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Reimbursement and Indemnity Agreement with 500 Alton, et al. Z o�� REIMBURSEMENT AND INDEMNITY AGREEMENT THIS REIMBURSEMENT AND INDEMNITY AGREEMENT (this "Agreement"), is dated as of May 30,2019(the"Effective Date"),by and among the City of Miami Beach,a Florida municipal corporation (the "City"), 500 Alton Road Ventures, LLC, a Delaware limited liability company ("500 Alton"), 1220 Sixth, LLC, a Delaware limited liability company ("1220 Sixth"), South Beach Heights I, LLC, a Delaware limited liability company ("SBH") and KGM Equities, LLC, a Delaware limited liability company ("KGM"; and, together with 500 Alton, 1220 Sixth and SBH, collectively, the "Developer"). The City and the Developer are sometimes referred to herein individually as a"Party" and collectively as the "Parties"). WHEREAS, the Parties entered into that certain Development Agreement, dated as of January 9, 2019, pursuant to Sections 163.3220-163.3243, Florida Statutes (the "Florida Local Government Development Agreement Act") and Section 118-4 of the City's Code (the "Development Agreement"), which Development Agreement is recorded in Official Records Book 31323,Page 2781 in and of the Public Records of Miami-Dade County,Florida; and WHEREAS,the Development Agreement contemplated that the Parties would consider an amendment to the Development Agreement to permit the Developer to design, permit, develop and construct a pedestrian bridge over and across West Avenue and 5th Street to connect the area south of 5th Street with the area north of 5th Street(the "Bridge Project"); and WHEREAS,the City will need to conduct substantial due diligence in connection with the negotiation and execution of the proposed amendment to the Development Agreement to address the Bridge Project(the"First Amendment"); and WHEREAS, the City is willing to enter into discussions with the Developer in connection with the proposed Bridge Project and First Amendment,subject to and on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and the agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows: 1. Recitals. The recitals set forth above are true and correct and are incorporated herein by this reference. 2. Reimbursement. In consideration of the City's willingness to enter into negotiations with Developer in connection with the proposed Bridge Project and First Amendment, Developer hereby agrees to reimburse or make payment to the City within thirty (30) days after receipt by Developer of invoices from the City for all actual, third-party out-of-pocket costs and expenses incurred by the City in connection with the proposed Bridge Project, including fees of any professional advisors or consultants engaged by the City; outside counsel and paralegal fees; surveys, environmental assessments,title searches,feasibility studies and other reviews; and other costs that may be incurred with respect to the proposed Bridge Project. In the event that Developer does not make any such reimbursement or payment within such thirty (30)day period, in addition to all other rights and remedies the City may have hereunder or by law or in equity, such failure shall be deemed a default entitling the City to terminate discussions with the Developer for the 1 proposed Bridge Project and First Amendment. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Developer be required to reimburse or make payments to the City under this Agreement for any amount in excess of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) in the aggregate. 3. Indemnity. Developer agrees to defend, indemnify and hold harmless the City from and against any and all damage, liability, lien, loss, cost or expense arising or accruing from or resulting by reason of the Developer's failure to reimburse the City any amounts owed by the Developer to the City under Section 2 above. The indemnity set forth in this Section 3 includes all costs and expenses, including reasonable attorneys' and paralegals' fees (including reasonable fees and costs of the City's internal legal staff), at trial, appellate and post judgment proceedings, whether by judgment, settlement or otherwise. 4. City's Proprietary Capacity. The City is entering into this Agreement in its proprietary capacity. Nothing contained herein shall affect or be deemed to affect the City's regulatory authority as a governmental body. In the event that the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances (including through the exercise of the City's building,fire,code enforcement,police department or otherwise)shall be deemed to have occurred pursuant to the City's regulatory authority as a governmental body and shall not be attributable in any manner to the City as a party to this Agreement or in any way be deemed in conflict with, or a default under,the City's obligations hereunder. 5. No Binding Agreements for Development of the Bridge Project. The Developer acknowledges that the Parties' discussions are of a preliminary nature only and that, specifically, any agreements relating to the proposed Bridge Project, including, but not limited to, the First Amendment,are subject to and contingent upon City Commission approval in accordance with the City Charter and City Code. The Parties agree that neither Party will be under any legal obligation of any kind whatsoever with respect to any business relationship or transactions by virtue of this Agreement, except for the matters specifically agreed to herein. The Parties further acknowledge and agree that they each reserve the right, in their sole and absolute discretion, to reject any and all proposals and to terminate discussions and negotiations at any time with respect to any aspect of the proposed Bridge Project. Except as specified herein, in the event either Party elects not to proceed with the Bridge Project and/or First Amendment, each Party shall be solely responsible for its own costs and expenses incurred in connection with the proposed Bridge Project and/or First Amendment. 6. Miscellaneous. (a) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof. (b) Amendments and Waivers. This Agreement shall not be amended except by a writing signed by each Party. A waiver of any breach or violation of any term, provision or 2 agreement contained herein shall not be deemed a continuing waiver or a waiver of any future, past, same or other breach or violation. (c) Governing Law. This Agreement shall be governed and construed in all respects by the laws of the State of Florida,without regard to its conflicts of law principles. (d) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may not be assigned by any Party without the prior written consent of the other Party. No Party shall be released from its obligations hereunder after any such assignment without the prior written consent of the other Party. (e) No Third Party Beneficiaries. The agreements contained herein are solely for the benefit of the Parties and do not confer upon any other individual or entity any rights or remedies of any nature whatsoever, as a third party beneficiary or otherwise. (f) Counterparts. This Agreement may be executed in several counterparts, by original, .pdf or facsimile signature, each of which so executed shall be deemed to be an original, and such counterparts together shall be deemed to be one and the same instrument. (g) Further Assurances. The Parties shall sign such further documents and do and perform, and cause to be done and performed, such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement. (h) Severability. If any provision of this Agreement shall for any reason be finally held illegal, invalid or unenforceable by a court of competent jurisdiction, then such provision shall be modified by such court or the Parties, as the case may be, so as to cause such provision to be legal, valid and enforceable to the maximum extent permitted by law (and to the extent modified, it shall be modified so as to reflect,to the extent possible,the intent of the Parties) and shall in no way affect or impair the legality, validity or enforceability of the remaining provisions of this Agreement,which shall remain in full force and effect. (i) Litigation. In any action, suit or other proceeding brought to enforce this Agreement, in addition to any other relief granted,the Parties agree that the prevailing Party shall be entitled to recover its reasonable costs of enforcement, including but without limitation, costs and attorney fees including, with respect to the City's out-of-pocket attorneys' and paralegals' fees, at trial, appellate and post judgment proceedings, whether by judgment, settlement or otherwise,reasonable fees and costs of the City's internal legal staff. (j) Independent Parties. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the Parties. [Signature page follows] 3 IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed to be effective as of the Effective Date. ATTEST: CITY OF 1AMI : ACH By: 4 S13i t q' By: iamb, Rafael Granado, City Clerk City " anage Jimmy Morales Approved or form and legal sufficiency • g ..�''� q �i By: "_�- Co- r . • City Attorney 1 )--i �.' N, �� INCORP ORATED 500 ALTON ROAD VENTURES, LLC, a Delaware ,\/ /40 i ;,•liability compan ., 11 p Br Name: "avid Smith Its: President 1220 SIXTH, LIC, a Delaware limited liability com • By: i, Name: David Smith Its:President S H BEACH HEIGHTS I, LLC, a Delaware limit d • bility co TpatT7 By Name: David Smith Its:President [Signature Page to Bridge Project Reimbursement Agreement] KGM EQUITIES,LLC, a Delaware limited liability comp By: Name: David Smith Its: President [Signature Page to.Bridge Project Reimbursement Agreement]