Agreement with 4701 North Meridian, LLC zon-2ertz0
AGREEMENT REGARDING
THE RENOVATION OF WEST 48TH STREET
BETWEEN ALTON ROAD AND WEST 47TH STREET
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THIS AGREEMENT regarding the renovation of West 48th Street between Alton Road and
West 47°i Street (the "Agreement"), dated this Q day of PiPPtI , 20 1 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 47th 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.
G. 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."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 "I", less
any reference to the proposed public park or its improvements, shall hereinafter be collectively referred to
as the "W 48th Street Improvements." Hereinafter, 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").
K. 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.
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 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. 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 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.
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N. 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.
0. 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:
I. 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`h 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 48th 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`'' 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 4851 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 48th 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 4851 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 48'h Street Improvements will result in the
removal of (A) twelve (12) parking meters and stalls located within the median island at the
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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 and/or 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 and/or 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 48th 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
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"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 48th 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.
(f) 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.
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(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.
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(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 48th 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
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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 48th 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 48th 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 48th Street Improvements shall not
relieve Developer of its obligations to perform and deliver the W 48th 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 48th 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.
(c) In the event that any aspect of the W 48th 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 48th 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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Occupancy for Developer's failure to comply with this Agreement, or if the Developer otherwise fails to
complete the W 48th 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 48th 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 48th 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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(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 digital/electronic 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).
(f) 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`h 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
(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.
(f) 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
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
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
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 4th Floor
Miami Beach,FL 33139
(305)673-7000 Ext. 6471
14
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(7th)day following
the date mailed.
[Signatures on next page]
15
[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
7�i'
Granado,City Clerk I , " ,Mayor
Dan 6etber
' Sete' ... ...
')/ APPROVED AS 1 O
`i%` FORM&LANGUAGEINCORP ORq Via: po
&FOR EXECUTION
1/>07--
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]
m bac' Igl [ c(
, a ��� o�^
01'5 \�c2 ,"
17
[Continued from previous page]
STATE OF FLORIDA )
SS:
City OF MIAMI-DADE )
Tforegoing instrument was acknowledged before me this 1 day of Aft' d ,
2019by �At GI U A , 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 da f Pa t_- ,201
Not ry Public, State of Florida at Large
Commission No.:
My Commission Expires:
uUACARDILLO
i •; t MY COM MISSION#GG 230433
=.#'''•��•`` EXPIRES:August 27,2022
:<IVO Bonded ihru Notary Pubic Undemdtens
18
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
Exhibit A
20
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Exhibit B
21