third year, Pacific has cloaed on forty (40�k? percent of the reaidential units, Pacific will have to have paid the City by year 3 the sum of $400,000 because forty (40�) percent of $1 million is $400,000. However, the actua2 payment due would be $266,666 because Pacific is credited with the payments made in the previous two years in the total amount of $133,334, and $266,666 (S400,000 - $133,334 =$266,666) is greater than the 1/SS payment of $66,667. If, in year 4, the number of total units closed stays at forty (40�) percent, then Pacific will pay to City that year $66,667, because $66,667 is greater than $o (Pacific has aZready paid Ciry $400,000 and, under the percentage test, t;he total due to have becn pafd by that year is $400,000, or forty (40�t) percent (number of uaita closed) of $1,OOO,000 (Original Total �►mount)). Pacific shall submit to City, at tha same timc that it submits to City its annual payment, a letter atating the number of residential units and the p�rcentage of the total residential units that have closed a� of the date of the annual payment. The letter 5 ' � r . t � � . r t � e � + ,� shall a2so state the total number of residential units {bath closed and nat closed) in �he Sunset Harbour development. Upan camgletion af Sunset Harbour Drive Area infrastructure Improvements Program, Pacific will execute a promissory note to the City incorpcarating the terms se� forth hereinabove, which promissary nate shall be guaranteed by its parent corporatian, Pacific International Equities, Inc. A copy of the pramissory note is at�ached hereta as Sachibit "D". 2.3 The Cost af the Sunset Harbour Drive Area Proaram. The par�.ies acknowledge that the estimated cost of the overall ianfrastructure program far SunseL Harbour Drive Area is approx- imately TWO MILLION SIX HUNDRED THOUSAND AND NO/100 ($2,600,006.00) DOLLARS. The parties hereto agree that if the aforemention.ed approximate cost is in excess thereaf, then the parties hereta agree that cer�ain improvements to be agreed u�,on between the City ancl Pacific wili be deleted from this Improvement Program so that the tatal cost of the improvennents does nat exceed TWO MILLIdN SIX HUNDFtED TFiOUSAND A�TD NO/1Q0 ($2, 600, 000. OQ? DOLL�A128, If the approximate cost is in excess of TWt) MILLION SIX IiUNDRED 'THOUSAND AND NO/100 {$2,600,000.00) DOLLARS, the initi�l infrastructure improvements will be spent ta improve Purdy Avenue and 20th Street commencing with the property directly adjacent and parallel to the property^ described on E�chibit "B" attached hereto. The parties further agree that subsequent infrastructure improvement funds shall next be spent on improvements to �he Sunset Island Bridge and the triangular parcels af property lacated at Altan Road and 20th 5 , � . t S < . . .« , s � . . Street, the latter af which may be used as an entry feature to the Sunset Harbour/Sunset Islands aommunities. The parties further agree, as gart af the improvements thereto, to provide public signage for the entry feature to the Sunset Harbour/Sunset Islands cammunities, subject to the mutual agreement oi Yacht Club and the Sunset Islands 3 and 4 ProperCy Owners, Inc., and the approval of all appropriate City agencies. ARTICLE III. BOOKS AND RECORDS: AUDIT: ANNiJAL REPORT 3.1 Baoks and Records. The party hereta who expends funds in relation to the Sunset Harbour Drive Area Infrastructure Impravement Pragram shall, relative to the funds expended, keep in an orderly fa�hion up to date baoks and records in accordance.with generally accepted accounting principles and in accordance with the standarc2s issued by the City's OEfice of Management and Budget, showing all af its receipts and assets, including withaut lima.tation, the praceeds from the funds which the City has designated for tha use of this Sunset Harbour Drive Area Infrastructure Impravement Program as set forth in this Agreement, and all diahursements and liabilities, including coz�tingent liabilities. The said party hereto shall also maintain complete and accurate records in readily accessible files an all of their activities in conjunction with this Agreement. Such recorc2s shail include, but not be limited to, the following: {a) copies of all relevant carresponflence, both incoming and outgoing; 7 M I� � " r 4 ' . ` . s { . � . . . r • t ib) capies of all press releases or other publicity generat$d by any party hereto relative to the Sunset Harbour Drive Area Infrastructure Improvement Program; (c} financial documentation such as bank statements, cancelled checks, bills and receigts, request for payment and deposit slips relating to all financial accounts and transactions under this Agreement; and td} such other reeords and papers as the parties hereto may mutually agree in writing may be required to be maintained. The parties hereto agree that all of the aforementianed records relating to this Agreement shall becnaintained far a period of at least ten (10} years, and may only be ultimately disposed of in accordance with all statutory provieions rela�ing to the Public Records law, and this requirement shall survive �he termination of this Agreement. 3.2 Audit. Each party ro this Agreement shall have the right, at all reasonable times, ta audit, inspect, and copy any of the baoks� xecords, accounts and other documents of each other party in connection with this Agreement upon reasonalale notice ta the ather party. ARfiICLE IV. REPRESENTATIONS AND WAR.RANTTIES � 4.1 Status of Pacific. Pacific represents and warrants that: (a} Pacific is and :shall continue to be a corporation duly organized, validly existing, and in good standing under the . 8 e S t ti . r laws af the State of Florida, and has all requisite powers and autharity to execute, cieliver and perform this Agreement. tb} This Agreement has been du2y authorized by al2 necessary corporai.e actions on �he part of Pacific, and has been duly executed and delivered by Pacific and, assuming execution and delivery by the City, constitutes a legal, valid, binding and enfarceable abligation of Pacific, fc} The execution and delivery of �his Agreement, and cc+mpliance with the pravisions hereof, da not and will not conflict with car eonstitute a vialation of or default under Pacific's Cer�ificate of Incorporation, by-laws, or any statute, inden�ure, mortgage, dead of trust, contract ar crther agreement ar instrument to which Pacific is bound, or any order, rule or regulation of any court or governmental agency pr body having jurisdiction over Pacifie or any of its aetivities or properties.. 4.2 Status of Citv. The City represents and warrants that: (a) City shall continue ta be duly argani�ed, validly exi�ting, and in good standing under the laws of the State of Florida, and has all requiaite pawer and authority to execute, deliver anc3 perform this Agreement. (b) This Agreement has been duly authorized by all necessary actions an the part af the City, has been duly executed and delivered by the City, and, assuming execution and delivery by Pacific, constitutes a legal, valid, binding and enforceable obligatian af the City; � . �. , ; , , , � . . � , � , , . . � F (c) The City hereby warrants that the execution and delivery af this Agreement and compliance with the provisions hereof, do nc►t and will nat conf].ict with ar constitute a vialation of or default under its charter or ordinances ar any statute or any indenture, martgage, deed of trustr contract ar other agreement or instrument to which the City is bound, or any order, rule or regulatian af any court or governmental agency or bady having jurisdiction over the Ci�y or any of its activities or properties. that: 4.3 Conflict of Interest. Paoific warrants and represents (a) No elected official or other officer or employee of the City, or any persan whose salary is payable in whole or in part, from the CiCy, shall participaCe in any decision relating ta thi� Agreement which affects his or her personal interest or the interest af any corporation, partnership, or association in which he or she is directly or 3.ndirectly invalved in and which would conflict in any manner or degrae with the perfcrrcnanca or the terms and canditioans of this Agreement. (b) Pacific further covenants that in the performance of this Agreement, no persan having such interest as set forth in 4.3(a) above, shall knowingly be employed by Pacific. 4.4 Pen:dincr Litiaation. The parties hereCo warrant and represent that with the exeeption of that cerCain litigatian styled Sunset Islands 3 and 4 Proper�y Ownera, Inc. v. City af Miami Beach, et ., Case Na. 94-30543-CA-01, which litigation has been settled and has been ratified by the Court, there are na � � , , , � . � , J Y . . proceedings pending or to the knowledge of each of them, threatened, in any court or before any qovernmental authority or arbitration or tribunal which involves the possibility of materially and adversely affecting the operation and condition ifinancial or otherwise} af any of the partiee or of the ability of the parties to perform this Agreement. 4.5 Publicitv. Pacific cavenants and agrees that it shall give the City reasanable notice of any press or public event icollec�ively "Publicity'�?, which Pacific plans to undertake in order to publicize the Sunset Harbaur Drive Area Frogram and will give representatives of the City the opportunity to participate in any Publicity event. ARTICLE V. APPLICABLE LAWS. RULES AND REGULATIONS S.1 Procurincr Palicv. The professicsnals and contractars to be hired to implement �.he services and impravements under this Agreement shaZ1, if required by appZicable law, be employed in accorciance with the City's Proourement Pa2icy. S.2 Governina Law. This Agreemexit shall be governed by and canstrued in accordance with the laws of the State af Florida. 5.3 Comnliance With Law. The parties hereto agree that a21 acts to be perfarmed by them in connection with this Agreement shall be performed in strict conformance with a2l applicable federal, state and looal laws, rules and regulations. 11 . � , . ' '� � � � � . s � i .4 • .� ARTZCLE VI. DEFAULT. SUSPENSION OR TERMIIJATION 6.1 Riaht tcs Withhold Pavment, Demand Return of Pavment and/or Terrninate Contract Due to Acts of the Parties Hereto: Bankru�str.v; Force Maieure, Cross-Defaul.t. ia) Notwithetanding any rights of the parties under other Sections of this Agreemen�, if a party hereto, through any cause, ie in breach of this Agreement in the reasonable judgment of the other party, or 'if a party vialatee any of the terms, covenants or provisions of this Agreement, or if any rapresentation or warranty made by a party hereto shall prove untrue, then the non-breaching party shall give written notice to the breaching par�y af such breach, and the breaching party shall have ten (2U} days in which to cure. If the breaching party does not cure within this ten {i0) day period, then the non-breaching party, at its option, shall have the right to complete the work contemplated under this Agreement and seek reimbursement therefor (or as set-aff against sums due hereunder) and%or seek specific perfarmance af this Agreernent. Additionally,•if Pacific or Pacific International Equities, Inc. defaults under the Promissory N`ote attached hereto as ExhiY�it "D," the City shall be entitled ta pursue the remedies provided in that note. (b) Zt shal3 be cansidered a default under this Agreement if, at any time during the term of thi� Agreement, including, but not limited to, while the promissory nate attached hereta as Exhikrit °D" remaina outstanding and ncst fully paid and F� . � , ' , 1 � . � e i cancellefl, Pacific or Pacific InternaCional Equities, Inc. declares bankruptcy, becomes insolvent, engages in a fraudulenC conveyance, disaolves or commences disaolution proceedings, changea its majarity ownership, or ceasee to do business, or if any action is filed againat Pacifie or Pacifie Internatianal Equities, Inc. seeking a judicial declaration that either entity is bankrupt, insolvent or has engaged in a fraudulent conveyance, Upon the occurrence of euch a default, the City shall have �he right to terminate this Agreement and to pursue any and all available remectiss ineluding, but nat limited to manetary damages. (c) Pacific International Equities, Inc. shall submit in writing to the City six (6? manths before each annual payment is due a certified independent statement o€ an independent auditor, accep�able ta the City, stating that, as oi six t6? months prior ta the due cia�e of the upcoming annual payment, Pacific international Equities, Inc.'s net worth is in excess of $20 million and tha� Pacific Znternational Equitie8, Inc. has the manies necessary to make the upcoming annual payment. It sha11 be considered a default under and breach af this Agreement and the attached Pramissory Note if Pacific Internationa2 Equities, Inc.'s net worth drop� to ar kaelow $20 million. (d} The performance of any act by City or Pacific hereun.dar may be de�ayed or suspended at any time while, but only so long as, either party is hinciered in or prevented from performance by aats af God, a hurricane, natural disaster, the 13 ` ' t ' � � � � . .� ,. .. elements, war, rebellion, riats, strikes, loakouts ar any other cause beyond the reasonable control of such party. te) A default under and breach of this Agreement shall be considered a default under and breach oE the attached Pramissory Note. A default under and breach of the Promissory Note shall be considered a default under and breach af this Agreement . ARTICLE VII. MISCELLANEOUS '7.1 �ndependent Contractor. (a} I3otwithstanding anything con.tained herein ta the conCrary, it is specifically understood and agreed that in the performance of the terms, covenants and conditions of this Agree- ment, neither Pacific or any of ita officers, directors, emplayees, agents, inc3ependent contractors or subcontractors shall be deemed to be acting as agents, servants or employees of the City by virtue of this Agreement or by virtue of any appraval, permit, license, grant, right ar other authorization given by the City or any of its officars, agents or employees pursuant to this Agreement, hut shall be deemed to be independent contractors performing services for the City, without pcswer or authority to biz�d the City, and shall be deemed solely responsible for speci£ia acts taken or amitted by them in the performance of their duties under this Agreement. (b) Notwithstanding anything contained herein to the contrary, it is specifically understood and agreed that in the performance of the terms, covenants and condi�ians af this Agreement, neither the City nor any of its officers, directors, i� t . .Y employees, agents, independent contractors or subcontractors shall be deemed to be acting as agents, servants or employees of Pacific by virtue of this Agreement or by virtue af any approval, permit, la.cense, grant, right or other authorizatian given by Pacific or any of its officers, agents or emplayees pursuant ta this Agreement, but shall be deemed to be a separate independent entity performing aervicea for Pacific, without power or autharity to bind Pacific, and shall be deemed solely resportsible far all acts taken or omitted by it in the performance of its duties under this Agreement. 7.2 Limitation on Liabilitv, The partiea hereto desire ta enter into this Agreement only if, and so, the parties hereto can place a limit an their liability for any cause of aetian for manetary damages due to an alleged breach of this Agreement. Therefore, the parties agree that each party's liability for such breach will never exceed the cast of that party's scope of services, as set forth in Exhibit "C" hereunder plus attorneys' fees and costs incurred as a rasult thereof, and interest as provided in the Promissory Note attached hereto. ?.3 Arbitratian. Any cantroversy or claim for maney damages arising out af or relating to this Agreement, or breach thereof, shall be settled by arbitration in aocordance with the Commercial Arbitratian Rules of the American Arbitration Assaciation, and the arbitration award shall be final and binding upon the parties hereta and subject to appeal only in accordance with the applicable Florida Statutes. Zn tha� regard, the parties shall m�tually � 0 r . ; ' � , , �� . � < . select ane arbitrator, but to the extent that the parties cannot agree upon the ark�itrator, then the American Arbitration Associa- tion shall appaint ane. Judgment upan the award rendexed may be entered into any court having juriadiction, or application may be macle to such caurt fcsr an order af eniorcement. Any cantraversy or claim other �han a contraversy ar claim for money damages arising out of or relating to this Agreement, or the breach hereof, in- cluding any �ontraversy ar claim relating to the right to specific performance, sha11 be settled by litigation and not arbz.tration. ?.4 Insurance. All professionals and contractors retained to perform work pursuant to this Agreement shall not� commence such work until all insurance required under this section has been abtaix�ed and such insurance has been appraved by the City's Risk Manager. This insurance shall include, but nat be limited to Che following: {a) Professional Liability Insurance in the amount of FIVE HUNDRED THOUSAND AND NO/100 ($500,000.00) DOLLARS per accurrence for a claims made policy, and such professionals and contractors agree to carry same ior four (4) years after their work is complete, or such ather lesser term as the City's Risk Manager may agree ta in writing, or maintain a comparable policy which shall include coverage for any prior acts effective from Che date of executian a€ this Agreement. (b) Commercial General Liability Inaurance in the amount af QNE MILLION AND NOf10Q t$1,040,400.041 DOLLARS, single limit Bodily Injury and Property Damage coverage for each accurrence, 16 . � , . , . . . . ., which will include products, completed operatians, and contractual liability cavsrage. The City and Paaific must be named as additianal insureds on this policy. (c) Automobile liability insurance in the amaunt af ONE MZLLION AND NOj100 ($1,d04,OQ0.40} DC?LLARS, ger accurrence far bodily injury and property damage. The City and Pacific must be nam�d as additional insurecis on this policy. (d} Wor3cers Compensation & Employers Liability within the statutory limits af the State oE Florida. (e) Thirty {30} days written natice of cancellation ar substantial modi£ication of insurance coverages must be given to the parties and their respective insurance companies. tf} The insurance must be furnished by insurance companies authorized to do business in the State af Florida, and approved by the City's 32iak Manager. The cocnpanies must be rated no less than "B+" as ta management, and nat less than Class "VI�� as to strength by the latest edition of The Best Insurance Guide, published by A.M. Best Campany, Oldcvick, New Jersey. (g) Original certificates of insurance for the above- caverages must be subm.itted to ttze City's I2isk Manager for approval prior to any work commencing, and the parties sha11 have the right to obtain from said profeseionals and contractors specimen copies af the iansurance policzes in t�he event that the submitted certifi- cates of insurance are inadequate to ascertain compliance witlz the required coverages. The certificata shall be kept on file in the affice af the Risk Manager, at City Hall. 1? , � ' � e � � ' . � � , 7.5 Assianment. Neither City nor Pacific shall assign, transfer, pledge, grant any lien on, convey or otherwise dispose of thia Agreement or any part hereof, or its intereat herein, or assign, by power of attorney or otherwise, any of its responsi- bilities hereunder. 7.6 Notices. All written notices required to be given hereunder shall be as follows: To the City: CITY MANAGER - CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, FL 33139 With copy to: CITY ATTORNEYS OFFICE CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, FL 33139 To Pacific: PACIFIC INTERNATIONAL CONSTRUCTION, INC. Attn: HOWARD SHAPIRO, President 11098 Biscayne Boulevard Suite 402 North Miami, FL 33161 With a copy to: BEDZOW, KORN & KAN, P.A. Attn: MICHAEL BEDZOW, ESQ. Suite 200 20803 Biscayne Boulevard Aventura, Florida 33180 All notices mailed by any party hereto shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested or if hand delivered, with appropriate proof of delivery thereof. 7.7 Entire AQreement. This Agreement represents the entire understanding and agreement between the parties, and those portions of all prior written or verbal agreements in conflict with this 18 n . 0 Agreement are hereby rendered null, void and of no further effect. No alteratians, amendments or future understandings shall be binding unless reduced to writing and signed ksy al2 the parties hereto. ?.8 Succession. This agreement shall inure to the benefit of, and be binding upon the par�ies hereto, and their suceessors. 7.9 Severabilitv. This agreement is intended to be performed in accordance with all applicable 2aws, ordinances, and rules and regulations of the jurisdiction in which the parties do business. If any provisian of this agreement, or the application thereaf, ta any persan or circumstance sha21, for any reason and tp any extent, be invalid or unenforceable, the remainder of this Agreement and the applicatian of suah provisian ta the other parties, party or circumstances shall nat be affected thereby, bu� rather shall be enforced to the greatest extent germitted by law. '7.10 Ca tions. All paragraph titles ar captions as contained in �his agreement are for convenience only and shall not be deemed part of this agreement. '7.11 Number and Gender. Al1 of the terms and wards used in this agreement, regardless of the number and gender in which they are used, shall be deemed and canstrued to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the cantext or sense of this agreement or any paragraph ar clause herein may require the same as if such warda had been fully and properly written in that number and gender. 19 7.12 Counternarts. This Agreement may be executed in counterparts and after exeeution by the parties hereto, all the executed count�erparts shall canatitute an original of this Agreement.. ?.13 Attornevs� Fees and Cc��t.�. In aannectian with any litigation or arbitration arieing out of this agreement, the prevailing party shall be entiitled ta receive all casts incurred including reasanable attorneys' fees for services rendered in connection with auch litigation and/or arbitration, including appellate proceedings and past judgment proceedings. 7.14 W v No waiver of ane breach shall be construed as a waivar of any rights or rernedies with reapect to any subsequent breach. IN WITNESS WHEREOF, the parties hereto have hereunto caused these preeents ta be signed, in their names by their duly authorized officers and principals, attested by their respective witnesses on the day and year firat hereinabove written. Witnesses: ,.� �U� �C.___ i A��EST: �� " i` �'� Richard E. Brawn, City Glerk n�rxlaos-iolrc4sa,ci � PACIFIC INTERNATI4NAL CONSTRUCTION, INC., a F3.arida ration Bx � �~�-�----� ��-�----- P,e�-r FiOWAR�I3/� HAPIi20, - w Presid�rit l! By : , Its / z�� t�4RM APPRCiV�i� t�c�� aE�T. ,� � �� . � PROMISSORY NOTE 5514.300.00 Miami, Florida 1998 FOR VALUE RECEIVED, the undersigned promise to pay to the order of City of Miami Beach ("Holder") at 1700 Convention Center Drive, Miami Beach, Florida 33139, or at such place as may be designated by the Holder hereof, the principal sum of $514,300.00 DOLLARS, with interest thereon accruing at the rate of eight percent (8.00%) per annum. Commencing on May 8, 1999, and continuing thereafter on (May 8) or the next soonest business day of each subsequent year through and including May 8, 2013, annual payments of principal in the amount set forth in Exhibit "1" attached hereto and made a part hereof shall be due and payable, together with all accrued and unpaid interest on the outstanding principal balance as of the date of such principal balance. The undersigned shall submit to Holder, at the same time that they submit to Holder their annual payment, a letter stating the number of residential units and the percentage of the total residential units that have closed as of the date of the annual payment. The letter shall also state the total number of residential units (both closed and not closed) in the Sunset Harbour development. 'The entire unpaid principal balance of this Promissory Note, together with all interest accrued thereon, shall be due and payable on May 8, 2013. This Promissory Note may be prepaid at any time without permission and/or penalty. All payments shall be applied when received first to the payxnent of interest on the principal balance of this Promissory Note, from time to time remaining unpaid, and then to reduce the principal debt. This Promissory Note will be considered in default when any payment required to be made hereunder shall not have been received by Holder within fifteen (15) days after receipt by the undersigned of written notice from Holder specifying the amount of the payment that was due and not paid. 'The Holder of this Promissory Note, in the event of such default, may declare the entire unpaid principal balance of this Promissory Note, together with all accrued interest thereon, to be immediately due and payable without notice or demand and assess default interest at the rate of eighteen percent (18%) per annum. The undersigned waive demand, notice of nonpayment and protest and agree if this Promissory Note goes into default and litigation or azbitration is commenced to collect this Promissory Note, to pay reasonable attorneys' fees and all other costs incurred in making such collection including, but not limited to, attorneys' fees and costs of appeal of any judgment or order. T'he undersigned consent to the exclusive venue of Dade County, Florida, for any and a11 legal proceedings based upon or arising out of this Promissory Note. PROMISSORY NOTE , Page 2 Notwithstanding anything to the contrary contained herein and/or within any other agreement between tha undersigned and the Halder of this Promissory Nata, the effective rate af interest on the obligation evidenced by this Promissary Nate shall not exceed the maximum effective rate of interest permitted to be paid under the laws of the State of Florida (hereinafter callectively refened to as the "Applicable Laws"). Without limiting the generality of the faregoing, in the event the calculatian of interest or the imposition of xhe increase in the rate of interest after acceleration dua to default or tha payment of any fees ar other char�es which are canstrued to be interest under the Applicable Laws result in an effective rate of interest higher than that permitted ta be paid under the Applicable Laws, then such interest, fees or chazges sha11 be reduced by a sum sufficient to result in an effective rate of interest no greater than the maxirnurn effective rate of interest permitted to be paid under the Applicable Laws. Upon maturity of this Promissory Note, whether by aoceleration or in due eaurse, intarest shall be recaicalated over the actual term of the Promissory Note, based upon the amounts outstanding, and if the total amaunt of interest theretofore paid, inclusive of the sums hereinabove referred to, exceeds the amount permitted to be paid under the Applicable Laws, the excess shall be credited ta principal, or if such excess exceeds the principal amount then due hereunder, refunded to the undersigned. 'This Promissory Nate is ta be canstrued and enfarced in accordance with the laws af the State of Plorida. A default under and breach of this Prornissory Note shall be considered a default under and breach of the attached Agreement. A default under and breach of the attached Agreement shall be considered a default under and breach of this Fromissory Note. PACIFIC INTERNATIONAL CQNSTRUCTION, INC., a Florida corporation gy; .��!�d��_ � "/ Cam`o . , �The payment of this Promisso Note is hereby guaranteed by the undersigned this day of �, 199� YACHT CLUB SOUTHEASTERN, INC., a Florida carporation By. � ,.�.._ ''" / C ' o G. Blan t 9 ' f � • :• DATE INVOICE NO. QR REFERENCE I AMOUNT � DISCOUNT BALANCE S-OS-98 9805 SH NOTE 223946.5� • �� 7��4dR Sit PL£ASE DETACH 9TATEMENT BEP4RE DEPOSITINQ CHECK DATE YACHT CLUB SOUTHEASTERN, INC. �� ' ��9� D1B/A SUNBET HARBOUR CHECK NO. 012543 essaiuoa�o wMnorbe�nc oF ncNao�. n.� rEcuea�'xacaion � x**x'77 Pay• *****�z*x*�:****,r�r*,r:,rx*,r,rx:r**:*223* thouSatld *9A6* dollars and 50 csAts ; oaoeR oF CITY OF MIAMI BLACN � P.d. BOX 25533 ° MIAMZ BEACH, FL 33102-5533 // �='� /�...s'��-�"z AUTHdRiZED StGhtATUREis3 �'Oi2543�' �:06?002436i: 360358?855u' .