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Resolution 2019-30926 RESOLUTION NO. 2019-30926 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, TO CONSIDER APPROVAL, FOLLOWING SECOND READING/PUBLIC HEARING, OF A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER SECTION 118- 4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, 7441 COLLINS AVENUE INVESTMENT, LLC, 7439 COLLINS AVENUE INVESTMENT, LLC, 7433 COLLINS AVENUE INVESTMENT, LLC, 7421 COLLINS AVENUE INVESTMENT, LLC AND 7409 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER"), WHICH DEVELOPMENT AGREEMENT: (1) DELINEATES CONDITIONS FOR THE DEVELOPMENT OF THE PROPERTIES LOCATED AT 7409, 7421, 7433, 7435, 7437, 7439, 7441, AND 7449 COLLINS AVENUE, AND 7400, 7410, 7420, 7430, 7436, AND 7450 OCEAN TERRACE (COLLECTIVELY, THE "DEVELOPMENT SITE"), WITH SUCH DEVELOPMENT SITE TO BE DEVELOPED IN ACCORDANCE WITH THE REQUIREMENTS OF THE CITY'S OCEAN TERRACE OVERLAY DISTRICT, AS SET FORTH IN SECTIONS 142-870 AND 142-870.1 OF THE CITY CODE; (2) MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S RIGHT-OF-WAY AT OCEAN TERRACE, BETWEEN 74T" STREET AND 75Th STREET, AS WELL AS PORTIONS OF 74T" STREET AND 75Th STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"); (3) GRANTS TO THE CITY A PERPETUAL EASEMENT OVER, ACROSS AND UNDER THE VACATED CITY RIGHT-OF- WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR, PEDESTRIAN AND RECREATIONAL USE AND ACCESS; (4) PROVIDES FOR THE DEVELOPER'S DESIGN AND CONSTRUCTION OF CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET, AT DEVELOPER'S COST AND EXPENSE (WITH THE EXCEPTION OF CERTAIN CITY FEES); AND (5)WITH THE FOREGOING SUBJECT TO AND CONTINGENT UPON DEVELOPER'S SATISFACTION OF THE CONDITIONS SET FORTH IN THE DEVELOPMENT AGREEMENT AND THE CITY COMMISSION'S VACATION OF THE CITY RIGHT-OF-WAY AREAS AND ENACTMENT OF CERTAIN AMENDMENTS TO THE CITY'S FUTURE LAND USE MAP AND ZONING MAP, AT ITS SOLE DISCRETION. WHEREAS, the City holds a right-of-way dedication to the following areas: (1) a portion of Ocean Terrace, running from the centerline of 74th Street and the northern right-of-way line of 75th Street, consisting of a sixty (60) foot wide right-of-way, and containing approximately 25,200 square feet in total lot area; as shown on as shown on the Plat of the Townsite of Harding, recorded in Plat Book 34, Page 4 of the Public Records of Miami-Dade County (the "Harding Townsite Plat"); (2)the north half of 74th Street, between Ocean Terrace and Collins Avenue, which consists of a 30-foot wide right-of-way containing approximately 8,880 square feet in total lot area; and (3) a portion of 75th Street, between Ocean Terrace and Collins Avenue, which consists of a 40-foot wide right-of-way containing approximately 11,840 square feet in total lot area (collectively, (1)through (3) above, the "City Right-of-Way Areas"), each as shown on the Harding Townsite Plat, and depicted in the sketch attached as Exhibit"A" to the Commission Memorandum accompanying this Resolution; and WHEREAS, various entities controlled by and affiliated with the principals of Ocean Terrace Holdings, LLC, namely, 7400 Ocean Terrace, LLC, 7410 Ocean Terrace, LLC, 7420 Ocean Terrace Investment, LLC, 7436 Ocean Terrace, LLC, 7450 Ocean Terrace, LLC, and 7441 Collins Avenue Investment, LLC (collectively, the "Developer") own the properties abutting or in the vicinity of the City Right-of-Way Areas; which parcels are known as 7409, 7421, 7433, 7435, 7437, 7439, 7441, and 7449 Collins Avenue, and 7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace(collectively, the "Property"); and WHEREAS, the Developer holds a reversionary interest in the public reservation area immediately east of Ocean Terrace between 74th and 75th Streets, more specifically described in the proposed Development Agreement, a copy of which is attached as Exhibit"F"to the Commission Memorandum accompanying this Resolution (the "Reversionary Interest"); and WHEREAS, the Developer intends to develop the Property as a mixed-use residential and commercial development (collectively, the "Proposed Development") pursuant to a Florida Statute Chapter 163 development agreement entered into between the City and the Developer (the "Development agreement"), and to develop, design and construct, at the Developer's sole cost and expense, certain public park and streetscape improvements in the vicinity of Ocean Terrace, between 73rd Street and 75th Street (the "Park/Streetscape Improvements"); and WHEREAS, the Proposed Development shall be developed as a unified development site; and WHEREAS, in conjunction with the Proposed Development, the Developer is requesting that the City vacate the City Right-of-Way Areas abutting 7401, 7441, and 7449 Collins Avenue and 7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace, and has submitted its application to the City's Public Works Department with respect thereto, to permit Developer to utilize the F.A.R. associated with the City Right-of-Way Areas within the Developer's Proposed Development(but with the City Right-of-Way Areas to continue to be used for pedestrian and vehicular access); and WHEREAS, with respect to the proposed vacation of the 4,380 square feet of City right-of- way abutting 7401 Collins Avenue, the proposed vacation shall be subject to and contingent on Developer's agreement with the property owner to include the vacated right of way area as part of the unified development site for the Proposed Development; and WHEREAS, on March 22, 2019, and on June 14, 2019 the Finance and Citywide Projects Committee reviewed the proposed vacation and terms for the development agreement, and favorably recommended that the City Commission approve the proposed vacation and Development Agreement; and WHEREAS, the three major components that must be implemented in order for the Developer to proceed include (1) the vacation of the City Right-of-Way Areas; (2) the Development Agreement, specifying with the terms and conditions for the development of the Proposed Development and completion of the Park/Streetscape Improvements; and (3) amendments to the City's Comprehensive Plan and Land Development Regulations, to conform the zoning map to the vacation of the City Right-of-Way Areas; and WHEREAS, pursuant to the requirements of Section 1.03(b)(4) of the City Charter, the Planning Board, at its May 21, 2019 meeting, unanimously approved the proposed vacation; and WHEREAS, on June 26, 2019, the Mayor and City Commission held the first reading of the vacation Resolution, in accordance with Section 82-37 of the City Code; and WHEREAS, on June 26, 2019, the Mayor and City Commission also considered, on first reading, the companion agenda items, with the proposed amendments to the City's Comprehensive Plan and Land Development Regulations, to: (a) amend the Comprehensive Plan to change the designation of the portions of the City Right-of-Way Areas designated PF, "Public Facility," and ROS, "Recreation and Open Space," to the Future Land Use categories of CD-2, "Commercial Medium Intensity" and MXE, "Mixed-Use Entertainment"; and (b) amend the City's Land Development Regulations to rezone the City Right-of-Way Areas from the current zoning classification of GU, "Government Use District,"to CD-2,"Commercial Medium Intensity"and MXE, "Mixed-Use Entertainment," and extending the boundary of the Ocean Terrace Overlay Zone to encompass the City Right-of-Way Areas; and WHEREAS, Sections 163.3220— 163.3243, Florida Statutes, and Section 118-4 of the City's Code require two public hearings for a Development Agreement; and WHEREAS, on June 26, 2019, the Mayor and City Commission held the first reading/public hearing of the proposed Development Agreement, and approved the item on first reading, following extensive public input and comment; and WHEREAS, the Administration and Developer have negotiated the Development Agreement, a copy of which is attached hereto as Exhibit "F" to the Commission Memorandum accompanying this Resolution; and WHEREAS, the Development Agreement provides, among other provisions, the following terms and conditions: • The Proposed Development will be developed based on, and in accordance with, the requirements of the Ocean Terrace Overlay District, as set forth in Sections 142-870 and 142-870.1 of the City Code, provided, however, that the Proposed Development must include at least 75 hotel units and may only,include one tower in excess of 125 feet. Within the Ocean Terrace Overlay District, the maximum height of a main use residential building shall not exceed 235 feet, and the maximum height of a main use hotel building shall not exceed 125 feet. The current main permitted uses in the Ocean Terrace Overlay District are (a) apartments; (b)apartment/hotels; (c)hotels; (d)commercial; and(e)uses that serve alcoholic beverages. Package alcohol stores are prohibited in the Ocean Terrace Overlay District; and • In order to permit the Proposed Development to proceed as a unified development site, the City shall convey to the Developer any right, title and interest it has in the City Right-of-Way Areas, by quit claim deed, subject to the terms of the Development Agreement; and • Simultaneous with the City's conveyance to the Developer of the City Right-of-Way Areas, the Developer shall grant to the City a perpetual, irrevocable easement against the City Right- of-Way Areas for public vehicular, pedestrian and recreational use and access (as modified by the Park/Streetscape Improvements, which will pedestrianize portions of the City Right- of-Way Areas); and • Developer shall convey to the City any right, title and interest Developer has in the public reservation area depicted in Exhibit "B" of the Development Agreement (namely, its reversionary interest in the public reservation area), provided, however,that Developer would reserve its reversionary interest in the eastern 30 feet of the Ocean Terrace right of way (which area would revert to the Developer upon the adoption of the Vacation Resolution); and • In consideration for the City's conveyance of the City Right-of-Way Areas, Developer shall complete, or cause to be completed, the design, permitting and construction of the Park/Streetscape Improvements, consistent with the Concept Plan approved by the City Commission, and at Developer's sole cost and expense, except for the City's payment of a maximum of $80,000 for zoning application fees, and a maximum of $300,000 to cover monthly parking passes at specified City parking lots for Developer's contractors for the Proposed Development and Park/Streetscape Improvements; and • Developer shall complete the Park/Streetscape Improvements in two phases, with Phase 1 to be completed within 48 months following the Effective Date of the Development Agreement (the date the agreement is executed by the Parties and recorded), and with Phase 2 to be completed within 96 months following the Effective Date; • Developer shall complete the Proposed Development within 96 months following the Effective Date, provided, however, that if Developer timely completes Phase 2 of the Park/Streetscape Improvements, Developer shall be entitled to a 24-month extension if Developer has timely completed Phase 2 of the Park/Streetscape Improvements within the timeframes set forth in the Development Agreement and has commenced construction of the Proposed Development; and • Developer has agreed to all of the conditions requested by the Planning Board and the Land Use and Development Committee, including provisions to ensure that the final Plans and Specifications for the Park/Streetscape Improvements (i) provide for public access to the beach to be maintained; (ii) include a continuous north/south beach walkway to be maintained during construction; and (iii) satisfactorily address ingress/egress for vehicles accessing the St. Tropez property at 7330 Ocean Terrace, vehicle drop offs for elderly visitors to the UNIDAD building at 7251 Collins Avenue, load-in/load-out needs for the North Beach Bandshell located at 7275 Collins Avenue, and a vehicular drop-off or other turn around at the east end of 75th Street; and • City shall not issue a temporary certificate of occupancy for the Proposed Development until Developer has substantially completed Phase 1 of the Park/Streetscape Improvements and satisfied its obligations to the City under the Development Agreement, and City shall not issue a final certificate of occupancy for the Proposed Development until a final certificate of occupancy is obtained for both phases of the Park/Streetscape Improvements; and • If an outdoor café is approved by the Historic Preservation Board ("HPB")as part of the HPB's review and approval of the Park/Streetscape Improvements, Developer would have the right to operate the café area in accordance with the minimum standards, criteria and conditions for sidewalk café permits, as set forth in the City Code, and • In consideration for the completion of the Park/Streetscape Improvements, in the event a hotel is developed as part of the Proposed Development, Developer shall have the right to utilize a maximum of 175 feet between 74th Street and 75th Street, for a beachfront concession,to be offered through the City's beachfront concessionaire, the Boucher Brothers Miami Beach, LLC, subject to the terms of the Development Agreement; and • As security for Developer's obligations to deliver to the City a completed and constructed Park/Streetscape Improvements, Developer shall deliver to the City, either(1) an agreement with the Developer's lender to fund the then remaining Park/Streetscape construction amount directly to the City in the event the Developer defaults on its obligations; or(2)a surety bond in favor of the City, in an amount equal to the costs to design and construction the Park/Streetscape Improvements (not to exceed $14,800,000), which would permit City to ( draw on the funds, and complete the construction of the Park/Streetscape Improvements, if the Developer fails to do so; and • Developer has proposed a ten (10) year initial duration of the Development Agreement, with one automatic 8-year extension if Developer completes the Park/Streetscape Improvements within the timeframes set forth in the Development Agreement. WHEREAS, for the reasons as outlined in the Commission Memorandum accompanying this Resolution, the Administration recommends approval of the Development Agreement on second reading. NOW THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, following second reading/public hearing, a Development Agreement as authorized under Section 118-4 of the City Code, and Sections 163.3220 — 163.3243, Florida Statutes, between the City and 7400 Ocean Terrace, LLC, 7410 Ocean Terrace, LLC, 7420 Ocean Terrace Investment, LLC, 7436 Ocean Terrace, LLC, 7450 Ocean Terrace, LLC, 7441 Collins Avenue Investment, LLC, 7439 Collins Avenue Investment, LLC, 7433 Collins Avenue Investment, LLC, 7421 Collins Avenue Investment, LLC, and 7409 Collins Avenue Investment, LLC (collectively, the "Developer"), which Development Agreement: (1) delineates conditions for the development of the properties located at 7409, 7421, 7433, 7435, 7437, 7439, 7441, and 7449 Collins Avenue, and 7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace (collectively, the"Development Site"), with such Development Site to be developed in accordance with the requirements of the City's Ocean Terrace Overlay District, as set forth in Sections 142-870 and 142-870.1 of the City Code; (2) memorializes the conditions for vacating the City's right-of-way at Ocean Terrace, between 74th Street and 75th Street, as well as portions of 74th Street and 75th Street, between Ocean Terrace and Collins Avenue (collectively, the "City Right-Of-Way Areas"); (3) grants to the City a perpetual roadway easement over, across and under the vacated City Right-Of-Way Areas for utilities and public vehicular, pedestrian and recreational use and access; (4)provides for the Developer's design and construction of certain public park and streetscape improvements in the vicinity of Ocean Terrace, between 73rd Street and 75th Street, at Developer's cost and expense (with the exception of certain City fees); and (5) with the foregoing subject to and contingent upon Developer's satisfaction of the conditions set forth in the Development Agreement and the City Commission's vacation of the City Right-Of-Way Areas and enactment of certain amendments to the City's Future Land Use Map and Zoning Map, at its sole discretion. PASSED and ADOPTED this 31st day of July, 2019. 4L .`.. ATTEST: - f Dan Gelber, Mayor 7 R``G I z1 tq 1 Rafael G. Granado, City Clerk APPROVED AS TO FORM&LANGUAGE zeNQ, ............F b ,....-4., grUTIO: te INCORP ORATED' 4.„ ��� iG hy�C�!_2�N�,\o) a a Agenda Item R7A- 1 Date 7/3i in MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov COMMI_/ SION MEMORANDUM TO: Mayor Gelber and Members o;the City Cri mission FROM: Jimmy L. Morales, City Mana•;,r - DATE: July 31, 2019 SUBJECT: 1. A RESOLUTION OF THE , AYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, Ti CONSIDER APPROVAL, FOLLOWING SECOND READING/PUBLIC HEARING, OF A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, 7441 COLLINS AVENUE INVESTMENT, LLC, 7439 COLLINS AVENUE INVESTMENT, LLC, 7433 COLLINS AVENUE INVESTMENT, LLC, 7421 COLLINS AVENUE INVESTMENT, LLC AND 7409 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER"), WHICH DEVELOPMENT AGREEMENT: (1) DELINEATES CONDITIONS FOR THE DEVELOPMENT OF THE PROPERTIES LOCATED AT 7409, 7421, 7433, 7435, 7437, 7439, 7441, AND 7449 COLLINS AVENUE, AND 7400, 7410, 7420, 7430, 7436, AND 7450 OCEAN TERRACE (COLLECTIVELY, THE "DEVELOPMENT SITE"), WITH SUCH DEVELOPMENT SITE TO BE DEVELOPED IN ACCORDANCE WITH THE REQUIREMENTS OF THE CITY'S OCEAN TERRACE OVERLAY DISTRICT, AS SET FORTH IN SECTIONS 142-870 AND 142-870.1 OF THE CITY CODE; (2) MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S RIGHT- OF-WAY AT OCEAN TERRACE, BETWEEN 74Th STREET AND 75TH STREET, AS WELL AS PORTIONS OF 74TH STREET AND 75TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"); (3) GRANTS TO THE CITY A PERPETUAL EASEMENT OVER, ACROSS AND UNDER THE VACATED CITY RIGHT-OF-WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR, PEDESTRIAN AND RECREATIONAL USE AND ACCESS; (4) PROVIDES FOR THE DEVELOPER'S DESIGN AND CONSTRUCTION OF CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET,AT DEVELOPER'S COST AND EXPENSE (WITH THE EXCEPTION OF CERTAIN CITY FEES); AND (5) WITH THE FOREGOING SUBJECT TO AND CONTINGENT UPON DEVELOPER'S SATISFACTION OF THE CONDITIONS SET FORTH IN THE DEVELOPMENT AGREEMENT AND THE CITY COMMISSION'S VACATION OF THE CITY RIGHT-OF-WAY AREAS AND ENACTMENT OF CERTAIN AMENDMENTS TO THE CITY'S FUTURE LAND USE MAP AND ZONING MAP,AT ITS SOLE DISCRETION. Supplemental Item , ANALYSIS In the Commission Memorandum that accompanies this Agenda item, I indicated that the City and the Developer were continuing their discussions as to a proposed solution with respect to transfers or assignments effecting a sale of the private portion of the Proposed Development, prior to its completion. On this issue, City's core interest in connection with this transaction is to ensure that any successor owner of the private project delivers on the vision for the project that has been embraced by the community, a vision that includes activation of Ocean Terrace with a mixed use project that includes a substantial hotel element. As indicated in my memorandum, the Developer has already agreed that it will not transfer or assign its responsibility for delivery of the Park/Streetscape Improvements — the core public benefit associated with this Development Agreement, prior to completion thereof. Separately, the Development Agreement also obligates Developer to deliver, at Closing, a surety bond to provide additional security to the City, to guarantee that the City could step in to complete the Park/Streetscape Improvements, should the Developer fail to do so. In addition to Developer retaining responsibility for completion of the Park/Streetscape Project, to address City's concern that any subsequent owner deliver on the vision of the project, as currently contemplated, the Developer has agreed to an additional Project restriction, to ensure that the Project must include at least 75 hotel units, and may only include one tower in excess of 125 feet (namely, one main use residential building, which must not exceed 235 feet in height, pursuant to the Ocean Terrace Overlay District requirements set forth in Section 142.870.1(c) of the City Code). The foregoing Project restriction, to ensure a mixed-use project with a minimum number of hotel units, and height restrictions, as provided in the City Code for the Ocean Terrace Overlay District, would be binding on any successor owner, and would help ensure that the City's economic development objectives of the transaction are met. Finally, Developer has agreed to an additional restriction, to clarify that the City shall not issue a final certificate of occupancy (C.O.) for the private Proposed Development, until Developer has delivered a final C.O. for the entire Park/Streetscape Project (this language provides greater protection for the City, as Section 25 of the Development Agreement currently provides that City would not issue a final C.O. for the Proposed Development until substantial completion of Phase 2 of the Park). The proposed amendments to the pertinent sections of the Development Agreement are attached hereto as Exhibit "1." Based on the foregoing, I am more comfortable with the proposed approach on transfers/assignments, as the Development Agreement includes (1) restrictions on transfer or assignment of the delivery of the Park/Streetscape Improvements, the core public benefit being provided to the City; (2) a surety bond to be delivered as a condition of Closing, to secure the completion of the Park/Streetscape Improvements; (3)additional language to ensure that the City will not issue a final C.O. for the entire Proposed Development until a final C.O. for the Park/Streetscape Improvements is in place; (4) additional Project restrictions to bind any subsequent owner of the private portion of the Proposed Development to the vision for the project to a minimum number of hotel units; and (5) other provisions to protect the City and the public, such as the irrevocable, perpetual easement in favor of the City, which easement is a covenant running with the land and is binding on successor owners of the project, to ensure the City's and the public's continued use of the vacated right of ways for utilities, recreational, pedestrian, and vehicular use are not disturbed. Conclusion For these reasons, the Administration recommends approval of the Development Agreement, on second reading, as amended herein. JLM/EC Exhibit "1" Proposed Changes to Development Agreement Agenda Item R7A1, July 31, 2019 City Commission Meeting Replace Section 3.43 of the Development Agreement (page 773 of Agenda), with the following Section 3.43 3.43. "Project"shall mean the development, design and construction of the Development Site (including, after the Closing, the Developer's right, title, and interest in and to the City Parcel) consistent with the City's Land Development Regulations for the Ocean Terrace Overlay District and the underlying CD-2 and MXE zoning districts, as the same may be amended from time to time, but subject to Section 28 of this Agreement, and provided that the Project must include at least 75 hotel units and may only include one tower in excess of 125 feet. Replace Section 25 of the Development Agreement (page 793 of Agenda), with the following Section 25: 25. Conditions Precedent to Issuance of Certificate of Occupancy. The Developer acknowledges that conveyance of the Park/Streetscape Improvements Parcel and completion and conveyance of the Park/Streetscape Improvements is additional and essential consideration for the City's vacation of the City Parcel. Accordingly, (i) the City shall not issue a temporary certificate of occupancy and/or a temporary certificate of completion for the Project (in whole or in part), until the Developer has Substantially Completed construction of Phase 1 of the Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond, whether or not construction of Phase 1 of the Park/Streetscape Improvements has been completed by the City; and (ii)the City shall not issue a final certificate of occupancy and/or a final certificate of completion for the Project (in whole or in part) until -- - - ::- -- --- - - -- -- - e '-- - : the City has issued a final certificate of occupancy and/or a final certificate of completion for both Phases of the Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the Recognition Agreement, as applicable)or under the Payment Bond and/or Performance Bond, whether or not construction of Phase 2 of the Park/Streetscape Improvements has been completed by the City. Resolutions - R7 A MIAMI BEAH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: July 31, 2019 11:40 a.m. Second Reading Public Hearing SUBJECT: 1. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, TO CONSIDER APPROVAL, FOLLOWING SECOND READING/PUBLIC HEARING, OF A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 — 163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, 7441 COLLINS AVENUE INVESTMENT, LLC, 7439 COLLINS AVENUE INVESTMENT, LLC, 7433 COLLINS AVENUE INVESTMENT, LLC, 7421 COLLINS AVENUE INVESTMENT, LLC AND 7409 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER"), WHICH DEVELOPMENT AGREEMENT: (1) DELINEATES CONDITIONS FOR THE DEVELOPMENT OF THE PROPERTIES LOCATED AT 7409, 7421, 7433, 7435, 7437, 7439, 7441, AND 7449 COLLINS AVENUE, AND 7400, 7410, 7420, 7430, 7436, AND 7450 OCEAN TERRACE (COLLECTIVELY, THE "DEVELOPMENT SITE"), WITH SUCH DEVELOPMENT SITE TO BE DEVELOPED IN ACCORDANCE WITH THE REQUIREMENTS OF THE CITY'S OCEAN TERRACE OVERLAY DISTRICT, AS SET FORTH IN SECTIONS 142-870 AND 142-870.1 OF THE CITY CODE; (2) MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S RIGHT-OF-WAY AT OCEAN TERRACE, BETWEEN 74TH STREET AND 75TH STREET, AS WELL AS PORTIONS OF 74TH STREET AND 75TH - STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"); (3) GRANTS TO THE CITY A PERPETUAL EASEMENT OVER, ACROSS AND UNDER THE VACATED CITY RIGHT-OF-WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR, PEDESTRIAN AND RECREATIONAL USE AND ACCESS; (4) PROVIDES FOR THE DEVELOPER'S DESIGN AND CONSTRUCTION OF CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET, AT DEVELOPER'S COST AND EXPENSE (WITH THE EXCEPTION OF CERTAIN CITY FEES); AND (5) WITH THE FOREGOING SUBJECT TO AND CONTINGENT UPON DEVELOPER'S SATISFACTION OF THE CONDITIONS SET FORTH IN THE DEVELOPMENT AGREEMENT AND THE CITY COMMISSION'S VACATION OF THE CITY RIGHT-OF-WAY Page 662 of 1288 AREAS AND ENACTMENT OF CERTAIN AMENDMENTS TO THE CITY'S FUTURE LAND USE MAP AND ZONING MAP,AT ITS SOLE DISCRETION. 2. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, ON SECOND READING/PUBLIC HEARING OF THIS RESOLUTION, THE VACATION OF THAT PORTION OF (1) OCEAN TERRACE, BETWEEN THE CENTERLINE OF 74TH STREET AND THE NORTHERN RIGHT-OF-WAY LINE OF 75TH STREET, WHICH CONSISTS OF A 60-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 25,200 SQUARE FEET IN TOTAL LOT AREA; (2) THE NORTH HALF OF 74TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 30-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 8,880 SQUARE FEET IN TOTAL LOT AREA; AND (3) A PORTION OF 75TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 40-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 11,840 SQUARE FEET IN TOTAL LOT AREA (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"), IN FAVOR OF THE ABUTTING PROPERTY OWNERS, 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, AND 7441 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER") AND G & V REALTY, LLC, THE OWNER OF 7401 COLLINS AVENUE; CONDITIONING THE VACATION UPON THE CITY COMMISSION'S APPROVAL OF, AND DEVELOPER'S SATISFACTION OF, CERTAIN TERMS AND CONDITIONS, TO BE SET FORTH IN A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND DEVELOPER, WHICH CONDITIONS SHALL, AMONG OTHER TERMS, REQUIRE THE DEVELOPER TO (1) GRANT TO THE CITY A PERPETUAL EASEMENT OVER, ACROSS AND UNDER THE CITY RIGHT-OF-WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR, PEDESTRIAN AND RECREATIONAL USE AND ACCESS; AND (2) DEVELOP, DESIGN, AND CONSTRUCT, AT THE DEVELOPER'S SOLE COST AND EXPENSE (EXCEPT FOR PAYMENT OF CERTAIN CITY FEES), CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET, WITH SUCH PUBLIC IMPROVEMENTS HAVING A VALUE OF APPROXIMATELY FOURTEEN MILLION EIGHT HUNDRED THOUSAND DOLLARS ($14,800,000); AND FURTHER, WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, PURSUANT TO SECTION 82-38 OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY. ANALYSIS On December 12, 2018, the City Commission unanimously adopted the Ocean Terrace Neighborhood Urban Design Plan, a concept plan for proposed public.streetscape and park improvements to the Ocean Terrace area, prepared by The Corradino Group and Garcia-Pons Page 663 of 1288 + Associates (the "Neighborhood Design Plan"), and referred the proposed Neighborhood Design Plan to the Finance and Citywide Projects Committee (FCWPC) for prioritization and potential funding options. The Neighborhood Design Plan had previously been endorsed by the North Beach Steering Committee on August 29, 2018. On February 22, 2019, after review of funding alternatives for the approximate $15 million that would be required to bring the Ocean Terrace portion of the Neighborhood Design Plan to fruition, the FCWPC recommended that the City explore entering into a public-private partnership that would fund the proposed improvements. On March 22, 2019, the FCWPC recommended proceeding with negotiations with Ocean Terrace Holdings, LLC with regard to a development proposal which would provide for the Developer to complete a portion of the public improvements contemplated in the Neighborhood Design Plan, but which would require the vacation of certain City right-of-way areas, as described more fully below, subject to Developer granting the City with an irrevocable easement for the continued public use of the right-of-way areas for pedestrian and vehicular traffic, as modified by the public improvements, which will pedestrianize portions of Ocean Terrace. The proposed vacation would allow the Developer to make its proposed mixed-use project along Ocean Terrace, between 74th Street and 75th Street, financially viable, and creating new public spaces (including park space), to be funded and constructed by Developer, that is less auto- oriented, and more centered on the pedestrian experience. On March 22, 2019, the FCWPC further recommended that the Administration obtain an appraisal and retain a consultant to assess the economic benefits which the proposed project would provide to the City. On April 10, 2019, the City Commission adopted Resolution No. 2019-30771, accepting the recommendation of the FCWPC at its March 22, 2019 meeting to proceed with the negotiations for the proposed vacation. In accordance with the City's administrative policies, the vacation of the City streets, alleys, and/or rights of way, requires compliance with Article I I, Sections 82-36 through 82-40, of the City Code (which establish the procedures governing the sale or lease of public property). Specifically, prior to approving a request for vacation, (1) the City's Planning Department shall prepare a written planning analysis, to be submitted to the City Commission concurrent with its consideration of the proposed vacation; and (2)the City shall obtain an independent appraisal of the fair market value of the property proposed to be vacated. At the June 26, 2019 City Commission meeting (the first reading of the proposed vacation and development agreement), the City Attorney provided the Mayor and City Commission with his legal opinion that the proposed Ocean Terrace transaction is subject to the stringent and heightened approval requirements set forth in Section 1.03(b)(4) of the City Charter, which requires approval by a 4/7th vote of the Planning Board (which approval was obtained on May 21, 2019), and by a 6/7ths vote of the City Commission. The City Attorney's memorandum regarding the legal mechanism for the vacation, and analysis regarding the applicability of the City Charter, is attached as Exhibit"A-2" hereto. ANALYSIS OF THE PROPOSED VACATION The City holds a right-of-way dedication to the following areas: Page 664 of 1288 (1) a portion of Ocean Terrace, running from the centerline of 74th Street and the northern right- of-way line of 75th Street, consisting of a sixty (60) foot wide right-of-way, and containing approximately 25,200 square feet in total lot area; as shown on as shown on the Plat of the Townsite of Harding, recorded in Plat Book 34, Page 4 of the Public Records of Miami-Dade County(the "Harding Townsite Plat"); (2) the north half of 74th Street, between Ocean Terrace and Collins Avenue, which consists of a 30-foot wide right-of-way containing approximately 8,880 square feet in total lot area; and (3)a portion of 75th Street, between Ocean Terrace and Collins Avenue, which consists of a 40- foot wide right-of-way containing approximately 11,840 square feet in total lot area (collectively, (1) through (3) above, the "City Right-of-Way Areas", each as shown on the Harding Townsite Plat). The City Right-of-Way Areas are depicted in the sketch attached as Exhibit"A" hereto. Various entities controlled by and affiliated with the principals of Ocean Terrace Holdings, LLC, namely, 7400 Ocean Terrace, LLC, 7410 Ocean Terrace, LLC, 7420 Ocean Terrace Investment, LLC, 7436 Ocean Terrace, LLC, 7450 Ocean Terrace, LLC, and 7441 Collins Avenue Investment, LLC (collectively, the "Developer"), and G & V Realty, LLC (the owner of 7401 Collins Avenue) own the properties abutting or in the vicinity of the City Right-of-Way Areas; which parcels are known as 7401, 7409, 7421, 7433, 7435, 7437, 7439, 7441, and 7449 Collins Avenue, and 7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace (collectively, the "Property"). The vacation of the City Right-of-Way Areas would result in the City vacating approximately 45,920 square feet of existing right of way in accordance with the plat. Specifically, by virtue of the vacation, the right-of-way reverts to the abutting property owners to the centerline of the street, except that (1) with respect to 75th Street, which is located on the edge of the plat, the entire 40 feet of the 65 foot right of way, that was initially contributed by the predecessor owner of the abutting property along 75th Street, would revert to the Developer by operation of law (see, e.g., Pelican Creek Homeowners, LLC v. Pulverenti, 243 So. 3d 467 (Fla. 5th DCA 2018)); and (2)with respect to Ocean Terrace, the full 60 foot width of the Ocean Terrace right of way would revert to the Developer, as the Developer is the abutting property owner on the west side of Ocean Terrace (thereby entitling Developer to reversion of the western 30 feet to the centerline of Ocean Terrace) and Developer will, pursuant to the terms of the proposed Development Agreement, reserve the reversionary interest in the eastern 30 feet of Ocean Terrace. [1] [1]As part of the Development Agreement, Developer will quit claim to the City any reversionary fee interest it may have in the separately platted public reservation area abutting the east side of Ocean Terrace, between the Ocean Terrace right-of-way and the waterfront, as depicted in Exhibit A-1 (the "Waterfront Parcel") , subject to a reservation of the reversionary interest in the eastern 30 feet of the Ocean Terrace right of way. Upon the City's vacation of Ocean Terrace, the eastern 30 feet of the Ocean Terrace right of way would thereby revert to the Developer, pursuant to the reservation in the deed. The Developer intends to develop the Property as a mixed-use residential and commercial development in accordance with the requirements of the Ocean Terrace Overlay District Page 665 of 1288 (collectively, the "Proposed Development"), pursuant to a Florida Statute Chapter 163 development agreement to be entered into between the City and the Developer (the "Development Agreement"). The Proposed Development would be developed as a unified development site. In conjunction with Proposed Development, the Developer is requesting that the City vacate the City Right-of-Way Areas abutting 7401, 7441, and 7449 Collins Avenue and 7400, 7410, 7420, 7430, 7436, and 7450 Ocean Terrace, and has submitted its application to the City's Public Works Department with respect thereto, to permit Developer to utilize the F.A.R. associated with the City Right-of-Way Areas within the Developer's Project (but with the City Right-of-Way Areas to continue to be used for pedestrian and vehicular travel). With respect to the proposed vacation of the 4,380 square feet of City right-of-way abutting 7401 Collins Avenue, the proposed vacation of the subject area shall be subject to and contingent on Developer's agreement with the property owner to include the vacated right-of-way area as part of the unified development site for the Project. As part of the Proposed Development, the Developer would develop, design, permit and construct, at the Developer's sole cost and expense (with the exception of certain City fees, as set forth below), certain park and streetscape improvements between 73rd Street and 75th Street having a value upon completion of approximately $15 million, thereby implementing the vision of the Neighborhood Design Plan ("Park/Streetscape Project"). Ownership, operation and maintenance of the Park and Streetscape improvements would rest solely with the City. Ultimately, to implement the foregoing, the City Commission would need to approve three major components for the Proposed Development: (1) the vacation of the City Right-of-Way Areas (subject to an irrevocable easement in favor of the City, for public recreation purposes, public utilities and pedestrian and vehicular access), following the Planning Board's approval of the vacation pursuant to Section 1.03(b)(4) of the City Charter(which approval was obtained on May 21, 2019); (2) the Development Agreement, specifying the terms and conditions for the development of the Proposed Development and the Park/Streetscape Project; and (3) amendments to the City's Future Land Use Map and Zoning Map (as discussed more fully below). As the three components of the Development are interrelated, the three components will "travel" together and be considered by the City Commission on the same date(s). Planning Analysis The Planning Department's analysis of the proposed vacation, pursuant to Section 82-38 of the City Code, is attached as Exhibit"B" hereto. Appraisal The appraisal of the City Right-of-Way Areas valued the land and associated Floor Area Ratio (F.A.R.) of the City Right-of-Way Areas at $12,400,000 and is attached as Exhibit "C" hereto. The City's preliminary cost estimate of the design and construction of the ,proposed Neighborhood Design Plan is $14.8 million, and is attached hereto as Exhibit"D." Page 666 of 1288 The Developer's proposal to complete the Park/Streetscape Project, with a value of approximately $15 million (consistent with City's cost estimate in Exhibit "D"), is well in excess of the $12.2 million appraised value of the City Right-of-Way Areas. Economic Development Analysis The City's economic development consultant, Lambert Advisory, LLC, has analyzed the anticipated economic benefits associated with the proposed Project. The consultant's report is attached as Exhibit"E." As the City;s Consultant noted in the report, the transaction provides the economic benefits. As set forth herein, the Ocean Terrace development and corresponding improvements to roadway and public space is envisioned to be a transformative project for the surrounding area and provide measurable incremental benefit to the City as a result of significant direct capital investment, as well as from on-going expenditure from its residents, visitors and employees. Estimates of the tangible impacts from direct and indirect expenditures are captured by this analysis. However, we clearly recognize that there are other potential intangible impacts — such as the project's ability to serve as a catalyst for future development in the immediate area; however, these are not included in this analysis, as they are nearly impossible to quantify. In sum, the most notable economic impact benefit headlines from the Ocean Terrace development include: • 1,270+ direct and indirect/induced construction (and related)jobs annually during the proposed two-year construction period, which generates a total of $122 million in direct and indirect/induced labor income during the construction period that will flow to the local and regional economy. o including an estimated $2.2 million to the City in permit and related fees; • 115 net new direct full time equivalent (FTE)jobs generating $17.2 million (2019 $'s) in total annual wages available for expenditure within surrounding businesses; incremental annual ad valorem tax revenue to the City of approximately $1.6 million upon stabilized operations; or, an estimated $27 million in net present value (NPV) over a 30-year projection timeline; • an estimated $120,000 to $240,000 in incremental annual ad valorem tax revenue to the City of Miami Beach as a result of impacts to surrounding property values; and, • $1.125 million in annual resort tax revenue upon stabilized operations to the City; or, an NPV of $19.1 million during a 30-year projection period. See Exhibit"E", page 4. The following table provides a summary of the long-term/recurring fiscal benefits to the City of Miami Beach: Figure 3: Summary of Estimated Long-term Incremental Fiscal Benefits to the City of Miami Beach from Ocean Terrace Development(Upon Stabilized Operations, 2019 $'s) Source Annual NVP (30 yrs) Ad Valorem Tax— Ocean Terrace $1,600,000 $27,000,000 Ad Valorem Tax— Surrounding Properties $180,000 $3,200,000 Resort Tax— Ocean Terrace $1,125,000 $19,100,000 Total $2,900,000 $49,300,000 Walker Parking Study Page 667 of 1288 In accordance with City's Parking Revenue Bond covenants, the City has obtained the opinion of its Parking/Rate Consultant, Walker Consultants with respect to the proposed removal of 60 metered parking spaces and 7 disabled spaces. The Walker report, which concluded that the "estimated annual loss of $77,460 (.0074% of FY17 net revenues) will not have a material adverse impact on the net revenues of the Parking Fund, is attached as Exhibit"H" hereto. Proposed Amendments to City's Comprehensive Plan and Land Development Regulations. As noted above, the transaction would involve proposed legislative changes, to conform the zoning map to the vacation of the City Right-of-Way Areas. The Property is currently located within the Ocean Terrace Overlay District, and the two separate underlying zoning districts are designated as CD-2, "Commercial Medium Intensity," and MXE, "Mixed-Use Entertainment. The proposed Development Agreement contemplates that the City Commission will approve amendments to the City's Future Land Use Map and Zoning Map, to: (a) amend the Future Land Use Map to change the designation of the portions of the City Right-of-Way Areas designated PF, "Public Facility," and ROS, "Recreation and Open Space," to the Future Land Use categories of CD-2, "Commercial Medium Intensity' and MXE, "Mixed-Use Entertainment"; and (b) amend the City's Zoning Map to rezone the City Right-of-Way Areas from the current zoning classification of GU, "Government Use District," to CD-2, "Commercial Medium Intensity' and MXE, "Mixed-Use Entertainment," and extending the boundary of the Ocean Terrace Overlay Zone to encompass the City Right-of-Way Areas. As set forth above, the foregoing amendments will be heard together with the Vacation Resolution and approval of the Development Agreement, as the three components of the Proposed Development are interrelated. Planning Board and Land Use and Development Committee Recommendations. At the May 21, 2019 meeting of the Planning Board, the Planning Board unanimously recommended adoption of the LDR Amendments, and provided the requisite approval of the vacation, pursuant to Section 1.03(b)(4) of the City Charter. Separately, the Planning Board recommended that additional terms be included as part of the Development Agreement, namely (1) that the design feature at 74th Street be incorporated into Phase 1 of the Park/Streetscape Project; (2) that a passenger drop-off and pick-up location be incorporated into 75th Street; (3) that a plan be created for the 75th Street Parking lot so that it can be planned concurrently with the Ocean Terrace Project and the Park/Streetscape Project; and (4) that north-south beachwalk connectivity be maintained throughout the construction process. At the May 22, 2019 meeting of the Land Use and Development Committee ("LUDC"), the LUDC favorably recommended the adoption of the LDR Amendments and recommended that several items be further negotiated (including the items recommended by the Planning Board). In an effort to be responsive to the comments raised by the Planning Board, LUDC and the public, Developer has agreed to all of the additional negotiation items, which include the following: Page 668 of 1288 1. The design feature located on or about Ocean Terrace and 74th Street shall be completed as part of Phase 1 of the Park/Streetscape Project. 2. As part of the Park/Streetscape Project, Developer shall design and construct the side streets (73rd Street, 74th Street and 75th Street, from Collins Avenue to Ocean Terrace) to provide for an integrated and cohesive design aesthetic for the Park/Streetscape Project. 3. Developer shall ensure that the Preliminary Plans and Specifications address accessibility needs for elderly and/or disabled persons. The Park/Streetscape Project shall be designed to ensure that public access to the City's beaches is maintained. 4. Developer's Preliminary Plans and Specifications for the Park/Streetscape Project shall provide for a "reasonable flow" for ingress/egress of vehicles on 75th Street, with a proposed solution that may include either a drop-off loop or other turn around at the east end of 75th Street, or any other similar proposed solution as may be approved by the City Manager at the City Manager's sole discretion, to ensure vehicular access to the 75th Street parking lot and/or access for drop-offs to the beach. 5. Developer's Preliminary Plans and Specifications shall provide for ingress/egress for vehicles accessing the St. Tropez property located at 7330 Ocean Terrace and shall incorporate any comments with respect to ingress/egress as may be provided by the City Manager. Notwithstanding any other provisions in the Development Agreement to the contrary, the portions of the Plans and Specifications for the Park/Streetscape Project relating to ingress/egress for the St. Tropez shall be subject to approval by the City Manager or by the City Commission, at the City Commission's sole discretion. 6. During construction of Phase 1 of the Park/Streetscape Project, Developer shall ensure there is continuous north/south beach walk access at all times, unless otherwise approved in writing by the City Manager. At its June 14, 2019, the Finance and Citywide Projects Committee favorably recommended moving forward with the Development Agreement. Conditions of the Proposed Vacation; Key Terms of the Development Agreement A copy of the proposed Development Agreement is attached hereto as Exhibit "F". The vacation of the City Right-of-Way Areas would be conditioned on the Developer's execution of a Development Agreement which contains the following key terms: (1) Development of the Project. Developer's Proposed Development will be developed based on, and in accordance with, the requirements of the Ocean Terrace Overlay District as set forth in Sections 142-870 and 142- 870.1 of the City Code. Within the Ocean Terrace Overlay District, the maximum height of a main use residential building shall not exceed 235 feet, and the maximum height of a main use hotel building shall not exceed 125 feet. Architectural projections will comply with the terms of the Development Agreement and other applicable provisions of the City's Land Development Regulations. The current main permitted uses in the Ocean Terrace Overlay District are (a) apartments; (b) apartment/hotels; (c) hotels; (d) commercial; and (e) uses that serve alcoholic Page 669 of 1288 beverages. Package alcohol stores are prohibited in the Ocean Terrace Overlay District. (2) Developer to Design and Construct the Park/Streetscape Project for the City. Developer shall develop, design, permit, and construct, at its sole cost and expense, the Park/Streetscape Project; provided, however, that the City would be responsible for the zoning application fees, in the amount of up to $80,000, and would waive any fees for the City/Streetscape Project for which a waiver is permitted under the existing City Code, as set forth below. Ownership, operation and maintenance of the Park and Streetscape improvements would rest solely with the City. The Development Agreement will include initial approval by the City Commission of the Concept Plan for the Park/Streetscape Project, which Concept Plan was designed by renowned landscape architect Raymond Jungles, and is attached as Exhibit"G." The design for the Park/Streetscape Project shall be subject to regulatory approval by the Historic Preservation Board ("HPB"). Further, in recognition that the design of the Park/Streetscape Project may evolve during design development, the Development Agreement will require the City Manager's approval of the final plans and specifications for the Park/Streetscape Project (and any modifications thereto), with all elements of the final plans and specifications relating to vehicular ingress/egress and access subject to the City Manager's approval at the City Manager's sole discretion. (3) Timeframe for Completion of Project and Park/Streetscape Project. As set forth in the table below outlining the various timeframes set forth in the Development Agreement, the Developer has proposed to complete the Park/Streetscape Project in two phases, with Phase 1 to be completed within 48 months following the Effective Date of the Development Agreement (the date the agreement is executed by the Parties and recorded), and with Phase 2 to be completed within 96 months following the Effective Date. The City will not issue a temporary certificate of occupancy (TCO) for the Proposed Development until the Developer has substantially completed the Phase 1 of the Park/Streetscape Project and shall not issue a final certificate of occupancy until the Developer has substantially completed Phase 2 of the Park/Streetscape Project. As the Proposed Development is an important component for realizing the economic development benefits the City has long desired for the Ocean Terrace neighborhood and North Beach, as part of the Development Agreement, Developer has agreed that it will complete the Proposed Development not later than 96 months following the Effective Date, subject to a 24 month automatic extension if Developer timely delivers Phase 2 of the Park/Streetscape Project, and extension for force majeure and/or economic force majeure (for a maximum period of 30 months) pursuant to the terms of the Development Agreement. (4) Developer to Grant Easements in Favor of City For the Public's Continued Use of the City Right-of-Way Areas. As a condition of the closing for the City's conveyance to the Developer of the City Right-of- Way Areas, Developer shall grant a perpetual, non-revocable easement in favor of the City, for the City's continued use of the City Right-of-Way Areas for public recreational, vehicular, and pedestrian use and access. Page 670 of 1288 (5) Developer to Provide the City with Bond or Lender Agreement to Guarantee Completion of the Park/Streetscape Project. As the City would have vacated the City Right-of-Way Areas prior to Developer's completion of the Park/Streetscape Project, as a condition of closing, Developer has agreed to provide the City with a bond/letter of credit or a lender recognition agreement, in a form acceptable to the City, to secure Developer's obligations and permit the City to step in and complete the Park/Streetscape Project in the event the Developer fails to do so. In addition to the foregoing, Developer has agreed to other terms and conditions intended to protect the City's interest in the Park/Streetscape Project, including provisions to (1) automatically assign the pertinent construction contracts to the City, should Developer default on its obligations; (2) require Developer and its contractors to indemnify the City as provided in the Development Agreement; (3) name the City as an express intended third-party beneficiary of the construction contract; and (4) name the City as a co-obligee on a performance and payment bond for the Park/Streetscape Project. (6) Developer to Convey Its Fee Interest in the Public Reservation Area Located East of Ocean Terrace. Developer shall convey to the City any right, title and interest the Developer has in the public reservation area depicted in Exhibit"A-1;" provided, however, that as explained in Note 1 above, the Developer would reserve its reversionary interest in the eastern 30 feet of the Ocean Terrace right of way. (7) Enhanced Service Area for Beachfront Concession. The Development Agreement provides that if Developer successfully secures a hotel operation at Ocean Terrace that is substantially similar to the quality of operations and level of service of the Delano Hotel (1685 Collins Avenue), the Shelbome Hotel (1801 Collins Avenue), or the Nautilus Hotel (1825 Collins Avenue), a comparable set which is substantially equivalent to a four diamond AAA rating, the Developer would have the right to utilize a maximum of 175 linear feet between 74th Street and 75th Street, which area represents approximately 10% of the total linear footprint of the Ocean Terrace Concession Area, for a beachfront concession offering enhanced beach equipment and food and beverage services for Hotel patrons (the Enhanced Service Area), to be offered through the City's beachfront concessionaire, the Boucher Brothers Miami Beach, LLC. Pursuant to the proposed development agreement, the arrangement for the Enhanced Service Area would permit the Hotel to utilize branded uniforms and beach equipment in the Enhanced Service Area. Under the proposed arrangement, the City would continue to receive the same percentage of gross revenues that the City currently receives under its Concession Agreement with the Boucher Brothers with respect to the sale of standard beach equipment and prepackaged food offerings (namely, 20% of gross receipts on sale of standard beach equipment, and 15% of gross receipts on prepackaged food offerings). (8) Timing for Key Project Milestones and Completion of the Park Streetscape Improvements. The Development Agreement will include timeframes for the various deliverables and submittals Page 671 of 1288 set forth in the Development Agreement. The Developer's proposed timeframes, representing the key steps in the development process, are included in the Agreement and summarized below: Effective Date of Development Agreement Following second reading,the date the Development is fully executed by all parties,and recorded. HPB Hearing for the Park/Streetscape Project Developer will endeavor to have the zoning and the Proposed Development applications for the Park/Streetscape Project and the Proposed Development heard by the City's Historic Preservation Board within 12 months following the Effective Date of the Development Agreement,but the failure to do so will not be deemed an event of default. Completion of Phase 1 of Park/Streetscape Phase 1 will be substantially completed within 48 Project months following the Effective Date of the Development Agreement. Completion of Phase 2 of Park/Streetscape Phase 2 will be substantially completed within 96 Project months following the Effective Date of the Development Agreement. Closing(the date for City's conveyance of The Closing will take place on a date determined by Right of Way Areas to the Developer,and Developer,but not later than 10 business days after Developer's conveyance of its Interest in the Developer obtains(i)all final,non-appealable Public Reservation Area,and easements and zoning approvals for the Proposed Development, other agreements/bonds required under the and(ii)all final,non-appealable permits and Development Agreement approvals needed to commence construction of the Park/Streetscape Project. Completion of the Proposed Development Within 96 months following the Effective Date, subject to one 24-month extension if Developer has (i)completed Phase 2 of the Park/Streetscape Project within the timeframes set forth in the Development Agreement and (ii)has then commenced construction of the Proposed Development. Duration of Development Agreement 10-year initial duration following the Effective Date, with one automatic 8-year extension if Developer completes the Park/Streetscape Improvements within the timeframes set forth in the Development Agreement. (9)Application Fees and Contribution for Monthly City Parking Passes. In consideration for the Developer's commitment to complete the Park/Streetscape Project, and in recognition of Developer's prior payment of $206,835.00 (as per invoice number 00091435)to the City in zoning application fees for the Proposed Development, Developer has proposed that the City cover the zoning application fees for both the Proposed Development and the Park/Streetscape Project, the maximum total amount of which would be $80,000. Developer has also requested the waiver of any other City fees relating to the Park/Streetscape Page 672 of 1288 Project, to the extent any such waiver is currently permitted under the City Code (i.e., without requiring any legislation to provide for any such waiver). In addition, Developer has requested that in the event the City Commission, at its sole discretion, adopts any amendments to the City's Land Development Regulations to provide any credit or refund for previously paid zoning application fees, the Development Agreement will provide the Developer with the right to obtain any such credit or refund for the corresponding portion of the application fees previously paid by the Developer for the Proposed Development (the total of which amounted to $206,835). Finally, the City will budget and appropriate, from the General Fund, the amounts necessary to pay the Parking System for the costs of 100 monthly parking passes for use by the Developer and its contractors during construction of the Park/Streetscape Project and the Proposed Development, subject to the total aggregate not-to-exceed amount of $300,000. The monthly parking passes will be utilized at the following City-owned parking lots: (i) Collins Avenue and 75th Street, provided, however, that on weekdays, the maximum of 25 parking spaces may be utilized at this location at any time, with the remainder available for parking for the general public, and provided, further, that no parking spaces shall be utilized at the 75th Street parking lot on weekends or holidays; (ii) 299 72nd Street (until such time as the commencement of construction at this location); (iii) 8040 Collins Avenue; (iv) 8300 Collins Avenue or such other City lots as the City may designate. Except with respect to the foregoing, Developer shall be responsible for all other governmental fees applicable to the Proposed Development and the Park/Streetscape Project. (10) Staging. Although Developer initially requested use of portions of the 75th Street parking lot for staging, Developer has been responsive to the concerns raised by the Planning Board and the City's Land Use and Development Committee and has agreed to withdraw its request to use any portion of the parking lot for staging. Instead, Developer has agreed to the following: (a) During construction of the Park/Streetscape Project, ,the Developer and its contractors will have the right to use the areas within Phases I and I I of the Park/Streetscape Project as staging areas and lay-down yards in connection with the construction of the Park/Streetscape Project. (b) During construction of the Proposed Development, the Developer and its contractors will have the right to use the area within Phase II of the Park/Streetscape Project as staging areas and lay-down yards in connection with the construction of the Proposed Development. (11) Café. The proposed Concept Plan includes an area of approximately 2,000 square feet, designated for use as an outdoor café serving the general public. The Development Agreement will provide that if the café is approved by the HPB, the Developer would have the right to operate the café generally consistent with the sidewalk café permit requirements as set forth in Chapter 82 of the City Code, and in accordance with the minimum standards, criteria and conditions set forth in Sections 82-385 to 82-388 of the City Code. Page 673 of 1288 (12) Transfers or Assignments of the Proposed Development and Park/Streetscape Project Prior to Completion. Developer has agreed to retain day-to-day management and operational control of the delivery of the Park/Streetscape Project at all times until its completion. Developer has requested that it be permitted to transfer or assign any interest in the Proposed Development, including a sale of the entire project, without City Commission approval, provided Developer at all times retains operational control of delivery of the Park/Streetscape Project until its completion. The Administration and Developer are continuing their discussions regarding this matter. Proposed Changes to the Development Agreement In Response to City Commission Direction at First Reading. Since first reading, the Administration and the Developer have met on numerous occasions, and the Developer has updated the proposed Concept Plan and the proposed terms of the development agreement, in an effort to be responsive to the City Commission's input at first reading. The changes include: 1) Updating the Phasing Plan to provide for a greater footprint of the overall Park/Streetscape Project to be completed in Phase 1, within 4 years of the Effective Date; and 2)Addressing the concern for loss of parking spaces via (i) a valet parking solution at both the 75th Street parking lot and 8040 Collins Avenue on weekends and holidays, which would mitigate the loss of parking associated with the Park/Streetscape Project, and requiring Developer to cover City losses, at a split of 75% Developer/25% City, up to the aggregate amount of $100,000, in support thereof, and (ii) providing flexibility for the City's Parking Director to limit construction parking at the 72nd Street parking lot on weekends or holidays, as necessary to respond to parking demands on the lot; and (iii) if the City is able to legislatively allow the use of a vacant West lot for a temporary parking solution, the Developer has agreed to create a stone lot for overflow valet or construction parking, at their sole cost and expense. 3) Providing for earlier timeframe for completion of the Proposed Development, by reducing the automatic extension if Phase 2 of the Park/Streetscape project is timely completed from 3 years to 2 years; and 4) Reducing the potential for extension of timeframes based on economic force majeure from a maximum period of 36 months to 30 months; and 5) Clarifying the conditions precedent to the issuance of certificate of occupancy for the Proposed Development, to provide that the City shall not issue a temporary certificate of occupancy(TCO) prior to completion of Phase 1 of the Park/Streetscape Project, and shall not issue a final certificate of occupancy (CO) prior to completion of Phase 2 of the Park/Streetscape Project; and 6) Strengthening the rights of the City and the public with respect to the easement, to ensure the City will operate and control the Easement Area solely for public purposes, and in the same manner as other City right-of-ways (i.e., with the City's ability to control all improvements to the Page 674 of 1288 Easement Area, all cultural or other programming of events in the Easement Area, and to limit Developer's rights, so that Developer may only use the Easement Area in the same manner as made available to the public. Open Issues. The sole remaining open issue is the transfer or assignment of the private portion of the proposed development. The Developer has proffered that they will retain full control of both Phase 1 and Phase 2 of the Park/Streetscape project but they remain firm that restrictions related to transfers or assignments may substantially limit their ability to bring on development partners or restrict the project from being realized if third party investors view the hurdles of the transfer as a deed restriction on the property. The Administration remains open to reaching a mutually beneficial solution that keeps the goal of moving forward both the public project and the Proposed Development as the primary objective with the protection necessary to ensure we reach those goals. CONCLUSION The Administration recommends that the City Commission approve on Second Reading, the proposed Development Agreement and vacation of the City Right-of-Way Areas, with the vacation conditioned upon, and Developer's satisfaction of, certain terms and conditions, to be set forth in the Development Agreement between the City and Developer, which conditions shall, among other terms, require the Developer to (1)grant to the City a perpetual easement for recreational, utility, pedestrian and vehicular access over, across and under the City Right-of- Way Areas; and (2) obligate the Developer to develop, design, and construct, at the Developer's sole cost and expense (with the exception of those City fees noted above), the Park/Streetscape Project, with such public improvements having a value of approximately Fourteen Million Eight Hundred Thousand Dollars ($14,800,000). Legislative Tracking Public Works ATTACHMENTS: Description ❑ Exhibit A- City Right of Way Areas ❑ Exhibit A-1 Waterfront Parcel ❑ Exhibit A-2 - City Attorney Memorandum ❑ Exhibit B - Planning Analysis o Exhibit C -Appraisal o Exhibit D Ocean Terrace Project CIP Cost Estimate ❑ Exhibit E. OceanTerrace_Economiclmpact_Final ❑ Exhibit F - Development Agreement o Exhibit G - Concept and Phasing Plans ❑ Exhibit H -Walker Report ❑ Email in support from Judith Bishop Page 675 of 1288 ❑ Email in support from Silvia Coltrane ❑ Resolution - Ocean Terrace Development Agreement ❑ Resolution - Ocean Terrace Vacation ❑ Advertisement- 1 ❑ Advertisement- 2 Page 676 of 1288 • I I 75th STREET ROW 1 11,849.sq ft L - n: I - I.N__..;-.';'...; ,=.-'3.':.'.3.;...g.'4`, .,..._. 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'1 1 I�,aiFr ' it , a. 1 1 e,F.• .s. „a •5efa- ,r" 1 [1,'!--.''-„,',2.'I .I yh�y !I y .. ....‘,...!..-'4,,,,,....- , v�ia✓ �_^fi �L'''1 11 *1 1� rc 1' -_—.,II �I1�- , ill i1 \� - N _ r 0 I ;r" --- 74th STREETgROW - 8,881 s ft 1 N 1 1\ \ I / / / ' ' r --_-'---'--' PUBLIC RESERVATION |�[� _' =�°~� /\�/ EXHIBIT "A" LEGAL DESCRIPTION: A portion of the Public Reservation shown on Plat of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami—Dade County, Florida, being more particularly described as follows: Commence at the Southeast corner of Lot 7 in Block 1, of said Plat of TOWNSITE OF HARDING; thence South 0758'50" East, along the Southerly prolongation of the West Right—of—Way line of Ocean Terrace, (First Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the center line of 74th Street (Second Street per Plat Book 34 at Page 4); thence North 86'59'28" East, along said center line, for 60.00 feet to a point on the East Right—of—Way line of said Ocean Terrace and the Point of Beginning; thence continue North 86'59'28" East, along said center line, for 31.53 feet to a point on the East line of said Public Reservation; thence North 04'12'42" West, along said East line, for 420.09 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence South 86'59'28" West along said North line of Government Lot 7 for 22.50 feet to a point on said East Right—of—Way line of Ocean Terrace, also being the West line of said Public Reservation; thence South 0758'50" East, along said East Right—of—Way line and West line, for 420.00 feet to the Point of Beginning. SURVEYOR'S NOTES: — This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue. — Lands shown hereon were not abstracted for easements and/or rights—of—way of records. — Lands shown hereon containing 11,346 square feet, or 0.260 acres, more or less. — This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon. — Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on May 8, 2019, and meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" FORTIN, LEAVY, SKILES, INC., LB3653 By: Daniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florida. Drawn By MAP • LEGAL DESCRIPTION, NOTES& CERTIFICATIONS Date 5/8/19 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN, LEAVY, S KILES, INC. Job. No. 190441 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—K 180 Northeast 168th. Street/North Miami Beach,Florida_ 33162 Plotted: 5/9/19 7:29a • Phone:305-653-4493/Faimasg-gig-a113�ggmail fls@flssurvey.com `4ileet 1 of 3 L _I L _ EXHIBIT"A" (ALLAMANDA(75TH)STREET-PLAT BOOK 31 PAGE 40) 586'59'28"W — _ _ 75TH STREET �'So' , (PUBLIC RIGHT OF WAY) .,. ..:::0 NORTH UNE OFJ b GOVERNMENT LOT 7 CCENTERLINE OF SECTION 2-53-42 & 75Th STREET w z NORTH UNE of FIRST STREET PLAT BOOK 34 PAGE 4) c, szti:t PLAT BOOK 34 PAGE 4 ( >-a ::":Q'" :::,..,-:,..,;:--,:t.,..,',.:.:: � of :.:::.:,: LOT LOT1 � ;I 0.,Io � W� IAO A:::::::: Z z 63 I I LOT 9 LOT 2 I s0' :::::x::::747: I_� II :ii:i: cm o .. c I er W ('3 :::m:.:::::: a0' LOT 10 LOT 3 cr 0- 5--- :i;;:::F:...i::::•: ZwW o3 IL O CC K 1 CCgu_ Y ai — — woo W Q TOWNSITE OF HARDING I- 5 ::i.0i:iii:::: x I PLAT BOOK 34 PAGE 4 ¢> `i:``:i" : o LOT 11 W m iaii=i»i:Z Z U >::= Q p I LOT Q W ? : i ii = °- 0 — — w F- n : a) wEE I U Z_ w 7 c) > > = LOT 12 LOT 5 0 w :.E.:7Z : J in W I I O ::::KID:::: :: N J 5,1 Z o :::::::::: _� :: :: :: :::::N ac 0 LOT13 LOT6 0P • `:?4iQ?::: EE c : IIIII''N 1IIII O II R III 11111 r 1111 LOT 7 LL Z_ a H I I LOT 14 POINT OF Z GRAPHIC SCALE COMMENCEMENT Z .:%.: ::.:::.:. S.E. CORNER OF LOT 7 0 30 60 120 — w O LII ` v$ i:i:::, I II I CENTERLINE CF—\ (SECOND STREET-PLAT BOOK 34 PAGE 4) -. 0_ m 7.3:]::]::]:::: : ( � ' ) 74TH STREET 74TH STREET o . o 1 inch = 80 ft. (PUBLIC RIGHT OF WAY) N86'5928"E 60.00 Drawn By MAP , SKETCH OF DESCRIPTION 1 Date 5/8/19 Cad. No. 190176 Scale 1"=60' Ref. Dwg. F ORTIN, LEAVY, S KILES, INC. Job. No. 190441 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg• No. 1019-007—K 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a J Phone:305-653-4493/Pap§g@- iJ- gmai1 fls@flssurvey.com .4lleet 2 of 3 EXHIBIT "A" 75TH STREET z I1i _Ii O < 74TH STREET z w z % OJ U = w i- z ¢ w 0 0 73RD STREET ill" 72ND STREET IIIIIIIIA► Drawn By MAP , LOCATION SKETCH ' Date 5/8/19 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN, LEAVY, S KILES, INC. Job. No. 190441 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg• No. 1019-007—K 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29aJ Phone:305-653-4493/Fapar96-6811-6f 1?Zi$gmai1 fls@flssurvey.com Sheet 3 of 3 f MIAMI BEACH City of Miami Beach,1700 Convention Center Drive,Miami Beach,Florida 33139,www miamibeachfl gov COMMISSION MEMORANDUM TO: Mayor Dan Gelber and Members of the City Commission FROM: Raul J. Aguila, City Attornel, \ • 1 DATE: July 19, 2019 SUBJECT: Vacation and Development Agreement for Ocean Terrace At the June 26, 2019 City Commission meeting, I provided the Mayor and City Commission with my legal opinion that the proposed Ocean Terrace transaction is subject to the stringent and heightened approval requirements set forth in Section 1.03(b)(4) of the City Charter, which requires approval by a 4/7th vote of the Planning Board (which approval was obtained on May 21, 2019), and by a 6/7ths vote of the City Commission I also issued a Supplemental Memorandum with respect to the foregoing, a copy of which is attached as Exhibit "A" hereto, in which I concluded that the proposed Ocean Terrace transaction does not require a voter referendum under Sections 1.03(b)(1) or 1.03(c) of the City Charter. This memorandum is intended to supplement my June 26, 2019 legal opinion, in order to comprehensively address the various legal questions that members of the City Commission and the public have raised, including the specific questions Commissioner Gongora raised at the June 26, 2019 City Commission meeting (regarding whether the proposed Ocean Terrace vacation could be structured for the vacated properties to be "deeded back" to the City after a specified period of time) 1. Background on the Vacation and the Nature of the Property Interests Involved. At the June 26, 2019 first reading of the Vacation Resolution and Development Agreement, the City Commission made clear that the stated objectives for this transaction are to (1) realize a significant public benefit via much-needed park and streetscape beautification improvements to the Ocean Terrace neighborhood, (2) serve as a catalyst for the economic development of North Beach, and (3) secure the public's right to continue to use and enjoy Ocean Terrace, 74th Street and 75th Street for pedestrian and vehicular access, as enhanced by the park/streetscape improvements As explained in my June 26, 2019 Supplemental Memorandum, the City is currently not the underlying fee simple owner of Ocean Terrace, 74th Street, or 75th Street (collectively, the "Right of Way') and does not hold legal title to the Right of Way. Instead, the City holds a right of way dedication, which confers on the public an exclusive right of use(as provided in the Harding Plat), so long as the dedicated Right of Way is used for the purpose of the dedication (namely, for pedestrian and vehicular access). The Developer, as the successor to the original abutting property owners who dedicated the Right of Way when the plat was created, holds the underlying reversionary fee interest in the dedicated Right of Way See Robbins v. White, 52 FIa 613, 42 So. 841, 841-44 (FIa. 1907) (a dedication "does not divest the owner of the title to the land, but only subjects the land and the title to the public easement for street purposes,"with title remaining Page 682 of 1288 • Commission Memo July 19, 2019 Page 2 in the dedicator or his successors in title); Coral Gables v. Old Cutler Bay Homeowners Corp., 529 So. 2d 1188, 1189-90 (Fla. 3rd DCA 1988) ("[A] common law dedication does not pass the fee in land. The interest acquired by the municipality is generally held to be in the nature of an easement, with the public having a right of use and nothing more.") The vacation of a right-of-way is a legislative act within the exercise of the City Commission's discretion, if the City Commission determines the vacation is in the public interest. See, e.g., Robbins v. White, 42 So. 2d 841 (1907); City of Temple Terrace, Fla. v. Tozier, 903 So. 2d 970 (Fla. 2d DCA 2005). If approved, the vacation would be effectuated by the City Commission's adoption of a resolution authorizing the vacation, and the City thereafter quit claiming any right, title and interest it has in the Right of Way, (thereby extinguishing the dedication). By operation of law, once the City vacates the Right of Way, the underlying fee interest in the Right of Way vests with the current abutting property owners. See, e.g., Servando Bldg. Co. v. Zimmerman, 91 So. 2d 289 (Fla. 1956); Smith v. Horn, 70 So. 435 (Fla. 1915); Hurt v. Lenchuk, 223 So. 2d 350 (Fla. 4th DCA 1969) ("When a street is lawfully vacated, title to the area vacated vests in the adjoining property owners"). Based on the foregoing, under the current structure of the Ocean Terrace transaction, at the Closing when the City delivers its quit claim deed to the Developer, the Developer will be fully vested with its underlying fee interest in the. vacated Right of Way. Importantly, at the Closing, Developer will simultaneously encumber the vacated Right of Way, by granting the City an irrevocable, perpetual easement, in favor of the public, for the continued public use of the Right of Way. The easement runs with the land, and has a scope that is similar to the interests the City currently has in the Right of Way dedication. Accordingly, by requiring the Developer to deliver the easement as a condition of Closing, the transaction is expressly structured to address concerns about public access, and to ensure that the rights of the public to the continued use of the Right of Way will not be abandoned, diminished or altered in any way. Finally, by vesting Developer with the fee interest (subject to the easement in favor of the public), the structure of the transaction would permit the Developer to include the vacated Right of Way as part of a unified development site, and to aggregate its vested development rights on unified abutting parcels through a covenant in lieu of unity of title, as permitted by Section 1.03(c) of the City Charter (without referendum) and Section 118-5 of the City Code as discussed more fully in Section 2(d) below. Of course, the benefit to the Developer would only be available if Developer complies with the terms and conditions of the Development Agreement (including, among other terms, the requirement to deliver to the City the irrevocable, perpetual easement for the continued public use of the Right of Way). 2. Questions Regarding Applicability of the City Charter. a. Is the vacation of the Right of Way a Conveyance of City-owned Park, Recreation or Waterfront Property That Would Require a Referendum Pursuant to Section 1.03(b)(1) of the City Charter? No. Section 1.03(b)(1) of the City Charter is not applicable to the proposed vacation, because the Right of Way is not"park, recreation or waterfront property." Page 683 of 1288 Commission Memo July 19, 2019 Page 3 As explained in my June 26, 2019 Supplemental Memorandum, the Right of Way 'is not "waterfront property." Rather, in the subject area, the "waterfront property" is the separately platted public reservation area abutting the east side of Ocean Terrace, between the Ocean Terrace right-of-way and the waterfront, as depicted in Exhibit "B" attached hereto (the "Waterfront Parcel"). The separately platted Waterfront Parcel is not being vacated or conveyed by the City. My interpretation with respect to the foregoing is consistent with other right of way vacations, most notably the 87 Terrace/Nasturium Street vacation. Like with the proposed Ocean Terrace vacation, the 87 Terrace vacation did not require a voter referendum under Section 1.03(b)(1) because an intervening, reserved parcel belonging to Miami-Dade County separated the street/right of way from the beach. The 87 Terrace vacation was approved by the City Commission, by resolution, upon a 617th vote, as is proposed here, without a City-wide referendum. See City Commission Resolution No. 2014-28839 (November 2014). Further, the Right of Way is not "park" or "recreation" property. The Right of Way, which consists of portions of Ocean Terrace, 74th Street and 75th Street, serves as a public street. No portion of the Right of Way is used as "park" or "recreation" property. In fact, the Parks and Recreation Department's park directory, which catalogues all City parks and related facilities, does not list any portion of the Right of Way as a City"park" or"recreation" area. It is true that the eastern half of Ocean Terrace is designated "Recreation and Open Space" on the City's Future Land Use Map and is zoned for Government Use "GU." This is so because all future land use designations extend to the centerline of abutting right of ways. However, the ROS designation expresses the City's goals for the "future use of land," Bd. of Cty. Comm'rs v. Snyder, 627 So. 2d 469, 475 (Fla. 1993). The designation in the Future Land Use Map does not speak to the property's current use, nor to its status as "park" or "recreation" property. Numerous other right of ways in the City carry the same designations. The City's action in providing these right of ways with Comprehensive Plan and Zoning designations, as it is required to do by law, does not change the character or current use of the right of ways as public streets, nor does it convert the Right of Way into City-owned "park." The Right of Way was dedicated by plat expressly for public street purposes and for no others. See Florida E.C.R. Co. v. Worley, 49 Fla. 297, 38 So. 618, 621 (Fla. 1905) (the placement of streets on a plat map "evinces an intention to dedicate the streets to public use as such[.] This is true although there is no formal written dedication accompanying the map"). Were the City to convert the Right of Way to a "park"–a use inconsistent with the plat dedication—the Right of Way would revert to the abutting property owner by operation of law, without any payment or contribution to the City. See Woodlawn Park Cemetery Co. v. City of Miami, 104 So. 2d 851 (Fla. 3d DCA 1958) (portion of right–of–way parcel dedicated to municipality for street purposes was held to be abandoned and reverted to landowner when used for other purposes). For these reasons, the Right of Way is purely a public street and does not function as, and cannot be deemed, "park" or "recreation" property within the meaning of Section 1.03(b)(1) of the City Charter. Page 684 of 1288 Commission Memo July 19, 2019 Page 4 b. Is the vacation of the Right of Way a Conveyance of a Public Beach Right of Way (Extending Eastward From Collins Avenue/Ocean Drive to the Erosion Control Line) That Would Require a Referendum Pursuant to Section 1.03(d) of the City Charter? No. Section 1.03(d) of the City Charter is not applicable to the proposed vacation, as the Right of Way, although east of Collins Avenue, does not extend to the erosion control line, as shown in Exhibit "C" attached hereto. By its plain language, Section 1.03(d) applies to "public beach rights of way" that extend eastward from Collins Avenue or Ocean Drive to the erosion control line, which marks the eastern end of private properties along the Atlantic Ocean beach. Section 1.03(d) would therefore apply to streets like 39th Street, 40th Street, and others that extend from Collins Avenue/Ocean Drive to the erosion control line. However, the Right of Way at issue here does not meet the Charter's definition of "public beach right of way." The original dedication of the Right of Way was not intended to, and does not, extend the roadways to the public beach. Rather, the Right of Way only extends to the easternmost end of Ocean Terrace, with the intervening, separately platted Waterfront Parcel located east of Ocean Terrace. Accordingly, Section 1.03(d) of the City Charter is not applicable to the proposed vacation. c. Is the vacation of the Right of Way a Conveyance of a Public Street End Bordering Land Designated "Government Use" . . . or "Waterfront Land" That Would Require a Referendum Pursuant to Section 1.03(e) of the City Charter? No. Section 1.03(e) of the City Charter is not applicable to the proposed vacation, as no portion of the Right of Way is a street end. In consultation with the Public Works Department when this transaction was first proposed, and the Public Works Director's technical determination as to the character of the streets in question, we concluded that Ocean Terrace is not a "street end," but rather is a through street running north/south, which curves and continues onto 73rd Street to the south, and 75th Street to the north. Similarly, the portions of 74th Street and 75th Street being vacated are not street ends, as they do not dead end, but rather, merge and continue onto Ocean Terrace, as shown in Exhibit "D" attached hereto. 74th Street and 75th Street are therefore distinct from City rights of way that "dead end" surrounded by the private property and do not communicate with other streets. The intent of Section 1.03(e) was to discourage the vacation of street ends, which could disrupt or eliminate public access to the waterfront and to important public open spaces. That concern is not present here, as 74th Street and 75th Street flow into Ocean Terrace and will remain open and available for public use and enjoyment in perpetuity through the Developer's grant of perpetual easement. d. Does the vacation of the Right of Way Result in an Increase in the Current Floor Area Ratio by Zoning, Transfer, or any Other Means," Which Would Require a Referendum Pursuant to Section 1.03(c) of the City Charter? No. Section 1.03(c) of the City Charter, which provides that the floor area ratio of any property shall not be increased by zoning, transfer or any other means, unless approved by voter referendum, specifically states that the foregoing provision "shall not preclude or otherwise affect the division of lots, or the aggregation of development rights on unified abutting parcels, as may be permitted by ordinance." Page 685 of 1288 Commission Memo July 19, 2019 Page 5 As permitted by Section 118-5 of the City Code, a property owner with fee simple title to abutting parcels may execute a covenant in lieu of unity of title, to aggregate its development rights on those unified abutting parcels. As explained in Section 1 of this Memorandum, upon the vacation, the right of way reverts to, and vests with, the current abutting property owners, in fee simple. As provided in the proposed Development Agreement, the Developer would execute the City's covenant in lieu of unity of title, as permitted by the Section 118-5 of the City Code, and the vacated Right of Way would be developed as part of a unified development site. This action is consistent with Section 1.03(c) of the Charter, which, by its express terms, permits "the aggregation of development rights on unified abutting parcels, as may be permitted by ordinance." The execution of a covenant in lieu of unity of title to aggregate development rights on unified abutting parcels is nothing new, and is consistent with the City Charter, the City Code, and past practices. In fact, in the last five years, the City has approved several development projects using the exact vacation and aggregation mechanism proposed here, including for the 87 Terrace project, for the 500 Alton project, as well as for the partial alley vacation for the Trader Joe's project on 17th and Alton. e. Do the proposed amendments to the City's Land Development Regulations Result in an Increase in the Current Zoned Floor Area Ratio by "Zoning, Transfer, or any Other Means," Which Would Require a Referendum Pursuant to Section 1.03(c) of the City Charter? No. Because the proposed amendments to the Land Development Regulations do not result in an increase in zoned FAR, no referendum is required pursuant to the City Charter. Upon the vacation, and following the adoption of the amendments, the Right of Way would retain the zoning designation of the adjacent parcels. The amendments formally rezone the Right of Way from the current zoning classification of GU, "Government Use District," to the corresponding CD-2 or MXE classifications of the abutting parcels. Pursuant to City Code Section 142-425(a), the maximum zoned FAR for GU properties is the average of the FAR in the surrounding zoning districts. Here, the average is an FAR of 2.0, which is equal to the maximum zoned FAR in the CD-2 and MXE districts. As the rezoning results in no increase in zoned FAR, the proposed amendments, which merely conform the zoning map to the vacation of the Right of Way, do not require the approval of the City's voters under Section 1.03(c) of the City Charter. 3. Whether the Transaction Could Be Structured For the Right of Way to be "Deeded Back" to the City. With respect to Commissioner Gongora's question of whether the transaction could be expressly structured to require Developer to convey the Right of Way back to the City, or to require Developer to re-dedicate the Right of Way after a certain period of time (i.e., upon the completion of the project), I would strongly recommend against any such condition, as requiring Developer to be divested of its fee interest after a period of time is inconsistent with the entire concept of a vacation, which, as a matter of law, serves to vest the abutting property owners with their underlying fee interest in the Right of Way. Without this central element, the transaction is not possible in its current form. Page 686 of 1288 Commission Memo July 19, 2019 Page 6 In my opinion, if the transaction is expressly structured at the outset so that the predicate of the vesting of the underlying fee interest is to be eliminated as a condition of the transaction itself, I do not believe the Developer would, in such an instance, be able to include the Right of Way as part of a unified development site under the City Charter or City Code (as in that case, the vacation, and the Developer's rights, would only be temporary in nature). Further, any such condition would, from the outset, jeopardize the legal status of the proposed development, and make it unlikely, if not impossible, for the Developer to obtain title insurance, financing, or achieve the intended objectives of the transaction (i.e., the condition would render the project legal non-conforming before it is even developed). For similar reasons, I am concerned that structuring the transaction to require joint ownership of the Right of Way would be inconsistent with the concept of a vacation (which, as discussed above, is intended to vest the fee interest in the abutting property owner by operation of law). Even assuming joint ownership is permitted by law,' as a practical matter, the same public easement that is being provided under the proposed transaction would still need to be in place, as the easement is the instrument that guarantees that the Right of Way will be operated solely for public purposes. 4. Questions Regarding Property Taxes and Liability. Upon Closing, as the Developer will be the fee owner, the Developer will be responsible for payment of any ad valorem or other taxes associated with the vacated Right of Way. Should Developer elect to pursue a determination from Miami-Dade County that the Right of Way is exempt from taxation because of the nature of the public uses thereof, or otherwise elect to pursue a tax appeal, as applicable, the Administration would cooperate with the Developer, by providing documentation concerning the public uses of the Right of Way. However, Developer will ultimately be responsible for the payment of any property taxes, if any. With respect to the question of liability, the City will continue to have the same liability exposure that it currently has with respect to the Right of Way. The City's liability for negligence is subject to the sovereign immunity protections available to the City pursuant to Florida law, including, without limitation, the monetary limitation of liability pursuant to Section 768.28 of the Florida Statutes. The Developer, as the underlying fee owner, may also have liability exposure, although Developer may seek to avail itself of the limitations of liability available pursuant to Section 375.251 of the Florida Statutes, which limits the liability of owners who make available certain outdoor recreation areas to the public free of charge. Notwithstanding the foregoing, the proposed easement agreement requires the Developer to name the City as an additional insured on its general liability policy, and to indemnify and hold harmless the City. ' A joint ownership structure whereby a private party and the City, as a public entity, would jointly own an undivided 50% fee interest in property, would need to be evaluated very carefully, as it potentially implicates Article VII, Section 10 of the Florida Constitution, which provides that "[n]either the state nor any . . . municipality . . . or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person." In addition, the structure would raise complex questions as to what laws would apply to the Right of Way if it is owned by both a public and private entity, as the rules applicable to public entities differ from those applicable to private entities. Page 687 of 1288 Commission Memo July 19, 2019 Page 7 5. The Continued Right of the Public to Use and Enjoy the Right of Way. I would like to commend Commissioner Gongora and other Commissioners who have raised questions about the easement and the ownership issues, as their questions reflect their desire to ensure that the public is not in any way shortchanged by accepting an irrevocable, perpetual easement interest, as opposed to the current, existing right of way dedication in the plat. It is important for the public to understand that not only does the foregoing Ocean Terrace transaction comply with all technical, legal requirements, but the rights of the public to the continued use and enjoyment of the Right of Way is not being abandoned, diminished, or otherwise altered in any way. Rather, through the irrevocable, perpetual easement that is required as a condition of this transaction, the broad rights of the public to use the Right of Way areas will be preserved and maintained, in perpetuity. RJA/RAP/pps Page 688 of 1288 BEACHExhibit "A"MIAMI City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Dan Gelber and Members of the City Commission FROM: Raul J. Aguila, City Attorne :42kL : c✓ DATE: June 26, 2019 SUBJECT: Agenda Item R7A, Proposed Vacation of Portions of Ocean Terrace, 74th Street and 75th Street This supplemental memorandum responds to questions relating to the legal mechanism regarding the proposed vacation of portions of Ocean Terrace, 74th Street and 75th Street, which is the subject of Agenda Item R7A on the agenda for the June 26, 2019 City Commission meeting. First, as stated in the Commission Memorandum accompanying Agenda Item R7A, Section 1.03(b)(1) of the City Charter, which requires a referendum for any conveyance of park, recreation or waterfront property, is not applicable to the proposed vacation, because the Ocean Terrace right of way is not "park, recreation or waterfront property." Rather, in the subject area, the "waterfront property' is the separately platted public reservation area abutting the,-east side of Ocean Terrace, between the Ocean Terrace right-of-way and the waterfront, as depicted in Exhibit A-1 (the "Waterfront Parcel"), The separately platted Waterfront Parcel is not being vacated or conveyed by the City. Second, a voter referendum is not required under Section 1.03(c) of the City Charter, as the Charter does not require a referendum for the aggregation of development rights on unified abutting parcels. Section 1.03(c) of the City Charter, which provides that the floor area ratio of any property shall not. be increased by zoning, transfer or any other means, unless approved by voter 'referendum, specifically states that the foregoing provision"shall not preclude or otherwise affect the division of lots, or the aggregation of development rights on unified abutting parcels, as may be permitted by ordinance." As permitted by Section 118-5 of the City Code, a property owner with fee simple title to abutting parcels may execute a covenant in lieu of unity of title, to aggregate its development rights on those unified abutting parcels. Here, with respect to the proposed vacation of the City's right-of-way, if 'the City Commission determines it 'is in the public interest to vacate a right of way, then by operation of law, the right of way reverts to the current abutting property owners, who Page 689 of 1288 Commission Memo June 26, 2019 Page 2 hold the underlying reversionary fee interest in the right of way.1 Accordingly, upon the vacation, the right of way reverts to, and vests with, the current abutting property owners, in fee simple. As provided in the proposed Development Agreement, the Developer would execute the City's covenant in lieu of unity of title, as permitted by the Section 118-5 of the City Code, and the vacated right of way areas would be developed as part of a unified development site. Finally, the proposed amendments to the City's Land Development Regulations, to rezone from the current zoning classification of GU, "Government Use District," to the corresponding CD-2 or MXE classifications of the abutting parcels, do not require a referendum under the City Charter. Currently, the F.A.R. for GU properties is the average of the FAR in the surrounding zoning districts. Here, the average is an F.A.R. of 2.0, which is the maximum F.A.R. in the CD-2 and MXE districts. As there is no increase in zoned F.A.R., no referendum is required under Section 1.03(c) of the City Charter. Based on the foregoing, and as stated in the Commission Memorandum accompanying Agenda Item R7A, pursuant to Section 1.03(b)(4) of the City Charter, the proposed transaction requires approval by a majority vote of the Planning Board, and a 6/7ths vote of the City Commission. RJA/rap/ag 1 The City is not the underlying fee simple owner of the streets. 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' i - j _________:\>.___:_,:_,_,_-.,-2,.._=- 8,860 s Tft OW ' I mi 1 i - -- 1 Exhibit "D" I I I --' 75th STREETROW I I i t �_ tt,aa_6sgk ____--------771-7- it 1 ""/.-- t y'4/4111k111104/11lPUBLIC RESERVATION .F`, - - ` %I i y AREMVATERFRONT PARCEL I ' " i YIN; OCEAN TERRACE RIG T\\-/-1. ,11WA 'it, 4 �,�t l ,� 25, 0 6 k { � Cif _�_.�_-___ Y } J 1 ,4 r' I I �` i � 1 I tat aCT :a` ., I j ; 1'�h' ---,:--4z-..4,,_,:- EROSION CONTROL LINE w -- - PH2SURVEYDATEDI/2620I7 ��=.c+�' ti i,.r ^- PL4TSOOK 105,PAGE 62 ----- -- 11 S I DED 123o-199T r ii � � RECOR II i _� � � r -i 1 1 flINI I I �� .0 f I " `1r;i{ i ��rs: `� ' r'�w I i S't k t 1 r{? 7 i All il bs r_-- i rh1 ' i , tlitil -a_ rrMr.i i a '411141,1111,0, 4 µ, ,'2'..,:0\.,., ! " .-- r ®,t` -»+-- .�.._ latzl `vI { C I Row------anaSTRErg----I -- -1.- -- ir c - I : .,6\% , t•41MJ A - L ,,,i.___...„.„...-- .-"- GA \-. , Kr i t ''t',4 i ca k, ...,_ _ '`r te 1"!,.. i -6-.4.7. .i-"'".- '�I - n Page 693 of 1288 • MIAMI BEACH PLANNING DEPARTMENT Staff Report & Recommendation PLANNING BOARD TO: Chairperson and Members DATE:May 21, 20.19 Planning Board FROM: Thomas R. Mooney, AICP Planning Director SUBJECT: PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way — Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way — Zoning district change. PB 19-0294. Vacation of Portions of Ocean Terrace, 74th Street and 75th. Street. REQUEST PB 19.0292. Portion of Ocean. Terrace and 75th Street rights of way — Comprehensive Plan Amendment. AN ORDINANCE OF THE. MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE FUTURE LAND USE MAP OF THE CITY OF MIAMI. BEACH 2025 COMPREHENSIVE PLAN BY CHANGING THE FUTURE LAND USE CATEGORY PURSUANT TO SECTION 118-166 OF THE CITY CODE, AND PURSUANT TO ' SECTIONS 163.3181 AND SECTION 163.3187, FLORIDA STATUTES, BY CHANGING THE FUTURE LAND USE DESIGNATION FOR A PARCEL OF LAND LOCATED IN THE EAST HALF OF THE OCEAN TERRACE RIGHT OF WAY (BETWEEN THE CENTERLINE OF 74th STREET AND THE NORTHERN RIGHT OF WAY LINE OF 75th STREET AS SHOWN ON THE PLAT OF THE TOWNSITE OF HARDING, RECORDED IN PLAT BOOK 34, PAGE 4 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY), AND LOCATED IN THE 75TH STREET RIGHT OF WAY BETWEEN OCEAN TERRACE AND COLLINS AVENUE, AND WHICH IS COMPRISED OF LESS THAN 10 ACRES, FROM THE CURRENT DESIGNATIONS OF PF, "PUBLIC FACILITY," AND ROS, "RECREATION AND OPEN SPACE," TO THE FUTURE LAND USE CATEGORIES OF CD-2, "COMMERCIAL MEDIUM INTENSITY" AND MXE,. "MIXED-USE ENTERTAINMENT"; AND PROVIDING FOR INCLUSION IN THE COMPREHENSIVE PLAN, TRANSMITTAL, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. PB 19-0293. Portion of Ocean Terrace and '75th Street rights of way — Zoning district change. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE OFFICIAL ZONING DISTRICT MAP, CONSISTENT WITH THE REQUIREMENTS OF CITY CODE SECTION 142-72, "DISTRICT MAP," AND PURSUANT TO CITY CODE SECTION 118-162, "PETITIONS FOR CHANGES AND AMENDMENTS," BY CHANGING THE ZONING DISTRICT CLASSIFICATION FOR A PARCEL OF LAND LOCATED IN THE EAST HALF OF THE OCEAN TERRACE RIGHT OF WAY (BETWEEN THE CENTERLINE OF 74th STREET AND THE NORTHERN RIGHT OF Page 694 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294.Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. May 21,2019 Page 2 of 16 WAY LINE OF 75th STREET AS SHOWN ON THE PLAT OF THE TOWNSITE OF HARDING, RECORDED IN PLAT BOOK 34, PAGE 4 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY), AND LOCATED IN THE 75TH STREET RIGHT OF WAY BETWEEN OCEAN TERRACE AND COLLINS AVENUE, AND WHICH IS COMPRISED OF LESS THAN 10 ACRES, FROM THE CURRENT ZONING CLASSIFICATION OF GU, "GOVERNMENT USE DISTRICT," TO CD-2, "COMMERCIAL MEDIUM INTENSITY DISTRICT," AND MXE, "MIXED- USE ENTERTAINMENT" AND EXTENDING THE BOUNDARY OF THE OCEAN TERRACE OVERLAY ZONE TO ENCOMPASS SAID PARCEL OF LAND; AND PROVIDING FOR CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE DATE. PB 19-0294. Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. APPROVAL OF THE PLANNING BOARD, BY A 4/7THS VOTE, PURSUANT TO CITY CHARTER SECTION 1.03(b)(4), AND SECTION 118-51(11) OF THE CITY'S LAND DEVELOPMENT REGULATIONS, OF THE PROPOSED VACATION OF THAT PORTION OF (1) OCEAN TERRACE, BETWEEN THE CENTERLINE OF 74th STREET AND THE NORTHERN RIGHT OF WAY LINE OF 75th STREET AS SHOWN ON THE PLAT OF THE TOWNSITE OF HARDING, RECORDED IN PLAT BOOK 34, PAGE 4 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY (THE "HARDING TOWNSITE PLAT"), WHICH CONSISTS OF A 60-FOOT WIDE RIGHT OF WAY CONTAINING APPROXIMATELY 25,205 SQUARE FEET IN TOTAL LOT AREA; (2) THE NORTH HALF OF 74th STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 30-FOOT WIDE RIGHT OF WAY CONTAINING APPROXIMATELY 8,880 SQUARE FEET IN TOTAL LOT AREA; AND (3) A PORTION OF 75th STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 40-FOOT WIDE RIGHT-OF-WAY (ROW) CONTAINING APPROXIMATELY 11,840 SQUARE FEET IN TOTAL LOT AREA (COLLECTIVELY, THE "CITY RIGHT OF WAY AREAS"), AS SHOWN ON THE HARDING TOWNSITE PLAT, IN FAVOR OF THE ABUTTING PROPERTY OWNERS, G & V REALTY, LLC, 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, AND 7441 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "APPLICANT" ); FURTHER, PROVIDING THAT THE FOREGOING VACATION OF THE CITY RIGHT OF WAY AREAS SHALL BE SUBJECT TO AND CONTINGENT UPON THE APPLICANT'S SATISFACTION OF CERTAIN CONDITIONS, TO BE SET FORTH IN A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND THE APPLICANT, WHICH CONDITIONS SHALL, AMONG OTHER TERMS, REQUIRE THE APPLICANT TO (1) GRANT TO THE CITY A PERPETUAL UTILITY, ROADWAY AND PEDESTRIAN ACCESS EASEMENT OVER, ACROSS AND UNDER THE CITY RIGHT OF WAY AREAS; AND (2) OBLIGATE THE APPLICANT TO DEVELOP, DESIGN, AND CONSTRUCT, AT THE APPLICANT'S SOLE COST AND EXPENSE, CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET, WITH SUCH PUBLIC IMPROVEMENTS HAVING A VALUE OF NOT LESS THAN FIFTEEN MILLION DOLLARS ($15,000,000). RECOMMENDATION Transmit the proposed future land use map amendment, zoning district map amendment, and right of way vacation to the City Commission with a favorable recommendation.. HISTORY On December 12, 2018, the City Commission unanimously adopted the Ocean Terrace Page 695 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294.Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. May 21,2019 Page 3 of 16 Neighborhood Urban Design Plan that was produced by The Corradino Group and Garcia-Pons + Associates. The Finance and Citywide Projects Committee ("FCWPC") discussed how to implement the plan at its February 22, 2019 meeting. The FCWPC directed staff to explore ways to prioritize and fund the proposed public improvement project. During the February 22, 2019 FCWPC, staff reported that after review of funding alternatives for the approximate $15M that would berequired to bring the Ocean Terrace Park Plan to fruition, the administration recommended the City explore entering into a public-private partnership througha development agreement. The Administration requested the opportunity to solicit potential public/private partnership options to fund the Ocean Terrace Neighborhood Urban Design Plan. The FCWPC agreed and ask the Administration to return with potential partners, At the March 22, 2019 FCWPC meeting, the administration returned with a potential public/private partnership with Ocean Terrace Holdings, LLC, one owner fo adjacent lots on the west side of Ocean Terrace. The FCWPC reviewed the conceptual plans and recommended that the City Commission refer a discussion to consider the vacation of portions of Ocean Terrace, 74th Street and 75th Street in favor of Ocean Terrace Holding, LLC and to determine whether the City should negotiate a development agreement that provides for a public benefit. The development agreement could generally involve the vacation of certain rights-of-way on and adjacent to Ocean Terrace in exchange for a public benefit to fund and/or construct the Park Plan. The FCWPC recommended that the Administration retain a consultant to assess the economic benefits that the proposed project would provide and to proceed with discussions with Ocean Terrace Holding, LLC and to return to the FCWPC with the terms and conditions, including the public benefits and economic impact. The FCWPC further recommended that the item be referred to the Land Use and Development Committee, as well as the Planning Board. - On April 10, 2019, at the request of Commissioner Ricky Arriola, the City Commission referred the proposed ordinances to the Land Use and Development Review Committee and the Planning Board (Item C7 I). BACKGROUND The administration has retained consultants at the developer's expense to assess the economic benefits that the proposed project would provide and to conduct an appraisal. The administration has also been authorized on to negotiate a Development Agreement with Ocean Terrace Holding, LLC (and affiliates/Ocean Terrace property owners), to evaluate the public. benefit of such an agreement, including but not limited to the vacation of portions of the Ocean Terrace and 74th / 75th Street rights of way, and to evaluate the impact of such a development agreement will have on the City and the Ocean Terrace/North Beach corridor. REVIEW CRITERIA Pursuant to Section 118-163 of the City Code, in reviewing a request for an amendment to these land development regulations, the board shall consider the following when applicable: 1. Whether the proposed change is consistent and compatible with the comprehensive plan and any applicable neighborhood or redevelopment plans. Consistent—The proposed LDR ordinance is consistent with the goals, objectives, and Page 696 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 190293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294.Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. May 21,2019 Page 4of16 policies of the Comprehensive Plan as proposed to be amended. 2. Whether the proposed change would create an isolated district unrelated to adjacent or nearby districts. Consistent — The proposed amendment provides for an extension of existing district boundaries. 3. Whether the change suggested is out of scale with the needs of the neighborhood or the city. Consistent - The proposed ordinance amendment is not out of scale with the surrounding neighborhood. 4. Whether the proposed change would tax the existing load on public facilities and infrastructure. Consistent — The proposed ordinance will not affect the load on public facilities and infrastructure. 5. Whether existing district boundaries are illogically drawn in relation to existing conditions on the property proposed for change. Consistent — The existing district boundaries do not extend to the centerline of the roadways. The proposed change would provide for more logically drawn boundaries for the affected areas. 6. Whether changed or changing conditions make the passage of the proposed change necessary. Consistent—The need to encourage redevelopment in the Ocean Terrace area and implement the Ocean Terrace Neighborhood Plan makes passage of the proposed change necessary. 7. Whether the proposed change will adversely influence living conditions in the neighborhood. • Consistent — The proposed ordinance amendment will not adversely affect living conditions in the neighborhood. 8. Whether the proposed change will create or excessively increase traffic congestion beyond the levels of service as set forth in the comprehensive plan or otherwise affect public safety. Consistent — The proposed change will not create or increase traffic congestion from what is currently permitted. 9. Whether the proposed change will seriously reduce light and air to adjacent areas. Consistent—The proposed change will not reduce light and air to adjacent areas. Page 697 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 190293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294.Vacation of Portions of Ocean Terrace, 74th Street and 75th:Street. May 21,2019 Page 5 of 16 10. Whether the proposed change will adversely affect property values in the adjacent area. Consistent — The proposed change should not adversely affect property values in the adjacent areas. 11. Whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations. Consistent — The proposed change should not be a deterrentto the improvement or development of properties in the City. 12. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning. Not applicable. 13. Whether it is impossible to find other adequate sites in the city for the proposed use in a district already permitting such use. Not applicable. COMPLIANCE WITH SEA LEVEL RISE AND RESILIENCY REVIEW CRITERIA Section 133-50(b) of the Land Development Regulations establishes the following review criteria when considering ordinances, adopting resolutions, or making recommendations:. (1) Whether/the proposal affects an area that is vulnerable to the impacts of sea level rise, pursuant to adopted projections. Consistent—The proposal affects an area with an elevation above the City's long-term sea level rise projections, therefore it does not affect areas that is directly vulnerable to the impacts of sea level rise. (2) Whether the proposal will increase the resiliency of the City with respect to sea level rise. Consistent—The proposal will allow for the rebuilding of Ocean Terrace with additional open spaces that will improve the resiliency of the City, (3) Whether the proposal is compatible with the City's sea level rise mitigation and resiliency efforts. Consistent•—The proposal does not diminish and is compatible with the City's sea level rise mitigation and resiliency efforts. Page 698 of 1288 Planning Board PB 19-0292.Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294. Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. May 21,2019 Page 6 of 16 PLANNING ANALYSIS Zoning/ Site Data Site Area: 15,045 SF/0.345 AC Existing FLUM Category: Recreation and Open Space (ROS) Public Facilities (PF) Proposed FLUM Category: Mixed Use Entertainment Category(MXE) Medium Intensity Commercial Category(CD-2). Existing Zoning Designation: GU, Government Use District Proposed Zoning Designation: MXE, Mixed Use Entertainment District CD-2, Commercial, Medium Intensity District Existing Land Uses: North: Public Library& Public Parking Lot East: Dunes & Beach South: Residential Buildings West: Commercial Buildings The Proposal The proposal is to change the future land use and zoning designations of portions of the Ocean Terrace Right of Way(ROW) northeast of the midpoint of 74th Street and of the southern portion of the 75th Street ROW east of Collins Avenue, to be consistent with the abutting private property. Portions of the ROW will then be vacated with a perpetual access easement being granted to the City. This will allow the developers of the abutting property to utilize the FAR from the vacated ROW, in exchange for making improvements to Ocean Terrace and side streets between 73rd and 75th Streets, consistent with the adopted Ocean Terrace Neighborhood Plan. A development agreement is proposed as well, which will provide the details and enforcement mechanisms of the proposal. Currently, the affected ROW area located along Ocean Terrace and the eastern half of the affected part of 75th Street has a Future Land Use Map (FLUM) designation of ROS. The western half of the affected part of 75th Street has a FLUM designation of PF. See attached map. The proposal is to change the FLUM designation of the affected portion of Ocean Terrace and the eastern portion of the affected part of 75th Street to MXE, to be consistent with the abutting parcels. The western portion of the affected part of 75th Street is proposed to change to CD-2, to be consistent with the abutting parcels. The affected ROW areas have a zoning designation of GU. It is proposed that the zoning be changed to MXE and CD-2, consistent with the aforementioned FLUM amendments. Comprehensive Plan Process The total land area involved in this application is 0.345 acres (15,045 SF). Under Section 163.3187 F.S., land use map amendments of less than 10 acres in size may be considered "small-scale" amendments, which require only one public hearing before the City Commission, which shall be an adoption hearing. Upon adoption, the local government shall send a copy of the adopted small-scale amendment to the State Land Planning Agency so that the Agency can maintain a complete and up-to-date copy of the City's Comprehensive Plan. Page 699 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294. Vacation of Portions of Ocean Terrace,74th Street and 75th Street. May 21,2019 Page 7 of 16 Interlocal Agreement for Public School Facility Planning The 2005 Florida Legislature adopted laws which are incorporated in the Florida Statutes, requiring each local government to adopt an intergovernmental coordination element as part of their comprehensive plan, as well as a statutory mandate to implement public school concurrency. Currently there is a proposal to change the use of the site to a hotel. If there were a modification that established residential units, final site plan approval is contingent upon meeting Public School Concurrency requirements and the applicant will be required to obtain a valid School Concurrency Determination Certificate (Certificate) issued by the Miami-Dade County Public Schools. Such Certificate will state the number of seats reserved at each school level. In the event sufficient seats are not available, a proportionate share mitigation plan shall be incorporated into a tri-party development agreement and duly executed prior to the issuance of a Building Permit. Summary The proposed amendment to the FLUM of the City's Comprehensive Plan and the change to the Zoning Map require that these amendments be processed together, as they are interrelated to one another; however, separate motions must be made for each application. The amendments will provide for consistency between the FLUM and the Zoning Atlas. The change will allow for the implementation of the Ocean Terrace Neighborhood Plan. ROW VACATION ANALYSIS Section 82-38 of the Code of the City of Miami Beach requires that any proposed sale or lease of City-owned land be analyzed from a planning perspective so that the City Commission and the public are fully apprised of all conditions relating to the proposed sale or lease. The proposal is to vacate the western half of Ocean Terrace between 74th and 75th Streets, the southern half of 75th Street east of Collins Avenue, and the northeastern portion of 74th Street east of Collins Avenue (See the "Right of Way Vacation Area" map at the end of this report). The right of way contains approximately 45,920 SF/1.054 AC in total lot area. A perpetual public access easement will be provided, allowing for the area to continue to function for vehicular and pedestrian access. In exchange for the vacation, the developer of the adjacent Ocean Terrace properties will build out the proposals in the Ocean Terrace Neighborhood Plan for the portions located along Ocean Terrace and side streets between 73rd and 75th Streets. The Ocean Terrace Neighborhood Plan calls for turning Ocean Terrace into a pedestrian oriented streetwith park areas. (See the attached summary of the vacation agreement and related exhibits) The following is an analysis based on the criteria delineated in the Code: 1. Whether or not the proposed use is in keeping with city goals and objectives and conforms to the city comprehensive plan. Consistent-The vacated ROW will continue to be used for public purposes. Vehicular access and limited parking will remain on side streets, while Ocean Terrace will become a pedestrian area. It will continue to provide public access to the beach and pedestrian facilities will be greatly enhanced. Additional park spaces will be created and access to Page 700 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294.Vacation of Portions of Ocean Terrace,74th Street and 75th Street. May 21, 2019 Page 8 of 16 the beach will be improved. This is consistent with the Comprehensive Plan Conservation/Coastal Zone Management Element Objective 10, which states the following: Objective 10: PUBLIC SHORELINE ACCESS Increase the amount of public access to the beach or shoreline consistent with the estimated public need. Since the developer will be contributing to the development of recreation facilities and enhancement of adjacent recreation areas and open space, the proposal is also consistent with Recreation and Open Space Element Policy 3.5,, which states the following: Policy 3.5 The City of Miami Beach shall continue to use the Land Development Regulations of the City Code as standards and incentives which encourage private sector development projects to landscape required open space, develop private recreation facilities on site, and through the impact fee requirement, contribute to the enhancement of adjacent public recreation and open space. 2. The impact on adjacent property, including the potential positive or negative impacts such as diminution of open space, increased traffic, noise level or enhanced property values, improved development patterns and provision of necessary services. Based on the proposed use of the property, the city shall determine the potential impact of the project on city utilities and other infrastructure needs and the magnitude of costs associated with needed infrastructure improvements. Should it become apparent that further evaluation of traffic impact is needed, the proponent shall be responsible for obtaining a traffic impact analysis from a reputable traffic engineer. Consistent.— No negative impacts are anticipated by the proposal. The ROW being vacated by the City is proposed to be within the Mixed-Use Entertainment Category (MXE) and Medium Intensity Commercial Category (CD-2) future land use category. These categories allow for a maximum floor area ratio (FAR) of 2.0. Vacation of the 45,920 SF of ROW will allow approximately 91,840 additional square feet to be developed within a unified development site with the adjacent parcels. • Though a ROW is proposed to be vacated, no construction is being proposed within the vacated ROW;therefore, there will be no diminution of open space. The vacated area will be rebuilt consistent with the Ocean Terrace Neighborhood Plan which will provide for additional open spaces. • Vacation of the ROW will not affect the transportation network, as vehicular access will be maintained. The use of the floor area that is made available from the vacation of the ROW could potentially generate up to approximately 34 peak hour trips if used for residential purposes. This does not represent a significant increase in peak hour volumes, and the level of service adopted in the Comprehensive Plan will continue to Page 701 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PS 19-0294.Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. May 21,2019 Page 9 of 16 be maintained along Collins Avenue, Harding/Abbott Avenue, and Indian Creek Drive Sub-Area within the North Beach Transportation Concurrency Management Area. • No noise level impacts are anticipated from the vacation, as the use of the property will remain open and the use will be similar in nature. • The appearance of the property will improve with the proposed vacation, as the approved development proposal includes open space, pavers, landscaping, wider. pedestrian paths, and other enhancements consistent with the Ocean Terrace Neighborhood Plan. These improvements should enhance surrounding property values. • Vacation of the ROW will allow for improved utilization of the adjacent parcel, and. lead to improved development patterns throughout Ocean Terrace and the North Beach area, which is in need of economic redevelopment. • Vacation of the ROW way will not impact adopted levels of service for public infrastructure. Compliance with parks and transportation concurrency for utilization of the floor area that maybe utilized within a unified development site will be determined and mitigated in conjunction with the building permit process; however, no additional utilities or infrastructure are expected to be necessary. 3. A determination as to whetheror not the proposed use is in keeping with a public purpose .and community needs, such as expanding the city's revenue base, creating jobs, creating a significant revenue stream, and improving the community's overall quality of life. Consistent - This proposal expands the City's revenue base by adding' untaxed public property to the tax rolls. The additional floor area that is made available to the adjacent property will improve the viability of a new development and create additional taxable value. •In addition, the agreement will allow for the implementation of the Ocean Terrace Neighborhood Plan which will beautify the street and create larger public spaces and enhance the surrounding community. 4. A determination as to whether or not the development is in keeping with the surrounding neighborhood, will block views or create environmental intrusions, and evaluation of the design and aesthetic considerations of.the project Consistent - The surrounding neighborhood will not be negatively affected. The ROW area will remain undeveloped and a public access easement will be provided. As a result, it will not lead to the blocking of views. No environmental intrusions will be created by the proposed ROW vacation. 5. The impact on adjacent properties, whether or not there is adequate parking, street and infrastructure needs. Consistent —Vacation of this ROW will not affect the parking or infrastructure needs of adjacent properties. Surrounding properties are not dependent on the parking provided within this ROW should it be removed in the future. It is expected that public parking will be provided immediately to the north and to the southwest of the proposed vacation. 6. Such other issues as the city manager or his authorized designee, who shall be Page 702 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294. Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. May 21,2019 Page 10of16 the city's planning director, may deem appropriate in analysis of the proposed disposition. Not applicable -The Planning Department has no other issues it deems appropriate to analyze for this proposal. RECOMMENDATION In view of the foregoing analysis, staff recommends that the Planning Board transmit the proposed future land use map amendment, zoning district map amendment, and right of way vacation to the City Commission with a favorable recommendation. • Page 703 of 1288 Planning Board - PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 190294.Vacation of Portions of Ocean Terrace, 74th Street and 75th Street. 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May 2.1,2019 Page 14of16 Proposed Future Land Use ,A.-,?‘.:4:;*,°,titti.—.., li t 14.1411M41;41 . ilf. 4:411 41(4- .Pr 171 i• 9 a r t:'.."-:.;',43"0,1-%,,c' . k 4 t's .: '��,+' e pp j#PI ,' „ter . ,,¢fie' Y.:" -V gr :, as 'R'74.';‘• 'of, --.1:-',Ii.,.'.- .;, $ .- 1'k; '� e k� z l' f}i $ r ,, £ a. '1010 fie- 'z. , l .` Tit'! x ° :-`k 1; -:1:: , kk-tft*.' .:,:::,:,.....:;,;,,,4::: - B.., :>,,b „-110,1111, -,,,,,t,v ::>r44...43,0,0"...:::::404: - F. o F rrSV-Vr-#.41...4.4EfIt,i's ::,:..,7,0,0.°./..':L,,z,?.."...:.:.:74*i-c,•-A., -,,,.;:!..4,6g..4-0,41 7 4.(0i,"1". AS°W.,A4A,! ,,,,,,e....'"'s'''''' FITO ,'"...,"114,..r t::-.... V' )..l..),1 ',... 4.,-,..„0,e,„.,,,,„, A ��}.�q 41-4t...:4, ,pts:2',+pt ', .v.,,i.it, t.,..,..)., �,,,-07, k ai .aW� "41.,:oY sa rt xis Pi. ��R..tt dam} .,Y✓'£` �a' -.. �. ,,„„r, 9' +S^ ] i,„z,,.., .„ v........1151.,at,-,;;;.'''L4'vir.,j,*:•I ( -''',, . .'a i>,� a ,Edger vL. 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May 21,2019 Page 15 of 16 ' Existing ti ;Zo n_tn,g •. t1}'#�P �^ r k ;$,a, t,-,, '� k `A ,i,..n, ..-. ,...64.k4.-;,=4.,,,k14.- '.;-, ',-4 -,-,,,,,I.:;--..., -ii,-..-.:4?-ztzkle-";:7$t:"qr.-3 l'.- '-,-->1,,•-) ;ti,::R.'14,,,,,74-4Altit0,:-/".th p,Ilf.•tied311.6-id ric*,,,ir ,i.,g-::, ,•,t4,,-i ' .,,,:1.42,,,,,,Vr; ^r 0fi ,, . ' R-: r. t. Y 3 a � t rti ,,:ro; S` ». t ---z-,.., ....?0,r,..,..%.**.,,*.ww,v.-:,-,wirgtygp,--som, ,-1--2-1.,:torai-4,- zpkie4,Arit --..34 . ,.:- 1.$,!,,-4,-.:„ 4 ;' "a, T4 s } 1 7x r / .v `i POI ti k ''4iritall'e:lir ,1,1'4'44.7'hl 44{4;'',W,.".' ,14.''':4'4,4'It tT,.,At, 4,53 iii4,Xii,';',A --,4:71rST P5 ! T , a'1� ?fir `i; t `' ; '- • ' i 9 i„ i7 0, .,# Fitwo m " i gl M iit 17 Y� Zolti v,,„ fi:_ 4.4 Y•4 ,, a d. v :.+. `3 ate+ t `°{ ' "4.... ..,,.. q, ;. r, ,� ' ` '114 _ .G. .� , J $'i' ,%x'. -.1frtr. , .ek f111( .k I• ,'.�i4 _ t;1.,;',ir-',F.-'7';,, tt R N is � r ,� a it.erle,orbos vittr-::::,.-tbk,.:,,,:-:!,7;,..':-. ,-4,-,::°,4;,..01k,.,'.l:if-Att,s iii-,v ';-,4';:r e it'ii-, ''4,- 0 .,,,fi,,,,v-z,, r, „.464,14e.,w,zzipti4,:t...,p ,,,,. .. ..-,.,;-.7t 1:,v‘Iiio,& k_c_lciv... , d gall ?; i d 't I t,, }�z, s r ai x 2D $ } t C: ak0,,i...4" • '+ i3toi 140:4X-0 4 i'...4' any ti. i. m 1.��tt . a .,P-es ,. � ; "` „,-* -4L -al, 0. - i '‘,,., ,...—,,3....—. ,-,?3,,to'-,-,, ,,4-1,q.„4-..v4r4:1;,-/4,!.v;--:1„...-rtirl -, _,. ,,,,-,:-.,,,:l..!. ,c;,44-1 v'rfii, ,,,..4,',,,;.,..„:2,/,:.. _ ..--,----',v6,..-..‘,JA.;.!)„--00.11-Avivi:14.s. -.;_?4,..- -,,...,..„4.,„‘., ,....t. .,1,. ... ir „„,...„, Ii,i.,,-F'..,:.--I..:',...]-34.,..4-4„..,,,14 ',,i,„1,..:,„41-#4.44.7.,,t,„ ...,,,j;,:4,1,,,)1%,c,;.3,....>,.,,, ,,,,j, .4 fig_ � � _ '„, :14 .,.. ..1.-,. :„.„ ?..1.titirik.,,,,,...v,4:::. .0:,,,,t,trt ',.--4*,' tr t a"4„� x7 , j} a ,# 1,404 ,1. ,,,.. w 'LRF',„ rriY 2 '. A ..�... v1* ,°('t, l h �,� � ,, }� Iy�4 75*,. '150: 3.p Fdet.. ( •, . .<; ,x 4 44 2. . . I I. r I I r I r • 1 Page 708 of 1288 Planning Board PB 19-0292. Portion of Ocean Terrace and 75th Street rights of way—Comprehensive Plan Amendment. PB 19-0293. Portion of Ocean Terrace and 75th Street rights of way—Zoning district change. PB 19-0294.Vacation of Portions of Ocean Terrace,74th Street and 75th Street. May 21,2019 Page 16 of 16 Proposed e Zoning. tft ii'sCr.","0,":!';,..'4'''''1'"-I/ '''_, ,..,,''---V.V4W!';',0„.',4.4.,:_ setf:,,r; ,,, +' .4itti T.,0,,t'i't' eY 4,? ,.„ �3 ..t.d'b 5 'bpi a ,, A P , ,' c sto � '4- H-;--;"-:-2., "1.4,. fie. ,VOTOf• F '' 4 _ p 3 A. tY, W :s. ..tViv ' � - `' " Tr: ,.W rx ,. 9 7 " . • .4 ,f 1.c , .1. a?g ' ��', ,, ,,, ,,•,9,:y.,,yitr-,;,4-11.4,,g,‘,- , -4,--er,c4;,,' r vt,t.-0?4,4t--4-4).49f,,,,,,„ ,,,.,„:,33,,A,*.ifitizA ` a ..-,./..-- a {„' .�, ., .sem ''. wt "" --1.;<4.°J .;,./1es v 4S i '1: 4 1 ax " •< S bi Pfl J i � �t A ..g�i9f 3Y#' { rrill7'''..-its,trrAtitcP,r( i4t-s.,',1,1k4 ittroe4t,ini.,,inf. ,,I, yb 1. / P,i(,,,,riNnivi-044,-11 ,‘,„'e_.„74,'.',,r,4,,..4:,..v„,.;`• 0,4"-r4e:'1:'':" ,, 7' p "Ps<NI,NT,-t-..,,-9),. ..„ ,-0,00-1')$10 l'4 'or, -!---,•-- --:;,--,-q-N-,..1-1 :f". f'.??."----$.3.."-4*wiritip.i4,4 -;,-1.;!, .,,*0;0• ...%:i [ , „ate-„E, ,s _, a ,a mR.. I k. x a a Al ',. i i ; �' a .a,%.*,,, 44.1,41, ,� x '11:',,4 3,4 ,7�,.' i.�`4`vi ,,,, S"4 " '� e4, 41' . ,, F3 a tie ' " _a It i :i.cit ,0: ' �& -,,,,,,k4'Rtl ,1ce''+ 7 Y 1 aE 3_ rooxii _ 41 t. 3 .0 ec -4%....,,, .0 75 150 A . r iir ri , ,, Page 709 of 1288 APPRAISAL REPORT OF THE CONTRIBUTORY VALUE OF PROPOSED VACATED PORTIONS OF OCEAN TERRACE, 74TH STREET AND 75TH STREET TO BE UTILIZED IN CONJUNCTION WITH A REDEVELOPMENT SITE LOCATED AT 7400-7450 OCEAN TERRACE AND 7409-7449 COLLINS AVENUE MIAMI BEACH,FLORIDA DATE OF VALUATION: JULY 3,2019 J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 710 of 1288 J. ALHALE APPRAISALS, INC. REAL ESTATE APPRAISERS AND CONSULTANTS 3475 SHERIDAN STREET, SUITE 313 HOLLYWOOD, FLORIDA 33021 JOZEF ALHALE,MAI CELL: (305)613-7477 STATE CERTIFIED GENERAL APPRAISER E-MAIL:jbalhale@aol.com NO. RZ0001557 WWW.jalhaleappraisals.com July 8, 2019 Mr. Eric T. Carpenter, P.E. Assistant City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Re: Proposed Vacated Portions of Ocean Terrace, 74th Street and 75th Street, as described herein Miami Beach, Florida Dear Mr. Carpenter: Pursuant to your request for an appraisal of the above referenced property, I submit the following appraisal report. Legal Description: The proposed to be vacated portion of Ocean Terrace, 74th Street and 75th Street surround the developer's site which is legally described as Lots 1 through 13, Block 1, Harding Townsite,as recorded in Plat Book 34,Page 4 of the Public Records of Miami-Dade County,Florida The developer's site is a 96,300 SF city-block which is bounded by Ocean Terrace,Collins Avenue, 74th Street and 75th Street,with the exception of the 7,300 SF site located at the northeast corner of 74th Street and Collins Avenue,Miami Beach,Florida. The developer's site has 350 feet of frontage along the west side of Ocean Terrace, 150 feet of frontage along the north side of 74th Street, 300 feet of frontage along the east side of Collins Avenue and 296.1 feet of frontage along the south side of 75th Street. The developer's site is currently improved with several boarded-up and occupied buildings, including a 2-story boarded-up 16-unit rental apartment building built in 1961 at 7400 Ocean Terrace;a 2-story boarded-up 39-room hotel building built in 1951 at 7410 Ocean Terrace;a 2-story boarded-up 20-room hotel building built in 1947 at 7420 Ocean Terrace; a 2-story 39-room hotel building built in 1951 at 7430 Ocean Terrace;a 3-story 49-room hotel building built in 1940 at 7436 Ocean Terrace; a 7-story 93-room hotel building built in 1940 at 7450 Ocean Terrace; a 2-story commercial building with 13,034 SF of adjusted building area,built in 1948 at 7449 Collins Avenue; a 1-story commercial building with 6,073 SF of adjusted building area,built in 1952 at 7441 Collins Avenue; Page 711 of 1288 Mr. Eric T. Carpenter, P.E. July 8, 2019 Page Two a 1-story commercial building with 4,913 SF of adjusted building area,built in 1940 at 7439 Collins Avenue ; a 1-story commercial building with 5,717 SF of adjusted building area, built in 1958 at 7433 Collins Avenue; a 1-story commercial building with 4,753 SF of adjusted building area,built in 1941 at 7421 Collins Avenue; and a 1-story commercial building with 3,375 SF of adjusted building area,built in 1950 at 7409 Collins Avenue. The existing mostly low-rise improvements which are all older than 60 years, contain a total adjusted building area of 142,012 SF,while the overall site can be improved with up to 192,600 SF. In addition,the City of Miami Beach and the developer are negotiating the"vacation"of the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site,the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The vacated area which would be at the north end of the Ocean Terrace, contains a total land area of 45,924 SF which would contribute an additional 91,848 SF of buildable area to the development of the developer's overall site,based on the maximum permitted Floor Area Ratio (FAR) of 2.0, thereby increasing the developer's total buildable area from 192,600 SF to 284,448 SF (indicating a 47.7% increase). It is my estimate that the contributory value of the Fee Simple Interest in the "vacated"property (described as the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of'74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350- foot long along the east side of the developer's site, which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area,based on the maximum permitted Floor Area Ratio of 2.0), as of July 3, 2019,was: CONTRIBUTORY MARKET VALUE OF THE FEE SIMPLE INTEREST IN THE PROPOSED "VACATED" RIGHT-OF-WAY AREAS TO BE UTILIZED IN CONJUNCTION WITH THE DEVELOPER'S SITE, AS DESCRIBED HEREIN TWELVE MILLION FOUR HUNDRED THOUSAND DOLLARS ($12,400,000) Sincerely, Jozef Alhale, MAI, CCIM State Certified General Appraiser License No. RZ 0001557 \19-07-01 Page 712 of 1288 TABLE OF CONTENTS PAGE NO. SUMMARY OF SALIENT FACTS AND CONCLUSIONS 1-3 PHOTOGRAPHS OF THE SUBJECT PROPERTY. 4-5 PURPOSE/FUNCTION OF THE APPRAISAL 6 SCOPE OF THE APPRAISAL . 6 PROPERTY RIGHTS APPRAISED. 6 DATE OF VALUATION AND REPORT. 7 STATEMENT OF OWNERSHIP AND HISTORY 7-8 ESTIMATED MARKETING AND EXPOSURE PERIOD 8 DEFINITION OF MARKET VALUE. 8-9 NEIGHBORHOOD ANALYSIS. 9 ACCESS TO THE SITE 10 DESCRIPTION OF THE SITE 10-11 UTILITIES. 11 FLOOD ZONE. 11 ZONING. 11 ASSESSMENT AND REAL ESTATE TAXES. 12 MULTI-FAMILY RESIDENTIAL MARKET OVERVIEW 13-15 HIGHEST AND BEST USE DEFINITION. 16 HIGHEST AND BEST USE, AS VACANT. 17-18 THE VALUATION PROCESS 19 THE SALES COMPARISON APPROACH TO VALUE. 20-25 RECONCILIATION AND FINAL VALUE ESTIMATE. 26 CONTINGENT AND LIMITING CONDITIONS. 27-28 CERTIFICATION 29-30 ADDENDA 31 QUALIFICATIONS (Jozef Alhale, MAI, CCIM). 32 J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 713 of 1288 L - _ - _I EXHIBIT ""A" (FIRST STREET-PLAT BOOK 34 PAGE 4) _\__ 75TH STREET (PUBLIC RIGHT OF WAY) CENTERLINE OF 75TH STREET r W I LOT 8 I LOT 1 Oj o w5 co 7a D WN - O Z~,7-�3 `+' I ° I LOT9 LOT2 I / p HI— —I 40' I LOT 10 LOT 3 pLI X03 L 0 C K 6o' W a TOWNSITE OF HARDING 0 W O I LOT ti PLAT BOOK 34 PAGE 4 I w Q m p LOT I U-Qat a 0 z — _ CC Yo VJ I DLL' I U <Z W S • a 7-I a in LOT 12 LOT 5 tL C7 eL 6I Z o J U W L01-13 LOT 6 U LL H I O cc HWEST LINE EAST LINE POINT OF �OF LOT 14 OF LOT 14� BEGINNING 1// LOT 14 S.E. CORNER OF LOT 14 LOT 7 $02'58'50"E SOUTH UNE " NORTH RIGHT OF WAY UNE 30.00' OF LOT 14 NO2'S8'S0 W OF 74Th STREET S86'59'28'W 7146.00' 30.00' 0 S.W. CORNER CENTERUNE OF----\ \ 74TH STREET n OF LOT 14 74Th STREET (PUBLIC RIGHT OF WAY) N86'59'28"E 146.00'0o (THIRD STREET-PLAT BOOK 34 PAGE 4) Drawn By MAP SKETCH OF DESCRIPTION 1 Date 3/14/19 ^ad. No. 190176 Scale 1"=60' Ref. Dwg. F' ORTIN, LEAVY, SKILES, INC. Job. No. 190176 2016-170 CONSULTING ENGINEERS, SURVEYORS & MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—I 180 Northeast 1 6Rth. Street/North Miami Beach,Florida. 33162 Plotted: 3/14/19 t0:t0aJ Phone: 305-653-4493 /Fax 05- 5.1-7IOz/.Hail flsaflssurvey.com J `Sheet 2 of 3 1 EXHIBIT "A" 75TH STREET f i Z 1 ¢ I�z w <'c Q AIM o } U 1 74TH STREET z w g Q 0 O e Lu 1— w U 0 73RD STREET 72ND STREET /,�) 1,ov�lll( R I illit H r 1111 GRAPHIC SCALE �I�p lllll 0 30 60 120 \\ I N ( IN FEET ) 1 inch = 60 ft. Drawn By MAP LOCATION SKETCH Date 3/14/19 i "ad. No. 190176 Scale NOT TO SCALE Ref. Dwg.I F ORTIN, LEAVY, SKILES, INC. Job. No. 190176 2016-170 CONSULTING ENGINEERS, SURVEYORS & MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007-1 1 80 Northeast 1 68th. Street/North Miami Beach,Florida. 33162 Plotted: 3/14/19 10:100J Phone: 305-653-4493/Fax fls@flssurvey.com Sheet 3 of 3 J Parker Island OKEECHOBEE ST LUC t \•716 , - HIGHLANDS 7p Sherman North Riv`. S .repo ,„Jensen Beach Bear Bluefield ° Hollow Up the Grove Beach "• r r o StuartFruity Marcy ,..,Zana Mayarmir• Buckhead MARTI Nobe Sound Ridge olndiantown 95 'Jupiter "' _•` "'"" GLADES ., 7r; Island -- Sarasota Bessemer 71p 7equesta Lakeport Colony ' Sand Cut Roodo West Jupite Jupiter Canal Point Delta L Pointy Pahokee. Bryant o 'aim Beach Gardens Moore Haven ;cr, Bog Jiviera Beach Clewiston Goodno Shawnee - Runyon RoyallMilnep j Harlem „South Clewiston'=' of West Palm Beach Belle Glade °a Beacho _ c erhill South Bay Dahlberg Wellington .alm ake Worth - ,.Y ,_-„ ,r w , ....- 0 keelan Okeelanta S. ngs F L O R I D AA L f� B E A C H South Palm Beach olf oYnton Beach 27 Hillsboro Delray ores OoGulf Stream Canal Delray Beach Highlan. Beach HENDRYUniversity P!rk f;,' _Boca Raton Parkt !I Big Cypress I.R. 3. Tarrytown tj Hillsboro Beach Florida State Chiral Sprin' rgate Miccosukee I.R. Cocon )Cree I Pompano Beach to •,._,• •' 7g / S rise Lauderdale-by-the-Sea B R © W A R ( c Lauderdale-b the-Sea Wheel AndytownCI Coral Estates Swamp, 0 DevdCVe site o Turkey Foot Coo CI r Jessie p tYo 7 � Ter Great Isaac Ishii •' COLLIER „Willies Pembroke P es1 olly Miami Beach,FL 3314t Big Cypress 0 858 a National Preserve Carol o�8 p Ojus Little Ise- hopee Mart Law Opa-L t, 01orth Miami Seminole Village 0Trailtown I$aleah,.. tMi1 1j Shores ,• Monron'Paolita Station 921 Miami Beach Station Trail Center Miami ' nn's ' Trail CityW�tG•,- �a, iuston Pinecrest a1 Coopertown Fi ❑ Miami Alice Towno \or[h Bimini Chatham Westwood Lek,. F. Coral Gables Bimini endall Islands '` MIAMI-DADS 'ichmond Heights The Everglades I. Barnett Harbour Lostmans Princeton Cutter Ridge i' v North Cat toy MONROE Homestea f South Allapattah etsure City Squawk Creek Florida HameyBiscayne City National Shark North Park Roberts Grayvik Joe Everglades National Park Bear Lake The Lungs I Lake Middle Lake Ingraham Flamingo Newport,'Key Largo o - Florida ke.. Thompson Rock Harbor - Florida Bay G U J f 0 ( 'Tavernier . Plantation Orange C'', Mexico lslamorada Craig:. Layton - ' Atlantic Marathon Key Colony Ocean Beach 0 mi 10 20 30 40 50 Copyright©and(P)1988-2012 Microsoft Corporation and/or its suppliers.All rights reserved.http://www.microsoft.com/streets/ Certain mapping and direction data 02012 NAVTEQ.All rights reserved.The Data for areas of Canada includes information taken with permission from Canadian authorities,including:©Her Majesty the Queen in Right of Canada,©Queen's Printer for Ontario.NAVTEQ and NAVTEQ ON BOARD are trademarks of NAVTEQ.©2012 Tele Atlas North America,Inc.All rights reserved.Tele Atlas and Tele Atlas North America are trademarks of Tele Atlas,Inc.©2012 byApplied Geographic Solutions.All rights regee�PoQ%f©�ppxrjght 2012 by Woodall Pubications Corp.All rights reserved. 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Creek Al NEa 81st St 934 E� ydllage Allison Park Pelican Harbor I re:mire Mand Park 'Biscayne rii Bay Aquatic 907 Miami 48aywood Park Preserve Biscayne Bay Bird hes • Miami Beach 1 I.rgion Picnic Island O N U • O 0 ri Morningside –t Miami Beach *Park Q'a NIurningsidc Picnic Islands OC • P-L- _ Indian _• 3 Beach Park �7 � t a 'i- ' �ll�����i [1 �171�j 1f: 4Pine Tree Park • Polo Pari 1 �� Mt Sinai Medical Center QQ Miami Beach -- --112 – — 112 907 v ci AlA tiunect Isiandlr fl� 4 _ iD1-1.-;CL • __...,__=.__ __ __..i__ _.. _0 mi 0.5 1 1.5 2 Copyright©and(P)1988-2012 Microsoft Corporation and/or its suppliers.All rights reserved.http.'/ww-w microsoft.com/streets/ Certain mapping and direction data©2012 NAVTEQ.Al rights reserved.The Data for areas of Canada includes information taken with permission from Canadian authonties,including:©Her Majesty the Queen in Right of Canada,©Queen's Printer for Ontario.NAVTEQ and NAVTEQ ON BOARD are trademarks of NAVTEQ.©2012 Tele Atlas North Amenca,Inc.All rights reserved.Tele Atlas and Tele Atlas North Amenca are trademarks of Tele Atlas,Inc.©2012 by Applied Geographic Solutions.All ngttss rresseeed.1 drron f fppxnnht 2012 by Woodall Publications Corp.All rights reserved. 1....41,,‹....�.....111.1. I..,1-/VI.L. Flood Map Report For Property Located At R e a l Q u e s t Cor+etogic 7400 OCEAN TER, MIAMI BEACH, FL 33141-2719 Report Date: 04/06/2019 County: DADE, FL Flood Zone Code Flood Zone Panel Panel Date X500 120651 - 12086C0326L 09/11/2009 Special Flood Hazard Area(SFHA) Within 250 ft.of multiple flood zones? Community Name Out Yes (X,X500,AE) MIAMI BEACH Flood Zone Description: Zone X (500-year)-An area inundated by 500-year flooding; an area inundated by 100-year flooding with average depths of less than 1 foot or with drainage areas less than 1 square mile; or an area protected by levees from 100-year flooding. / I , , I i I I I i1 I I AE AL '` S l t�ti>+ I I I I I ! 1 I II I I I '11 i ' \ ,I . •1 I (l '! 1 I . Flood Zones ■ [cases 100-ves-Floodwey ■ 100-year R ocCway Undeter+n{ned S00-veer r tootolaln Ind .-vee protected wee ■ Ccasza 100-vea'Floodplain 100-year rlooeplain Unkrocrn or Area Not 7nduded ■ Out of Speoal rlaod Hazard Area Page 718 of 1288 , „ 1, 1 /• / n O r- O . , O 1 n r) A//Nl n 1 n ZONING BISCAYNEPOI--4P--- PI,,,,I�I„IR,�.��„�., \G'P1- _ F _ S,1111 IlUf= III IIIIlI[IIITIITf p ['I. _..Ili 1. mill 1 111 1 OF THE Ps" n I MITI 1111111111111111 1 10 CITY OF , ,,, ,,.,-, 1 _H PMPIlirR -T�� L , R$"4��r�IFAIRWAY DR NORMANDY SHORES MIAMI BEACH yR ..., ,,, GU • FLORIDA • . , -, T� y�o , .. ,F,., 0 0 ,, . „ INCORPORATED 1915 �� �`_y�i, rIR $i :: 1 tl ADOPTED 21ST DAY OF SEPTEMBER, 989 ♦ �II[( '0� ., - RM 1 -T y�� ' 1 �" O � , EFFECTIVE 1ST DAY OF OCTOBER, 1989 ♦�� T 4-% 00� AS AMENDEDo a . inA �� � •••� DATE OF LAST REVISION FEBRUARY 13, 2019 ��II uu � � N,`LI' X11 p0 1_` 141'ili f Ii_i'its I ! 11111111 11 10 LA GORCE ISLAND I SUMMARY OF SALIENT FACTS AND CONCLUSIONS Location: The 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site,and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The developer's site is the entire City block bordered by Ocean Terrace, Collins Avenue, 74th Street and 75th Street, with the excption of the 7,300 SF site located at the northeast corner of 74thStreet and Collins Avenue,Miami Beach, Florida Address of Developer's Site: 7400-7450 Ocean Terrace and 7409-7449 Collins Avenue Miami Beach, Florida 33141 Census Tract/Block: 39.090/ 1 Folio Nos of Developer's Site: 002-3202-003-0060; -0050; -0040; -0030; -0020; -0010; -0070; -0080; -0090; -0100; -0110; and-0120 Owners of Record: 7400 Ocean Terrace LLC 7410 Ocean Terrace LLC 7420 Ocean Terrace LLC 7436 Ocean Terrace LLC 7450 Ocean Terrace LLC 7441 Collins Avenue Investment LLC 7439 Collins Avenue Investment LLC 7433 Collins Avenue Investment LLC 7421 Collins Avenue Investment LLC 7409 Collins Avenue Investment LLC Legal Description: Lots 1 through 13,Block 1,Harding Townsite,as recorded in Plat Book 34, Page 4 of the Public Records of Miami-Dade County, Florida Description: The developer's site is a 96,300 SF city-block which is bounded by Ocean Terrace, Collins Avenue, 74th Street and 75th Street, with the exception of the 7,300 SF site located at the northeast corner of 74th Street and Collins Avenue, Miami Beach,Florida. The developer's site has 350 feet of frontage along the west side of Ocean Terrace, 150 feet of frontage along the north side of 74th Street,300 feet of frontage along the east side of Collins Avenue and 296.1 feet of frontage along the south side of 75th Street. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 720-of 1288 SUMMARY OF SALIENT FACTS AND CONCLUSIONS Description: The developer's site is currently improved with several boarded- up and occupied buildings, including a 2-story boarded-up 16- unit rental apartment building built in 1961 at 7400 Ocean Terrace; a 2-story boarded-up 39-room hotel building built in 1951 at 7410 Ocean Terrace;a 2-story boarded-up 20-room hotel building built in 1947 at 7420 Ocean Terrace; a 2-story 39-room hotel building built in 1951 at 7430 Ocean Terrace; a 3-story 49- room hotel building built in 1940 at 7436 Ocean Terrace; a 7- story 93-room hotel building built in 1940 at 7450 Ocean Terrace; a 2-story commercial building with 13,034 SF of adjusted building area,built in 1948 at 7449 Collins Avenue;a 1- story commercial building with 6,073 SF of adjusted building area,built in 1952 at 7441 Collins Avenue; a 1-story commercial building with 4,913 SF of adjusted building area,built in 1940 at 7439 Collins Avenue; a 1-story commercial building with 5,717 SF of adjusted building area, built in 1958 at 7433 Collins Avenue;a 1-story commercial building with 4,753 SF of adjusted building area,built in 1941 at 7421 Collins Avenue;and a 1-story commercial building with 3,375 SF of adjusted building area, built in 1950 at 7409 Collins Avenue. The existing mostly low-rise improvements which are all older than 60 years, contain a total adjusted building area of 142,012 SF,while the overall site can be improved with up to 192,600 SF. In addition, the City of Miami Beach and the developer are negotiating the "vacation" of the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site,and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The vacated area which would be at the north end of the Ocean Terrace, contains a total land area of 45,924 SF which would contribute an additional 91,848 SF of buildable area to the development of the developer's overall site,based on the maximum permitted Floor Area Ratio(FAR)of 2.0,thereby increasing the developer's total buildable area from 192,600 SF to 284,448 SF (indicating a 47.7% increase). Site Area: Developer's Site- 96,300 SF Public Streets - 45,924 SF J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 721-of 1288 SUMMARY OF SALIENT FACTS AND CONCLUSIONS Flood Zone: Flood Zone "X" - An area inundated by 500-year flooding; an area inundated by 100-year flooding with average depths of less than 1 foot or with drainage areas less than 1 square mile; or an area protected by levees from 100-year flooding; National Insurance Program, Community Panel Number 120651- 12086C0326L, as revised on September 11, 2009. Zoning: MXE Mixed-Use District(the eastern 52,500 SF portion) CD-2 Medium-Intensity Commercial District(western 43,800 SF portion) The vacated street areas would be in the MXE District Highest and Best Use: The Highest and Best Use of the overall developer's site is its development with a mixed-use retail/restaurant/residential condominium building with an ancillary commercial component. The site could be developed with a high-rise mixed-use retail/residential building which would be built to condominium quality standards,and possibly have an interim rental use during the sell-out period. Property Rights Appraised: Fee Simple Interest Date of Inspection and Valuation: July 3, 2019 Date of Appraisal Report: July 8, 2019 CONTRIBUTORY VALUE ESTIMATE OF THE PROPOSED "VACATED"AREA TO BE UTILIZED IN CONJUNCTION WITH THE"DEVELOPMENT SITE"AS DESCRIBED HEREIN: Income Capitalization Approach to Value: Not Applicable Sales Comparison Approach to Value: $12,400,000 Cost Approach to Value: Not Applicable Reconciled Final Value Estimates: $12,400,000 J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 732-of 1288 Oil IL: _ , 10 ... YT wit 1.!tinsi q: V "FE 'Ii p F . wig% }: • .i J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 72I3-of 1288 $x ft F i } v f itkiittir r. �r401001;; 1 6• t---- y g 4 44 I ` 4i, r -ii . a la 0 3E 1 f h rt t ,' i ifif ill iii ' t °Pi tjiejrll11 �.. .rwu a . J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 734-of 1288 PURPOSE/FUNCTION OF THE APPRAISAL The purpose of this appraisal report is to provide estimates of the Highest and Best Use of the overall developer's site in conjunction with the proposed "vacated" right-of-ways as described herein, and the contributory value of the Fee Simple Interest in the "vacated" property (described as the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site,which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area, based on the maximum permitted Floor Area Ratio of 2.0), as of July 3, 2019. The function of this appraisal report is to assist the client (The City of Miami Beach) in executive decision making and/or collateral/asset valuation relative to the proposed "vacating" of the portion of the streets surrounding the developer's site, along 74th Street, Ocean Terrace and 75th Street. The intended user of this appraisal report is the City of Miami Beach or any of its assigns. SCOPE OF THE APPRAISAL I have made a physical exterior inspection of the overall subject site,and performed market research to provide estimates of the Highest and Best Use of the overall developer's site in conjunction with the proposed "vacated" right-of-ways as described herein, and the contributory value of the Fee Simple Interest in the"vacated"property(described as the 40- foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site,the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site,which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area, based on the maximum permitted Floor Area Ratio of 2.0), as of July 3, 2019. The scope of the appraisal involves the research and analysis of factual data relative to the subject"vacated"property,as well as market data necessary for the development of the Sales Comparison Approach to Value (land valuation). The data and information used in developing our findings, projections and valuation estimates have been derived from published information, direct interviews, analysis of similar properties and other sources which were considered appropriate as of the valuation date. PROPERTY RIGHTS APPRAISED This appraisal report is made with the understanding that the present ownership of the property includes all the rights that may be lawfully held under a fee simple estate. Fee Simple Interest is defined in The Dictionary of Real Estate Appraisal, 2010 Edition, which was sponsored by the Appraisal Institute as follows: Absolute ownership unencumbered by any other interest or estate;subject only to the limitations imposed by the governmental powers of eminent domain, escheat, police power and taxation. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 7Z6-of 1288 DATE OF VALUATION AND REPORT The date of valuation is July 3, 2019. The date of the appraisal report is July 8, 2019. STATEMENT OF OWNERSHIP AND HISTORY The 15,000 SF site with a 93-room hotel at 7450 Ocean Terrace is owned by 7450 Ocean Terrace LLC which purchased it for$29,250,000 on December 9,2014,as recorded in Book 29424, Page 4381 of the Official Public Records of Miami-Dade County, Florida. The 15,000 SF site with a 39-room hotel at 7430 Ocean Terrace and a 49-room hotel at 7436 Ocean Terrace is owned by 7436 Ocean Terrace LLC which purchased it for$16,500,000 on March 9, 2015, as recorded in Book 29532, Page 187 of the Official Public Records of Miami-Dade County, Florida. The 7,500 SF site with a 39-room hotel at 7410 Ocean Terrace is owned by 7410 Ocean Terrace LLC which purchased it for $11,500,000 on March 9, 2015, as recorded in Book 29532, Page 185 of the Official Public Records of Miami-Dade County, Florida. The 7,300 SF site with a 5,717 SF commercial building at 7443 Collins Avenue is owned by 7433 Collins Avenue Investment LLC which purchased it for$2,000,000 on June 6,2014, as recorded in Book 29184, Page 1670 of the Official Public Records of Miami-Dade County, Florida. The 7,300 SF site with a 4,913 SF commercial building at 7439 Collins Avenue is owned by 7439 Collins Avenue Investment LLC which purchased it for$2,300,000 on July 9,2014, as recorded in Book 29222, Page 4864 of the Official Public Records of Miami-Dade County,Florida. The 7,300 SF site with a 3,375 SF commercial building at 7409 Collins Avenue is owned by 7409 Collins Avenue Investment LLC which purchased it for$2,450,000 on October 24, 2014,as recorded in Book 29376,Page 2179 of the Official Public Records of Miami-Dade County, Florida. The 7,500 SF site with a 20-room hotel at 7420 Ocean Terrace is owned by 7420 Ocean Terrace Investment LLC which purchased it for $7,000,000 on September 1, 2015, as recorded in Book 29763,Page 4762 of the Official Public Records of Miami-Dade County, Florida. The 14,600 SF site with 13,034 SF and 6,073 SF commercial buildings at 7441 and 7449 Collins Avenue is owned by 7441 Collins Avenue Investment LLC which purchased it for $14,000,000 on June 29,2017,as recorded in Book 30611,Page 4469 of the Official Public Records of Miami-Dade County, Florida. A total of $85,000,000 were invested between 2014 and 2017 to purchase 81,500 SF of improved (retail, hotel and multi-tenant residential) sites, reflecting $1,042.94/SF of site area. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 72B-of 1288 STATEMENT OF OWNERSHIP AND HISTORY The 7,500 SF site with a 16-unit rental apartment building at 7400 Ocean Terrace is owned by 7400 Ocean Terrace Investment LLC which purchased it for a nominal consideration (corrective deed) on April 27, 2016, as recorded in Book 30066, Page 2746 of the Official Public Records of Miami-Dade County, Florida. The 7,300 SF site with a 4,754 SF commercial building at 7421 Collins Avenue is owned by 7421 Collins Avenue Investment LLC which purchased it for a nominal consideration (corrective deed)on October 1, 2015, as recorded in Book 29807, Page 365 of the Official Public Records of Miami-Dade County, Florida. As per the Public Records of Miami-Dade County,Florida,there was no other arm's length transfer of ownership at the overall developer's site during the five year period prior to the valuation date. We have not been informed of any other current listings, options and/or pending contracts in effect at the developer's site, as of the date of valuation. ESTIMATED MARKETING AND EXPOSURE PERIOD Based on my analysis of the market, recent listings which have been since closed, as well as discussions with owners and Realtors active in the subject area, it is the appraiser's opinion that if the overall developer's site was listed for sale with an experienced Realtor, the marketing and marketing and exposure period would be approximately six to twelve months. Accordingly, this marketing and exposure period is considered to currently represent the most probable amount of time necessary to expose and actively market the property to achieve a sale consistent with its Market Value. DEFINITION OF MARKET VALUE Market Value is defined in The Interagency Appraisal and Evaluation Guidelines, dated December 2, 2010, as follows: The most probable price, which a property should bring in a competitive and open market under all conditions requisite to a fair sale,the buyer and seller acting prudently and knowledgeably,and assuming the price is not affected by undue stimulus. Implicit in this definition are the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: 1. Buyer and seller are typically motivated; 2. Both parties are well informed or well advised,and acting in what they consider their own best interests; 3. A reasonable time is allowed for exposure in the open market; 4. Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 7Z7-of 1288 DEFINITION OF MARKET VALUE 5. The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale. NEIGHBORHOOD ANALYSIS The proposed"vacated"area is 40-foot wide southern portion of 75t Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The developer's site is the entire City block bordered by Ocean Terrace, Collins Avenue, 74th Street and 75th Street,with the exception of the 7,300 SF site located at the northeast corner of 74th Street and Collins Avenue, Miami Beach, Florida The overall site situated between Collins Avenue and Ocean Terrace,and between 74th Street and 75th Street, in the North Beach section of the City of Miami Beach, Florida. Miami Beach is an island located just off the southeast coast of Miami-Dade County,Florida. The island is approximately one mile wide, ten miles long and travels in a northerly/southerly direction parallel to mainland Miami-Dade County. The town of Surfside borders Miami Beach to the north starting at approximately 87th Street. The Atlantic Ocean acts as the eastern and southeastern border, while Biscayne Bay/the Intracoastal Waterway lies to the west. Five causeways connect Miami Beach to the mainland; the MacArthur Causeway (Highway No. 41); the Venetian Causeway;the Julia Tuttle Causeway(Interstate 195);the Broad Causeway(State Road No.922)and the North Dade Causeway(State Road No.934). The subject property is located three blocks north of 715t Street, along Collins Avenue and Ocean Terrace which abuts to the beach and the Atlantic Ocean. The property uses along Collins Avenue consist of low-rise to high-rise apartment buildings of rental and condominium variety, motels, apartment-hotels, as well as commercial uses which include retail strips,restaurants,financial institutions,fast-food restaurants,convenience stores,etc. The property uses along Ocean Terrace consist of low-rise to high-rise apartment buildings of rental and condominium variety,hotels,motels,as well as commercial uses which include restaurants and bars, etc. The subject area is connected to mainland Miami via the John F. Kennedy Causeway (SR No. 934)which divides into 71st Street and Normandy Drive as it enters Miami Beach;and Julia Tuttle Causeway(I-95)which becomes Arthur Godfrey Road(41st Street)as it enters Miami Beach. The area is serviced by Harding Avenue, Collins Avenue,Normandy Drive and 7151 Street which connect the area with the causeways which all connect the area with the cities of Surfside, North Bay Village, Bal Harbour and North Miami Beach. The area surrounding the overall subject site has been developed with mostly residential, hospitality and commercial facilities and therefore, no nuisances, hazards or other adverse influences were observed.No notable signs of external obsolescence were observed and the overall appeal of the improved properties is considered to be above average to good. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page 7w8-of 1288 ACCESS TO THE SITE 75th Street,74th Street,Collins Avenue and Ocean Terrace provide direct access to the overall developer's site. DESCRIPTION OF THE SITE The developer's site is a 96,300 SF city-block which is bounded by Ocean Terrace, Collins Avenue, 74th Street and 75th Street, with the exception of the 7,300 SF site located at the northeast corner of 74th Street and Collins Avenue,Miami Beach,Florida. The developer's site has 350 feet of frontage along the west side of Ocean Terrace, 150 feet of frontage along the north side of 74th Street, 300 feet of frontage along the east side of Collins Avenue and 296.1 feet of frontage along the south side of 75th Street. The developer's site is currently improved with several boarded-up and occupied buildings, including a 2-story boarded-up 16-unit rental apartment building built in 1961 at 7400 Ocean Terrace; a 2-story boarded-up 39-room hotel building built in 1951 at 7410 Ocean Terrace; a 2-story boarded-up 20-room hotel building built in 1947 at 7420 Ocean Terrace; a 2-story 39-room hotel building built in 1951 at 7430 Ocean Terrace; a 3-story 49-room hotel building built in 1940 at 7436 Ocean Terrace;a 7-story 93-room hotel building built in 1940 at 7450 Ocean Terrace; a 2-story commercial building with 13,034 SF of adjusted building area,built in 1948 at 7449 Collins Avenue;a 1-story commercial building with 6,073 SF of adjusted building area,built in 1952 at 7441 Collins Avenue; a 1-story commercial building with 4,913 SF of adjusted building area,built in 1940 at 7439 Collins Avenue ; a 1-story commercial building with 5,717 SF of adjusted building area,built in 1958 at 7433 Collins Avenue; a 1-story commercial building with 4,753 SF of adjusted building area, built in 1941 at 7421 Collins Avenue;and a 1-story commercial building with 3,375 SF of adjusted building area, built in 1950 at 7409 Collins Avenue. The existing mostly low-rise improvements which are all older than 60 years,contain a total adjusted building area of 142,012 SF, while the overall site can be improved with up to 192,600 SF. In addition, the City of Miami Beach and the developer are negotiating the "vacation" of the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site,the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The vacated area which would be at the north end of the Ocean Terrace, contains a total land area of 45,924 SF which would contribute an additional 91,848 SF of buildable area to the development of the developer's overall site, based on the maximum permitted Floor Area Ratio (FAR) of 2.0, thereby increasing the developer's total buildable area from 192,600 SF to 284,448 SF (indicating a 47.7% increase). • The overall subject site is level at street grade and does not have any apparent drainage or other problems which would restrict or limit the use of the site. No soil boring tests or engineering reports were submitted to the appraiser; however, the site is assumed to have stable subsoil conditions as do most properties in the immediate area. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7120 of 1288 DESCRIPTION OF THE SITE The appraiser has not been informed of any adverse subsoil conditions revealed by an environmental assessment conducted by a firm with experience in identifying such substances, nor is he qualified to detect such substances that may exist. It is assumed that the subject site would be typical for properties located in the subject area with no apparent soil problems which would restrict or limit the usage of the site. If any adverse subsoil conditions are identified and do exist, these conditions would be considered to have a material affect on the Market Value estimates. The valuation analysis assumes the site to be free of any adverse subsoil conditions, and is subject to the satisfactory removal of any contaminating materials in accordance with technical, environmental and governmental guidelines. UTILITIES Public utilities available to the subject site include electricity, water, sewer, gas and telephone service. Electricity is provided by FPL. Police and fire protection, water and sewer services are provided by the City of Miami Beach. FLOOD ZONE Flood Zone "X" - An area inundated by 500-year flooding; an area inundated by 100-year flooding with average depths of less than 1 foot or with drainage areas less than 1 square mile; or an area protected by levees from 100-year flooding; National Insurance Program, Community Panel Number 120651-12086C0326L, as revised on September 11, 2009. ZONING The eastern 52,500 SF portion of the developer's site along Ocean Drive is zoned as MXE Mixed-Use District which allows residential and commercial uses, with a maximum permitted Floor Area Ratio (FAR) of 2.0. The western 43,800 SF portion of the developer's site along Collins Avenue is zoned as CD- 2 Medium Intensity Commercial District which provides for commercial activities,services, offices and related activities which serve the entire city, with a maximum permitted Floor Area Ratio (FAR) of 2.0. The overall property is a legal non-conforming use which has been"grand fathered-in"under prior zoning criteria,and represents a compatible neighborhood use. The overall assembled site is slated for redevelopment. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-78U of 1288 ASSESSMENT AND REAL ESTATE TAXES The overall developer's site is located within the City of Miami Beach and is subject to both the City of Miami Beach and Miami-Dade County ad valorem taxes. The Florida Statutes provide for assessment and collection of yearly Ad Valorem Taxes on Real and Personal Property. The assessment for the property is established each year as of January 1st by the Miami-Dade County Property Appraiser's Office at 100% of"Just Value". The tax due is computed according to annual millage rates established by Dade County. Millage rates are the amount paid to each taxing body for every$1,000 of assessed value. Taxes are payable in November with a 4% discount and become delinquent on April ls` J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7133 of 1288 MULTI-FAMILY RESIDENTIAL MARKET OVERVIEW Rental Apartment Market According to the Housing Report prepared by Reinhold P.Wolff Economic Research,Inc., the vacancy rate in mature(18 months and older)rental apartment complexes in Miami-Dade County was 3.7% in February 2019; 4.4% in November 2018,4.1% in August 2018;5.0% in May 2018;4.7%in February 2018,4.5%in November 2017;4.4%in August 2017;3.6% in May 2017, 3.6% in February 2017; 3.9%in November 2016; 3.9% in November 2016; 3.4%in August 2016;2.9%in May 2016;3.4%in February 2016;2.9%in November 2015; 3.0% in August 2015; 3.3% in May 2015; and 3.9% in February 2015. The subject sub-market of Central/North Beach sub-market had a vacancy rate of 2.8%for 1,281 units in February 2012; 4.9% for 1,281 units in May 2012; 4.4% for 1,617 units in August 2012; 3.4% for 1,617 units in November 2012; 9.1% for 1,617 units in February 2013;6.1%for 1,617 units in May 2013;.2%in August 2013 for 1,617 units;5.5%for 1,617 units in November 2013; 4.3% for 1,617 units in February 2014; 1.9% for 1,617 units in May 2014; 3.4% in August 2014 for 2,046 units; 1.9% for 1,617 units in November 2014; 1.7% for 1,617 units in February 2015; 2.4% for 1,617 units in May 2015; 2.5% for 1,617 units in August 2015; 4.0% for 1,617 units in November 2015; 1.1% for 1,617 units in February 2016; 1.5% for 1,617 units in May 2016; 2.7% for 1,902 units in August 2016; 2.0% for 1,902 units in November 2016; 4.0% for 1,902 units in February 2017; 5.0% for 1,902 units in May 2017; 5.0% for 1,902 units in August 2017; 5.2% for 1,902 units in November 2017;4.5%for 1,902 units in February 2018;4.5%for 1,902 units in May 2018; 3.4%for 1,902 units in August 2018,4.4%for 1,902 units in November 2018 and 3.6%for 2,084 units in February 2019. The neighboring South Beach sub-market had a vacancy rate of 4.0% for 2,046 units in February 2012; 4.7% for 2,046 units in May 2012; 4.6%% for 2,046 units in August 2012; 4.3% for 2,046 units in November 2012; 8.1% for 2,046 units in February 2013; 2.5% for 2,046 units in May 2013; 4.1% for 2,046 units in August 2013; 1.4% for 2,046 units in November 2013;4.5%for 2,046 units in February 2014;5.4%for 2,046 units in May 2014; 5.2% in August 2014 for 1,617 units; 5.7% for 2,046 units in November 2014; 3.7% for 1,617 units in February 2015; 3.8% for 1,617 units in May 2015; and 4.4% for 1,872 units in August 2015; 6.3%for 1,617 units in November 2015; 5.7%for 1,617 units in February 2016; 5.9% for 1,617 units in May 2016; 4.3% for 1,872 units in August 2016; 3.3% for 1,872 units in November 2016;4.4%for 1,872 units in February 2017;3.7%for 1,872 units in May 2017;7.7%for 1,872 units in August 2017;7.4%for 1,872 units in November 2017; 5.8% for 1,872 units in February 2018; 6.2% for 1,872 units in May 2018; 5.5% for 1,872 units in August 2018, 6.2% for 1,872 units in November 2018 and 4.2% for 1,872 units in February 2019. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7I33 of 1288 MULTI-FAMILY RESIDENTIAL MARKET OVERVIEW Rental Apartment Market- Continued The overall average monthly rent for apartments in mature rental developments in Miami-Dade County decreased by $19 from November, 2018 to February, 2019. The February, 2019 overall average rent of$1,898 is 3.7% greater than the$1,830 average rent found one year earlier.During the most recent three month period efficiency apartment rents decreased by$33 to$1,540,one-bedroom rents declined by$25 to$1,658 and two-bedroom rents fell by$19 to $2,063. Three-bedroom rents increased by$29 to$2,470 in February, 2019.Changes in projects participating in the surveys from one period to another can result in some fluctuations in rents from one period to another. Some new, higher rent developments have been completed and added to the survey in recent months. The overall average monthly rent for apartments in mature rental developments in Miami-Dade County increased by $32 from August to November, 2018. The November, 2018 overall average rent of$1,917 is 10.2%greater than the$1,739 average rent found one year earlier.During the most recent three month period efficiency apartment rents increased by $85 to $1,573, one-bedroom rents increased by $48 to $1,683 and two-bedroom rents increased by$16 to$2,082.Three-bedroom rents increased by$27 to$2,441 in November, 2018.Changes in projects participating in the surveys from one period to another can result in some fluctuations in rents from one period to another. Some new, higher rent developments have been completed and added to the survey in recent months. The overall average monthly rent for apartments in mature rental developments in Miami-Dade County increased by$16 from May to August,2018.The August,2018 overall average rent of$1,885 is 8.5% greater than the$1,737 average rent found one year earlier. During the most recent three month period efficiency apartment rents increased by $2 to $1,488, one-bedroom rents increased by$2 to $1,635 and two bedroom rents increased by $25 to $2,066. Three-bedroom rents increased by$31 to $2,414 in August, 2018. Changes in projects participating in the surveys from one period to another can result in some fluctuations in rents from one period to another. Some new,higher rent developments have been completed and added to the survey in recent months. The overall average monthly rent for apartments in mature rental developments in Miami-Dade County increased by$39 from February to May, 2018.The May,2018 overall average rent of$1,869 is 6.7% greater than the$1,751 average rent found one year earlier. During the most recent three month period efficiency apartment rents increased by $33 to $1,486,one-bedroom rents increased by$35 to$1,633 and two bedroom rents increased by $42 to $2,041. Three-bedroom rents increased by$32 to $2,383 in May, 2018. Changes in projects participating in the surveys from one period to another can result in some fluctuations in rents from one period to another. Some new,higher rent developments have been completed and added to the survey in recent months. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7133 of 1288 MULTI-FAMILY RESIDENTIAL MARKET OVERVIEW Condominium Apartment Market A total of 128 new condominium units were sold (deeded) in Miami-Dade County during the fourth quarter of 2018.The fourth quarter sales were 30.8%less than the 185 sold in the third quarter of 2018 and 28.5% less than the 179 sold in the fourth quarter of 2017. New condominium sales during 2018 totaled 691 units, 11.9%less than the 784 sold during 2017. It should be noted that condominium sales based on deed recordings often lag notably behind contract sales. This results from the fact that deeds are often not recorded until all units in a building are sold and this can amount to a considerable period of time for mid-and high- rise developments. During the fourth quarter of 2018 sales increased in four of the eleven areas by which the data is examined,declined in three areas and was unchanged in four areas.The highest level of sales, 52 units, was recorded in the Miami Shores/N.W. Miami area, followed by the Coral Gables/Bayshore area at 43 units. During the fourth quarter of 2018 the $250,000-$349,999 plus price group had the greatest number of units sold with 41 sales.The second highest level of sales, 33 units, was in the $900,000 plus price group. New condominium developments in Miami-Dade County experienced an average monthly sales rate of 5.3 units per project during the fourth quarter of 2018,down somewhat from the 6.9 rate of sales of the preceding quarter. The strongest rate of sales, 14.3 units per month, was found in the Coral GablesBayshore/South Miami area. A total of 185 new condominium units were sold (deeded) in Miami-Dade County during the third quarter of 2018. The third quarter sales were 23.2% less than the 241 sold in the second quarter of 2018 and 11.9% less than the 210 sold in the third quarter of 2017. New condominium sales through September,2018 totaled 563 units,6.9%less than the 605 sold during the same period of 2017. It should be noted that condominium sales based on deed recordings often lag notably behind contract sales. This results from the fact that deeds are often not recorded until all units in a building are sold and this can amount to a considerable period of time for mid-and high-rise developments. During the third quarter of 2018 sales increased in two of the eleven areas by which the data is examined, declined in five areas and was unchanged in four areas. The highest level of sales, 150 units,was recorded in the Miami Shores/N.W. Miami area followed distantly by the Coral Gables/Bayshore area at 16 units. During the third quarter of 2018 the $900,000 plus price group had the greatest number of units sold with 56 sales.The third highest level of sales, 48 units, was in the $500,000-$699,999 plus price group. New condominium developments in Miami-Dade County experienced an average monthly sales rate of 6.9 units per project during the third quarter of 2018,down somewhat from the 8.0 rate of sales of the preceding quarter.The strongest rate of sales, 16.7 units per month,was found in the Miami Shores/N.W. Miami area. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-713of 1288 HIGHEST AND BEST USE DEFINITION The Highest and Best Use is a market-driven concept. It may be briefly defined as representing the most profitable,competitive use to which a site can be put,or that use which may reasonably be expected to produce the greatest net return to the land over a given period of time. In addition, the concept may further be defined as the available use and program of future utilization that produces the highest present land value. Highest and Best Use is further defined in The Dictionary Real Estate Appraisal, 2010 Edition, which was sponsored by the Appraisal Institute as follows: That reasonably probable and legal use of vacant land or an improved property that is physically possible,appropriately supported,financially feasible,and that results in the highest value. It is to be recognized that in cases where a site has existing improvements on it,the Highest and Best Use may very well be determined to be different from the existing use. The existing use will continue,however,unless and until land value in its Highest and Best Use exceeds the total value of the property in its existing use. The estimate of Highest and Best Use is based upon four stages of analysis: 1. The possible use or uses which are physically possible for the site under analysis. 2. The permissible use or uses which are permitted relative to zoning, historic preservation regulations, environmental controls and/or deed restriction of the site under analysis. 3. The feasible use or uses which are considered economically and financially feasible for the site in terms of existing and projected market conditions. 4. The Highest and Best Use in consideration of those legally permissible, physically possible, financially feasible and maximally productive uses which will result in the highest net return or the highest present worth. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-786 of 1288 HIGHEST AND BEST USE,AS VACANT The estimate of the Highest and Best Use of the land, as if vacant, requires market analysis in terms of market conditions of supply and demand. The value of land is based upon the level of utility that is in demand and that will produce amenities or net income to the user. Therefore,the use which creates the greatest land value and which is considered compatible in terms of the restriction imposed by the physical,legal,financial and maximally productive factors is inherent in this analysis. The physically possible uses of the subject developer's site, as vacant, would include a variety of commercial, hospitality and multi-family residential uses. This is based upon analysis of the size,frontage,exposure,access,location and buildable utility characteristics of the 96,300 SF subject multi-corner site. Analysis of the permissible uses at the subject site takes into account those uses which would be permitted by existing zoning and/or deed restrictions,providing that no deed restrictions are in effect at the developer's site which would restrict certain uses of the site. The eastern 52,500 SF portion of the developer's site along Ocean Drive is zoned as MXE Mixed-Use District which allows residential and commercial uses, with a maximum permitted Floor Area Ratio(FAR)of 2.0. The western 43,800 SF portion of the developer's site along Collins Avenue is zoned as CD-2 Medium Intensity Commercial District which provides for commercial activities, services, offices and related activities which serve the entire city, with a maximum permitted Floor Area Ratio (FAR) of 2.0. The City of Miami Beach and the developer are negotiating the "vacation" of the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The vacated area which would be at the north end of the Ocean Terrace, contains a total land area of 45,924 SF which would contribute an additional 91,848 SF of buildable area to the development of the developer's overall site, based on the maximum permitted Floor Area Ratio (FAR) of 2.0, thereby increasing the developer's total buildable area from 192,600 SF to 284,448 SF(indicating a 47.7% increase). After analysis of the physically possible and legally permissible uses to which the subject site could conceivably be put, a study of those uses which would be maximally productive is required. Therefore, an alternative use analysis was performed relative to that use which would represent the Highest and Best Use of the subject site, as if vacant. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7l3-0 of 1288 HIGHEST AND BEST USE,AS VACANT The proposed"vacated"area is 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site. The developer's site is the entire City block bordered by Ocean Terrace, Collins Avenue, 74th Street and 75th Street,with the exception of the 7,300 SF site located at the northeast corner of 74th Street and Collins Avenue, Miami Beach,Florida. The overall site situated between Collins Avenue and Ocean Terrace,and between 74th Street and 75th Street, in the North Beach section of the City of Miami Beach, Florida. Miami Beach is an island located just off the southeast coast of Miami-Dade County,Florida. The island is approximately one mile wide, ten miles long and travels in a northerly/southerly direction parallel to mainland Miami-Dade County. The town of Surfside borders Miami Beach to the north starting at approximately 87th Street. The Atlantic Ocean acts as the eastern and southeastern border, while Biscayne Bay/the Intracoastal Waterway lies to the west. Five causeways connect Miami Beach to the mainland; the MacArthur Causeway (Highway No.41);the Venetian Causeway;the Julia Tuttle Causeway(Interstate 195); the Broad Causeway(State Road No.922)and the North Dade Causeway(State Road No.934). The subject property is located three blocks north of 71st Street, along Collins Avenue and Ocean Terrace which abuts to the beach and the Atlantic Ocean. The property uses along Collins Avenue consist of low-rise to high-rise apartment buildings of rental and condominium variety,motels, apartment-hotels, as well as commercial uses which include retail strips,restaurants,financial institutions,fast-food restaurants,convenience stores,etc. The property uses along Ocean Terrace consist of low-rise to high-rise apartment buildings of rental and condominium variety,hotels,motels,as well as commercial uses which include restaurants and bars, etc. The subject area is connected to mainland Miami via the John F. Kennedy Causeway (SR No. 934)which divides into 71st Street and Normandy Drive as it enters Miami Beach;and Julia Tuttle Causeway(I-95)which becomes Arthur Godfrey Road(41st Street)as it enters Miami Beach. The area is serviced by Harding Avenue,Collins Avenue,Normandy Drive and 7l' Street which connect the area with the causeways which all connect the area with the cities of Surfside,North Bay Village, Bal Harbour and North Miami Beach. The area surrounding the overall subject site has been developed with mostly residential,hospitality and commercial facilities and therefore, no nuisances, hazards or other adverse influences were observed. No notable signs of external obsolescence were observed and the overall appeal of the improved properties is considered to be above average to good. Based upon analysis of those uses which would be considered physically possible, legally permissible and economically feasible,it is the appraiser's estimate that the Highest and Best Use of the subject site would be its development with a condominium apartment building, with an ancillary commercial(retail,restaurant,etc.)component. The developer's site could be developed with a high-rise mixed-use building which would be built to condominium quality standards, and possibly have an interim rental use during the sell-out period. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7l3$of 1288 THE VALUATION PROCEDURE The valuation procedure is defined in the 2010 Edition of the Dictionary of Real Estate Appraisal which was sponsored by the Appraisal Institute as follows: The act, manner and technique of performing the steps of a valuation method. In order to provide an estimate of the contributory value of the Fee Simple Interest in the "vacated"property(described as the 40-foot wide southern portion of 75t Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site, which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area, based on the maximum permitted Floor Area Ratio of 2.0), as of July 3, 2019, we have utilized the Sales Comparison Approach to Value. The Sales Comparison Approach to Value is based upon a comparison between recently sold sites and the proposed"vacated"area to be utilized in conjunction with the developer's site, as described herein, utilizing the sale price per square foot of buildable area unit of comparison. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-71313 of 1288 THE SALES COMPARISON APPROACH (LAND VALUATION) In order to estimate the value of the subject site,the land is analyzed as vacant and available to be put to its Highest and Best Use. There are several different techniques which can be utilized in the valuation of land. The technique selected must relate to the specific factors inherent in the appraisal problem at hand. The land valuation technique selected must reflect the prudent and rationale behavior of the most probable, typically informed purchaser/investor. In addition, the availability of reliable and verified market data further leads to the selection of the applicable land valuation technique. 1. The Sales Comparison Approach analyzes the sales of similar vacant sites, with comparison and adjustment made from these sales to the subject site. The Sales Comparison Approach to Value is based on the principle of substitution; that is,when a property is replaceable in the market, its value tends to be set at the cost of acquiring an equally desirable substitute property assuming no costly delay in making the substitution. The Sales Comparison Approach to Value is based on a comparison between recently sold sites in Miami Beach and the subject site,utilizing the sale price/SF of buildable area method of comparison. 2. The Abstraction Method analyzes the sales of improved properties with an allocation made between land and improvement value. The indicated allocation may establish a typical ratio of land value to total value or to derive from the portion of the sales price allocated to land an estimate of land value for use as a comparable land sale. 3. The Cost of Development Method provides an estimate of the value of undeveloped land based upon the creation of a platted subdivision, development and sale of said parcel. The method assumes that the most probable purchaser of the land would be a developer/investor who plans to dispose of the developed sites at a profit. The costs of development are subtracted from the estimated proceeds of sale resulting in a net income projection which is discounted over the market absorption period. 4. The Land Residual Method treats the net income available to support the investment in the site as a residual. The income required to cover the investment in new improvements that represent the Highest and Best Use of the site is deducted from the Net Operating Income resulting in an estimate of the net income to the land which is then capitalized to estimate the land value. The comparable land sales are considered reasonably similar to the subject property in terms of zoning, location, physical characteristics, topography and buildable utility. The sales represent bona-fide"arm's length"transactions which are representative of prevailing market values. Our analysis has taken into account those differentials relative to financing,time of sale,size,location,frontage/exposure,zoning,developmental potential and functional utility of the comparable sales as they compare to the proposed subject"vacated" site area. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-720 of 1288 COMPARABLE LAND SALES Developer's Developer's Contribution to Buildable Site,Before the Site,After the Area and Development By "Vacation"of Ocean "Vacation"of Ocean "Vacation"of Ocean Land Land Terrace,74th and Terrace,74th and Terrace,74th and Sale 1 Sale 2 75th Street 75th Street 75th Street Address 7400-7450 OCEAN TERR. 400-7450 OCEAN TERR. 40'WIDE ON 75TH ST. 3600-3624 COLLINS 880 71ST 7409-7449 COLLINS AVE. '409-7449 COLLINS AVE. 30'WIDE ON 74TH ST. AVENUE STREET MIAMI BEACH MIAMI BEACH 60'WIDE ON OCEAN TERR. MIAMI BEACH MIAMI BEACH FLORIDA FLORIDA FLORIDA FLORIDA Frontage/Exposure On OCEAN TERRACE OCEAN TERRACE OCEAN TERRACE COLLINS AVENUE (71ST STREET) COLLINS AVENUE COLLINS AVENUE 74TH STREET 36TH STREET BAY DRIVE 74TH STREET 74TH STREET 75TH STREET 37TH STREET 75TH STREET 75TH STREET Water Frontage View View View No Yes Folio No. 02-3202-003-0060 02-3202-003-0060 Public Way 02-3226-001-1610 02-3210-013-0190 02-3202-003-0050 02-3202-003-0050 02-3226-022-0010 02-3202-003-0040 02-3202-003-0040 02-3226-022-0020 02-3202-003-0030 02-3202-003-0030 02-3226-022-0030 02-3202-003-0020 02-3202-003-0020 02-3226-022-0040 02-3202-003-0010 02-3202-003-0010 02-3226-022-0050 02-3202-003-0070 02-3202-003-0070 02-3226-022-0060 02-3202-003-0080 02-3202-003-0080 02-3202-003-0090 02-3202-003-0090 02-3202-003-0100 02-3202-003-0100 02-3202-003-0110 02-3202-003-0110 02-3202-003-0120 02-3202-003-0120 Net Site Size (SF) I 96,300 142,224 45,924 28,000 19,414 Net Site Size (Acre) 2.21 3.27 1.05 0.64 0.45 Zoning MXE&CD-2 MXE&CD-2 MXE RM-2 CD-2 Floor Area Ratio (FAR) 2.00 2.00 2.00 2.00 2.00 Buildable Area 192,600 284,448 91,848 56,000 38,828 Date of Sale - - - 9/14/2018 8/8/2017 Grantor - - - BRISA DEL MAR ELIZABETH PROPERTY LLC STONE,TRUSTEE Grantee - - - STONEPAL BAY DR LLC& COLLINS 3 LLC KG NORMANDY,LLC O.R.Book/Page - - - 31149/319 30651/3625 Consideration I - - - $7,850,000 $3,500,000 Financing - - - CASH TO CASH TO THE SELLERS THE SELLER Sale Price - - - $7,850,000 $3,500,000 Sale Price/SF of Site Area - - - $280.38 $180.28 Sale Price/SF of Maximum Buildable Area - - - $140.18 $90.14 Time Adjustment 0% 0% 0% 0% 0% Time Adjusted Sale Price - - - $7,850,000 $3,500,000 Time Adjusted Sale Price Per Sq.Ft.of Site Area - - - $280.38 $180.28 Time Adjusted Sale Price Per Sq.Ft.of Buildable Area - - - $140.18 $90.14 ADJUSTMENTS: Location: - - - -10% 0% Frontage/Exposure: - - - 0% 10% Water Frontage: 5% 0% Size/Scale: -5% -5 Physical Development Potential: - - - Ma 20% Total: - - - 0% 25% Plus:Estimated Demolition Cost - - - $86,000 $410,000 Adjusted Price - - - $7,936,000 $4,785,000 Adjusted Price/SF of Net Site Area - - $283.43 $246.47 Adjusted Price/SF of - - - Buildable Area 8141.71 $123.24 Pdyt r 740 of 1288 J.ALHALE APPRAISALS,INC. Land Land Land Land Sale 3 Sale 4 Sale 5 Listing 6 300-326 71ST STREET 6372-6382 COLLINS AVE 7945 HARDING 6940 ABBOTT 6972 HARDING AVE &6375 INDIAN CREEK DR. AVENUE AVENUE 6957-6965 BYRON AVE MIAMI BEACH MIAMI BEACH MIAMI BEACH 6948-6988 ABBOTT AVE FLORIDA FLORIDA FLORIDA 6951&6985 ABBOTT AVE MIAMI BEACH FLORIDA HARDING AVENUE COLLINS AVENUE HARDING AVENUE ABBOTT AVENUE BYRON AVENUE INDIAN CREEK DRIVE 80TH STREET BYRON AVENUE ABBOTT AVENUE 71ST STREET No No No No 02-3211-002-0850 02-3211-007-2050 02-3202-007-0200 02-3211-001-0590 02-3211-002-0870 02-3211-007-1530 02-3211-002-0880 02-3211-007-1540 02-3211-002-0920 02-3211-002-0930 02-3211-002-0970 02-3211-002-0990 02-3211-002-1010 02-3211-002-1020 02-3211-002-1030 02-3211-002-1040 02-3211-002-1050 02-3211-002-0890 02-3211-002-0860 98,815 20,413 5,500 25,000 2.27 0.47 0.13 0.57 42,500 (RM-1) RM-2 RM-1 TCC 56,315 SF (CD-3) 1.25&2.75 2.00 1.25 3.50 207,991 40,826 6,875 87,500 3/13/2017 2/2/2017 10/20/2016 FOR SALE CITY NATIONAL BANK MYPP HOLDINGS LLC AZ BELL ROAD,LLC SOUTHERN BELL OF FLORIDA; TEL.&TEL.CO. SJ BLUE LLC GUZO REALTY,INC. OLIVEIRA PLAZA 6372 LLC ERIC FOR SALE ASSOCIATES,LLC DOELLE 30456/3405 30414/4507 30286/902 FOR SALE 30458/3591 30456/750 $27,985,000 $5,500,000 $890,000 $7,500,000 CASH TO CASH TO CASH TO FOR SALE THE SELLERS THE SELLER THE SELLER $27,985,000 $5,500,000 $890,000 $7,500,000 $283.21 $289.44 $181.82 $300.00 $134.55 $134.72 $129.45 $85.71 0% 0% 0% 0% $27,985,000 $5,500,000 $890,000 $7,500,000 $283.21 5289.44 $181.82 $300.00 $134.55 $134.72 $129.45 $85.71 0% 0% 0% 0% 0% 5% 5% 5% 5°G, 5% 5% 5% J -5% -10% -5% 0-0 15%4 20% 10% 5% 20% 20% 15% $0 $0 $8,000 $9,000 $29,384,300 $6,600,000 $1,076,000 $8,834,000 $297.37 5323.32 $195 64 $345.36 $141.28 $161.66 $156.51 $98.67 Asking Pcly 741 of 1288 J.ALHALE APPRAISALS,INC. Comparable Sales 824—r—' 1r- is v<rir ft West Park t/ I y Miami Garden Hallandale 817 858 0Miramar 868 Beach °Hollywood Rldg Farms Golden Isles �B '�j�,• W A 91 0 AtA 821 852,1•n.over Highland Sun Swept Isles Andover Golf Lakes Estates Aventura L e LuOtrne Ives states Golden Beach o _.:.854 Norland 4 Oius Scott 0 Lake `860 / Worth Miami Bea Maine Sunny Isles 1 Lake 826 i , 826 , - unche rk 95 NE 159th St_—.7. / Golden k:i .-yne�9den- I" Glades NE 151st-. 141 817 9 / '4 909 1+ Op-- J 916 ,' , ....,,. .„ °Mitchell R I D A / . `• I( Estates (Sales . 4 7945 Harding Ave V W few - 924- Sale 2 3, 7MODOad1 Tdr -o 88)71st St , Miami Back.FL33141 t, n Miami Beach,FL 33141 ' h ores 7J— . ...f- s A Al 932 Itnewoacl Par .ill S M II 11 . o J� West Little EI P•rtedl °�t�) River 934. North ea A t 1 a n t i C River y lad Listing S 4e 3 e a n -- ,. Litt 11 III S GI . 1 so 6940Ab at Ave 31 L�St .- _ suit ' on Mor Beach,R.33141 Se4' -1 I •= 6372 Cdlrns Ave , 944 .Buenauaysnoreii Miam,Basch,FL 33141 ill ci Vista v �i 112 r_.�� 3` ; 27 i��, -- c 167\1414111101 ��� Sanzrl Islamh 907953 ■ Salel fi Beach *,1,! 3600CdlinsAve®� �� '` , s Miami Beach,FL 33140 I �► itlopp gm!ir, �i III Liii av: a l'� X11 1 A,Am. , 11119. -111 141 643 IIJiIi� Port of Miami 1n Sen dopr,- Virginia Key ' ' 972 11111111'' Coral The Pine- Bricked Hammock a les South Bay Estates Biscayne Bay Ocean View Heights ve Miami Biscayne Bay Aquatic Preserve Sunrise Harbor 7 Crandon Park • .Key Biscayne .__._ r Gables Estates ;,' im Omi 2 4 6 Copyright©and(P)1988-2012 Microsoft Corporation and/or its suppliers.All rights reserved.http://www.microsoft.com/streets/ Certain mapping and direction data©2012 NAVTEQ.All rights reserved.The Data for areas of Canada includes information taken with permission from Canadian authorities,including:©Her Majesty the Queen in Right of Canada,©Queen's Printer for Ontario.NAVTEQ and NAVTEQ ON BOARD are trademarks of NAVTEQ.©2012 Tele Atlas North America,Inc.All rights reserved.Tele Atlas and Tele Atlas North America are trademarks of Tele Atlas,Inc.©2012 byApplied Geographic Solutions.All rigftaressee�Potions ©�pp,Kright 2012 by Woodall Pubications Corp.All rights reserved. THE SALES COMPARISON APPROACH (LAND VALUATION) -- Continued-- ANALYSIS OF COMPARABLE SALES Financing The comparable sales were "arm's length" and"cash to the seller"transactions, with typical terms of purchase and therefore, no adjustment for financing was required. Time of Sale The comparable land sales analyzed herein have occurred between October 2016 and September 2018,in addition to a current listing. The comparable sales reflect the prevailing market conditions in the area,and there appears to be no change in sale price/SF range in the last 2-3 years. Accordingly,we have utilized no quantitative time adjustment;however,the most recent comparable land sales were given more weight in our final reconciliation. Location The comparable sales are located between 36th Street (Central Beach; one mile north of South Beach area) and 79th Street, in the Central Beach (one sale) and North Beach (five sales and listings) sections of Miami Beach. Due to its proximity to South Beach, Comparable Land Sale Number One required a negative locational adjustment. Fro n tage/V isibility/Exposure Comparable Land Sale Numbers Two,and Four through Six required a positive adjustment. Comparable Sale Numbers One,and Three through Six required a slight positive adjustment for lack of any water frontage or water view. Configuration The comparable sites are generally shaped adequately for development, with adequate frontage and depth, thereby requiring no adjustment for configuration. Size/Scale and Physical Development Potential and Functional Utility Comparable Sale Numbers One,Two,Four,Five and Six,which were smaller sites,required a negative adjustment for size/scale, as smaller sites command a premium on a price per square basis. Comparable Sale Numbers One,Two,Four,Five and Six required a positive adjustment due to their inferior physical development potential,primarily due to size. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-724 of 1288 THE SALES COMPARISON APPROACH (LAND VALUATION) -- Continued— ANALYSIS OF COMPARABLE LAND SALES - Continued Topography The subject site in conjunction with the proposed to be"vacated"area, and the comparable land sales were generally level at street-grade. However, we have estimated the cost of demolition at the comparable sales,if there were older improvements which would be razed for redevelopment. CORRELATION OF VALUE The comparable sales indicated unadjusted sale price/SF of site area of$280.36, $180.28, $283.21, $269.44, $161.82 and$300(asking price). The comparable sales indicated unadjusted sale price/SF of buildable area of $140.18, $90.14, $134.55, $134.72 and$129.45 for the closed sales. After the analytical adjustments, the comparable sales indicated adjusted sale price/SF of buildable area of$141.71, $123.34, $141.28, $161.66 and$156.51 for the closed sales. Based on the preceding analysis, $130/SF to$140/SF of buildable area reflect a reasonable range of contributory value of the Fee Simple Interest in the"vacated"property(described as the 40-foot wide southern portion of 75 Street by 356-foot long along the north side of the developer's site,the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site,and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site,which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area, based on the maximum permitted Floor Area Ratio of 2.0), in"as is"condition(as vacant land). Then: 91,848 SF x$130/SF = $11,940,240 91,848 SF x $140/SF = $12,858,720 Estimated Contributory Value of the Fee Simple Interest in the Proposed "Vacated" Site Area of 45,924 SF, as • Described Herein (Rounded) $12,400,000 J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-735 of 1288 RECONCILIATION AND FINAL VALUE ESTIMATE CONTRIBUTORY VALUE ESTIMATE OF THE PROPOSED "VACATED"AREA TO BE UTILIZED IN CONJUNCTION WITH THE "DEVELOPMENT SITE"AS DESCRIBED HEREIN: Income Capitalization Approach to Value: Not Applicable Sales Comparison Approach to Value: $12,400,000 Cost Approach to Value: Not Applicable Reconciled Final Value Estimates: $12,400,000 In order to provide an estimate of the contributory value of the Fee Simple Interest in the "vacated"property(described as the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site, the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site, which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area,based on the maximum permitted Floor Area Ratio of 2.0),as of July 3,2019, we have utilized the Sales Comparison Approach to Value. The Sales Comparison Approach to Value is based upon a comparison between recently sold sites and the proposed"vacated"area to be utilized in conjunction with the developer's site, as described herein, utilizing the sale price per square foot of buildable area unit of comparison. It is my estimate that the contributory value of the Fee Simple Interest in the "vacated" property (described as the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site,the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site,which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area, based on the maximum permitted Floor Area Ratio of 2.0), as of July 3, 2019, was: CONTRIBUTORY MARKET VALUE OF THE FEE SIMPLE INTEREST IN THE PROPOSED"VACATED"RIGHT-OF-WAY AREAS TO BE UTILIZED IN CONJUNCTION WITH THE DEVELOPER'S SITE, AS DESCRIBED HEREIN TWELVE MILLION FOUR HUNDRED THOUSAND DOLLARS ($12,400,000) J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-TA5 of 1288 CONTINGENT AND LIMITING CONDITIONS We assume no responsibility for matters legal in nature,nor do we render any opinion as to the title, which is assumed to be marketable. The property is appraised as though under responsible ownership and management. When applicable, the sketch in this report is included to assist the reader in visualizing the properties, and we assume no responsibility for its accuracy. We have made no survey of the property. We are not required to give testimony or appear in court because of having made this appraisal, with reference to the property in question, unless arrangements have been previously made thereof. Additional professional valuation services rendered would require further compensation under a separate contractual agreement. Where applicable, the distribution of the total valuation in this report between land and improvements applies only under the existing program of utilizations. The separate valuations for land and building must not be used in conjunction with any other appraisal and are invalid if so used. We assume that there are no hidden or unapparent conditions of the property, subsoil or structures which would render it more or less valuable. We assume no responsibility for such conditions or for engineering which might be required to discover such factors. Information, estimates and opinions furnished to us and contained in this report were obtained from sources considered reliable and believed to be true and correct. However,no responsibility for accuracy can be assumed by us. No one other than the undersigned prepared the analyses, conclusions and estimates concerning the real estate set forth in this appraisal. Neither all nor any part of the contents of this report, or copy thereof, shall be used for any purpose by any but the client without the previous written consent of the appraiser, and/or the client; nor shall it be conveyed by any including the client to the public through advertising, publications, news, sales or other media, without the written consent and approval of the author, particularly the valuation conclusions, identity of the appraiser, or any reference to any professional society or institute or any initialed designation conferred upon the appraiser. This appraisal report has been made in conformity with and is subject to the requirements of the Code of Professional Ethics and Standards of Professional Practice of the Appraisal Institute,the Uniform Standards of Professional Appraisal Practice adopted by the Appraisal Standards Board of the Appraisal Foundation and the requirements of the State of Florida for state certified real estate appraisers,as well as current Federal regulatory agency criteria. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-72$of 1288 CONTINGENT AND LIMITING CONDITIONS -- Continued— The existence of hazardous materials,which may or may not be present on the property,was not observed. We have no knowledge of the existence of such materials on or in the properties, nor are we qualified to detect such substances. The presence of potentially hazardous materials and/or substances may affect the value of the property. The value estimate reflected in this appraisal report is predicated on the assumption that there is no such material on or in the property that would cause a loss in value. No responsibility is assumed for any such conditions,or for any expertise or engineering knowledge required to discover them. The client is urged to retain an expert in this field, if desired. The Americans with Disabilities Act("ADA")became effective January 26, 1992. We have not made a specific compliance survey and analysis of this property to determine whether or not it is in conformity with the various detailed requirements of the"ADA". It is possible that a compliance survey of the property, together with a detailed analysis of the requirements of the "ADA" could reveal that the property is not in compliance with one or more of the requirements of the Act. Since we have no direct evidence relating to this issue, we did not consider possible non-compliance with the requirement of"ADA" in estimating the value of the property. The appraisal report can not be used in connection with a real estate syndicate(s) or securities related activity(ies) and is invalid if so used without the previous knowledge or written consent of the appraiser. Said activities include but would not be limited to activities which are required to be registered with the United States Securities and Exchange Commission or any state regulatory agency regulating investments made as a public offering, as well as activities involving Real Estate Investment Trusts,Limited Partnerships,Mortgage Backed Securities and any other transaction which is subject to the securities Exchange Act of 1933, the Securities Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment Advisors Act of 1940 or State Blue Sky or securities laws or any amendments thereto. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7 $of 1288 CERTIFICATION The undersigned do hereby certify that, to the best of our knowledge and belief, except as otherwise noted in the appraisal report: - The statements of fact contained in this report, upon which the analyses, opinions and conclusions expressed herein are based, are true and correct. - I have performed services as an appraiser regarding the property that is the subject of this appraisal assignment, within the three year period preceding the acceptance of this assignment. - The reported analyses, opinions and conclusions are limited only by the reported assumptions and limiting conditions and are our personal,unbiased professional analyses, opinions and conclusions. - We have no present or prospective interest in the property that is the subject of this report and we have no personal interest or bias with respect to the parties involved. • - The amount of our compensation is not contingent upon the development or reporting of a predetermined value of direction in value that favors the cause of the client,the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. - Our analyses, opinions and conclusions were developed, and this report has been prepared, in conformity with the requirements of the Code of Professional Ethics and Standards of Professional Practice of the Appraisal Institute, the Uniform Standards of Professional Appraisal Practice adopted by the Appraisal Standards Board of the Appraisal Foundation and the requirements of the State of Florida for state certified real estate appraisers, as well as current Federal regulatory agency criteria. - My engagement in this assignment was not contingent upon developing or reporting predetermined values. The appraisal assignment has not been based on a required minimum valuation, a specific valuation, or the approval of a loan. - The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives,as well as the Florida Real Estate Appraisal Board. - As of the date of this report, Jozef Alhale has completed the requirements of the continuing education program of The Appraisal Institute. - The appraiser has visually inspected the perimeters of the subject site which is described in this report. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7 of 1288 CERTIFICATION - No one other than the undersigned prepared the analyses, conclusions and opinions concerning real estate that are set forth in this appraisal report, nor provided significant professional assistance to the person signing this report. It is the opinion of the undersigned that the estimated contributory value of the Fee Simple Interest in the "vacated" property (described as the 40-foot wide southern portion of 75th Street by 356-foot long along the north side of the developer's site,the 30-foot wide northern portion of 74th Street by 356-foot long along the south side of the developer's site, and the 60-foot wide western portion of Ocean Terrace by 350-foot long along the east side of the developer's site, which contains a total land area of 45,924 SF to contribute 91,848 SF of additional buildable area,based on the maximum permitted Floor Area Ratio of 2.0), as of July 3, 2019, was as described herein. Jozef Alhale, MAI State Certified General Appraiser License No. RZ 0001557 J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-7310 of 1288 ADDENDA J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-730 of 1288 JOZEF ALHALE,MAI, CCIM 3475 Sheridan Street,Suite 313 Hollywood,Florida 33021 (305) 613-7477 jbalhale@aol.com www.jalhaleappraisals.com QUALIFICATIONS Experience: Thirty one years in the field of commercial real estate appraisal, appraisal review, consultation, expert witness, economic research and market analysis. Membership: Designated member of the Appraisal Institute, MAI(since 1993) Designated member of the CCIM Institute (since 2018) Miami Society of Commercial Realtors Miami Association of Realtors Professional Experience: J. Alhale Appraisals, Inc., President, September 2009 to present J.B. Alhale &Associates, Inc., President, May 1994 to present Keller Williams Commercial, Salesperson, May 2017 to present NAI R.W.N.K., Salesperson, July 2015 to May 2017 Dixon and Friedman, Inc., Senior Appraiser, Oct. 1991 -May 1994 R.G. Davis &Associates, Inc.,Fee Appraiser, Jan. 1991 - Oct. 1991 Izenberg Appraisal Assoc.,Inc.,Staff Appraiser,July 1988-Dec. 1990 Education: Master of Science, Computer Science Rensselear Polytechnic Institute,Troy, New York Bachelor of Arts, Cum Laude, Computer Science New York University, New York, New York Associate Engineering Degree, Computer Science Tel Aviv University, Tel Aviv, Israel Licensed: State Certified General Real Estate Appraiser- State of Florida Real Estate Salesman- State of Florida Assignments: Land, industrial, shopping centers, offices, apartment buildings, hotel/motel facilities, special-purpose properties, air rights, as well as valuation of Leasehold Interests, undivided partial interests for financing, litigation, divorce, estate taxes, gift taxes, trusts, etc. Economic research, expert witness, market and feasibility analysis. J.ALHALE APPRAISALS,INC. Real Estate Appraisers and Consultants Page-720 of 1288 CITY OF MIAMI BEACH OFFICE OF CAPITAL IMPROVEMENT PROJECTS Summary of Items for Ocean Terrace Project Considering the right-of-way of Ocean Terrace from 73rd to 75th Street Decorative Pavers on Reinforced Concrete Slab Some cost are based on Espanola Way and Lincoln Road Projects ITEM DESCRIP PION UNIT QUANTITY Una Cost($) TOTAL($) EXISTING CONDITIONS,DEMOLMON/CLEARING AND GRUBBING 1 Saw Cut Existing Concrete Sidewalks/Aspallh LF 2,700.00 $2.00 $5,400.00 2 Concrete/asphatl removal end disposal SF 87,395.00 $4.50 $393,277.50 3 Sod/Shrub Removal SF 20,065.00 $2.00 040,13000 4 Light Pole/Base/Pull Box Removal end Disposal EA 13.00 9650.00 $8,450.00 5 Street Sign Removal EA 21.00 5150.00 $3,150.00 6 Trash/Recycling Receptacles Removal EA 9.00 $200.00 $1,800.00 7 Bike Rack Removal EA 3.00 9150.00 $450.00 8 Stonn Water Drainage Structures Removal and Disposal EA 10.00 $2,000.00 $20,000.00 9 Grout Existing Drainage Pipes to be Abandoned in Place LF 632.00 $9.00 95,66800 10 Tree Removal EA 37.00 $750.00 $27,750.00 SUB TOTAL(108000 SF) MM 5608086.50 UTILITIES 1 Utilities Adjustment Schedule LS 1.00 $50,000.00 950,000.00 2 Install 60'Drainage Structure(Manhole or Catch Basin) EA 27.00 98,000.00 $162,000.00 3 Install 24'Storm Water Drainage Pipe LF 1,020.00 $180.00 $163,600.00 4 Install 18'Stonn Water Drainage Pipe LF 720.00 $150.00 $108,000.00 5 Dreild Install Storm water Gravity Well with Control Structure EA 3.00 $100,000.00 $300,000.00 6 Add 12'DIP Water Main. LF 800.00 $450.00 $360,000.00 7 Replace existing 36'CI force main outfall on 74th St from Colina Ave to Ocean Terrace LF 120.00 $1,200.00 $144,000.00 SUB TOTAL(108000 SF) $12.11 $1,507,810000 ROADWAY/SIDEWALK CONSTRUCTION 1 Install Concrete Slab,2'Valley Gutters,Decorative Concrete Bands SF 108,000.00 $30.00 $3,240,000.00 2 Install Decorative Pavers SF 108,000.00 $14.25 31,539,000.00 3 Install Especial Bollards(Retractables end Permanents)on Each Vehicular Traffic Access EA 2 $250,000.00 3500,000.00 4 Install Permanent Stainless Steel Bollards at 5'maximum distance on each side of street EA 315 3460.00 $144,900.00 5 Install Street Furniture.,Including Trash/Recycling Cans/Dog Waste Saloons/Bike Racks LS 1 $50,000.00 $50,000.00 6 Install Precast Architectural Seat Well LF 715 $360.00 $257,400.00 7 Install Precast Concrete Benches on Wall LF 230 $1,430.00 $328,900.00 8 Install Shade Structure(Combination of Square and Traingular Sails I EA 4 939,000.00 $156,000.00 9 Pavement Marking and Signage LS1 55,000.00 $5,000.00 10 Install Informative Sign LS 1 $10,000.00 $10,000.00 SUB TOTAL(108000 SF) $67.70 58231,200.00 LANDSCAPING 1 Plant New Palm/Large Canopy Tree FA 112.00 $3,000.00 $336,000.00 2 Install Silva Calls on Palma(56 Palms with 250 CF/Each) CF 14,000.00 925.00 3350,000.00 3 Install Silva Cells on New Large Canopy Tree with 20'Crowd Canopy(56 Trees with 500 CF Each) CF 28,000.00 $25.00 $700,000.00 4 Install Ground Cover/Shrubs/Grass SF 20,065.00 $5.00 3100,325.00 5 Install New Automatic Irrigation System LS 1.00 $30,000.00 $30,000.00 SUB TOTAL(108000 SF) 1114.61 51,6/8525.00 STREET LIGHTNING/ELECTRICAL 1 Install Turtle Friendly Decorative Bollards LED Lights Along the East Side of Protect 0 Every 15' EA 62.00 $2,700.00 $167,400.00 2 Install New Smart Decorative Pedestrian Street Lights Turtle Friendly on each side of Street 0 Every 50' EA 37.00 $5,000.00 $165,000.00 3 Install CCTV Cameras LS 1.00 910,000.00 910,000.00 ' SUB TOTAL(106000 SF) $7.38 5562,400.00 MISCELANOUS 1 Sediment/Erosion Control SF 108,000.00 $0.25 527,000.00 2 Temporary Project Sign EA 2.00 $800.00 $1,600.00 3 Permit allowance LS 1.00 $20,000.00 320,000.00 SUB TOTAL(108000 SF) $0.46 Sg66.05 TOTAL(106000 SF) I $61.61 $0,023,620301 MOT 2.00% SI 98.4741 MOBILIZATION 8 GENERAL CONDITIONS 3.00% $297,708.62 BOND AND INSURANCE 2.50% $248,090.51 CONTINGENCY 20.00% $1,984,724.10 TOTAL PROBABLE CONSTRUCTION COST 512,652,616.14 DESIGN.CONSTRUCTION ENGINEERING,INSPECTION SERVICES AND AS-BUILT 10.00% 91,265,261.61 GRAND TOTAL PRIOR CMB FEES $13,917,877.75 CMB FEES 6.50% $904.662.05 GRAND TOTAL WITH CUB FEES $14,822,539.81 Exhibit aaD" wn....a_a.a.,saw1.11.1.e..1._,.n.m.. T.RI..,1c.v..E•Irrob Page 752 of 1288 ADVISORY ECONOMIC IMPACT ASSESSMENT: OCEAN TERRACE - Prepared by- Lambert Advisory, LLC - Prepared for- City of Miami Beach, FL June 2019 Page 753 of 1288 Economic Impact Assessment—Ocean Terrace Economic Impact Assessment Ocean Terrace Introduction and Summary of Key Findings Lambert Advisory has completed an economic impact assessment for the proposed development of Ocean Terrace, a major mixed use residential, hotel and retail project located in the City of Miami Beach. The analysis estimates select tangible direct and indirect/induced economic benefits that will be derived from the construction and operation of the development and based upon the inputs and assumptions set forth herein. This report identifies and quantifies the benefits created by the proposed Ocean Terrace development within City of Miami Beach and Miami Dade County. The methodology, assumptions, and analysis governing this document are detailed in the Methodology, Analysis and Results section below, with a summary of economic benefit headlines included at the end of this section. The Ocean Terrace development is situated in the City of Miami Beach's North Beach neighborhood, and generally bounded on the north by 75th Street, on the east by Ocean Terrace, on the south by 74th Street, and on the west by Collins Avenue. The site is currently developed with 182 hotel rooms (within two separate hotel properties) and 29,118 square feet of retail. A portion of these buildings will be demolished to allow for a substantial redevelopment of the property. Figure 1: Ocean Terrace—Location and Boundary Map 7.,.. .. . . , . . , 4..., > . < ,..,_ _._ , ., C fp 75th Street - -.j, wit Z:t..,J1. ______-j,„ tt 'yy � CV U J O' _ ' u r " O 74th Street The Ocean Terrace development represents a luxury condominium, hotel and retail development that will incorporate amenities including but not limited to: signature dining, spa and fitness center, meeting/banquet facilities and rooftop deck. The development represents the first new significant residential and commercial investment within the North Beach neighborhood in nearly 20 years. In addition, the City is planning for comprehensive improvements to the roadway and public space 2 Page 754 of 1288 Economic Impact Assessment—Ocean Terrace fronting the Ocean Terrace development, extending from 73rd Street to 75th Street. This includes an estimated $15 million in streetscape and roadway improvement expenditures envisioned as part of the Urban Design Plan under the North Beach Master Plan. In this effort, the Ocean Terrace Holdings (Developer) is contemplating a full funding contribution of the proposed $15 million roadway and public space improvement, in consideration for: a.) the City vacating the right-of-way and the Developer providing an easement back to the City; and, b.) the vacated streets providing additional development rights of approximately 83,000 square feet for the Development. Figure 2: Ocean Terrace Development Program Source: Ocean Terrace Holdings Use Units/Sq.Ft. Condominium 58 units Resort Hotel 110 rooms Retail 18,015 sq.ft. Parking 220 spaces Considering the Developer's proposed capital improvement contribution, and the corresponding allowances outlined above, the City is seeking to identify the economic benefits associated with this proposed agreement. Namely, there are two areas of focus for this analysis and each of which is described in detail in following sections: 1.) Impact from Short-term Construction Employment and Expenditure; and, 2.) Long-term/Recurring Impact and Benefit from the Ocean Terrace Development and Improvements to Roadway/Public Space. As set forth herein, the Ocean Terrace development and corresponding improvements to roadway and public space is envisioned to be a transformative project for the surrounding area and provide measurable incremental benefit to the City as a result of significant direct capital investment, as well as from on-going expenditure from its residents, visitors and employees. Estimates of the tangible impacts from direct and indirect expenditures are captured by this analysis. However, we clearly recognize that there are other potential intangible impacts — such as the project's ability to serve as a catalyst for future development in the immediate area; however, these are not included in this analysis, as they are nearly impossible to quantify. In sum, the most notable economic impact benefit headlines from the Ocean Terrace development include: • 1,270+ direct and indirect/induced construction (and related) jobs annually during the proposed two-year construction period, which generates a total of $122 million in direct and indirect/induced labor income during the construction period that will flow to the local and regional economy. o including an estimated $2.2 million to the City in permit and related fees; • 115 net new direct full time equivalent (FTE) jobs generating $17.2 million (2019 $'s) in total annual wages available for expenditure within surrounding businesses; 3 Page 755 of 1288 Economic Impact Assessment—Ocean Terrace • incremental annual ad valorem tax revenue to the City of approximately $1.6 million upon stabilized operations; or, an estimated $27 million in net present value (NPV) over a 30-year projection timeline;' • an estimated $120,000 to $240,000 in incremental annual ad valorem tax revenue to the City of Miami Beach as a result of impacts to surrounding property values;2; and, • $1.125 million in annual resort tax revenue upon stabilized operations to the City; or, an NPV of $19.1 million during a 30-year projection period. The following table provides a summary of the long-term/recurring fiscal benefits to the City of Miami Beach: Figure 3:Summary of Estimated Long-term Incremental Fiscal Benefits to the City of Miami Beach from Ocean Terrace Development (Upon Stabilized Operations, 2019 $'s) Source Annual NPV(30 yrs) Ad Valorem Tax—Ocean Terrace $1,600,000 $27,000,000 Ad Valorem Tax—Surrounding Properties' $180,000 $3,200,000 Resort Tax—Ocean Terrace $1,125,000 $19,100,000 Total $2,900,000 $49,300,000 Assuming a 7.0 percent discount factor and 3.0 percent annual growth rate 2Refer to Section 2c for details 3 Assumes mid-point of moderate and upper scenarios 4 Page 756 of 1288 Economic Impact Assessment—Ocean Terrace Methodology,Analysis and Results The proposed residential, hotel, and retail development will have a positive impact on the surrounding community in terms of taxes, jobs, and general investment generated, and will also enhance the area's existing commercial/retail demand. This development will help maintain economic stability within the area and attract on-going investment during the next several years. The analysis herein considers an evaluation of the current plan to measure the incremental economic benefits of the Ocean Terrace development, as well as additional benefits to the City from the Developer's proposed capital contribution to the roadway/public space improvements. We have completed this analysis based on generalized development and performance information (i.e., development program by use, development timing, development costs, residential and commercial sales/rental rates, absorption/occupancy, and other operating performance measures) that is estimated based upon information provided by Ocean Terrace Holdings (Developer). Importantly, Lambert has not independently verified through a market study, or otherwise, the development cost and/or operating performance data and cannot attest to the accuracy of those estimates herein. The analysis herein has been prepared to reflect the economic impact of development related activity upon completion within a 2-year development timeframe, and for the purposes of this analysis assumes the period in which the recurring economic impacts from the vast majority of the residential and commercial uses will be derived from operations. The economic impacts as stated herein from construction and operation of the Ocean Terrace development are presented in current (2019) dollars. Any change in development and/or operating assumptions from those utilized as part of this analysis can have a material impact on the direct and in-direct economic indicators stated herein. The economic impact analysis for the Ocean Terrace development is based on application of the IMPLAN Economic Impact Model. This model is highly recognized and one of the leading analytic tools for measuring the economic impact that includes, but not limited to, real estate developments, including, going-concern operations among commercial, residential establishments. Lambert applied the IMPLAN Economic Impact Model for assessing the short-term (construction) and long-term (stabilized operations) economic impact of the Oceanside development and its components. The IMPLAN model examines inter-industry relationships in a state, regional or local economy and provides indirect and induced output for employment, income and value added based on multipliers for the economy being analyzed. The analysis provided herein presents estimates of the direct, indirect and induced economic impacts that will be derived from the construction and stabilized operation of the Oceans Terrace development and its components. The short-term economic impact analysis is based on construction cost of the development and its components over a two-year construction period as provided by Developer. Regarding the long-term economic impact, Developer provided Lambert with general performance estimates for the proposed development (i.e., condominium sales, hotel occupancy and ADR, commercial sales/rental rates). Lambert has not independently verified through a market study, or otherwise, the development cost and/or operating performance data and cannot attest to the accuracy of the estimates herein. The following table provides a summary of the proposed Ocean Terrace development: 5 Page 757 of 1288 Economic Impact Assessment—Ocean Terrace Figure 4: Ocean Terrace Development Program Source: Ocean Terrace Holdings Use Units/Sq.Ft. Condominium 58 units Resort Hotel 110 rooms Retail 18,015 sq.ft. Parking 172 spaces The construction of Ocean Terrace (including roadway/public space improvements) is projected to be completed within a two-year timeframe. Based upon the information provided and estimates made, construction and subsequent operations of Ocean Terrace will generate considerable benefits to the immediate area, the City of Miami Beach, and the broader Miami-Dade County community. There are two key areas in which the project will provide positive economic impacts: 1. Short-term construction employment and expenditure 2. Long-term economic and fiscal benefits from capital improvements, operations and residential and visitor expenditure For both short-term and long-term impacts, which are detailed in the following analysis, the economic benefit to the area is the result of projected increases in revenue from primary sources, including employment, wages, and taxes. Accordingly, the impact from these key sources comes from two distinct measures: • Direct Expenditures — disbursements for site acquisition and development (hard and soft costs), resident/worker/visitor expenditure, and expenditures associated with the operation of the grounds and building • Indirect/Induced Expenditures — net additional expenditures that flow into the local economy as a result of the new development. Economic impacts from the four key sources are detailed in the following sections. 1. Short-Term Construction Employment and Expenditure The impact from short-term construction employment and expenditure is directly associated with the project's development; the table below shows a summary of estimated development costs for both the Ocean Terrace plan: Figure 5:Ocean Terrace—Summary of Development Costs Source: Ocean Terrace Holdings Item Update Ocean Terrace - Hard Costs $130,000,000 Ocean Terrace -Soft Costs $69,000,000 Roadway/Public Improvements $15,000,000 Total $214,000,000 6 Page 758 of 1288 Economic Impact Assessment—Ocean Terrace For Short-term construction, the investment activity is supported by NAISC Sector Codes (Codes) and, for purposes of this analysis, we have allocated costs among two categories: Code 236220—Construction of New Commercial Structures; and, Code 236117—New Housing For-Sale Builders. Figure 6: Summary of Short-Term Economic Impacts from Construction of Ocean Terrace (Source: IMPLAN; US Census) ImpactType Employment Labor Income Output Direct Effect 1,527 $75,447,064 $213,999,989 Indirect Effect 476 $23,637,340 $68,549,024 Induced Effect 535 $23,372,918 $72,857,039 Total Effect 2,538 $122,487,323 $355,406,052 As outlined above, and under the Original Plan, the construction and capital improvements within the City of Miami Beach will create significant short-term economic benefits including an average 1,270+ direct and indirect/induced construction (and related) jobs annually during the proposed improvement period, which generates a total of$122 million in direct and indirect/induced labor income during the construction period that will flow to the local and regional economy. Most development-related expenditures will be made in Miami-Dade County, and the City of Miami Beach should potentially capture a measurable share of these expenditures. The proposed development will generate significant direct impact and other fees payable to the City and County during the construction period which will be available for public expenditures associated with the project including roadways, schools, parks, developmental, administrative, permitting, change of use and other costs. It is difficult to accurately determine the impact fee and other fees at this point since many of these costs are dependent upon certain utility and design components that underlie the fee calculation (ie. including allocation of space for retail, restaurant, etc.). Nonetheless, based upon preliminary construction budgeting, total impact fees related to large-scale mixed-use development, the impact/permit fees are estimated to be more than $3 million over the construction period, with approximately$2.2 million to the City in the form of permit and administrative fees. Additionally, there will be an estimated $7+ million in commissions, of which a considerable amount is presumed to be paid to local real estate brokers/agents. 2. Long-Term (On-Going) Economic Benefits from the Ocean Terrace Development The Ocean Terrace development is envisioned to be a high-end, luxury residential, hotel and commercial property and, together with the proposed roadway/public space improvements, will have a measurable effect on its immediate surroundings. The development will contribute significantly to the area's overall beautification through its building design, streetscape and open space enhancements. It will serve as a catalyst for on-going and longer-term investment in the broader North Beach area. As part of this analysis, there are four primary aspects of long-term impacts that Ocean Terrace's residential, hotel and retail and retail uses will have on the City and County, including: 1.) Net New Job and Wage Creation; 2.) Marginal Ad Valorem Tax Revenue from Ocean Terrace; 3.) Incremental Enhancement to Surrounding Property Values; and,4.) Resort Tax. 7 Page 759 of 1288 Economic Impact Assessment—Ocean Terrace The following provides a summary of methodology, research, analysis, and findings associated with the four primary categories of long-term/recurring benefits from Ocean Terrace. 2a.) Net New Job and Wage Creation Presently, there are two hotels (182 rooms in total) and 29,118 square feet of retail on the Ocean Terrace site. While these properties are deemed to be in fair to poor condition (and well beyond their useful life), they do currently employee approximately 42 FTE persons in the hotels and an estimated 72 FTE persons in the retail. As noted, the new development will be of superior quality and service that will require a level of employment/staffing that is higher than traditional for residential, hotel and retail uses. Based upon input from the Developer, the full-time equivalent employees (FTE's) that will be created as part of the overall development, include: Residential: At several million dollars in price, there is estimated to be upwards of 25 FTE jobs within the condominium development, including but not limited to: two on-site managers, multiple concierge/front desk personnel, multiple security guards, pool service attendants, several maintenance/landscaping personnel, and multiple valet attendants. Hotel: The proposed 110 room hotel envisions a branded, luxury full-service property with full- service dining, spa, and staffed pool/cabana service. Staffing for full-service hotels is generally in the range of 0.8 to 1+ staff per room; however, luxury properties will generally be in the 1 to 1.5 person FTE room range. Based upon input from the Developer, there will be an estimated 1.2 staff per room for Ocean Terrace, which is equal to 132 FTE; or, a net 90 FTE accounting for existing hotel jobs. Retail: The type of retail envisioned for Ocean Terrace development will include both full-service and casual dining, as well as boutique retail. The average square foot per employee for full-service restaurants can be as low as 150-200 square feet of space/employee, while casual restaurants may be in the range of 200-250 square feet/employee and boutique retail at 350 square feet/employee.4 In the absence of detailed tenant mix at this point, and from a conservative perspective, it is estimated that the Ocean Terrace retail will have an average 275 square feet/employee; or, 65 net new FTE retail jobs created (which accounts for a stabilized 5 percent vacancy factor). In this case, there is actually a net loss in jobs from the decreasing level of retail currently on the site; however, at under 10 FTE jobs,this is quite modest and considered to be a "wash" for purposes of this analysis. Parking: In general, there may be 1 FTE job per 120 spaces for parking garages. However, for this analysis, it is assumed these jobs are included in the hotel and retail FTE; and, particularly, the balancing of lost retail. The following is a summary of net new direct FTE jobs created from the Ocean Terrace development: °Based upon data published by Institute of Transportation Engineers(ITE) 8 Page 760 of 1288 Economic Impact Assessment—Ocean Terrace Figure 7:Scenario 1 and 2: Estimate of Net New FTE Jobs from Ocean Terrace Development Sq.Ft./Units Total FTE Residential 58 units 25 Retail 18,015 sq.ft. 0 Hotel 110 rooms 90 Total 115 Based upon the estimated net new FTE jobs created by Ocean Terrace, the following table provides a summary of total wages based upon wage data from Florida Department of Economic Opportunity (FDEO): Figure 8: Summary of Estimated Annual Wages from Net New Direct FTE Jobs (Source: IMPLAN; US Census) Impact Type Employment Avg.Annl.Wage Total Wages Residential 25 $50,380 $1,260,000 Retail n/a n/a n/a Hotel 90 $31,592 $2,900,000 Total Effect 115 $36,173 $4,160,000 As illustrated above, the 115 net new direct FTE jobs from Ocean Terrace generates annual wages totaling $4.2 million (2019 $'s) that will be expended within the City and, particularly, within surrounding businesses. In addition, these direct jobs will create an additional 78+ indirect and induced jobs throughout the region. 2b.) Incremental Ad Valorem from Ocean Terrace The development of Ocean Terrace will provide significant benefit to the City and County by way of real property and personal property (ad valorem) taxes. Especially, based upon residential sales that will reportedly be in the range of an average $4.5 to $5.0 million, and the hotel resort that will generate more than $32 million in gross revenue annually upon stabilization. The tax amount is based upon the County Tax Collector's current millage rate of 19.0742 (per thousand dollars of value). Real property is typically assessed at between 80 and 90 percent of Fair Market Value (FMV); or, for the purposes of this analysis, we calculate ad valorem taxes for Ocean Terrace based upon an estimated taxable value (including land) of approximately $290 million. As a result, the development should generate approximately$6.0 million in real property taxes upon stabilized operations (in 2019 $'s); or, a total of approximate $1.85 million to the City of Miami Beach. Presently, the Ocean Terrace aggregated parcels indicate a taxable value of$39.5 million, with a current tax payment of$754,000; or, the City's current taxable portion being approximately $233,000. Therefore, the incremental ad valorem tax revenue to the City from Ocean Terrace is approximately$1.6 million upon stabilized operations. 9 Page 761 of 1288 Economic Impact Assessment—Ocean Terrace Figure 9: Ocean Terrace—Ad Valorem Tax Estimate Upon Stabilization Source: Miami Dade County Property Appraiser; Ocean Terrace Holdings; Lambert Advisory Item Millage Annual Tax City of Miami Beach Operating 5.7288 $1,804,572 City of Miami Debt 0.160 $50,400 Miami Dade County Operating 4.6669 $1,470,074 Miami Dade County Debt 0.4644 $146,286 Miami Dade County Schools (State, Local) 6.774 $2,133,810 Miami Dade County School Debt 0.229 $72,135 South Florida Water Mgmt. 0.1209 $38,084 Okeechobee Basin 0.131 $41,265 Everaglade Construction 0.0417 $13,136 Library District 0.284 $89,460 Children's Services 0.442 $139,073 FIND 0.032 $10,080 TOTAL 19.0742 $6,008,373 Based upon this stabilized incremental tax revenue,the following table provides a summary of the$27 million in net present value(NPV) of this revenue (upon stabilization) during a 30-year timeframe, which assumes a 7.0 percent discount rate and 3.0 percent average annual growth rate. Figure 10: Incremental Ad Valorem Tax Revenue from Ocean Terrace-30 Year NPV Stabilized Year Incremental Tax Revenue(2019$'s) $1.6 million Total Incremental Tax Revenue(30 years) $76 million NPV Incremental Tax Revenue $27 million 2c.) Incremental Enhancement to Surrounding Property Values Ocean Terrace is envisioned to vastly improve the aesthetics of the surrounding area and, not only from the building's design and features, but also from a proposed comprehensive improvement to the roadway and public space fronting the development (from 73rd Street to 75th Street). This includes an estimated $15 million in streetscape and roadway improvement expenditures envisioned as part of the Urban Design Plan under the North Beach Master Plan and for which these benefits will not only serve the development, but the surrounding residents,workers and visitors that will be accessing and utilizing the public space. Notwithstanding, the process of effectively measuring the Ocean Terrace development will have on the surrounding area is extremely difficult (if not impossible); particularly, as it relates to assigning the direct impact that a single development (and its corresponding capital improvements) has on a broader geographic area. First, we understand that there are several under-utilized properties in the respective study boundary that are strong targets for potential for redevelopment in the area. Moreover, we do 10 Page 762 of 1288 Economic Impact Assessment—Ocean Terrace understand the history of redevelopment within the Art Deco Historic District, Lincoln Road and other areas on Miami Beach that undeniably benefited greatly from similar redevelopment efforts. However, assigning value growth within a broader geographic area to that of a single redevelopment property/capital improvement is extremely challenging. For instance, concurrent with Ocean Terrace, there are a few prospective noteworthy redevelopment plans being introduced within the North Beach area, including: North Beach Town Center and Byron Carlyle Redevelopment. Both properties are located within 1,750+ feet (1/3' mile) of the Ocean Terrace development. If these redevelopment efforts move forward, they too will be contributing factors to the area's redevelopment and incremental property value growth in the surrounding area. Yet, these two developments were not the direct result of Ocean Terrace, but likely that of a broader planning initiative implemented by the City as part of the North Beach Master Plan. Therefore, while the incremental property value growth within the surrounding area may eventually become quite significant over an extended period time, assigning all of the potential value growth directly to a single development cannot be substantiated. Therefore, for this analysis, we take a cautious and more conservative approach to the impact evaluation. Recently, Lambert completed a few similar economic impact assessments addressing incremental value growth that capital improvements to public space and other redevelopment has on surrounding properties. As part of these studies, a comprehensive literature review of articles and case studies was undertaken to address the potential positive impacts that certain large-scale development/capital improvement projects could have on neighborhood areas, including increased values on residential and commercial properties. From the literature review, there is discussion and examples of projects from around the country on creating and improving streets and streetscapes covering an array of projects, including, for example: improving transportation systems to improving the safety; circulation of pedestrians, bicyclists and vehicles; improving roadway aesthetics; and improvements to open/park space. Based upon this research, we apply a highlight two key variables to the analysis herein: 1.) Area of Impact: The most significant radius of influence on residential properties extends roughly 1/3rd of a mile (1,760 feet) around the development, while a 500-foot boundary was established for office and retail incremental valuation —and illustrated in the following figure. 11 Page 763 of 1288 Economic Impact Assessment—Ocean Terrace Figure 11: Map of Residential Parcels within 1/3 Mile&Retail/Office within 500 feet)of Oceanside ae 1I *.111111 4411 11e IS' .irk = • Ocean Terrace _ . Commercial u -ReaMentlal E 1 600 FM Min MIM 2.) Value Premium: The literature research referenced herein previews a number of documents related to benefits derived from improvements to streetscape (streets and sidewalks) as well as from improvements to open space. Again, it is extremely challenging to narrowly apply the literature study comparing developments within different regions for which there are several economic, cost and/or regulatory variables. This is illustrated by the wide range of valuation impacts from as low as 2 percent for commercial and, in a singular case, greater than 20 percent for residential based upon varying levels of capital improvement and related investment. Considering the challenges to more narrowly quantify theses range of impacts, we use an estimated incremental property value impact in the range of 4 percent (lower) to 8 percent (upper). These incremental values would apply to the existing residential parcels within 1/3' mile radius and retail/office parcels within 500 feet.' Based upon the methodology and incremental value metrics outlined above, the incremental value analysis was completed for the residential, office and retail properties surrounding Ocean Terrace. The following map outlines the affected parcels utilizing the Miami Dade County GIS Database and Parcel Data. Based upon applicable residential, office and retail parcel data extrapolated from MDCPA property database, the table below provides a summary of the total assessed value of the impacted properties, with a highlight of incremental increase in assessment based upon lower and upper value premium resulting from the proposed improvements. Furthermore, the table provides a summary of the annual 5 Note, incremental value increases are not applied to current homestead properties 12 Page 764 of 1288 Economic Impact Assessment—Ocean Terrace incremental real estate tax from these properties that will accrue to the City of Miami Beach based upon current millage rates: Figure 12: City of Miami Beach — Estimated Annual Incremental Value and Tax Revenue Analysis (from Ocean Terrace Development) Incremental Increment Tax Total Building Current Total Assessed Value Revenue to City Sq.ft. Taxable Value (lower/upper) (lower/upper) Ocean Terrace $120,000 to 810 million SF $510 million $20 M to$40 M (surrounding properties) $240,000 As summarized above, the properties impacted by the proposed development totals 810+ million square feet of built space, with a total taxable value of $510 million. Based upon the premium value increments outlined above, the total assessed value of the properties affected by the Ocean Terrace improvements increases by $20 million to $40 million, resulting in an estimated $120,000 to $240,000 in additional annual tax revenue to the City of Miami Beach. Figure 13: Incremental Ad Valorem Tax Revenue from Oceanside(Lower and Upper Scenarios) Lower Upper Stabilized Year Incremental Tax Revenue(2019$'s) $120,000 $240,000 Total Incremental Tax Revenue(30 years) $5.7 M $11.4M NPV Incremental Tax Revenue $2.1 $4.3M 2d. Resort Tax Miami Dade County, through its Tourist and Convention Development Tax, assesses a total 6 percent tax on properties renting short-term transient rentals (less than 6 months) in hotels, motels, apartments and other qualifying residential units. However, there are exceptions for the cities of Miami Beach, Surfside and Bal Harbour. Specific to the City of Miami Beach, the City collects and retains a 4 percent tax on transient rental sales, and an additional 2 percent tax on food and beverage sales. Based upon input from Ocean Terrace, the hotel is forecast to generate approximately $20 million in annual gross revenue upon stabilized operations. Accordingly, there is an additional estimated $12 million generated from the resort's food and beverage service, which includes expenditures from the condominium residents. In addition to the food and beverage (dining) that will be created on-site, Ocean Terrace residents and visitors will also generate dining expenditures off-site and within the City. It is quite challenging to ascertain the level of food and beverage expenditure that will occur given the likelihood that the vast majority of these owners will be second-home owners and/or investors. This is based upon our research of 8 condominium developments built since 2000 within the coastal area between mid-Miami 13 Page 765 of 1288 Economic Impact Assessment—Ocean Terrace Beach and Surfside. Within these developments, approximately 15 percent of condominium owners are primary residents, with 85 percent represented as second-home owners and/or investors. While we do not know at this point the characteristic of the Ocean Terrace resident, it is commonly known that the majority of condominium investment along Miami Dade County's coastal area (and Downtown Miami) is heavily supported by these second-home buyers and investors. At this point, there is a high degree of uncertainty as to the non-primary resident's occupancy level in any given year. Nonetheless, for this analysis, we provide a generalized estimate as follows: that 50 percent of the condominium units are fully occupied during the course of a year; the average daily expenditure on dining per household is $250 per day; and, 40 percent of resident's dining expenditures not captured on-sight will flow exclusively to Miami Beach establishments (which takes into account the plethora of quality dining options in other areas such as Bal Harbour, Bay Harbor, Miami Design District, Downtown Miami, Coral Gables and elsewhere). This would yield approximately $1+ million in annual dining expenditures from residents; or, $20,000 in F&B sales tax to the City. Similarly, for the hotel guests, we assume: 110 rooms with an average occupancy of 80% (as per Developer); an average daily expenditure on dining per guest room of $250 (double occupancy); and, 40 percent expenditure off-site and exclusively in Miami Beach. This would yield approximately $3.2 million in total F&B sales; or, $64,000 in annual F&B sales tax to the City. Collectively, the resident and resort guest expenditures exclusive to Miami Beach establishments totals $4.2+ million; or, $85,000 in annual F&B sales tax. Figure 14: Estimated Ocean Terrace Resort Tax Revenue to City(upon Stabilized Operations) Source: City of Miami Beach; Ocean Terrace Holdings Impact Type Resort Tax Revenue Est.Annl. Hotel Sales Tax(4.0%of Gross Rev.)—On Site $800,000 Est.Annl. F&B Sales Tax(2.0%of Gross Rev.)—On Site $240,000 Est.Annl. F&B Sales Tax(2.0%of Gross Rev.)—Off Site w/in City $85,000 Est.Total Annual Resort Tax $1,125,000 NPV Incremental Resort Tax Revenue $19,100,000 As set forth above, the Oceanside Terrace development is projected to generate $1.125 million in annual resort tax revenue upon stabilized operations; or, an NPV of $19.1 million during a 30-year projection period. Importantly, we do recognize that the Ocean Terrace residents and visitors will also spend additional food and beverage (and retail) dollars outside of the hotel and within other areas of Miami Beach. 14 Page 766 of 1288 EXHIBIT "F" TO COMMISSION MEMORANDUM OCEAN TERRACE DEVELOPMENT AGREEMENT This instrument was prepared by (record and return to): Addressl Address2 Address3 Address4 (Space reserved for Clerk) DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of the day of 2019, by and among the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City"), and jointly and severally 7450 OCEAN TERRACE LLC, 7436 OCEAN TERRACE LLC, 7420 OCEAN TERRACE INVESTMENT LLC, 7410 OCEAN TERRACE LLC, 7400 OCEAN TERRACE LLC, 7409 COLLINS AVE INVESTMENT LLC, 7421 COLLINS AVE INVESTMENT LLC, 7433 COLLINS AVE INVESTMENT LLC, 7439 COLLINS AVE INVESTMENT LLC, and 7441 COLLINS AVE INVESTMENT LLC (collectively, the "Developer"). City and Developer are each a"Party" and collectively are the "Parties"to this Agreement. Introduction A. The property that is the subject of this Agreement lies in Miami Beach, Miami-Dade County, Florida. This Agreement, among other things, is intended to and shall constitute a development agreement between the parties pursuant to Sections 163.3220-163.3243, Florida Statutes, the "Florida Local Government Development Agreement Act" (the "Act") and Section 118-4 of the City Code. B. The Developer owns or has a legal or equitable interest in the property located east of Collins Avenue between 74th and 75th Streets, Miami Beach, Florida, more specifically described in Exhibit "A" (the "Developer Property") and intends to redevelop the Developer Property with a mixed-use residential, hotel, and retail development (as defined in Section 3.43, the "Project"). C. The Developer holds a reversionary interest in the public reservation area immediately east of Ocean Terrace between 74th and 75th Streets, more specifically described in Exhibit "B" (the "Reversionary Interest"). D. The City has a beneficial and legal interest in the property specifically described in Exhibit "C" (the "75th Street Parcel"), which is currently improved with a portion of 75th Street between Collins Avenue and Ocean Terrace. E. The City has a beneficial and legal interest in the property specifically described in Exhibit "D" (the "74th Street Parcel"), which is currently improved with a portion of 74th Street between Collins Avenue and Ocean Terrace. F. The City has a beneficial and legal interest in the property specifically described in Exhibit "E" (the "Ocean Terrace Parcel"), which is currently improved with a portion of Ocean 49127872;13 Page 767 of 1288 Terrace between 74th and 75th Streets (collectively, with the 74th Street Parcel and the 75th Street Parcel, the "City Parcel"). G. The City wishes to release the City's beneficial and legal interest in the City Parcel to provide a unified development site with the Developer Property. H. The Developer Property and the City Parcel combined constitute the"Development Site," and is legally described in Exhibit "F." I. The Developer desires to develop, design, permit and install, at Developer's sole cost and expense, a public park and streetscape project in the vicinity of Ocean Terrace, which area is described more fully in Exhibit "G" hereto, and will include improvements to (i) Ocean Terrace, between 73rd Street and 75th Street; (ii); the public reservation area immediately east of Ocean Terrace between 73rd Street and 75th Street; and (iii) 73rd Street, 74th Street, and 75th Street, from Collins Avenue to Ocean Terrace (as defined in Section 3.37, the "Park/Streetscape Site"), to be designed by Raymond Jungles (or by a comparable landscape architecture firm approved in accordance with Section 65 of this Agreement), substantially as shown on the Park/Streetscape Concept Plan, and to be constructed in phases in accordance with this Agreement (the "Park/Streetscape Improvements"). J. The City and Developer anticipate that, once completed, the Park/Streetscape Improvements will have an estimated value of approximately Fourteen Million Eight Hundred Thousand Dollars ($14,800,000.00). K. Pursuant to City Resolution No. (the "Vacation Resolution"), concurrently with the execution of this Agreement, the City has approved the vacation of the City Parcel, subject to and conditioned upon the terms and conditions contained in such Vacation Resolution, including, without limitation, (1) the grant by the Developer to the City of a perpetual, non-revocable easement against the City Parcel for subsurface utilities and public recreational, vehicular, and pedestrian use and access (the "City Parcel Easement"); (2) the Developer conveying the Reversionary Interest to the City; and (3) the Developer's commitment to improve the City Parcel with the Park/Streetscape Improvements as provided in this Agreement. L. The City is a Florida municipal corporation with powers and authority conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the Miami Beach City Charter and City Code. The City has all governmental, corporate and proprietary powers to enable it to conduct municipal government, perform municipal and governmental functions, and render municipal services, including the authority, to adopt, implement and enforce (together with any other required governmental approvals) comprehensive plans, zoning ordinances, redevelopment plans, and other police power and legislative measures necessary to assure the health, safety and general welfare of the City and its inhabitants. M. Having fully considered this Agreement at two duly noticed public hearings in compliance with Section 163.3225 of the Act; having determined that the Project, Park/Streetscape Improvements and this Agreement are in compliance with the City's Comprehensive Plan and Land Development Regulations as of the Effective Date; and having further determined that it is in the City's best interest to address the issues covered by this Agreement in a comprehensive manner, in compliance with all applicable laws, ordinances, plans, rules and regulations of the City, the City has agreed to enter into this Agreement with the Developer. 2 49127872;13 Page 768 of 1288 N. In accordance with Section 163.3227(1)(h) of the Florida Statutes, the City has determined that the Project, the Park/Streetscape Improvements, and the City Parcel Easement will benefit the City and the public, and that the conditions, terms, restrictions and requirements herein are necessary for the public health, safety and welfare of its citizens. The Project and Park/Streetscape Improvements will help revitalize and improve the character and appearance of the surrounding neighborhood and will have a significant positive fiscal impact for the City. The Park/Streetscape Improvements will also provide a significant public amenity and increase recreational open space in the northern portion of the City. NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby-agree as follows: 1. Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Authority.This Agreement is entered into pursuant to the authority and procedures provided by the Act and Section 118-4 of the City Code. 3. Definitions. All capitalized terms in this Agreement shall have the definitions set forth in this Section unless such terms are defined elsewhere in this Agreement. 3.1 "Act" shall mean the Florida Local Government Development Agreement Act (Sections 163.3220 - 163.3243, Florida Statutes (2018)). 3.2 "Affiliate" shall mean any Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with another Person. For purposes hereof, the term "control" (including the terms "controlled by" and "under common control with") shall mean the possession of a Controlling Interest. Unless the context otherwise requires, any reference to "Affiliate" in this Agreement shall be deemed to refer to an Affiliate of Developer. 3.3 "Affiliate Mortgagee" shall mean a lender who is an affiliate of the Developer or of the Developer's principals, including, without limitation, Access Industries, Inc. and its subsidiaries, and who holds a mortgage, lien, or other security interest on the Development Site or a portion thereof. 3.4 "Assignment of Construction Agreements" means an assignment by Developer to the City of all of Developer's right, title and interest in and to the Construction Agreements, which assignment shall include a duly executed consent by the Contractor and architect/engineer of record and all other Persons having any interests therein, and shall otherwise be in form and substance reasonably satisfactory to the Parties,which assignment shall be executed by Developer solely for the purpose of providing additional security to the City for the performance and discharge of Developer's obligations in this Agreement with respect to the Park/Streetscape Improvements, and shall only be exercisable by the City upon the occurrence of an uncured Event of Default by Developer under this Agreement pertaining to the Park/Streetscape Improvements. 3.5 "Assignment of Plans, Permits and Approvals" means an assignment by Developer to the City of all of Developer's right, title and interest in and to the approved Permit 3 49127872;13 Page 769 of 1288 • Plans and Specifications and all Permits and Approvals for the Park/Streetscape Improvements, which assignment shall include a duly executed consent by the architect/engineer of record and all other Persons having any interests therein, and shall otherwise be in form and substance reasonably satisfactory to the Parties, which assignment shall be executed by Developer solely for the purpose of providing additional security to the City for the performance and discharge of Developer's obligations in this Agreement with respect to the Park/Streetscape Improvements, and shall only be exercisable by the City upon the occurrence of an uncured Event of Default by Developer under this Agreement pertaining to the Park/Streetscape Improvements. 3.6 "Building Permit" shall mean any permit issued by the City of Miami Beach Building Department or Building Official, including any foundation, building, or phase permits. 3.7 "Business Day" shall mean any day other than a Saturday, Sunday, and any federal or state holiday. If any period expires on a day that is not a Business Day, or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day that is not a Business Day, then such period shall expire, or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day. 3.8 "City" shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In all respects hereunder, City's obligations and performance is pursuant to City's position as the owner of the City Parcel acting in its proprietary capacity. In the event 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 City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Agreement or in any way deemed in conflict with, or a default under, the City's obligations hereunder. 3.9 "City Code" shall mean the Code of Ordinances of the City. 3.10 "City Parcel" shall mean the area described in Exhibits "C," "D," and "E." 3.11 "City's Consultant" has the meaning provided in Section 18. 3.12 "Closing" shall refer to the formal exchange of documents between the parties, as further described in Section 5 of this Agreement. 3.13 "Commence Construction,""Commencement of Construction"and terms of similar import mean, with respect to the Park/Streetscape Improvements, the commencement of bona-fide site work for the Park/Streetscape Improvements, including, without limitation, clearing, grubbing, erection of construction fencing, and drainage improvements. 3.14 "Comprehensive Plan" shall mean the comprehensive plan which the City has adopted and implemented for the redevelopment and continuing development of the City pursuant to Chapter 163 Part II, of the Florida Statutes. 3.15 "Construction Agreements" shall mean those contracts between the Developer and the Contractor, architects, and engineers with whom Developer is in direct privity of contract for the construction of the Park/Streetscape Improvements. 4 49127872;13 Page 770 of 1288 3.16 "Contractor" shall mean the Developer's general contractor for the construction of the Park/Streetscape Improvements, to be selected by Developer in compliance with the requirements of Section 65 of this Agreement. 3.17 "Controlling Interest" means the power to direct the management and decisions (both major decisions and day-to-day operational decisions) of any Person. 3.18 "Covenant in Lieu of Unity of Title" shall mean the covenant in lieu of unity of title covering the Development Site, substantially in the form attached as Exhibit"H." 3.19 "Developer" means the persons or entities undertaking the development of the Development Site and the Park/Streetscape Improvements, as defined in the preamble to this Agreement, or any permitted successors, assigns, transferees, delegatees, or heirs thereof. 3.20 "Development Default Deadlines" shall mean those default deadlines set forth in Sections 42(b), (c), (d), and (e) of this Agreement. 3.21 "Development Dispute" shall mean any contention by Developer that City has unreasonably failed to approve or give its consent to any modifications to any Plans and Specifications pursuant to Sections 8, 9, and/or 11 of this Agreement, or any contention by City that Developer has not complied with its obligations or responsibilities set forth in those sections. 3.22 "Development Order" means any order granting, denying, or granting with conditions an application for a Development Permit. 3.23 "Development Site"shall mean the area described in Exhibit"F," including, after the Closing, the Developer's right, title, and interest in and to the City Parcel. 3.24 "Development Permit" shall have the meaning set forth in Section 163.3221(5), Florida Statutes (2018). 3.25 "Economic Force Majeure" means economic or political conditions or events that materially impair access to debt or equity markets by developers for development of projects similar to the Project or allow a committed debt or equity participant to terminate its debt or equity commitment, such as a temporary or long-term liquidity crisis or major recession, as well as disruptions in the normal functioning of the economy and/or related debt and equity capital markets, including extreme and/or prolonged recessionary conditions, sustained elevated levels of unemployment, sustained increased interest rates, sustained losses in valuations of equity, debt, real estate, hospitality and other markets, and severe limitations in the ability to raise liquidity and/or capital through those markets. 3.26 "Effective Date" is the date when the City records the executed Agreement in the Public Records of Miami-Dade County, as provided in Section 163.3239, Florida Statutes (2018), and Section 36 of this Agreement. 3.27 "Execution Date" is the date the last of the required Parties executes this Agreement. 3.28 "Final Approval" shall mean, with respect to the Project Zoning Approvals, the Park/Streetscape Zoning Approval, or any other Permits and Approvals for the Project or the Park/Streetscape Improvements, that such permit or approval has been finally approved by the 5 49127872;13 Page 771 of 1288 issuing governmental or regulatory body. With respect to the Project Zoning Approvals and the Park/Streetscape Zoning Approval, and any other discretionary Permit or Approval requiring a public hearing, it shall further mean that all appeal and limitations periods have expired, with no challenges or appeals having been made or with all challenges and appeals having been finally disposed of (by judgement, settlement or otherwise) to Developer's satisfaction. Notwithstanding anything to the contrary, Developer will be deemed to have accepted all conditions attaching to a particular Permit or Approval unless the Developer notifies the City in writing, no later than thirty (30) days after such Permit or Approval is finally approved, of its objections to any such conditions and intent to appeal or avail itself of other remedies. Upon delivery of such written notice, the Permit or Approval at issue shall not be deemed a "Final Approval" unless and until the offending condition is removed or the Developer waives its objections by written notice to the City. 3.29 "Force Majeure Events" include, without limitation, floods, storms, hurricanes, and other acts of God (including reasonable preparation therefor); war, terrorism, riots, civil commotion, fire, and other casualty; epidemics; quarantines; strikes, lockouts, labor disputes, and any inability to procure, or a general shortage of, labor, equipment, facilities, materials, or supplies in the open market; breakdown of transmission or other systems or facilities; the declaration of a state of emergency by the President of the United States or by the Governor of Florida that, in each case, includes Miami-Dade County, Broward County, and/or Palm Beach County; moratoria; the pendency of any Lawsuit (as defined below) and any unexpired appeal periods thereof at all levels of appeal; acts of the other Party; and all other causes and circumstances similar to the foregoing, but excluding Economic Force Majeure. 3.30 "Hold Harmless" shall mean the Hold Harmless Agreement, substantially in the form attached in Exhibit "I." 3.31 "Land Development Regulations" shall have the meaning set forth in Section 163.3221(8), Florida Statutes (2018) and shall also include, without limitation, the definition of"land development regulations" in Section 114-1 of the City Code. 3.32 "Laws" means all ordinances, resolutions, regulations, the Comprehensive Plan, Land Development Regulations, and rules adopted by a local government having jurisdiction affecting the development of land, specifically including the City's Comprehensive Plan and the City's Land Development Regulations. 3.33 "Material Modification" and words of similar import shall mean (i) any modification that reduces the total area of the Park/Streetscape Site from that shown on the Park/Streetscape Concept Plan or on any subsequently approved Plans and Specifications, as applicable; (ii) any modification that introduces uses at the Park/Streetscape Site that have not been previously approved by the City and are substantially incompatible with the Park/Streetscape Concept Plan or with any subsequently approved Plans and Specifications, as applicable; or (iii) any modification that substantially diminishes the physical quality of the landscaping and improvements shown on the Park/Streetscape Concept Plan or on any subsequently approved Plans and Specifications, as applicable. Any disagreement between the Parties as to whether a proposed modification is a Material Modification shall be resolved by expedited arbitration pursuant to Section 34 of this Agreement. 3.34 "Park/Streetscape Concept Plan" shall mean the plans, designs, and drawings, illustrating the proposed concept for the Park/Streetscape improvements, which approved plans are attached in Exhibit "J." 6 49127872;13 Page 772 of 1288 3.35 "Park/Streetscape Construction Commencement Date" shall mean the date on which Developer Commences Construction of the Park/Streetscape Improvements. 3.36 "Park/Streetscape Improvements" shall mean the improvements to be made to the Park/Streetscape Site as further described in accordance with this Agreement. 3.37 "Park/Streetscape Site" shall mean the property described in the Introduction and depicted in the Park/Streetscape Concept Plan, as the same may be modified by any subsequently approved Plans and Specifications. 3.38 "Permits and Approvals" shall mean the Project Zoning Approvals, the Park/Streetscape Zoning Approval, all Building Permits (including, without limitation, a "full building permit," as defined in the Land Development Regulations), and any other Development Orders, Development Permits, or other local, state, or federal permits or approvals required by applicable Laws or Requirements, for the Project or the Park/Streetscape Improvements, as applicable. 3.39 "Permitted Transferee" means any Affiliate of the Developer. 3.40 "Person" means any individual, firm, general or limited partnership, corporation, limited liability company, association, joint venture, estate, trust, unincorporated association, or other entity, and any fiduciary acting in such capacity on behalf of any of the foregoing. 3.41 "Phase" shall mean Phases 1 and 2 of the Park/Streetscape Improvements, as depicted on the Park/Streetscape Concept Plan or on any subsequently approved Plans and Specifications, as applicable. 3.42 "Plans and Specifications" shall mean the plans and specifications for the design, development, and construction of the Park/Streetscape Improvements, including fully detailed drawings showing the location, character, dimensions, details, and specifications of the work to be done, and comprising all of the written directions, provisions, and requirements for the Park/Streetscape Improvements, including detailed technical requirements as to labor, materials, supplies, equipment, and standards to which such work is to be performed, prepared by duly qualified, licensed and insured architects and engineers, in each case, consistent with the approved Park/Streetscape Concept Plan. As used in this Agreement, the "Plans and Specifications" include, without limitation, the Preliminary Plans and Specifications, the Final Plans and Specifications, the Permit Plans and Specifications, and any approved modifications thereto. 3.43 "Project" shall mean the development, design and construction of the Development Site (including, after the Closing, the Developer's right, title, and interest in and to the City Parcel) consistent with the City's Land Development Regulations for the Ocean Terrace Overlay District and the underlying CD-2 and MXE zoning districts, as the same may be amended from time to time, but subject to Section 28 of this Agreement. 3.44 "Recognized Mortgagee" shall mean any Affiliate Mortgagee, bank, savings and loan association, insurance company, an agency of the United States Government, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or any other lender generally recognized as an institutional lender, holding a mortgage, lien, or other 7 49127872;13 Page 773 of 1288 security interest on the Development Site or a portion thereof, and who has notified the City that it is a Recognized Mortgagee under this Agreement and has provided an address for notices. 3.45 "Requirements" shall mean any and all laws, constitutions, rules, regulations, orders, ordinances, charters, statutes, codes, executive orders and requirements of all governmental authorities having jurisdiction over a person, the Project, and/or the , Park/Streetscape Site or any street, road, avenue or sidewalk comprising a part of, or lying in front of, the Park/Streetscape Site. 3.46 "Substantial Completion" and words of similar import shall mean, with respect to the Project or the Park/Streetscape Improvements, that such component has been completed in accordance with the Permit Plans and Specifications and the requirements of Section 14.2(a) through (d) have been satisfied, and such component is ready for occupancy, except for so-called "punch list" items (including, without limitation, adjustments to equipment, fixtures, landscaping, and similar items of work)that can be completed after occupancy has been taken without causing substantial interference with the use of such component. 3.47 "Vacation Resolution" means the City's Resolution No. , approving, with conditions, the vacation of the City Parcel. VACATION RESOLUTION 4. Initial Rights and Obligations of City and Developer. The following will constitute the initial rights and obligations of the Developer and City: (a) Vacation Resolution for City Parcel. City acknowledges that Developer has submitted a complete application for the vacation of the City's beneficial and legal interest in the City Parcel, also known as portions of Ocean Terrace, 74th Street, and 75th Street. The City agrees to diligently process that application and to promptly schedule same for consideration by the City Commission and adoption of the Vacation Resolution, which shall be substantially in the form attached as Exhibit "K." The Parties recognize that this Agreement does not obligate the City Commission to adopt the Vacation Resolution, and that the City Commission retains the sole and absolute discretion, subject to applicable Laws and Requirements, whether to adopt, adopt with changes, or deny the Vacation Resolution. (b) Failure to Adopt Vacation Resolution. In the event that the City Commission denies the application for the Vacation Resolution or approves it in a form or with any terms, conditions, or obligations inconsistent with this Agreement or that are otherwise unacceptable to Developer in its sole and absolute discretion,then within sixty(60) days of such denial or approval Developer shall, at its option, either: (i) notify the City of its intent to submit a revised application for the vacation of the City Parcel; or (ii) terminate this Agreement in accordance with Section 45 hereof. CLOSING 5. Closing. The Closing shall occur on a date set by Developer, at its election, with prior written notice to the City, but in no event later than ten (10) Business Days after the date on which Developer has obtained Final Approval of all Permits and Approvals to Commence Construction of the Park/Streetscape Improvements and Final Approval of the Project Zoning Approvals, subject to the termination provisions in Section 45 below.At the Closing,the Developer and City shall perform the following: 8 49127872;13 Page 774 of 1288 (a) The City, pursuant to and subject to the terms of the Vacation Resolution, will deliver a quit claim deed to Developer through which the City quit claims, remises, releases and transfers unto Developer and Developer's successors and assigns forever, all right, title, interest, claim and demand that City has in and to the City Parcel, subject to Developer's delivery of the Surety Bond and the City Parcel Easement (the "City Deed"). (b) Developer will, subject to City's delivery of the City Deed, deliver to City a quit claim deed through which the Developer quit claims, remises, releases and transfers unto City and City's successors and assigns forever, all right, title, interest, claim and demand that Developer has in and to the Reversionary Interest, but reserving the Reversionary Interest in the eastern thirty (30) feet of the Ocean Terrace right-of-way. (c) Developer will grant to City the City Parcel Easement, in the form attached as Exhibit"L," and subject to Section 60.5 of this Agreement. (d) Developer will deliver to City, at Developer's election, either: A written tri-party agreement among Developer, the City and the lender providing a construction loan for the construction of the Park/Streetscape Improvements (the "Park Lender"), in form and substance reasonably acceptable to the City (the "Recognition Agreement"), pursuant to which the Park Lender agrees to (a) fund the then remaining cost to Substantially Complete the construction of the Park/Streetscape Improvements (the "Park Construction Amount") directly to the City in the event the Developer fails to Substantially Complete the Park/Streetscape Improvements in accordance with this Agreement and such failure continues uncured past applicable notice and cure periods, (b) fund the then remaining Park Construction Amount by way of monthly draws pursuant to the draw procedure set forth in the construction loan documents, and (c) fund such then remaining Park Construction Amount directly to the City pursuant to (a) and (b) above, notwithstanding that the Developer may be in default of its construction loan with the Park Lender.The right to draw funds under the Recognition Agreement (or Surety Bond, as applicable) shall be the City's sole and exclusive remedy for the Developer's failure to Substantially Complete the Park/Streetscape Improvements in accordance with this Agreement. If the City receives any funds under the Recognition Agreement, then all conditions precedent to the issuance of all certificates of occupancy and/or certificates of completion for the Project (whether in whole or in part) shall be deemed satisfied, and the Developer shall have the right to apply for, and the City shall have an obligation to issue (when and as required by the City Code), all such approvals, whether or not construction of the Park/Streetscape Improvements has been completed by the City; or ii. A surety bond with a penal sum equivalent to the guaranteed maximum price set forth in the Construction Agreements for the then-remaining design and construction of the Park/Streetscape Improvements, plus City's estimated oversight/inspection costs, or, if the Developer has not executed the Construction Agreements as of the Closing, then with a penal sum equivalent to the City's estimate to complete the then-remaining work for the 'design and construction of the Park/Streetscape Improvements, but provided that in no event shall the penal sum for the surety bond exceed Fourteen Million Eight Hundred Thousand Dollars ($14,800,000.00), and naming the City as obligee, in a form reasonably acceptable to City, issued by a surety listed in the most recent United States Department of Treasury listing of approved sureties (the"Surety Bond").The Surety Bond shall provide that, if Developer fails to Substantially Complete the Park/Streetscape Improvements in accordance with this Agreement and such failure continues uncured past applicable notice and cure periods, then, as the City's sole and exclusive remedy for such default (subject to City's exercise of its rights pursuant to Section 9 49127872;13 Page 775 of 1288 44(b)), the surety shall be liable to City for the City's actual, out-of-pocket expenses incurred in Substantially Completing the Park/Streetscape Improvements, up to a maximum aggregate liability of the penal sum. Developer shall have the right to reduce the penal sum of the Surety Bond on a monthly basis to reflect then-remaining cost of Substantially Completing the Park/Streetscape Improvements. The Surety Bond shall terminate immediately upon the Substantial Completion of the Park/Streetscape Improvements in accordance with this Agreement. If the City receives any funds from the surety pursuant to the Surety Bond, then all conditions precedent to the issuance of all certificates of occupancy and/or certificates of completion for the Project shall be deemed satisfied, and the Developer shall have the right to apply for, and the City shall have an obligation to issue (when and as required by the City Code), all such approvals, whether or not construction of the Park/Streetscape Improvements has been completed by the City. (e) Developer will execute and record the Hold Harmless Agreement. (f) The City and Developer shall execute the Covenant in Lieu of Unity of Title. (g) Developer shall submit confirmatory evidence of an agreement between the Developer and the owner of the property located at 7401 Collins Avenue, with respect to any acquisition by Developer of any property rights pertaining to 7401 Collins Avenue in connection with the development of the Project, and any joinder to the Covenant in Lieu of Unity of Title or other Closing documents, as may be required to include the 4,380 sq.ft. right-of-way area abutting 7401 Collins Avenue as part of the unified development site for the Project. Developer shall, in accordance with the provisions of Section 56 of this Agreement, indemnify, defend and hold harmless the City from and against any and all Losses sustained by the City in connection with Developer's election to include property rights related to 7401 Collins Avenue as part of the Project. • (h) The City and Developer will execute and record a temporary construction and access easement agreement, substantially in the form of Exhibit "S" to this Agreement, through which the City grants Developer the right to access the Park/Streetscape Site for construction and installation of the Park/Streetscape Improvements and for staging and storage of construction vehicles, equipment, and materials related to the development and construction of the Project and the Park/Streetscape Improvements, including, without limitation, the rights specified in Sections 13.2(a) and 13.2(b) of this Agreement. (i) Developer will deposit in escrow with Akerman LLP or with such other escrow agent selected by Developer in its reasonable discretion ("Escrow Agent")the sum of Fifty Thousand Dollars ($50,000.00) (the"Unwinding Funds"), to be paid to the City in accordance with Section 45 of this Agreement to cover any City Unwinding Expenses (defined in Section 45 below) in the event that the Developer terminates this Agreement for convenience following the Closing but prior to the Commencement of Construction of the Park/Streetscape Improvements (the "Unwinding Escrow"). DESIGN AND DISCRETIONARY APPROVALS 6. City Cooperation. (a) Developer acknowledges that until the Closing, the City will remain the owner of the City Parcel, and, therefore, applications for design review approval for the Park/Streetscape Improvements, or any other zoning application for any other development that 10 49127872;13 Page 776 of 1288 includes the City Parcel while the City is the owner, may lawfully be approved only with the City's joinder. The City, in its proprietary capacity, hereby covenants to cooperate with Developer and agrees to join and execute all applications and supporting documents as Developer may reasonably request of the City in connection with Developer's pursuit of any Permits and Approvals for the Project or the Park/Streetscape Improvements, so long as the same are not materially inconsistent with this Agreement. Notwithstanding the foregoing, the City may revoke such proprietary consent if the Developer terminates or is in material default of this Agreement, and, upon such revocation, the City may, in its governmental capacity, withhold issuance of any Permits and Approvals for the Project or the Park/Streetscape Improvements that require the City's proprietary consent for issuance. Furthermore, the Developer shall not commence vertical construction of the Project prior to the Closing. 7. Prosect Approvals. (a) Developer shall be responsible for the development, design, permitting, and construction of the Project at Developer's sole cost and expense, except as provided in Section 23 below. Developer acknowledges that development of the Project will require design review approval by the City's Historic Preservation Board ("HPB") and, if applicable, conditional use approval by the Planning Board (collectively, the "Project Zoning Approvals"). (b) After the adoption of the Vacation Resolution, the Developer shall, at its sole cost and expense, diligently prepare applications requesting the Project Zoning Approvals (the "Project Zoning Applications"). The City shall join in such Project Zoning Applications as the owner of the City Parcel unless the development requested in such Project Zoning Applications is materially inconsistent with this Agreement. (c) Upon the Developer filing the Project Zoning Applications, the City shall process those applications as expeditiously as possible and in accordance with the requirements of the City Code. The Developer acknowledges that review of the Project Zoning Applications by the City and its boards is quasi-judicial and that nothing in this Agreement obligates the City to approve those applications or limits the quasi-judicial authority of the City and its boards to impose conditions or take any action on the Project Zoning Applications as provided by the City Code. If the Project Zoning Application is denied by the City, or if it is approved by the City with any terms, conditions, or obligations not consistent with this Agreement or that are otherwise unacceptable to Developer in its sole and absolute discretion, then the Developer may elect to: (i) diligently prepare revised applications requesting the Project Zoning Approvals for a revised Project; (ii) exercise any rights of appeal or redress the Developer may have; or(iii)terminate this Agreement in accordance with Section 45 hereof. 8. Park/Streetscape Approvals. (a) Developer shall be responsible for the development, design, permitting, and construction of the Park/Streetscape Improvements at Developer's sole cost and expense, except as provided in Section 23 below. The design of the Park/Streetscape Improvements shall be substantially in accordance with the design shown in the Park/Streetscape Concept Plan, except to the extent that changes thereto have been negotiated with, and approved, by City. Developer acknowledges that development of the Park/Streetscape Improvements, based on the Park/Streetscape Concept Plan, will require design review approval by the City's HPB (the "Park/Streetscape Zoning Approval"). Developer shall be solely responsible for obtaining the approval of the City's Historic Preservation Board, and, subject to applicable Laws and Requirements, the HPB shall have no duty or obligation to approve any particular design. 11 49127872;13 Page 777 of 1288 (b) After the adoption of the Vacation Resolution, the Developer shall diligently prepare an application seeking design review approval of the Park/Streetscape Improvements (the "Park/Streetscape Zoning Application"). Prior to submission of the Park/Streetscape Improvements design to the HPB, Developer shall submit to City (acting in its proprietary capacity as owner of the City Parcel) all of the preliminary Plans and Specifications for the Park/Streetscape Improvements, which shall include, but not be limited to, a detailed site plan, elevations, and landscape plan for the Park/Streetscape Improvements (the "Preliminary Plans and Specifications"), which shall be submitted to the City Manager for approval. At a minimum, the Preliminary Plans and Specifications shall be developed to ensure pedestrian and vehicle circulation and access, including, without limitation, the following: i. The Preliminary Plans and Specifications shall address accessibility needs for elderly and/or disabled persons, and shall be designed to ensure that public access to the City's beaches is maintained. ii. The Preliminary Plans and Specifications shall provide for a "reasonable flow"for ingress/egress of vehicles on 75th Street,with a proposed solution that may include either a drop-off loop or other turn-around at the east end of 75th Street, or any other similar proposed solution as may be approved by the City Manager at the City Manager's sole discretion, to ensure vehicular access to the 75th Street parking lot and/or access for drop-offs to the beach. iii. The Preliminary Plans and Specifications shall provide for emergency vehicle access to the Park/Streetscape Site, as well as for buildings located in the vicinity of the Park/Streetscape Site, including vehicular drop-offs for elderly visitors to the UNIDAD building at 7251 Collins Avenue, and load- in/load-out needs for the North Beach Bandshell located at 7275 Collins Avenue. iv. The Preliminary Plans and Specifications shall provide for ingress/egress for pedestrians and vehicles accessing the St. Tropez property located at 7330 Ocean Terrace ("St. Tropez"), and shall incorporate any comments as may be provided by the City Manager with respect to ingress/egress for the St. Tropez. Notwithstanding any other provisions in this Agreement to the contrary, the portions of the Plans and Specifications for the Park/Streetscape Project relating to Subsections 8(b)(i)through 8(b)(iv) shall be subject to approval by the City Manager at the City Manager's sole discretion (or by the City Commission pursuant to Section 63). (c) The City Manager shall review the Preliminary Plans and Specifications solely for general consistency with the Park/Streetscape Concept Plan and the requirements of this Agreement. The City Manager (or the City Commission pursuant to Section 63) will not withhold, delay, or condition the City's proprietary approval so long as the proposed Park/Streetscape Improvements substantially accord with the Park/Streetscape Concept Plan in all material respects, or contain only those material changes that were previously negotiated with, and approved, by City in its proprietary capacity. If the City Manager (or the City Commission pursuant to Section 63) disapproves the Preliminary Plans and Specifications, then Developer shall, at its election, either (x) submit the City's disapproval to expedited arbitration pursuant to Section 34 as to the reasonableness of the disapproval, or (y) submit a revised modification to 12 49127872;13 Page 778 of 1288 the Preliminary Plans and Specifications to meet the City's objections, which revised modification shall be submitted and reviewed as provided in Section 9. The Developer may not file, and the City may not join, the Park/Streetscape Zoning Application until the City Manager (or the City Commission pursuant to Section 63) has approved the design of the Park/Streetscape Improvements in its proprietary capacity. (d) After the City Manager has approved the design of the Park/Streetscape Improvements in its proprietary capacity, the Developer shall diligently pursue the approval of the Park/Streetscape Zoning Application through the issuance of an HPB Order (the "Park/Streetscape Zoning Approval"). Although the Project Zoning Applications will be separate applications from the Park/Streetscape Zoning Application, it is the express intent of the Parties that the Project Zoning Applications and the Park/Streetscape Zoning Application will all be scheduled before and heard by the HPB on and at the same meeting date. Developer will endeavor to have the Park/Streetscape Zoning Application and the Project Zoning Applications heard by HPB within twelve (12) months following the Effective Date of this Agreement, but the failure to do so will not be deemed an Event of Default. (e) Developer acknowledges that review of the Park/Streetscape Zoning Application by the City and its boards is quasi-judicial, and that nothing in this Agreement obligates the City to approve that application or limits the quasi-judicial authority of the City and its boards to impose conditions or take any action on the Park/Streetscape Zoning Application as provided by the City Code. If the Park/Streetscape Zoning Application is denied by the City, or if it is approved by the City with any terms, conditions, or obligations not consistent with this Agreement or that are otherwise unacceptable to Developer in its sole and absolute discretion, then the Developer may elect to: (i) diligently prepare revised applications requesting the Park/Streetscape Improvements Zoning Approval for revised Park/Streetscape Improvements after proprietary approval by the City Manager as set forth above; (ii) exercise any rights of appeal or redress the Developer may have; or (iii) terminate this Agreement in accordance with Section 45. (f) Upon receipt of the HPB's approval of the Park/Streetscape Improvements, Developer shall prepare plans and specifications for construction of the Park/Streetscape Improvements, consistent with the Preliminary Plans and Specifications, as approved by the HPB, if applicable, for confirmatory review by the City Manager (the "Final Plans and Specifications"). Developer shall pursue approval by the City Manager of the Final Plans and Specifications diligently and in good faith. The Final Plans and Specifications shall be reviewed by the City Manager for substantial consistency with the Preliminary Plans and Specifications as the same have been modified by the HPB, if applicable. If the City Manager (or the City Commission pursuant to Section 63) disapproves the Final Plans and Specifications, then Developer shall, at its election, either (x) submit the City Manager's disapproval to expedited arbitration pursuant to Section 34 as to the reasonableness of the disapproval, or (y) submit a revised modification to the Final Plans and Specifications to meet the City Manager's objections, which revised modification shall be submitted and reviewed as provided in Section 9. Nothing in this paragraph shall obligate the City to accept Final Plans and Specifications that are inconsistent with the Preliminary Plans and Specifications except for those inconsistencies that are necessitated by the Park/Streetscape Improvements Zoning Approval or by the Requirements. 9. Park/Streetscape Plan Material Modifications. (a) If Developer desires to implement Material Modifications to previously approved Plans and Specifications, Developer shall submit any such modified Plans and Specifications to the City Manager for approval in the City's proprietary capacity. Such modified 13 49127872;13 Page 779 of 1288 Plans and Specifications shall clearly indicate, by "ballooning", highlighting, blacklining or describing in writing in sufficient detail in a memorandum accompanying such modified Plans and Specifications, all such proposed Material Modifications to the Plans and Specifications. Promptly after its receipt of the proposed Material Modifications, the City Manager shall notify Developer in writing, with specificity of any Material Modifications of which City disapproves, it being agreed, however, that the City Manager's failure to notify Developer of its disapproval within fifteen (15) Business Days of its receipt of the proposed Material Modifications shall be deemed to constitute City's conclusive approval of such modified Plans and Specifications. Notwithstanding anything to the contrary, City shall not unreasonably withhold, condition, or delay the City's approval of any modifications to the Plans and Specifications that, regardless of materiality, are necessitated by Requirements or as a result of a drafting, coordination, mechanical or technical error in the Plans and Specifications, and all such modifications shall be deemed approved by the City in its proprietary capacity. (b) If the City Manager (or the City Commission pursuant to Section 63) disapproves any proposed Material Modifications to the Plans and Specifications,then Developer shall submit revised Plans and Specifications or a revised modification to the Plans and Specifications to meet the City Manager's objections, which revised Plans and Specifications or revised modification shall be reviewed as provided in Section 9(a), as applicable. BUILDING PERMITS 10. City Joinder. The Developer acknowledges that until the Closing, no application for a Building Permit for the Project or the Park/Streetscape Improvements may lawfully be approved (and no Building Permit may be issued) without the City's joinder to such application while the City is the owner of the City Parcel. The City agrees, upon Developer's request, to join any application for a Building Permit for the Project and/or ParWStreetscape Improvements, and any application for a Covenant in Lieu of Unity of Title, so long as the same are not materially inconsistent with this Agreement, but a Building Permit for the ParWStreetscape Improvements shall not issue until the Closing, and a Building Permit for the Project shall not issue until the City has issued a Building Permit for the Park/Streetscape Improvements. Notwithstanding the foregoing, the City may revoke such proprietary consent if the Developer terminates or is in material default of this Agreement, and, upon such revocation, the City may, in its governmental capacity, withhold issuance of any Building Permits for the Project or the Park/Streetscape Improvements that require the City's proprietary consent for issuance. 11. Prerequisites to ParWStreetscape Building Permit. Prior to submitting an application for a Building Permit for the Park/Streetscape Improvements, Developer shall prepare and submit to City (acting in its proprietary capacity as owner of the City Parcel), for confirmatory review and approval by the City Manager, the Plans and Specifications intended to be used to obtain the required Building Permit (the "Permit Plans and Specifications"). If such submitted Permit Plans and Specifications contain Material Modifications to the Final Plans and Specifications approved by the City Manager following HPB approval in accordance with Section 8(f) above (or any more recently modified Plans and Specifications approved in accordance with Section 9(a) above), then such Permit Plans and Specifications shall clearly indicate, by "ballooning", highlighting, blacklining or describing in writing in sufficient detail in a memorandum accompanying such Permit Plans and Specifications, all such Material Modifications. Promptly after its receipt of such Permit Plans and Specifications, the City Manager shall notify Developer, in writing, describing, with specificity, the basis for such disapproval of any Material Modifications of which the City Manager disapproves. Further, whenever Developer advises the City Manager in writing, and the City Manager agrees with Developer in writing, that the Permit Plans and 14 49127872;13 Page 780 of 1288 Specifications, as approved as herein provided above, are complete and sufficient and suitable to construct, furnish and equip the entire Park/Streetscape Improvements in accordance with the provisions of this Agreement, such written agreement shall be deemed to constitute City's conclusive approval of all modifications and inconsistencies, whether or not the modifications are highlighted, in such Permit Plans and Specifications. Notwithstanding anything to the contrary, City shall not object to any modifications to any Plans and Specifications (i) that are not Material Modifications, or (ii) that, regardless of materiality, are necessitated by Requirements or as a result of a drafting, coordination, mechanical or technical error in the Plans and Specifications, and all such modifications shall be deemed approved by the City in its proprietary capacity. CONSTRUCTION OF PARK/STREETSCAPE IMPROVEMENTS 12. Conditions Precedent to Developer's Commencement of Construction of the Park/Streetscape Improvements. 12.1 Developer shall not Commence Construction of the Park/Streetscape Improvements or any Phase thereof unless and until: i. the Closing shall have occurred; ii. Developer shall have obtained and delivered to City's Consultant copies of all Permits and Approvals required to Commence Construction of the Park/Streetscape Improvements; iii. Developer shall have delivered to City original certificates of the policies of insurance required to be carried pursuant to the provisions of Exhibit "N"to this Agreement; iv. Contractor shall have furnished to City the Payment Bond and Performance Bond required by Section 12.3; v. City Manager shall have approved the Permit Plans and Specifications, as provided in Section 11; vi. Developer shall have delivered to the City a duly executed original Assignment of Construction Agreements for the Park/Streetscape Improvements, and a duly executed original Assignment of Plans, Permits and Approvals for the Park/Streetscape Improvements; and vii. Contractor shall have submitted to Developer and City a construction schedule as provided in Section 19.2; provided, however, if Developer chooses to perform any construction of the Park/Streetscape Improvements on a "fast track" basis (other than pursuant to the Phases approved herein), Developer may request the necessary approval of the City Manager in stages and perform that portion of the construction work which has been approved by the City Manager at the City Manager's reasonable discretion (provided Developer shall comply with all of the requirements of Section 12.1 above, and all other applicable requirements with respect to such portion of the construction work), even if progress plans and specifications for other portions of the construction work have not yet been prepared. 15 49127872;13 Page 781 of 1288 12.2 In addition to the City's cooperation obligations set forth elsewhere in this Agreement, the City (solely in its capacity as the owner of. the City Parcel and not in its governmental capacity) hereby covenants to fully cooperate with Developer(at no cost to the City) in obtaining any and all Permits and Approvals required for the Project and the Park/Streetscape Improvements, and any necessary utility access agreements, including, without limitation, by signing all applications reasonably made by Developer that are required to obtain such Permits and Approvals and utility access agreements. In addition, the City shall provide Developer with any information and/or documentation not otherwise reasonably available to Developer (if available to City) which is necessary to procure such Permits and Approvals and utility access agreements. Any such accommodation by City shall be without prejudice to, and shall not constitute a waiver of, City's rights to exercise its discretion in connection with its governmental functions. Developer shall reimburse City, within thirty (30) Business Days after City's written demand, for all actual, documented out-of-pocket cost and expenses paid by the City to the City's outside technical consultants (other than City's Consultant and City's employees), such as architects and engineers, in connection with City's assistance in obtaining any such Permits and Approvals and utility access agreements; provided, however, that any reimbursable cost or expense exceeding One Thousand Dollars ($1,000.00) individually, and all reimbursable costs or expenses exceeding Five Thousand Dollars ($5,000.00) in the aggregate for any discrete task or component, shall require the Developer's prior written approval. The City's failure to obtain Developer's prior written approval shall relieve Developer of any obligation to reimburse the City for such unapproved costs or expenses. In addition, the City hereby agrees to furnish Developer, on or by the fifth (5th) Business Day of each month, with a monthly financial report detailing, with specificity, expenditures by the City Consultant for the immediately preceding month. Developer shall have the right to audit all City Consultant expenditures from time to time. 12.3 Prior to Commencement of Construction of the Park/Streetscape Improvements, Developer shall cause the Contractor to furnish to City a payment bond("Payment Bond") and performance bond ("Performance Bond") naming the City and Developer as co- obligees, substantially in the form attached as Exhibit"M"hereto (with any modifications approved in advance by the City), issued by a surety satisfying the bonding requirements set forth in Exhibit "N" attached hereto, guaranteeing the performance of the Contractor under that certain guaranteed maximum price contract for the construction of the Park/Streetscape Improvements. If the Contractor fails to complete the construction of the Park/Streetscape Improvements as required by this Agreement,the City may make demand upon the Surety to perform its obligations under the Payment Bond and Performance Bond, including completion of the work; or (ii) in the alternative and provided that same does not render the Payment Bond and Performance Bonds void or otherwise voidable by the Surety, the City may take over and complete the work, or any portion thereof, by its own devices, by entering into a new contract or contracts for the completion of the work, or using such other methods as in the City's reasonable opinion shall be required for the proper completion of the work, including succeeding to the rights of the Developer and/or Contractor. Subject to the terms and conditions of the Payment Bond and the Performance Bond, as applicable, the City may also charge against the Performance Bond and Payment Bond all fees and expenses for services incidental to ascertaining and collecting losses under the Performance Bond and Payment Bond including, without limitation, accounting, engineering, and legal fees, together with any and all costs incurred in connection with renegotiation of the Agreement. The Contractor shall have the right to reduce the face value of the Payment Bond and Performance Bond on a calendar quarter basis as construction of the Park/Streetscape Improvements progresses to reflect then-remaining costs of Substantially Completing the Park/Streetscape Improvements. 16 49127872;13 Page 782 of 1288 13. Commencement of Construction of the Park/Streetscape Improvements. 13.1 Developer shall at its expense (a) Commence Construction of Phase 1 of the Park/Streetscape Improvements no later than ninety (90) Business Days after Developer obtains (i) Final Approval of the Project Zoning Approvals, or(ii) Final Approval of all Permits and Approvals for the Park/Streetscape Improvements, whichever occurs last, and (b) thereafter continue to prosecute construction of the Park/Streetscape Improvements with reasonable good faith diligence and continuity to completion. In the event the 74th Street design feature depicted in the Park/Streetscape Concept Plan is approved by the HPB and is approved as part of the Final Plans and Specifications, such design feature shall be completed as part of Phase 1 of the Park/Streetscape Improvements. 13.2 During the construction of the Project and the Park/Streetscape Improvements, the City shall provide the following construction staging, storage, use and construction parking accommodations to the Developer and the Contractor at no cost or expense to the Developer or the Contractor: (a) During construction of the Park/Streetscape Improvements, the Developer and its contractors will have the right to use the areas within Phases 1 and 2 of the Park/Streetscape Improvements as staging areas and lay-down yards in connection with the construction of the Park/Streetscape Improvements. (b) During construction of the Project,the Developer and its contractors will have the right to use the area within Phase 2 of the Park/Streetscape Improvements as staging areas and lay-down yards in connection with the construction of the Project. (c) The City will budget and appropriate, from the General Fund, the amounts necessary to pay the Parking Department for up to 100 monthly parking passes at the then-prevailing standard rates, for use by the Developer and its contractors, during construction of the Park/Streetscape Improvements and the Project or any phase or portion thereof, up to the aggregate not-to-exceed amount of Three Hundred Thousand Dollars ($300,000.00) (the"Not-to- Exceed Amount"). Once the Not-to-Exceed Amount has been expended, Developer shall be solely responsible for making appropriate parking arrangements for its employees, contractors and their respective employees. Developer and its contractors may use such monthly parking passes at the following City-owned parking lots, provided such parking lots are then being operated as municipal parking lots: i. Collins Avenue and 75th Street (Lot 106). A maximum of 25 Developer/contractor parking spaces may be utilized at this location at any time, with the remainder of the lot to be made available for parking for the general public. No Developer/contractor parking may occur on this lot on weekends or legal holidays. ii. 299 72nd Street (Lot 92). Parking will be made available until such time as the City commences construction of a City parking garage at this location. No limitation on the number of Developer/contract parking spaces that may be used at this lot and no restrictions on weekend or holiday use; however, the City's parking director retains discretion to limit Developer/contractor parking on this lot to not less than 25 parking spaces at any given time if he/she determines, based 17 49127872;13 Page 783 of 1288 on documented parking counts and other objective data, that such limitation is necessary to satisfy public parking demand on the lot. iii. 8040 Collins Avenue (Lot 108). No limitation on the number of Developer/contract parking spaces that may be used at this lot and no restrictions on weekend or holiday use, except as necessary to accommodate valet use as provided in Section 13.3 of this Agreement. iv. 8300 Collins Avenue (Lot 109). No limitation on the number of Developer/contract parking spaces that may be used at this lot and no restrictions on weekend or holiday use. v. Others. Such additional City lots in the general vicinity of the Development Site as the City may designate from time to time, with such limitations and restrictions, if any, as agreed to by the City and Developer. 13.3 City, through its valet concessionaire, will operate the Collins Avenue and 75th Street parking lot (Lot 106) and the 8040 Collins Avenue parking lot (Lot 108) for valet purposes on Saturdays, Sundays, and legal holidays or as otherwise agreed to by the Developer and the City, commencing upon the Commencement of Construction of Phase 1 of the Park/Streetscape Improvements, and will establish and maintain discounted pricing for City residents comparable to the differential pricing in favor of City residents at other City-owned parking lots. Developer agrees to reimburse the City for 75% of the actual, documented, out-of- pocket losses, if any, sustained by the City for such valet operations at Lots 106 and 108, up to a maximum of One Hundred Thousand Dollars ($100,000.00) in the aggregate, until the later of (i) Substantial Completion of Phase 1 of the Park/Streetscape Improvements,or(ii)4 years following the Effective Date of this Agreement. 13.4 In addition, if the City adopts a suitable amendment to the City Code that permits the construction of a temporary gravel or stone parking lot on one or more of the vacant North Beach "West Lots," and exempts such temporary parking lot from compliance with the temporary parking lot standards of Section 130-70 of the City Code, then the Developer will, at its sole cost or expense, construct such gravel or stone parking lot with chain-link perimeter construction fencing for use as overflow valet parking and as temporary construction parking for the Project and the Park/Streetscape Improvements in support of the parking arrangements contemplated by Sections 13.2(c) and 13.3 of this Agreement. 13.5 During the construction of the Park/Streetscape improvements, Developer shall sequence its work to ensure that at least one continuous beachwalk path is maintained running north and south through the Park/Streetscape Site, for the benefit of the general public. Notwithstanding the foregoing, the Developer may (with prior approval from the City Manager) close the beachwalk access for periods not to exceed ten (10) consecutive calendar days at any given time, at the City Manager's reasonable discretion, for the purpose of accommodating unusual construction activities that may require such closure. 14. Substantial Completion of Construction of the Park/Streetscape Improvements. 14.1 Developer shall Substantially Complete the construction of the Park/Streetscape Improvements in Phases in accordance with the construction schedule set forth 18 49127872;13 Page 784 of 1288 in Section 42 of this Agreement. Substantial Completion of the Park/Streetscape Improvements shall be accomplished in a diligent manner, and final completion of the Construction of the Park/Streetscape Improvements, including but not limited to completion of all punch-list items, shall be accomplished in a diligent manner thereafter, in each case in a good and worker like manner, in substantial accordance with the Plans and Specifications (with no Material Modifications except as expressly permitted herein), in accordance with all applicable Requirements and, except as provided in Section 23, at Developer's sole cost and expense. 14.2 Upon Substantial Completion of the Park/Streetscape Improvements or any Phase thereof, Developer shall furnish City with the following: (a) certification of the architect (certified to City on the standard AIA certification form) that it has examined the Plans and Specifications and that, in its professional judgment, after diligent inquiry, the Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) have been Substantially Completed in accordance with the Plans and Specifications applicable thereto and, as constructed, the Park/Streetscape Improvements comply with all applicable construction Requirements; (b) if Requirements require the same, a copy or copies of the temporary certificates of occupancy and/or certificates of completion for the Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) issued by the City of Miami Beach Building Department; (c) lien waivers in form and substance reasonably satisfactory to City from the Contractor and any other contractor, subcontractor, supplier or materialman retained by Developer in connection with the construction of the Park/Streetscape Improvements, evidencing that such persons have been paid in full for all work performed or materials supplied in connection with the construction of the Park/Streetscape Improvements; and (d) a complete set of "as built" plans and a survey showing the Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) as Substantial Completed. City shall have an unrestricted license to use such "as built" plans and survey for any purpose related to the Park/Streetscape Site without paying any additional cost or compensation therefor, subject to copyright and similar rights of the architect to prohibit use of designs for purposes unrelated to the Park/Streetscape Site, as such rights exist in law or may appear in the architect's contract, and subject to applicable public records laws.The foregoing requirement with respect to "as built" plans shall be satisfied by Developer furnishing to City, at Developer's expense, a complete set of Plans and Specifications, with all addenda thereto and change orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Park/Streetscape Improvements up to Substantial Completion. 14.3 Upon Developer's delivery to City of items 14.2(a) through (d) above, the Park/Streetscape Improvements shall be deemed to be Substantially Complete and City shall be deemed to have accepted the Park/Streetscape Improvements in their then condition. 15. Not Used. 19 49127872;13 Page 785 of 1288 16. Compliance with Requirements; Construction Standards 16.1 Notwithstanding anything to the contrary contained herein, the Plans and Specifications shall comply with all applicable Requirements. It is Developer's responsibility to assure such compliance. City's approval in accordance with this Section 16 of any Plans and Specifications shall be deemed to be a determination by City that the Plans and Specifications so approved are in substantial conformity with this Agreement, but shall not be, and shall not be construed as being, or relied upon as, a determination that such Plans and Specifications comply with other applicable Requirements, including, without limitation, any Requirements providing for the review and approval of the Plans and Specifications by any governmental authority (in its governmental capacity as opposed to its proprietary capacity). 16.2 In connection with any work related to the construction of the Park/Streetscape Improvements, Developer shall comply promptly with all Requirements. No consent to, approval of or acquiescence in any plans or actions of Developer by City, in its proprietary capacity, or City's designee shall be relied upon or construed as being a determination that such are in compliance with the Requirements, or, in the case of construction plans, are structurally sufficient, prudent or in compliance with the Requirements. Failure of this Agreement to address a particular governmental or regulatory permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the Laws governing said permitting requirements, conditions, term or restriction. 17. Not Used. CITY PARTICIPATION 18. City's Right to Use Field Personnel. City reserves the right, at its sole cost and expense, to maintain on site-representative(s) at the Park/Streetscape Site to observe the progress of the construction of the Park/Streetscape Improvements (provided, however, that City shall be entitled to maintain additional on-site representatives from time to time to the extent reasonably necessary to perform such progress reviews), and Developer agrees to provide access to the Park/Streetscape Site for such limited purpose, including, without limitation, access to the preparation work and work in progress wherever located. No such progress review by the City's on-site representative(s) shall impose upon City responsibility or liability for any failure by Developer to observe any Requirements or safety practices in connection with such construction work, or constitute an acceptance of any work which does not comply with the provisions of this Agreement, and no such progress review shall constitute an assumption by City of any responsibility or liability for the performance of Developer's obligations hereunder, nor any liability arising from the improper performance thereof. The City's on-site representative(s) shall not interfere with any construction work being performed at the Park/Streetscape Site, shall comply with all safety standards and other job-site rules and regulations of Developer, and shall make entry upon the Park/Streetscape Site in its "as-is" condition, with all faults, whether latent or apparent. The City's on-site representative(s) will observe the progress of the construction of the Park/Streetscape Improvements only. Further, the City shall designate, by written notice to Developer, one on-site representative as the City's principal representative (such individual, the "City's Consultant"). The City's Consultant shall serve as Developer's direct point of contact with the City for construction matters regarding the Park/Streetscape Improvements and shall be responsible for coordinating all progress reviews by the City's other representative(s) with Developer under this Section 18 and gathering and submitting to Developer all comments provided by such other representative(s). The City's on-site representative(s) shall communicate only with the City's Consultant and shall make only such communications as are reasonably 20 49127872;13 Page 786 of 1288 necessary to enable the City's on-site representative to conduct its investigations under this Section 18. In no event shall the City's Consultant or the other on-site representative(s) give directions to Developer, to the Developer's representative, or to any member of the Developer's construction team. Developer shall endeavor to provide a reasonable work area for use by the City's Consultant and on-site representative(s) during such progress reviews as is customarily provided at similar construction sites for such purposes. All expenses incurred by City's Consultant and on-site representative(s) shall be paid by City. 19. City's Right to Notice, Access and Review. 19.1 Developer acknowledges that City has appointed the City's Consultant as the City's consultant in connection with the construction of the Park/Streetscape Improvements in accordance with the terms of this Agreement. In connection therewith, Developer agrees to cooperate with the reasonable requests of the City's Consultant. In furtherance thereof, Developer agrees that the City's Consultant, and its authorized representatives, shall have such rights of notice, access and review with respect to the Park/Streetscape Improvements and the Construction Agreements as is reasonably necessary to achieve the foregoing (including, but not limited to verifying on City's behalf that the construction of the Park/Streetscape Improvements is being conducted in accordance with the terms hereof), including, without limitation, the following: (a) the opportunity for attendance by the City's Consultant at regularly scheduled construction work status meetings between the Developer and the Contractor (which Developer will endeavor to have scheduled not less frequently than once each month following Commencement of Construction until Substantial Completion of the Park/Streetscape Improvements) and at any special meetings which Developer deems necessary in its reasonable discretion as to change orders, delays and other material issues concerning the Park/Streetscape Improvements; (b) the inspection by the City's Consultant of all construction work (in accordance with the provisions of Section 18); (c) the opportunity for attendance by the City's Consultant at the design presentations given to Developer for the Park/Streetscape Improvements; (d) upon the City's prior written request, the delivery by Developer to the City's Consultant of a copy of: (i) the executed contract between Developer and the Contractor for the Park/Streetscape Improvements; (ii) the Plans and Specifications (and modifications thereto, with such modifications being clearly indicated, by "ballooning", highlighting, or blacklining on the Plans and Specifications or describing in writing in sufficient detail in a memorandum accompanying such modified Plans and Specifications to be provided following Substantial Completion of the Park/Streetscape Improvements), working and other drawings, renderings, blueprints, specifications, layouts and change orders; and (iii) all insurance certificates required by Exhibit "N" of this Agreement. 21 49127872;13 Page 787 of 1288 To the extent the exercise of the City's rights hereunder requires the opportunity for review of any documents or the opportunity for participation in any meetings, as determined by Developer in its reasonable discretion, Developer agrees, without request therefor by City, to promptly provide copies of such documents or notice of such meetings to City and the City's Consultant, as applicable, after receipt of the same by Developer and reasonably in advance of any meetings to allow for appropriate travel arrangements to the extent practical under the circumstances. If City's Consultant is not in attendance,the meeting will proceed and, upon the City's prior written request, Developer will provide City's Consultant with minutes of the meeting. The City's Consultant shall not interfere with any construction work being performed at the Park/Streetscape Site and shall comply with all safety standards and other job-site rules and regulations of Developer and shall make entry upon the site in its as-is condition, with all faults, whether latent or apparent. The City shall require the City's Consultant to maintain, at no cost to the Developer, commercial general liability insurance naming the City and the Developer as additional insureds. 19.2 Prior to the Commencement of Construction of the Park/Streetscape Improvements, Developer shall provide to City a construction schedule for each Phase of the Park/Streetscape Improvements, which schedule shall be prepared using the critical path method ("CPM"); such schedule, as it shall beamended from time to time in accordance with the Construction Agreements, shall be referred to as the "CPM Schedule"), including a CPM network diagram, for use in scheduling and controlling the construction of the Park/Streetscape Improvements. Developer shall, upon the City's prior written request, promptly provide to the City's Consultant information copies of the CPM Schedule. The CPM Schedule shall (1) be revised by Developer whenever there is a material variance in the progress of the construction of the Park/Streetscape Improvements from the then-current CPM Schedule and otherwise at appropriate intervals, but no more frequently than monthly unless Developer elects, in its sole discretion, to undertake more frequent updates; and (2) provide for expeditious and practicable execution of the construction of the Park/Streetscape Improvements. Developer shall promptly inform the City's Consultant of any deviation from the CPM Schedule which, in Developer's good- faith determination, is likely to cause a material delay in the Substantial Completion of the Park/Streetscape Improvements (as shown on the current CPM Schedule). 20. Not Used. 21. Construction Agreements; Required Clauses. • 21.1 All Construction Agreements which provide for the performance of labor for the construction of the Park/Streetscape Improvements shall,to the extent applicable to the scope of work governed by such Construction Agreement, include the following provisions (or language substantially similar thereto which is approved in advance by City); provided, however, that any Construction Agreement having aggregate payments of Five Hundred Thousand Dollars ($500,000.00) or less shall not be required to include the provisions set forth in paragraph (i) below: (a) "Contractor shall provide, prior to the commencement of its portion of the work, and maintain during the performance thereof, the insurance set forth on Exhibit "N" attached hereto and incorporated by reference herein. Such Contractor shall procure an appropriate clause in, or endorsement on, any policy of insurance carried by it pursuant to which the insurance company waives subrogation or consents to a waiver of right of recovery consistent with the release, discharge, exoneration and covenants not to sue contained herein. Original certificates of insurance shall name the City of Miami Beach, Florida (and any successor City), as additional insureds (the "Certificate of Insurance"), and shall be furnished to Developer by the 22 49127872;13 Page 788 of 1288 Contractor prior to Commencement of Construction of the Park/Streetscape Improvements, , denoting all insurance required of the Contractor pursuant to the terms of the contract. The Contractor shall secure an original Certificate of Insurance from each of its sub-contractors with limits of liability appropriate to such sub-contractor's scope of work"; (b) "Contractor hereby waives all rights of recovery, claims, actions or causes of action against the City of Miami Beach, Florida (and any successor City), and their respective elected and appointed officials (including, without limitation, the City's Mayor and City Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals, invitees and affiliates,for any loss or damage to property of Contractor which may occur at any time in connection with the Park/Streetscape Improvements, except to the extent arising out of or related to the gross negligence or willful misconduct of the City, the City's Consultant, the City's officers, directors, officials, employees, contractors, or agents, and/or any of the City Indemnified Parties."; (c) "To the fullest extent permitted by law, Contractor shall and does hereby indemnify and hold harmless the City of Miami Beach, Florida, and its respective officers and employees, from liabilities, damages, losses and costs including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor and persons employed or utilized by Contractor in the performance of this Agreement. Notwithstanding anything to the contrary, Contractor shall not be required to indemnify, defend or hold the City of Miami Beach, Florida or any of its respective officers and employees from liabilities, damages, losses or costs to the extent caused by the acts, omissions, negligence of the City of Miami Beach, Florida or any of its officers or employees. The indemnification obligations set forth in this Section 14 shall survive the termination and/or expiration of this Agreement." (d) "Developer shall have the right to assign to City, subject and subordinate to the rights of Lender, the Construction Agreement and Developer's rights thereunder, at the City's request, without the consent of the Contractor, and (2) that without the necessity of such assignment and without thereby assuming any of the obligations of Developer under the Construction Agreement occurring prior to such assignment and/or purchase order, except for Developer's payment obligations, City shall have the right to enforce the full and prompt performance, by the Contractor of such Contractor's obligations under the Construction Agreement; and (3) the City is a third party beneficiary of the Construction Agreement"; (e) "Contractor agrees to comply with all laws and requirements applicable to Contractor and the Park/Streetscape Improvements"; (f) "Upon an Event of Default by Developer resulting in a termination of that certain Agreement between Developer and City, dated as of , 20 pursuant to which , Contractor shall, at the option of the City of Miami Beach, Florida, subject and subordinate to the rights of Lender, be terminated or Contractor will honor this agreement as if this agreement had been originally entered into with the City of Miami Beach, Florida."; (g) "Nothing contained in this contract is in any way intended to be a waiver of the prohibition on Contractor's ability to file liens against property of the City of Miami 23 49127872;13 Page 789 of 1288 Beach, Florida, or of any other constitutional, statutory, common law or other protections afforded to public bodies or governments."; (h) "Upon an Event of Default by Developer resulting in a termination of that certain Agreement between Developer and City, dated as of 2019, pursuant to which , all covenants, representations, guarantees and warranties of Contractor hereunder shall be, subject and subordinate to the rights of Lender, deemed to be made for the benefit of the City of Miami Beach, Florida, (and the City of Miami Beach, Florida, shall be deemed to be a third party beneficiary hereof) and shall be, subject and subordinate to the rights of Lender, enforceable by the City of Miami Beach, Florida."; (i) "Unless and until the City of Miami Beach, Florida, expressly assumes the obligations of Developer under this contract (and then only to the extent the same arise from and after such assumption), the City of Miami Beach, Florida, shall not be a party to this contract and will in no way be responsible to any party for any claims of any nature whatsoever arising or which may arise in connection with such contract."; and (j) "Contractor hereby agrees that notwithstanding that Contractor performed work at the Park/Streetscape Site or any part thereof, the City of Miami Beach, Florida shall not be liable in any manner for payment or otherwise to Contractor in connection with the work performed at the Park/Streetscape Site, except to the extent the City of Miami Beach, Florida, expressly assumes the obligations of Developer hereunder (and then only to the extent such obligations arise from and after such assumption)." (k) "Contractor warrants that all materials and equipment included the work will be new except where indicated otherwise in Permit Plans and Specifications or the Construction Agreement (collectively, the "Contract Documents"), and that such work will be of good quality, free from improper workmanship and defective materials and in conformance with the Contract Documents, and that such work will provide proper and continuous service under all conditions of service required by, specified in, or which may be reasonably inferred from the Contract Documents.With respect to the same work, Contractor further agrees to correct all work found by Developer or the City of Miami Beach, Florida to be defective in material and workmanship or not in conformance with the Contract Documents for a period of one year from Substantial Completion of the work or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Contract Documents, as well as any damage to the work resulting from defective design, materials, equipment, or workmanship which develop during construction or during the applicable warranty period. Contractor shall collect and deliver to Developer and the City of Miami Beach, Florida any specific written warranties given by subcontractors or others as required by the Contract Documents (and such warranties shall be in addition to, and not substitutes for, those warranties mandated to be obtained pursuant to the Contract Documents). All such warranties shall commence upon Substantial Completion or such other dates as provided for in the Contract Documents, or unless the warranted work is not completed or has been rejected, in which case the warranty for the work shall commence on the completion or acceptance of the work." 22. Not Used. 23. Fees. 24 49127872;13 Page 790 of 1288 23.1 City Fees. The Parties acknowledge that the Project and the Park/Streetscape Improvements may require payment of certain fees, which include, without limitation, application fees, notice fees, development review fees, building permit fees, inspection, certification, impact, concurrency,transportation/mobility and connection fees, and other fees that the City may levy under applicable Laws (including, without limitation, water and sewer fees and all fees relating to HPB, Design Review Board, and/or Planning Board reviews), as well as those fees,to the extent applicable, listed in the most current edition of the City of Miami Beach Building Department Fee Schedule adopted by the City, which fee schedule is hereby incorporated by reference and made a part of this Agreement (collectively, the "City Fees"). The Parties further acknowledge that, under the current City Code, the application fees for the Project Zoning Applications and the Park/Streetscape Zoning Application total a maximum of$80,000. Developer shall remain responsible for the City Fees notwithstanding any and all modifications or changes in price structure as imposed by the City. The Parties assume payment responsibility as follows: (a) Zoning Application Fees. In consideration for the Developer's commitment to complete the Park/Streetscapes Improvements and in recognition of Developer's prior payment of$206,835.00(as per invoice number 00091435)for application fees in connection with the Project Zoning Applications, the City assumes payment responsibility for the up to $80,000.00 in application fees required for the Project Zoning Applications and the Park/Streetscape Zoning Application. The City shall accept the Developer's filing of the Project Zoning Applications and the Park/Streetscape Zoning Application without requiring payment of any application fees from Developer and shall diligently process the same pursuant to the requirements of the City Code through Final Approval of the Project Zoning Approvals and the Park/Streetscape Zoning Approval. (b) Other Project City Fees. Developer assumes payment responsibility for any and all other City Fees required for the construction of the Project. (c) Other Park/Streetscape City Fees. Developer is solely responsible for payment of all City Fees for the Park/Streetscape Improvements other than the application fees for the Park/Streetscape Zoning Application; provided, however, that the City hereby agrees to waive all City fees relating to the Park/Streetscape Improvements, to the extent that any such waiver is currently permitted under the City Code (that is, without requiring any legislation to provide for any such waiver). The Developer shall not be obligated to pay any City Fees for the Park/Streetscape Improvements that can currently be waived under the City Code, and the City shall accept Developer's filing of applications for Permits and Approvals for the Park/Streetscape Improvements, and process the same to Final Approval, without payment of any such City Fees by Developer. (d) Future City Fee Waivers and Refunds.The City may, in its sole and absolute discretion, adopt amendments to the City Code that permit the waiver or refund of all or part of the City Fees for the Project. Promptly following the adoption of such amendments, the City shall waive all applicable City Fees to be paid for the Project to the maximum extent permitted by such amendments, and, with respect to the Fee Overage Balance and all other City Fees previously paid by Developer, the City shall refund Developer the cost of all such applicable City Fees to the maximum extent permitted by such amendments. 23.2 Non-City Fees. Developer shall assume responsibility for payment of all fees charged by Governmental Authorities relating to the Project, and the City hereby assumes responsibility for payment of all fees charged by Governmental Authorities relating to the Park/Streetscape Improvements. 25 49127872;13 Page 791 of 1288 24. Notice and Right to Cure Developer's Defaults. 24.1 City shall give to the Recognized Mortgagee a copy of each Developer Default Notice at the same time as it gives such notice to Developer, and no such notice shall be deemed effective with respect to any Recognized Mortgagee unless and until a copy thereof shall have been so received by or refused by such Recognized Mortgagee, as applicable. All such notices to a Recognized Mortgagee shall be sent as set forth in Section 47 of this Agreement. City shall also give the Recognized Mortgagee notice (each, a "Notice of Failure to Cure") in the event Developer fails to cure an Event of Default within the cure period, if any, provided in this Agreement for such cure, promptly following the expiration of such cure period. 24.2 The Recognized Mortgagee shall have a period of thirty (30) Business Days after receipt of the Notice of Failure to Cure, in the case of any Event of Default, to (1) cure the Event of Default referred to in the Notice of Failure to Cure, or(2) cause it to be cured, subject to the same additional time periods provided to Developer pursuant to the provisions of Section 42 or elsewhere in this Agreement, unless such default is not susceptible of being cured by a Recognized Mortgagee. Nothing contained herein shall be construed as imposing any obligation upon any Mortgagee to so perform or comply on behalf of Developer. 24.3 City shall accept performance by a Mortgagee of any covenant, condition or agreement on Developer's part to be performed hereunder with the same force and effect as though performed by Developer. 24.4 Notwithstanding any other provision of this Agreement, no payment made to City by any Mortgagee shall constitute the Mortgagee's agreement that such payment was, in fact, due under the terms of this Agreement. 24.5 Notwithstanding the foregoing provisions of this Section 24, if a Recognized Mortgagee fails (for any reason) to cure any Event of Default by Developer within sixty (60) days following receipt of the Notice of Failure to Cure regarding such Event of Default, then City may, but shall be under no obligation to, perform the obligation of Developer the breach of which gave rise to such Event of Default (including, without limitation, the performance of any of the obligations of Developer under any Construction Agreement), without waiving or releasing Developer from its obligations with respect to such Event of Default. Developer hereby grants City access to the Park/Streetscape Site in order to perform any such obligation. Any amount paid by City in performing Developer's obligations as provided in this Section 24, including,without limitation, all costs and expenses incurred by City in connection therewith, shall be reimbursed to City within thirty (30) days following City's demand therefor, together with a late charge on amounts actually paid by City, from the date of notice of any such payment by City to the date on which payment of such amounts is received by City. 24.6 If there is more than one Recognized Mortgagee, only that Recognized Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized Mortgage is most senior in lien shall be recognized as having rights under this Section 24, unless such first priority Recognized Mortgagee has designated in writing to City a Recognized Mortgagee whose Mortgage is junior in lien to exercise such right. 26 49127872;13 Page 792 of 1288 CONDITIONS PRECEDENT TO ISSUANCE OF CERTIFICATE OF OCCUPANCY 25. Conditions Precedent to Issuance of Certificate of Occupancy. The Developer acknowledges that conveyance of the Park/Streetscape Improvements Parcel and completion and conveyance of the Park/Streetscape Improvements is additional and essential consideration for the City's vacation of the City Parcel. Accordingly, (i) the City shall not issue a temporary certificate of occupancy and/or a temporary certificate of completion for the Project (in whole or in part), until the Developer has Substantially Completed construction of Phase 1 of the Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond, whether or not construction of Phase 1 of the Park/Streetscape Improvements has been completed by the City; and (ii)the City shall not issue a final certificate of occupancy and/or a final certificate of completion for the Project (in whole or in part), until the Developer has Substantially Completed construction of Phase 2 of the Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond, whether or not construction of Phase 2 of the Park/Streetscape Improvements has been completed by the City. 26. Developer's Reserved Rights. 26.1 Beachfront Concession. As part of the consideration for the completion of the Park/Streetscape Improvements, and in an effort to incentivize Developer to attract a quality hotel and stimulate economic development in the Ocean Terrace area, if a hotel is ultimately operated as part of the Project that is substantially similar in quality of operations and level of service provided, as of the Effective Date, at the Delano Hotel (1685 Collins Avenue), the Nautilus Hotel (1825 Collins Avenue), or the Shelbourne Hotel (1801 Collins Avenue) (the"Hotel"), then in such event, Developer shall have the right to utilize, along with City's beachfront concessionaire for the concession area located between 72nd Street and 77th Street (the "Ocean Terrace Concession Area"), up to 175 linear feet of the concession area located between 74th Street and 75th Street (the "Enhanced Service Area"), for a beachfront concession for the Hotel's guests, visitors, and patrons. • 26.2 The intent of the Enhanced Service Area is to permit the Developer and/or the Hotel to enter into an agreement with City's then-existing concessionaire for the Ocean Terrace Concession Area ("City's Concessionaire"), which concessionaire, as of the Effective Date of this Agreement, is Boucher Brothers Miami Beach, LLC, to provide upgraded beach equipment offerings and food &beverage services not otherwise part of the standard concession services offered by City's Concessionaire within the Ocean Terrace Concession Area. Any such beachfront concession within the Enhanced Service Area shall be operated by City's Concessionaire for the Ocean Terrace Concession Area. 26.3 The terms for the Enhanced Service Area shall be memorialized in City's agreement with City's Concessionaire (or, in the case of the current concessionaire, Boucher Brothers Miami Beach, LLC, via an amendment to the Concession Agreement dated May 21, 2019), prior to the issuance of a temporary certificate of occupancy for the Hotel. Such terms shall provide (i) the right for the Hotel to brand uniforms of Hotel staff providing food & beverage services, and to brand beach equipment and/or signage located within the Enhanced Service Area; and (ii)for the City to continue to receive, with respect to standard beach equipment rentals and pre-packaged .food services offered by the City's Concessionaire within the Enhanced Service Area, the same percentage of gross receipts the City would otherwise receive for such 27 49127872;13 Page 793 of 1288 standard services pursuant to the City's concession agreement with the City's Concessionaire for the Ocean Terrace Concession Area. 26.4 Raised Pavilion/Cafe. Developer shall have the right to construct and operate a raised pavilion/cafe within the Park/Streetscape Site, generally consistent with the sidewalk café permit requirements as set forth in Chapter 82 of the City Code, and in accordance with the minimum standards, criteria, and conditions set forth in Sections 82-385 to 82-388 of the City Code, provided such pavilion/cafe is approved by the HPB. This Section shall survive the termination or expiration of this Agreement. 26.5 Parking Space Removal. Developer reserves the right, if approved by the HPB,to eliminate those certain parking spaces located along Ocean Terrace between 73rd Street and 75th Street, and along 73rd Street, 74th Street, and 75th Street between Ocean Terrace and Collins Avenue. City agrees that such removal shall not require the payment of any fee by Developer under Section 106-55(h) of the City Code, as the same may be amended from time to time. This Section shall survive the termination or expiration of this Agreement. GENERAL PROVISIONS 27. Applications for Development Approvals and Development Permits. This Agreement contemplates that the Developer will file applications for Development Orders and Development Permits. The City shall process all Development Permit and Development Order applications as expeditiously as possible. Notwithstanding the foregoing, Developer shall be solely responsible for obtaining Final Approval of all Development Orders and Development Permits for the Project and the Park/Streetscape Improvements. 28. Laws Governing this Agreement. For the entire term of this Agreement, the City hereby agrees that the City's Law's and Requirements governing the development of the Development Site as they exist as of the Execution Date of this Agreement shall govern the development of the Development Site and the Project during the Term. Notwithstanding the foregoing, the City may apply subsequently adopted laws or policies to the Development Site and the Project (particularly as they may relate to quality of life issues such as, but not limited to noise, litter, and hours of operation) as permitted or required by the Act, including, without limitation, Section 163.3233(2), Florida Statutes, as same may be amended from time to time; provided, however, that in no event shall the City apply any subsequently adopted laws or policies in a manner that requires any alterations or modifications to the Project or the Park/Streetscape Improvements or any amendments or modifications to the Project Zoning Approvals or the Park/Streetscape Zoning Approval, or in a manner that renders the Project or the Park/Streetscape Improvements "nonconforming" as to any Laws or Requirements. Without limiting the generality of the foregoing, Developer expressly reserves the right to challenge any subsequently adopted changes to the Laws or Requirements based on, among others, (i) equitable estoppel, vested rights, or other common law principles; or (ii) rights that may accrue under Chapter 70, Florida Statutes (2018) or any successor or similar laws. In addition, the expiration or termination of this Agreement (other than termination for an uncured Developer Event of Default) shall not act to waive, limit, or invalidate any vested right (or equitable estoppel defense) that may have accrued to Developer pursuant to or in furtherance of this Agreement prior to such expiration or termination. 29. Compliance with Local Regulations Regarding Development Permits. This Agreement is not and shall not be construed as a Development Permit, Development Order, approval or authorization to commence any development, fill, or other land modification. The 28 49127872;13 Page 794 of 1288 Developer and the City agree that the failure of this Agreement to address a particular permit, approval, procedure, condition, fee, term or restriction in effect on the Execution Date of this Agreement shall not relieve Developer of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms or restrictions, subject however to the terms and provisions of this Agreement. 30. Reservation of Rights. This Agreement shall not affect any rights that may have accrued to any Party to this Agreement under applicable Laws or Requirements and each Party hereto reserves any and all of such rights. 31. Consistency with the City's Comprehensive Plan. The City has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of this Agreement dealing with the Development Site and the Project are consistent with the City's Comprehensive Plan and Land Development Regulations (subject to all applicable requirements, permits and approvals). 32. Concurrency. Developer shall be solely responsible for obtaining all land use permits, including, but not limited to, all permits and approvals required pursuant to Section 163.3180, Florida Statutes (2018), with respect to concurrency requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and schools for the Project(the "Concurrency Requirements"). Prior to applying for its full Building Permit for the Project, Developer shall apply to the appropriate Governmental Authorities and obtain letters or other evidence that Developer has satisfied all applicable Concurrency Requirements, and shall diligently and in good faith obtain such letters or other evidence that the Project meets all applicable Concurrency Requirements and shall pay such impact fees as may then be due or applicable to meet Concurrency Requirements for the Project. 33. Books and Records; Audit Rights; Public Records. 33.1 Developer shall at all times during the Term keep and maintain (separate from any of Developer's other books, records and accounts), accurate and complete records pertaining to the construction of the Park/Streetscape Improvements in accordance with suitable accounting principles with such exceptions as may be provided for in this Agreement. City and its representatives shall have, during normal business hours and upon reasonable advance notice, access to the books and records of Developer pertaining to the Park/Streetscape Improvements for the purpose of examination and audit (including copying), including books of account properly reflecting the construction of the Park/Streetscape Improvements. 33.2 The obligations of Developer under this Article to maintain, and to provide City and its representatives access to, the books and records related to the Park/Streetscape Improvements shall survive the expiration of this Agreement for a period of one (1) year. 33.3 The City will be solely responsible for responding to all requests for public records in accordance with Florida law. In the event that a third party submits a request to the City for records of the Developer regarding this Agreement, the City shall notify the Developer of the public records request, to provide Developer the opportunity to determine whether any documents responsive to the request contain confidential trade secret information entitled to protection from disclosure under Florida law. If the Developer certifies to the City that any specific documents responsive to the request contain confidential trade secrets information (with such certification specifying the basis for the trade secret assertions, and the steps taken by the Developer to otherwise protect the confidentiality of such information), City shall withhold the 29 49127872;13 Page 795 of 1288 subject documents, and shall provide the requestor with a copy of the Developer's trade secret certification. If the requestor objects and continues to make demand for the release of such records, City shall notify the Developer of the requestor's objection, to permit the Developer to file an action in a court of competent jurisdiction within fourteen (14) calendar days, seeking a protective order barring disclosure of any confidential trade secret information. If Developer fails to file an action for injunctive relief within the time period specified, or fails to submit the trade secret certification referenced herein, the City shall treat such failure as a waiver of any claim of trade secret protection, and the City shall thereafter release the document as requested, in accordance with Florida law. 34. Expedited Arbitration of Development Disputes. 34.1 If Developer or City asserts that a Development Dispute has arisen, such asserting party shall give prompt written notice thereof to the other party and to the Development Arbitrator. 34.2 The Development Arbitrator shall no later than five (5) Business Days after receipt of such notice, hold a preliminary, informal meeting with City and Developer in an attempt to mediate such Development Dispute. If such Development Dispute shall not be resolved at that meeting, the Development Arbitrator shall at such mediation meeting establish a date, not earlier than five (5) Business Days after the mediation meeting nor later than twenty (20) Business Days after the mediation meeting, for a mediation hearing (a "Hearing") to be held in accordance with this Agreement to resolve such Development Dispute. 34.3 Developer and City shall have the right to make one (1) written submission to the Development Arbitrator prior to any Hearing. Such submission shall be received by the Development Arbitrator and the other party not later than two (2) Business Days prior to the Hearing date. The parties agree that no discovery(as the term is commonly construed in litigation proceedings) will be needed and agree that neither party nor the Development Arbitrator shall have discovery rights in connection with a Development Dispute. 34.4 Each Hearing shall be conducted by the Development Arbitrator. It is the intention of the parties that the Hearings shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each party shall have the opportunity to make a brief statement and to present documentary and other support for its position, which may include the testimony of not more than four (4) individuals, two (2) of whom may be outside experts. There shall be no presumption in favor of either party's position. Any procedural matter not covered herein shall be governed by the Amended 1993 edition of the CPR Rules for the Arbitration of Business Disputes and the Florida Arbitration Code to the extent not inconsistent with the CPR Rules and this Section. 34.5 The Hearings shall be held in a location selected by the Development Arbitrator in Miami-Dade County, Florida. Provided the Development Arbitrator is accompanied by representatives of both Developer and City, the Development Arbitrator may, at its option, visit the work site to make an independent review in connection with any Development Dispute. 34.6 Once it has been determined by the Development Arbitrator or by agreement of the parties that the disputed matter is a Development Dispute under this Agreement, the Development Arbitrator shall take into account, in resolving such Development Dispute, such 30 49127872;13 Page 796 of 1288 factors as he deems relevant which are not inconsistent with this Agreement, which in all events shall include the following factors: (a) City does not have any approval rights with respect to the matter of design and decor of the Park/Streetscape Improvements except to the extent the same is reflected in the Plans and Specifications. (b) The Park/Streetscape Improvements shall be of first-class quality, compatible with the quality set forth in the original approved Plans and Specifications (without regard to changes thereto). (c) The mutual goal of Developer and City that cost overruns for the construction of the Park/Streetscape Improvements shall be minimized. (d) Applicability of any Requirement. (e) The magnitude of the modification to the previously approved Plans and Specifications. (f) The magnitude of the consistency or inconsistency from the previously approved Plans and Specifications. 34.7 Pending resolution of the Development Dispute, Developer may not implement the matter which is the subject of such Development Dispute. 34.8 The Development Arbitrator shall render a decision, in writing, as to any Development Dispute not later than two (2) Business Days following the conclusion of the Hearings regarding such Development Dispute and shall provide a brief written basis for its decision not later than five (5) Business Days thereafter. As to each Development Dispute, the Development Arbitrator's decision shall be limited to (i) whether or not Developer's proposed modification(s) to the Plans and Specifications is a Material Modification; (ii) whether or not City has unreasonably failed to approve or give its consent to any modifications to the Plans and Specifications pursuant to Sections 8, 9, and/or 11; (iii) whether or not Developer has complied with its obligations or responsibilities set forth in Sections 8, 9, and/or 11; and (iv) whether or not Developer or City is entitled to any extension of time for performance.The Development Arbitrator may not award any other or different relief. 34.9 The decision of the Development Arbitrator shall be final and binding on the Parties for all purposes and may be entered in any court of competent jurisdiction. 34.10 The Parties shall reasonably cooperate to select an independent, neutral, professional firm having hotel development or construction experience to serve as the arbitrator (the "Development Arbitrator"). If the Parties cannot agree on the selection of a Development Arbitrator, then any Party may ask the CPR Institute for Dispute Resolution to select a substitute who will act as Development Arbitrator of that Development Dispute. The cost of the Development Arbitrator shall be equally shared by the Parties, but each Party shall bear its own costs, including those of its experts and legal fees, associated with the arbitration. 35. Litigation. Any dispute between the Parties, other than a Development Dispute, shall be subject to litigation and not arbitration. 31 49127872;13 Page 797 of 1288 36. Effective Date and Duration (Term). (a) Within fourteen (14) days following approval at two public hearings and execution by the Parties, the City shall record the Agreement in the Public Records of Miami- Dade County. This Agreement shall become effective only after it has been recorded in the Public Records of Miami-Dade County, Florida. The Developer agrees that it shall be responsible for all recording fees and other customary fees and costs related to the recording of this Agreement as described in this Section. (b) This Agreement shall run for an initial term of ten (10) years from the Effective Date (the "Term"); provided, however, if the Developer completes construction of Phases 1 and 2 of the Park/Streetscape Improvements within the time periods set forth in Section 42(c) and (d) of this Agreement, then the Term shall automatically be extended (without the need of any notice to or consent of the City, or being subject to any public hearing) for an additional eight(8) years, so that the Term of this Agreement shall be a total of eighteen (18) years from the Effective Date. Except for the automatic eight (8) year extension of the Term set forth above (which do not require any consent of the City or,public hearing): (i) the Term of this Agreement may be extended only by the mutual consent of the City and the Developer subject to a public hearing pursuant to Section 163.3225, Florida Statutes; and (ii) consent to any extension of this Agreement is within the sole discretion of each party to this Agreement. No notice of termination shall be required by either Party upon the expiration of this Agreement, and after the expiration of this Agreement the Parties shall have no further obligations under this Agreement, except for those obligations that expressly survive the expiration of this Agreement. 37. Presently Permitted Development. The development that is presently permitted on the Development Site, including population densities, and building intensities and height,which are subject to this Agreement, is more specifically set forth in Exhibit"0" hereto. 38. Public Facilities to Serve the Development Site. A description of the public facilities that will service the Project of the properties subject to this Agreement, including who shall provide such facilities; the date any new facilities, if needed, will be constructed; and a schedule to assure public facilities are available concurrent with the impacts of the development is included as Exhibit "P" hereto. 39. Public Reservations and/or Dedications. A description of the reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement is included as Exhibit"Q" hereto. 40. Required Development Permits. Attached and made a part hereof as Exhibit "R" is a listing and description of all local development permits approved or needed to be approved for the development of the Project. 41. Not Used. 42. Developer Defaults. Each of the following shall be an "Event of Default" by Developer hereunder: (a) If Developer shall fail to observe or perform any term, covenant or condition of this Agreement on Developer's part to be observed or performed and Developer shall 32 49127872;13 Page 798 of 1288 fail to cure or remedy the same within ten (10) Business Days following Developer's receipt of written notice from the City, with respect to monetary defaults, or within thirty (30) Business Days following Developer's receipt of written notice from the City with respect to non-monetary defaults (each, a "Developer Default Notice"). If such non-monetary default is susceptible to cure but cannot reasonably be cured within said thirty(30) Business Day period,then Developer shall have any additional sixty (60) Business Day period to cure such failure and no Event of Default shall be deemed to exist hereunder so long as Developer commences such cure within the initial thirty (30) Business Day period and diligently and in good faith pursues such cure to completion within such resulting ninety (90) Business Day period from the date the Developer receives the Developer Default Notice. (b) If Developer shall fail to Commence Construction of Phase 1 of the Park/Streetscape Improvements within ninety(90) Business Days after Developer obtains (i) Final Approval of the Project Zoning Approvals, or (ii) Final Approval of all Permits and Approvals for the Park/Streetscape Improvements, whichever occurs last. (c) If Developer shall fail to Substantially Complete the construction of Phase 1 of the Park/Streetscape Improvements within forty-eight (48) months after the Effective Date. (d) If Developer shall fail to Substantially Complete the construction of Phase 2 of the Park/Streetscape Improvements within ninety-six (96) months after the Effective Date. (e) If Developer shall fail to Substantially Complete the construction of the Project within ninety-six(96) months after the Effective Date, subject to one automatic twenty- four (24) month extension if Developer has completed Phases 1 and 2 of the Park/Streetscape Improvements within the timeframes set forth in this Agreement and has Commenced Construction of the Project. (f) If, prior to Substantial Completion of Phase 2 of the Park/Streetscape Improvements, Developer shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall consent to the appointment of a receiver or trustee or liquidator of all of its property or the major part thereof or if all or a substantial part of the assets of Developer are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the possession of any receiver, trustee, custodian or assignee for the benefit of creditors. (g) If, prior to Substantial Completion of Phase 2 of the Park/Streetscape Improvements, Developer shall commence a voluntary case under the Title 11 of the United States Code (the "Bankruptcy Code"); or an involuntary proceeding is commenced against Developer under the Bankruptcy Code and relief is ordered against Developer, or the petition is controverted but not dismissed or stayed within one hundred fifty (150) days after the commencement of the case, or a custodian (as defined in the Bankruptcy Code) is appointed for or takes charge of all or substantially all of the property of Developer and is not discharged or dismissed within one hundred fifty (150) days; or Developer commences any other proceedings under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar Law of any jurisdiction whether now or hereafter in effect relating to Developer; or there is commenced against Developer any such proceeding which remains undismissed or unstayed for a period of one hundred fifty (150) days; or Developer fails to controvert in a timely manner any such case under the Bankruptcy Code or any such 33 49127872;13 Page 799 of 1288 proceeding, or any order of relief or other order approving any such case or proceeding is entered; or Developer consents to or approves of, in any such case or proceeding or the appointment of, any custodian or the like of or for it for any substantial part of its property or suffers any such appointment to continue undischarged or unstayed for a period of one hundred fifty (150) days. (h) If, prior to Substantial Completion of Phase 2 of the Park/Streetscape Improvements, Developer shall assign or transfer its rights and/or delegate the performance of its obligations under this Agreement to anyone, at any time, other than a Permitted Transferee without the City's prior written consent and approval, as governed by Section 54. 43. Effect of Cure. Notwithstanding Section 42 or anything else to the contrary, Developer will not be deemed to be in default of this Agreement for any Event.of Default that is cured by the Developer, by the Recognized Mortgagee, or by the City's receipt of funds for such Event of Default under the Surety Bond,the Recognition Agreement, or the Payment Bond and/or Performance Bond, as applicable. 44. Enforcement of Performance; Damages and Termination. In the event the City shall claim any Event of Default shall have occurred hereunder, the Developer Default Notice shall state with specificity the provisions of this Agreement under which the Default is claimed, the nature and character of such Event of Default, the date by which such Event of Default must be cured pursuant to this Agreement, if applicable, and, if elected by the City, that the failure of Developer to cure such Default by the date set forth in such notice will result in the City having the right to terminate this Agreement. Subject to the exclusive remedies set forth in Sections 5(d) and 12.3 of this Agreement, if an Event of Default occurs hereunder, the City may elect any one or more of the following remedies as the City's sole and exclusive remedy with respect to such Event of Default: (a) Enforce strict performance by Developer; or (b) Exercise and enforce the City's rights pursuant to each of the Assignment of Plans, Permits and Approvals and the Assignment of Construction Agreements; or (c) Pursue any other remedy available to the City at law or in equity. In the event City elects to exercise its remedies pursuant to Sections 5(d) and/or 44(b), Developer shall: Promptly deliver to the City all submittals and Park/Streetscape Improvements records in their original/native electronic format (i.e. CAD, Word, BIM, Excel, etc.), any and all other unfinished documents, and any and all warranties for work, equipment or materials already installed or purchased, to the extent the same are in Developer's possession; ii. As directed by the City, transfer or cause the Contractor to transfer title and deliver or demand that the Contractor deliver to the City (1) the fabricated and non-fabricated parts, work in progress, completed work, supplies and other material produced or required for the work; and (2) the completed or partially completed project records that, had the work been completed, would be required to be furnished to the City, to the extent the same are in Developer's possession; and 34 49127872;13 Page 800 of 1288 iii. Take any action that may be reasonably necessary, or that the City may reasonably direct, for the protection and preservation of the property related to this Development Agreement that is in Developer's possession and in which the City has or may acquire an interest. The rights and remedies of the City in this Section 44 shall apply to all Events of Default that fail to be cured within the applicable cure period or are cured but in an untimely manner, and the City shall not be obligated to accept such late cure. In addition, if the City violates, breaches or defaults on any term, covenant, condition or other provision of this Agreement (a "City Default"), then the Developer shall have all rights and remedies available to it under this Agreement, at law, and/or in equity(including,without limitation, an action for specific performance and injunctive relief to enforce the terms, covenants, conditions and other provisions of this Agreement) against the City as a result of or arising out of such City Default. The Developer's election of a right or remedy under this Agreement, at law, and/or in equity with respect to any City Default shall not limit or otherwise affect the Developer's right to elect any other right or remedy available to it under this Agreement, at law, and/or in equity with respect to the same or any other City Default. 45. Termination Outside of Default. (a) Developer Termination. Notwithstanding anything to the contrary in this Agreement, Developer shall have the right to terminate this Agreement and be released from its liability and obligations hereunder by written notice to City delivered not later than on the Park/Streetscape Construction Commencement Date if any of the following occurs: (a) changes to the Park/Streetscape Improvements, the Park/Streetscape Concept Plan, the Plans and Specifications or any other aspect required by the HPB, Planning Board, or any other governmental or regulatory authority (including the City) render the Project or the Park/Streetscape Improvements economically unfeasible in the sole judgment of Developer; (b) the Project cannot meet Concurrency Requirements under Section 163.3180, Florida Statutes (1997), or the costs of concurrency mitigation, in the sole judgment of Developer, render the Project or the Park/Streetscape Improvements economically unfeasible; (c) Developer, after good-faith efforts, has been unable to obtain Final Approval of all Permits and Approvals for the Project or the Park/Streetscape Improvements; or (d) after good-faith efforts, Developer has not been able to arrange appropriate financing for the Project or the Park/Streetscape Improvements. In the event of termination of this Agreement pursuant to this Section, each Party shall bear its own costs and expenses incurred in connection with this Agreement and neither Party shall have any further liability to the other except for any matters that expressly survive termination of this Agreement. The right of termination pursuant to this Section shall expire and become void if not exercised by Developer on or prior to the Park/Streetscape Construction Commencement Date. If Developer exercises its right of termination under this Section 45(a), then the Parties shall promptly schedule a closing for the unwinding of the Closing consummated in Section 5 of this Agreement (the "Unwinding Closing"), at which time the Parties shall execute, exchange, and, if applicable, record such documents and instruments as are necessary or convenient to vest the Parties with the respective rights and interests each Party possessed, and leave each Party in the position it enjoyed, prior to the Closing, as if the Closing had not occurred and as if this Agreement had not been signed, but excluding the refund of any monies expended or costs incurred by either Party in performing such Party's obligations under this Agreement prior to Developer's exercise of such right of termination. Developer further agrees to reimburse the City for the reasonable out-of-pocket costs and expenses actually incurred by the City for the mechanics of unwinding the Closing (the "City Unwinding Expenses"), regardless of when the 35 49127872;13 Page 801 of 1288 Unwinding Closing occurs. If the Developer terminates this Agreement pursuant to this Section 45 after the Closing but prior to Commencement of Construction of the Park/Streetscape Improvements, the City will, no later than three (3) Business Days after the Unwinding Closing, submit a written invoice to the Developer and Escrow Agent detailing the City Unwinding Expenses. Escrow Agent will, no later than three (3) Business Days after receiving such invoice, pay to the City from the Unwinding Funds an amount sufficient to cover the City Unwinding Expenses and will return the remaining balance of the Unwinding Funds, if any, to the Developer. If the Unwinding Funds are not sufficient to cover the City Unwinding Expenses, the Developer will pay the deficiency to the City no later than three (3) Business Days after the Developer receives written notice from the City and/or Escrow Agent of the deficiency. If the Developer does not terminate this Agreement for convenience prior to Commencement of Construction of the Park/Streetscape Improvements, then Escrow Agent will return the Unwinding Funds to Developer in full no later than three (3) Business Days after such Commencement of Construction. The Parties agree to accept and abide by such terms and conditions of escrow as Escrow Agent reasonably requests to implement the intent of, and avoid or resolve disputes regarding, the Unwinding Escrow. (b) Effect. In the event that either Party chooses to exercise its express right to terminate this Agreement for convenience (including, without limitation, under Section 45(a) above), but apart from such Party's right to terminate in an Event of Default by the other Party, then each Party shall bear its own costs and expenses incurred in connection with this Agreement and the Project, and neither Party shall have or owe any further liability to the other Party. 46. Strict Performance;Waiver. No failure by the City or Developer to insist upon strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy available to such party by reason of the other party's default or an Event of Default hereunder shall constitute a waiver of any such default, Event of Default or of such other covenant, agreement, term or condition hereunder. 47. Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if (i) delivered by hand, (ii) sent by electronic mail, (iii) sent by recognized overnight courier (such as Federal Express), or(iv) mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, in each case addressed as follows or to such other addresses as either Party may from time to time designate for itself by notice to the other Party in accordance with this Section: If to the City at: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager With a copy to: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney With copies to: Holland & Knight LLP 701 Brickell Avenue Miami, Florida 33131 Attn: Joseph G. Goldstein 36 49127872;13 Page 802 of 1288 If to Developer at: 1035 N. Miami Avenue, Suite 201 Miami, Florida 33136 Attn: Sandor Scher sscher@clarocorp.com With a copy to: . Akerman LLP 98 SE 7 Street, Suite 1100 Miami, FL 33131 Attn: Neisen O. Kasdin, Esq. neisen.kasdin@akerman.com Notices personally delivered or sent by electronic mail or by overnight courier shall be deemed given on the date of delivery (or upon refusal of such delivery), and notices mailed in accordance with the foregoing shall be deemed given three (3) Business Days after deposit in the U.S. mails. The terms of this Section 47 shall survive the termination of this Agreement. 48. Governing Laws, Construction and Litigation. This Agreement shall be governed and construed in accordance with the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws that would require the application of any other law. The Developer and the City agree that Miami-Dade County, Florida is the appropriate and exclusive state court venue, and that the U.S. District Court, Southern Division of Florida is the appropriate and exclusive federal court venue, in connection with any litigation between the parties with respect to this Agreement. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; accordingly, this Agreement shall not be more strictly construed against any of the parties hereto. In construing this Agreement, captions, and section and paragraph headings shall be disregarded and the use of any gender shall include every other and all genders. All of the exhibits referenced in this Agreement are incorporated in, and made a part of, this Agreement. In the event of any litigation between the parties under this Agreement for a breach thereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. BY ENTERING INTO THIS AGREEMENT THE CITY AND DEVELOPER EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The terms of this Section shall survive the termination of this Agreement. 49. Severability. In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted, as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 50. Time of Essence. Time shall be of the essence for each and every provision hereof. 51. Entire Agreement. This Agreement, together with its exhibits and all other documents referenced herein, constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. Neither party shall be bound by any agreement, condition, warranty nor representation other than as expressly stated in this Agreement. This Agreement may not be changed, altered or modified except by an instrument in 37 49127872;13 Page 803 of 1288 writing signed by both parties hereto, subject to the .requirements for the amendment of development agreements in the Act. 52. Other Agreements. This Agreement has no effect on any other agreement, Development Order, or declaration of restrictions encumbering the Development Site as of the Effective Date. Any and all agreements in the public records as of the Effective Date remain valid. The parties incorporate by reference each and every applicable requirement set forth in the Act. 53. Binding Effect. The obligations imposed pursuant to this Agreement upon the Developer and upon the Development Site shall run with and bind the Development Site as covenants running with the Development Site, and this Agreement shall be binding upon and enforceable by and against the parties hereto and their personal representatives, heirs, successors, grantees and assigns. 54. Transfer, Assignment, and Delegation. (a) By Developer. Developer may, in its sole discretion, assign or transfer its rights and/or delegate the performance of its obligations under this Agreement pertaining to those portions of the Project other than the Park/Streetscape Improvements, in whole or in part, to anyone at any time, without the City's prior written consent or other approval. With respect to transfers, assignments, and delegations of Developer's rights and obligations pertaining to the Park/Streetscape Improvements, the following shall apply: Prior to Substantial Completion of the Park/Streetscape Improvements, Developer may not assign or transfer its rights, or delegate the performance of its obligations, pertaining to the Park/Streetscape Improvements under this Agreement, in whole or in part, to any third party other than a Permitted Transferee, unless Developer first obtains the City's prior written consent, which consent the City may withhold in its sole discretion. ii. Following Substantial Completion of the Park/Streetscape Improvements, Developer may, in its sole discretion, assign or transfer its rights or delegate the performance of its obligations ,pertaining to the Park/Streetscape Improvements under this Agreement, in whole or in part, to anyone at any time, without the City's prior written consent or other approval. Notwithstanding the foregoing or anything else to the contrary, the City's prior written consent shall not be required to allow (i) any financing or refinancing of all or any portion of the Project, including, without limitation, the granting of any mortgage, the foreclosure by any mortgagee thereunder(or designee of such mortgagee), or the transfer or conveyance to such mortgagee or designee by deed or assignment in lieu of foreclosure; or (ii) the submission of all or any portion of the Project to a condominium form of ownership under Chapter 718, Florida Statutes, the creation of an organization of unit owners and/or parcel owners, or the sale of condominium units or other types of individually conveyable units or parcels within the Project. Upon the recordation of a declaration in the public records submitting all or any portion of the Project to a condominium form of ownership or other form of ownership governed by an organization of unit/parcel owners, 'the obligations of Developer hereunder pertaining to such portion(s) of the Project, as applicable, shall be binding only upon the organization of unit/parcel owners, and not upon the declarant or any particular unit/parcel owner except to the extent otherwise specifically provided in such declaration. 38 49127872;13 Page 804 of 1288 (b) By City. The City may not assign or transfer its rights, or delegate the performance of its obligations under this Agreement, in whole or in part, to any third party other than a successor municipal corporation, unless City first obtains Developer's prior written consent, which consent Developer may withhold in its sole discretion. (c) Notice; Effect; Invalidity. A Party making any transfer, assignment, or delegation under this Agreement shall, no later than twenty (20) Business Days after completing such transaction, deliver to the other Party a written notice specifying the nature and effective date of such transfer, assignment, or delegation. Any transferee, assignee, or delegatee (including through foreclosure or deed-in-lieu thereof)shall assume all of the obligations expressly transferred, assigned, or delegated. Upon any transfer, assignment, or delegation carried out in accordance with this Section, the obligations transferred, assigned, or delegated shall be binding only on such Party's transferee, assignee, or delegatee, as the case may be, and the other Party shall look only to such transferee, assignee, or delegatee for performance of the obligations being transferred, assigned, or delegated. Any purported assignment or transfer of rights, or delegation of performance, in violation of this Section is void. 55. Force Maieure; Economic Force Maieure; and Third-Party Challenges. Neither Party shall be liable for damages, for breach of contract or otherwise, for any failure, suspension, diminution, or other variation of service or performance occasioned by or arising from a Force Majeure Event. In addition, all time periods in this Agreement and/or in any Permits and Approvals issued in connection with the Project and/or the Park/Streetscape Improvements, whether express or implied, will be tolled automatically to account for Force Majeure Events, and the Party against whom enforcement of a time period is sought will not be considered to have missed a deadline or to be in breach or default of this Agreement for so long as such Party is unable to complete any work or take any action required by this Agreement due to such Force Majeure Event(s). In addition, if, due to Economic Force Majeure, Developer is delayed, hindered, or prevented from being able to obtain or maintain adequate financing for the Park/Streetscape Improvements or for the Project or is otherwise unable to satisfy any Development Default Deadline, then all Development Default Deadlines shall be extended for the period of such delay (but not to exceed the total aggregate maximum period of thirty (30) months for all events of Economic Force Majeure that may arise throughout the term of this Agreement); provided, that, with respect to any such delay by Economic Force Majeure, Developer shall give written notice of such occurrence to City describing in reasonable detail the events giving rise to the Economic Force Majeure, and the date of commencement thereof. Developer shall use good-faith, diligent, efforts to attempt to remove, resolve, or otherwise seek to mitigate such delay, shall advise the City periodically of such efforts, and shall notify the City of the date of cessation of the event of Economic Force Majeure (or the date Developer elects to no longer claim an extension of time therefor), to permit the City and Developer to track development deadlines and ensure the maximum aggregate extension of thirty(30) months for Economic Force Majeure is not exceeded. Time is of the essence with respect to this provision. In the event that a third party (unrelated or unaffiliated with the City or the Developer) institutes any action, suit, or proceeding relating to the Project (including, without limitation, any action, suit, or proceeding challenging the validity of this Agreement or any element of the proposed transaction, or the validity or issuance of the Vacation Resolution, the Project Zoning Approvals, the Park/Streetscape Zoning Approval, any amendments to the Comprehensive Plan or Land Development Regulations relating to the Project or to the Park/Streetscape Improvements, or any other Permits and Approvals relating to the Project or to the 39 49127872;13 Page 805 of 1288 Park/Streetscape Improvements (in each instance, including any related appeals and appeal periods, a "Lawsuit"), then the Developer shall, at its option, either: (i) attempt to defend such Lawsuit at its sole cost and using legal counsel reasonably acceptable to the City, in which case all time periods in this Agreement and in any Permits and Approvals issued in connection with the Project and/or the Park/Streetscape Improvements, whether express or implied, shall be tolled automatically through all levels of appeal until such Lawsuit has been finally disposed of (by judgement, settlement or otherwise) to Developer's satisfaction; or (ii) terminate this Agreement in accordance with Section 45. Developer shall indemnify and hold the City harmless from and against all actual claims, injury, damage, loss and liability, cost and expense (including attorneys' fees, costs and expenses) of any and every kind arising out of or relating to any such Lawsuit, except to the extent arising out of or related to the City's negligence or misconduct. Developer shall be entitled to control the defense and conduct of any such Lawsuit and to compromise, settle, or abandon the Lawsuit, in its sole discretion, and the City agrees to reasonably cooperate with Developer (at no expense to the City) in connection with the conduct of any such Lawsuit. This Section shall survive the termination or expiration of this Agreement. In addition, if a Lawsuit is commenced prior to the City's approval of the Vacation Resolution, then the City shall not be required to effectuate the vacation of the City Parcel until thirty (30) days after the Lawsuit has been finally disposed of (whether by judgment, settlement, or otherwise) on terms and conditions acceptable to Developer in its sole discretion; provided, however, that if such Lawsuit is still pending more than sixty (60) months after it has been commenced, then either Party at its option may, from and after the expiration of such sixty (60) month period and while such Lawsuit remains unresolved, elect to terminate this Agreement by delivering a written notice of termination-to the other Party, whereupon the Vacation Resolution application shall be withdrawn and the Agreement shall be terminated, and the City and Developer shall have no further obligation and/or liability to each other. 56. Indemnification. In addition to the indemnification obligations provided elsewhere in this Agreement, and subject to the City's liability limitations as set forth herein and-in Section 60 below, each Party hereby agrees to defend, indemnify and hold harmless the other Party, its agents and employees, from and against all actual, documented loss, cost, expense, claim, demand or cause of action of whatever kind or nature arising out of or related to the gross negligence or willful misconduct of such Party and/or its officers, directors, officials, employees, contractors, and agents, related to (i) this Agreement, (ii) the Project; and/or (iii) the Park/Streetscape Improvements, except to the extent arising out of or related to the gross negligence or willful misconduct of the other Party and/or its officers, directors, officials, employees, contractors, or agents (collectively, "Losses"). The indemnifying Party shall directly pay all actual, documented costs and expenses related to any cost charged or legal.defense required by the other Party, using legal counsel reasonably acceptable to the other Party (but subject to the requirements of the indemnifying Party's insurers), pursuant to the foregoing indemnification obligation. The non-indemnifying Party shall notify the indemnifying Party of any Losses promptly after receiving notice of same and shall reasonably cooperate and collaborate (but at no expense to the non-indemnifying Party) with the indemnifying Party in connection with any legal proceeding in which the indemnifying Party is defending the other Party hereunder. This Section shall survive termination or expiration of this Agreement. City's indemnity obligations herein shall be solely to the extent and limits permitted by Section 768.28 of the Florida Statutes, and without waiver of any rights or defenses thereunder or any privileges or immunities afforded to the City under the laws of the State of Florida. 57. Corporate Obligations. It is expressly understood that this Agreement and the obligations issued hereunder are solely corporate obligations, and that no personal liability will 40 49127872;13 Page 806 of 1288 attach to, or is or shall be incurred by,the incorporators, stockholders, officers, directors, elected or appointed officials (including, without limitation, the Mayor and City Commissioner of the City) or employees, as such of Developer, City, or any of any successor corporation or any of them, under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any of all such rights and claims against, every such incorporator, stockholder, officer, director, elected or appointed official (including, without limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom are expressly waived and released as a condition of, and as consideration for, the execution of this Agreement. 58. No Conflict of Interest. Developer represents and warrants that, to Developer's knowledge, no member, official or employee of the City has any direct or indirect financial interest in this Agreement nor has participated in any decision relating to this Agreement that is prohibited by law. Developer represents and warrants that, to Developer's knowledge, no officer, agent, employee, or representative of the City has received any payment or other consideration for the making of this Agreement, directly or indirectly, from Developer. 59. No Third-Party Beneficiaries. This Agreement is not intended to, and shall not be construed to give, any third party (including, without limitation, any homeowners association, condominium association, or neighborhood association in the surrounding area, or any individual members thereof) any rights or interests whatsoever, nor is it intended that any third party shall be a third party beneficiary of any provisions hereof. 60. Limitations of Liability. 60.1 Any tort liability to which the City is exposed under this Agreement shall be limited to the extent permitted by applicable law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as may be amended, and City expressly does not waive any of its rights and immunities thereunder. 60.2 City will not in any event whatsoever be liable for any injury or damage to Developer (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees) or to any other person happening on, in or about the City Parcel or the Park/Streetscape Site and its appurtenances, nor for any injury or damage to the City Parcel or the Park/Streetscape Site (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees) or to any other person which may be caused by any fire or breakage, or by the use, misuse or abuse of any of the City Parcel or the Park/Streetscape Site, or which may arise from any other cause whatsoever (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees). 60.3 Other than as provided in the City Parcel Easement, City will not be liable to Developer or to any other person for any injury or damage to any property of Developer or to any person or to the City Parcel caused by or resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado, flood, wind or similar storms or disturbances, or water, rain or snow which may leak or flow from the street, sewer, gas mains or subsurface area or from any part of the City Parcel or the Park/Streetscape Site, or leakage of gasoline or oil from pipes, appliances, sewer or plumbing works therein, or from any other place, nor for interference with light or other 41 49127872;13 Page 807 of 1288 incorporeal hereditaments by any person (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees). 60.4 Except as may be otherwise expressly provided herein, no approval to be made by the City in its proprietary capacity under this Agreement or any inspection of the Project or Park/Streetscape Improvements by the City under this Agreement, shall render the City liable for its failure to discover any defects or nonconformance with any governmental requirement. 60.5 Developer shall, pursuant to and in accordance with the terms and conditions of the City Parcel Easement, make the City Parcel available to the public free of charge for outdoor recreational purposes. Accordingly, to the maximum extent permitted by law, Developer may avail itself of the limitations of liability afforded pursuant to Section 375.251, Florida Statutes, to the fullest extent applicable to the City Parcel Easement. 61. Police Power. (a) The Parties recognize and agree that certain provisions of this Agreement require the City and its boards, departments or agencies, acting in their governmental capacity, to consider governmental actions, as set forth in this Agreement.All such considerations and actions shall be undertaken in accordance with established requirements of state statutes and municipal ordinances, in the exercise of the City's jurisdiction under the police power. Nothing contained in this Agreement shall entitle the Developer to compel the City to take any such actions, save and except the consents, if applicable, to the filing of such applications for Development Permits or Development Orders, as more fully set forth herein, and to process such applications as expeditiously as possible. (b) The Parties further recognize and agree that these proceedings shall be conducted openly, fully, freely and fairly in full accordance with law and with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing in this Agreement shall be construed to prohibit the City from duly acting under its police power to approve, approve with conditions, or reject any public hearing application dealing with the Development Site. 62. Art in Public Places. Developer shall comply with the City's Art In Public Places program requirements under Section 82-536 through 82-612 of the City Code, as applicable (the "AIPP Ordinance"), and shall pay to the City's Art in Public Places fund the total of 1.5% of the "construction cost" (as such term is defined in Section 82-537 of the City Code) of the Park/Streetscape Improvements (the "Public Art Funds") no later than the date of execution of Construction Agreement with the Contractor for the Park/Streetscape Improvements. The full amount of the Public Art Funds shall be dedicated to Developer's use for public art within the Park/Streetscape Site. In view of the Developer's overall design responsibility for the Park/Streetscape Improvements, the Developer shall either: (a) submit the proposed artworks to be funded with the Public Art Funds to the City's Art In Public Places Committee for its review, recommendation and approval; or (b) seek the City Commission's approval of the proposed artworks and waiver of any applicable AIPP Ordinance program requirements, which approval by the City Commission shall not to be unreasonably withheld, conditioned or delayed. 63. City Manager's Delegated Authority. Notwithstanding any provision to the contrary in this Agreement, nothing herein shall preclude either Party from seeking direction from or electing to have the City Commission determine any matter arising out of or related to the Park/Streetscape Project, including, without limitation, any approval contemplated under this 42 49127872;13 Page 808 of 1288 Agreement (within the timeframe specified therefor as if the Approval was being determined by the City Manager). 64. Conflict. In the event of an inconsistency or conflict between the terms of this Agreement and the Vacation Resolution, the terms of this Agreement shall control. 65. Freedom from Interference. Except as is otherwise expressly provided in this Agreement, Developer shall have discretion, control, and authority, free from interference, interruption, or disturbance by the City, in all matters relating to the development, design, permitting, and construction of the Project and the Park/Streetscape Improvements, including, among others, with respect to the following specific matters: (i)the selection, approval, hiring, and discharge of architects, engineers, contractors, subcontractors, professionals, and other third parties on such terms and conditions as Developer deems appropriate in its sole discretion, provided that the Contractor for the Park/Streetscape Improvements must be duly licensed by the State of Florida, must satisfy the insurance and bonding requirements set forth in Exhibit "N" to this Agreement, and must have completed at least two (2) projects with an estimated value of at least Ten Million Dollars ($10,000,000.00) each during the five (5) years immediately preceding the Contractor's engagement for the Park/Streetscape Improvements, and provided further that the landscape architect for the Park/Streetscape Improvements, if other than Raymond Jungles, must be approved in advance by City, but the City will not unreasonably withhold, condition, or delay such approval; (ii) the negotiation and execution of contracts, agreements, instruments, covenants, and other documents with third parties, in form and substance satisfactory to Developer in its sole discretion; and (iii)the preparation of such budgets, cost estimates, financial projections, statements, information, and reports as Developer deems appropriate in its sole discretion. 66. Estoppel. The City will, no later than fifteen (15) Business Days after a written request therefor by Developer, by any Recognized Mortgagee, or by anyone claiming by or through Developer (including, without limitation, Developer's successors, assigns, transferees, and mortgagees and other lenders providing financing for the Project or the Park/Streetscape Improvements), and upon payment of the reasonable fees to cover the City's expenses for any third-party resources required to comply, issue a written estoppel certificate, in recordable form, to the requesting party, certifying as to any matter related to this Agreement that the requesting party may reasonably request of the City, including, without limitation, (i) that this Agreement, or any particular paragraph or section of this Agreement specified by the requesting party, is in full force and effect and unmodified (or in what respects this Agreement is no longer in force or effect or has been modified); (ii) that all monies due and payable under this Agreement, if any, have been paid (or in what respects monies are owed); and (iii) that to the City's knowledge, Developer is in compliance with this Agreement or with any particular paragraph or section hereof specified by the requesting party (or in what respects there is noncompliance). Such estoppel certificates will be binding on the City and its successors and assigns, and may be relied upon by Developer, its mortgagees and lenders, and by all others claiming by or through Developer. Notwithstanding the foregoing section or any representations in any estoppel certificates issued thereunder, City shall not be estopped as to matters to which it did not have knowledge. [Signatures Follow] 43 49127872;13 Page 809 of 1288 EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting only one agreement. Signed, sealed and delivered CITY OF MIAMI BEACH, in the presence of: a Florida municipal corporation Print Name: By: Print Name: Name: Attest: City Clerk STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2019, by , as Mayor of the City of Miami Beach, a municipal corporation, on behalf of the Corporation. He is personally known to me or has produced as identification and who did (did not) take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission expires: Serial No., if any: 49127872;13 Page 810 of 1288 , a By: Print Name: Print Name: STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2019 by , as of , a , on behalf of the company. He is personally known to me or has produced as identification and who did/did not take an oath. NOTARY PUBLIC Typed or printed Name of Notary My Commission expires: Serial No., if any 49127872;13 Page 811 of 1288 Exhibit "A" The Developer Property Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in Block 1 of Harding Townsite, according to the Plat thereof, as recorded in Plat Book 34, Page 4, of the Public Records of Miami-Dade County, Florida. 49033640;2 Page 812 of 1288 Exhibit " B" Reversionary Interest see following page(s) 49033720;1 Page 813 of 1288 LEGAL DESCRIPTION: A portion of the Public Reservation shown on Plat of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami—Dade County, Florida, being more particularly described as follows: Commence at the Southeast corner of Lot 7 in Block 1, of said Plat of TOWNSITE OF HARDING; thence South 0758'50" East, along the Southerly prolongation of the West Right—of—Way line of Ocean Terrace, (First Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the center line of 74th Street (Second Street per Plat Book 34 at Page 4); thence North 86'59'28" East, along said center line, for 60.00 feet to a point on the East Right—of—Way line of said Ocean Terrace and the Point of Beginning; thence continue North 86'59'28" East, along said center line, for 31.53 feet to a point on the East line of said Public Reservation; thence North 04'12'42" West, along said East line, for 420.09 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence South 86'59'28" West along said North line of Government Lot 7 for 22.50 feet to a point on said East Right—of—Way line of Ocean Terrace, also being the West line of said Public Reservation; thence South 0758'50" East, along said East Right—of—Way line and West line, for 420.00 feet to the Point of Beginning. SURVEYOR'S NOTES: — This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue. — Lands shown hereon were not abstracted for easements and/or rights—of—way of records. — Lands shown hereon containing 11,346 square feet, or 0.260 acres, more or less. — This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon. — Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on May 8, 2019, and meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" FORTIN, LEAVY, SKILES, INC., LB3653 By: Daniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florida. '"Drawn By MAP '"LEGAL DESCRIPTION, NOTES& CERTIFICATIONS Date 5/8/19 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN, LEAVY, r.S. ,KILES, INC. Job. No. 190441 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg• No. 1019-007—K 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a Phone:305-653-4493/FafoAt-814-8f 212�8gmai1 fls@flssuivey.com Sheet 1 of 3 L_ -I L _ (ALLAMANDA(75TH)STREET-PLAT BOOK 31 PAGE 40) 886°59'28°W — _ _ 75TH STREET 22'50' 1 ;;;:::;;: (PUBLIC RIGHT OF WAY) NORTH UNE oFJ b GOVERNMENT LOT 7 CENTERLINE OF SECTION 2-53-42 & 75TH STREET w NORTH UNE OF z;: PLAT BOOK 34 PAGE 4 (FIRST STREET PLAT BOOK 34 PAGE 4) =a .o.::, :;;I : 0 .:.:.:.:M:a::::::: F ism: x .;f;. ::ii: o? I LOT 8 LOT 1 00 v,....... : :2;:;: a m::::: opo a I — — H 6 iii;;: N 0y z W� Z UV I LOT 9 LOT 2 I_ 60' o::: v:: I, ::i:ii:C9:a:;::ol— — 1 — _ _ A W cp o t o UN _` : : N Q w >;;;::;0::::;::;::: .:.::.:m::;i. 40' LOT 10 LOT 3 CC a $ iiii: ::i:it? D W U L 0 C Kg :s:::: >' TOWNSITE OF HARDING I"' g = :::i:0:::::::::: W YCL I PLAT BOOK 34 PAGE 4 "? ^`:i,:;` o LOT 11 $1_ tor m O LOT 4 2 U :4::::>::::::::::: II 0- 0 — — — W6 i :gin I v v : �cg: w:::::: LOT 12 LOT 5 0 w :::::;. : ._ - O 4_ 1,: ' 0▪ Lai r— _ _ _ _1 _ _ _ 1 .w c., .., <.x C., :.:.:.:.:.:.:.:.,...................... '1" U zi;ii .;:;:: ILOT 13 LOT 6 a o:�...... ::' tri:::: 1 r IIII LOT7 LL Z µ I I LOT 14 POINT OF Z : : - I— GRAPHIC SCALE COMMENCEMENT Z_ ;:;:;]:::; S.E. CORNER OF LOT 7 :.`N Thr :: 0 30 60 120 — O LU pi.;';;:: a. m :r%Ti:::::. . ` I I CENTERLINE OFTS o (SECOND STREET PLAT BOOK 34 PAGE 4) m I o m::i;.;.;:;:;. ( � 74TH STREET 74TH STREET FEET ) N M `''"'' 1 inch = 60 ft 0::. :O (PUBLIC RIGHT OF WAY) N86.59'28°E 60.00' 'Drawn By MAP , ' SKETCH OF DESCRIPTION Date 5/8/19 Cad. No' 190176 Scale 1"=60' Ref. Dwg. FORTIN, LEAVY, S KILES, INC. Job. No. 190441 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007-K 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a ..1 Phone:305-653-4493/Fapo,96j-845-m5p2ggmail fls@flssurvey.com Sheet 2 of 3 J 75TH STREET II w z w 11 1.c z 111 = ¢ - 0 iimU < 74TH STREET z w iz O (iQ w F- z w U O z 73RD STREET ill" 72ND STREET 1111"111 4111III` ii fr Drawn By MAP , LOCATION SKETCH , Date 5/8/19 Cad. No. 190176 Scale NOT TO SCALE Ref. Dlrg. FORTIN, T.EAVY, S KILES, INC. Job. No. 190441 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—K 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a J Phone:305-653-4493/Fafpar96-846-5f¶ mail fls@flssurvey.com Sheet 3 of 3 Exhibit " C" 75th Street Parcel see following page(s) 49183387;1 Page 817 of 1288 • LEGAL DESCRIPTION: A portion of the Right—of—Way of 75th Street that adjoins Lots 1 and 8 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami—Dade County, Florida, being more particularly described as follows: Begin at the Northeast corner of said Lot 1;. thence South 86'59'28" West along the North line of said Lots 1 and 8, also being the South Right—of—Way line of said 75th Street, (First Street per Plat Book 34 at Page 4) for 296.00 feet to the Northwest corner of said Lot 8, also being a point on the East Right—of—Way line of Collins Avenue (Second Avenue per Plat Book 34 at Page 4); thence North 02'58'50" West, along the Northerly prolongation of the West line of said Lot 8, also being said East Right—of—Way line of Collins Avenue for 40.00 feet to a point on the. North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 86'59'28" East along said North line of Government Lot 7 for 296.00 feet; thence South 02'58'50" East, along the Northerly prolongation of the East line of said Lot 1, for 40.00 feet to the Point of Beginning. SURVEYOR'S NOTES: — This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue. — Lands shown hereon were not abstracted for easements and/or rights—of—way of records. — Lands shown hereon containing 11,840 square feet, or 0.272 acres, more or less. — This isnot a "Boundary Survey" but only a graphic depiction of the description shown hereon. — Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" FORTIN, LEAVY, SKILES, INC., LB3653 By: --- -- Daniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florida. 'Drawn By DANJR ILEGAL DESCRIPTION, NOTES& CERTIFICATION, Date 6/13/2019 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN LEAVY, S KILES, INC. Job. No. 190594 2016-170 CONSULTING ENGINEERS,SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—P 180 Northeast 168th. Street/North Miami Beach,Florida.33162 Plotted: 5/9/19 7:29a Phone:305-653-4493/Fax 305-651-7152/Email fls@flssurvey.com Sheet 1 of 3 Page 818 of 1288 L - - - —I �- - - — — T"— N0 250850"W N S02'5850 E_ ' N86'59'28"E 75TH STREET 296.00' 40.00' O J (PUBLIC RIGHT OF WAY) NORTH UNE OF (FIRST STREET PLAT BOOK 34 PAGE 4) \ GOVERNMENT LOT;,7 o N W CORNER SECTION:253 .42.& a SOUTH RIGHT OF WAY-UNE7 ` OF LOT B NORTH UNE OF.- OF 751H STREET PLAT.BOOK;34 PAGE 4 O.. q . . 586'59'28"W I 296.00 O NT OF I NORTH OF LOT 8E BEGINNING I wu_n LOT B LOT 1 N.E. CORNER w WEST UNE EAST UNE------1OF LOT 1 OF LOT 8 OF LOT 8 co H " z 5 N c8 z zo I r 8 I LOT 9 LOT 2 — — — –1 HI--- LOT 10LOT 3 I 0 W LLI J LL © C LJ v 60' °" I >- TOWNSITE OF HARDING I W W oPLAT BOOK 34 PAGE 4 0 d- o It W LOT 11 LOT 4 `� < - ° — CC Q < I a 0 3a — — — — — — cc Y ¢ gym 62I I I Wgo J ci z No I LOT 12 LOT5 w 0 Jw 66 Z = – O6 I-- - - - - - -I Wim 0 0 � 2- 1 LOT 13 LOT 6 I V/, ac I(II''' ''III() 1— - - - 0 I r �p 'Illi R I••H ilI I LOT 14 LOT 7 GRAPHIC SCALE L J 0 30 60 120 IIIIIIIIIII I I o CENTERUNE OF (SECOND STREET-PLAT BOOK 34 PAGE 4) 74TH STREET —\ ): _ 1 74TH STR_EET _ (PUBLIC RIGHT OF WAY) 'Drawn By DANJR , SKETCH OF DESCRIPTION Date 6/13/2019 Cad. No. 190176 Scale 1"=60' Ref. Dwg. F ORTIN, T 1EAVY", S KILES, INC. Job. No. 190594 2016-170 CONSULTING ENGINEERS, SURVEYORS&MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. NO. 1019-007–P 180 Northeast 168th. Street/North Miami Beach,Florida.33162 Plotted: 5/9/19 7:29a J Phone:305-653-4493/Fax 305-651-7152/Email fls@flssurvey.com Sheet 2 of 3 J Page 819 of 1288 SUBJECT LEGAL DESCRIPTION 75TH STREET EiMMMEIM w BLOCK m z ill U Q¢ 0 am '' 74TH STREET 71._z w zo Q 1.1111110U ; w U O 73RD STREET • 72ND STREET if IIIIii 11111 VIP /Drawn By DANJR \ LOCATION SKETCH -.% Date 6/13/2019 -• Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN, LEAVY, S KTLES, INC. Job. No. 190176 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—P 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: % 5/9/19 7:29a i Phone:305-653-4493/Fax 305-651-7152/Email fls@flssurvey.com Sheet 3 of 3 Page 820 of 1288 Exhibit " D" 74th Street Parcel see following page(s) 49183387;1 Page 821 of 1288 • LEGAL DESCRIPTION: A portion of the Right—of—Way of 74th Street that adjoins Lots 7 and 14 in Block 1, of TOWNSITE OF HARDING, according to the. Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami—Dade County, Florida, being more particularly described asfollows: Begin at the Southeast corner of said Lot 7; thence South 86'59'28" West, along the South line of said Lots 7 and 14, also being the North Right—of—Way line of 74th Street (Third Street per Plat Book 34 at Page 4), for 296.00 feet to the Southwest corner of said Lot 14; thence South 02'58'50" East, along the Southerly prolongation of the West line of said Lot 14, also being the East Right—of-Way line of Collins Avenue (Second Avenue per Plat Book 34 at Page 4), for 30.00 feet toa point on the center line of said 74th Street; thence North 86'59'28" East, along said center line, for 296.00 feet to a point on the Southerly prolongation of the East line of said Lot 7; thence North 02'58'50" West, along said Southerly prolongation, for 30.00 feet to the Point of Beginning. SURVEYOR'S NOTES: — This site lies in Section 2, Township 53 South; Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue. — Lands shown hereon were not abstracted for easements and/or rights—of—way of records. — Lands shown hereon containing 8,880 square feet, or 0.204 acres, more or less. — This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon. — Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" • FORTIN, LEAVY, SKILES, INC., LB3653 By: — --- Daniel C. Fortin, Jr., For The Firm Surveyor and. Mapper, LS6435 State of Florida. /*Drawn By DANJR " 1.LEGAL DESCRIPTION, NOTES& CERTIFICATION) nate 6/13/2019 Cad. No.. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN, LEAVY, S KILES, INC. Job. No. 190594 2016-170 CONSULTING ENGINEERS, SURVEYORS&MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—S 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 `lotted: 5/9/19 7:29a Phone:305-653-4493/Fax 305-651-7152/Email fls@flssurvey_com `Sheet 1 of 3• J Page ti22 of 12tSt3 I___ GRAPHIC SCALE0 30 60 120 AI N 75TH STREET (PUBLIC RIGHT OF WAY) ( IN FEET ) o CENTERLINE OF 1 inch a60 ft 75TH STREET (FIRST STREET•PLAT BOOK 34 PAGE 4) r 1 .7 w I LOT 8 LOT 1 z W =" z of z3 Z U V I LOT9 LOT2 I LOT 10 LOT 3 I 40' D W EU L 0 ICC K 60' Z ¢ - - — W } I TOWNSITE OF HARDING W PLAT BOOK 34 PAGE 4 W \ oo LOT 11 LOT 4 m D a Qs = I C8 al0 w _ � Y � u) Lli _ z U m O 0 ax O H Z a E ,�y LOT 12 LOT 5 ~ a 0 J o 0_ z W z J o ga - J U EE W g -I NSI < D 6- re LOT 13 LOT 6 I 0 LL 0 WEST LINE LOT 7 EAST UNE OF LOT 14 OF LOT 7 LOT 14 POINT OF --N,S02'58'50"E SOUTH UNE7 NORTH RIGHT OF WAY LINE BEGINNING 30.00' OF LOT 14 OF 74TH STREET NO2'58'50°W S.E. CORNER OF LOT 7 IIIIIIVN 4III S86 59'28'W I 296.00' 30.00' I 74 BH RIGHT ISTREET TERI]NE i I� a (II ` `—SW CORNER C I III! T VIII OF LOT 14 ( 74TH STREET N8659'28°E (SECOND STREET PLAT BOOK 34 PAGE 4) 296.00' O /Drawn By DANJR .\ r SKETCH OF DESCRIPTION " Date 6/13/2019 Cad. No. 190176 Scale 1"=60' Ref. Dwg. FORTIN, LEAVY, S KILES, INC. Job. No. 190594 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—S 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a J Phone:305-653-4493/Fax 305-651-7152/Email fls@tlssurvey.com Sheet 2 of 3 J Page 823 of 1288 • 75TH STREET ui LOCK 1 SUBJECT LEGAL DESCRIPTION ¢_ w ¢IIIIIII % 74TH STREET z w z III ¢ Uz cc 0 lit 1-- U z z W 1- 0 73RD STREET illil 72ND STREET 11111'''' 111111 11111 , Drawn By DANJR ••• LOCATION SKETCH Date 6/13/2019 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. FORTIN, LEAVY, S KILES, INC. Job. No. 190594 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—S 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a J Phone:305-653-4493/Fax 305-651-7152 1 Email fls©flssurvey.com Sheet 3 of 3 J Nage 1$24 of 12t3t3 Exhibit " E' Ocean Terrace Parcel see following page(s) 49183443;1 Page 825 of 1288 LEGAL DESCRIPTION: A portion of the Right—of—Way of Ocean Terrace that adjoins Lots 1 through 7 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami—Dade County, Florida, being more particularly described as follows: Begin at the Southeast corner of said Lot 7; thence North 02'58'50" West along the East line of said Block 1, also being the West Right—of—Way line of said Ocean Terrace, (First Avenue per Plat Book 34 at Page 4) for 390.00 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 86'59'28" East along said North line of Government Lot 7 for 60.00 feet to a point on the East Right—of—Way line of said Ocean Terrace; thence South 02'58'50" East along said East Right—of—Way line for 420.00 feet to the centerline of 74th Street (Second Street per Plat Book 34, Page 4); thence South 86'59'28" West, along said center line, for 60.00 feet; thence North 02'58'50" West along the Southerly extension of said East line of Block 1 for 30.00 feet to the Point of Beginning. SURVEYOR'S NOTES: — This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue. — Lands shown hereon were not abstracted for easements and/or rights—of—way of records. — Lands shown hereon containing 25,200 square feet, or 0.537 acres, more or less. — This is not a "Boundary Survey" but only a graphic depiction of the description shown hereon. • — Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170—NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and meets the applicable codes as set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" FORTIN, LEAVY, SKILES, INC., LB3653 Daniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florida. Drawn By DANJR LEGAL DESCRIPTION, NOTES& CERTIFICATION Date 6/13/2019 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. • FORTIN, LEAVY, S KILES, INC. Job. No. 190594 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1 019-007—Q 180 Northeast 168th. Street/North Miami Beach,Florida. 33162 Plotted: 5/9/19 7:29a Phone:305-653-4493/Fax 305-651-7152/Email fls@flssurvey.com- Sheet 1 of 3 Page 826 of 1288 CV r, 75TH STREET O.. N86'59'2.81 — o NORTH LINE OF (PUBLIC RIGHT OF WAY) 6000 GOVERNMENT LOT 7 b (FIRST STREET-PLAT BOOK 34 PAGE 4) SECTION 2-53-42 & * SOUTH RIGHT OF WAY LINE — NORTH LINE OF OF 75TH STREET PLAT K 34 PAGE 4 ORTH LIN -- I NOFLOT 1 u.o 6" I LOT 8 LOT 1 N - -co - - - CV 2 1---)o8 JU8 I LOT9 LOT2 r k W LOT 10 LOT,3 M Q c LV HO \ EAST LINE OF1� ,;_.. :: :`¢'` BLOCK 1 a wmo:. W I ,..--- ••:,- TOWNSITE OF HARDING �"'■ 2? �'' \ I LOT11 P.L.AT BOOK 34 PAGE 4 _. / m ,-,1-1- I I LOT 4 Z Z U: ~ ~ 7 m — W .,-••,..tl U) Li,' I o3 11 , OO © K I m LOT 12 LOT 5 In J o N z o W r - -�_ UI LOT 13 LOT - — rz IIIIIIP".IIIIIIIO I — IIIIy ,i � I LOT 14 Lor? POINT OF �g O y5 : IpBEGINNING SOUTH UNE S.E. CORNER OF LOT 7 :1.41g GRAPHIC SCALE L OF LOT 7 7 o 0 30 60 120 — —. —. — — o I I I b CENTERLINE OF (SECOND STREET-PLAT BOOK 34 PAGE 4) ^� 74TH STREET STR ( IN FEET _ 74TH STREET S86.59.28":w>. : 1 inch = 80 ft. (PUBLIC RIGHT OF WAY) 60.00' Drawn By DANJR SKETCH OF DESCRIPTION Date 6/13/2019 \ Cad. No. 190176 Scale 1"=60' Ret. Dwg. F ORTIN, LEAVY, S KILES, INC. Job. No. 19.0594 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. NO. 1019-007—Q 180 Northeast 168th.Street/North Miami Beach,Florida.33162 Plotted: 5/9/19 7:29a J Phone:305-653-4493/Fax 305-651-7152/Email fls@flssurvey.com Sheet 2 of 3 I Page 827 of 1288 SUBJECT LEGAL DESCRIPTION 75TH STREET ]111111jui,1131LOCK � z _V QUOUQw< 74TH STREET 0 z o 73RD STREET 72ND STREET Drawn By DANJR LOCATION SKETCH Date 6/13/2019 Cad. No. 190176 Scale NOT TO SCALE Ref. Dwg. F ORTIN, LEAVY, S KILES, INC. Job, No. 190594 2016-170 CONSULTING ENGINEERS, SURVEYORS &MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER:00003653 Dwg. No. 1019-007—Q 180 Northeast 168th. Street/North Miami Beach,Florida.33162 Plotted: 5/9/19 7:290 J phone;305-653-4493/Fax 305-651-7152/Email fls@flssurvey.com Sheet 3 of 3 l J Page 828 of 1288 Exhibit " F" Development Site Developer Property Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in Block 1 of Harding Townsite, according to the Plat thereof, as recorded in Plat Book 34, Page 4, of the Public Records of Miami-Dade County, Florida. Ocean Terrace Parcel A portion of the Right-of-Way of Ocean Terrace that adjoins Lots 1 through 7 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Southeast corner of said Lot 7; thence North 02°58'50" West along the East line of said Block 1, also being the West Right-of-Way line of said Ocean Terrace, (First Avenue per Plat Book 34 at Page 4) for 390.00 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 86°59'28" East along said North line of Government Lot 7 for 60.00 feet to a point on the East Right-of-Way line of said Ocean Terrace; thence South 02°58'50" East along said East Right-of-Way line for 420.00 feet to the centerline of 74th Street (Second Street per Plat Book 34, Page 4); thence South 86°59'28" West, along said center line, for 60.00 feet; thence North 02°58'50" West along the Southerly extension of said East line of Block 1 for 30.00 feet to the Point of Beginning. 74th Street Parcel A portion of the Right-of-Way of 74th Street that adjoins Lots 7 and 14 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Southeast corner of said Lot 7; thence South 86°59'28" West, along the South line of said Lots 7 and 14, also being the North Right-of-Way line of 74th Street (Third Street per Plat Book 34 at Page 4), for 296.00 feet to the Southwest corner of said Lot 14; thence South 02°58'50" East, along the Southerly prolongation of the West line of said Lot 14, also being the East Right-of-Way line of Collins Avenue (Second Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the center line of said 74th Street; thence North 86°59'28" East, along said center line, for 296.00 feet to a point on the Southerly prolongation of the East line of said Lot 7; thence North 49183559;1 Page 829 of 1288 02°58'50" West, along said Southerly prolongation, for 30.00 feet to the Point of Beginning. 75th Street Parcel A portion of the Right-of-Way of 75th Street that adjoins Lots 1 and 8 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Northeast corner of said Lot 1; thence South 86°59'28" West along the North line of said Lots 1 and 8, also being the South Right-of-Way line of said 75th Street, (First Street per Plat Book 34 at Page 4) for 296.00 feet to the Northwest corner of said Lot 8, also being a point on the East Right-of-Way line of Collins Avenue (Second Avenue per Plat Book 34 at Page 4); thence North 02°58'50" West, along the Northerly prolongation of the West line of said Lot 8, also being said East Right-of-Way line of Collins Avenue for 40.00 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 86°59'28" East along said North line of Government Lot 7 for 296.00 feet; thence South 02°58'50" East, along the Northerly prolongation of the East line of said Lot 1, for 40.00 feet to the Point of Beginning. 49183559;1 Page 830 of 1288 Exhibit " G " the Park/Streetscape Site • Ocean Terrace between the City Library property and the Bandshell Park • 73, 74 and 75 Streets between Collins Avenue and Ocean Terrace 49034339;1 Page 831 of 1288 EXHIBIT H Prepared by and Return to: Raul J. Aguila, City Attorney City of Miami Beach 1700 Convention Center Drive, 4th Floor Miami Beach, Florida 33139 (Space Reserved for Clerk) DECLARATION OF RESTRICTIVE COVENANTS IN LIEU OF UNITY OF TITLE KNOW ALL BY THESE PRESENTS that the undersigned Owners hereby make, declare and impose on the land herein described, the following covenants that will run with the title to the land, which shall be binding on the Owners, their heirs, successors, assigns, personal representatives, mortgagees and lessees, and against all persons claiming by,through or under any of them; WITNESSETH: WHEREAS, the Owners hold fee simple title to certain property in the City of Miami Beach, Florida, located at , Miami Beach, Florida, and which is legally described in Exhibit"A" attached hereto and made a part hereof (the "Property"); and WHEREAS, the Owners and the City of Miami Beach, a Florida municipal corporation (the "City"), entered into that certain Development Agreement dated as of , 20 , a memorandum of which is recorded in Official Records Book , at Page of the Public Records of Miami-Dade County (the "Development Agreement"'); and WHEREAS, on [date] the Owners obtained approval of the Historic Preservation Board (HPB) under File No. as recorded in Official Records Book , at Page of the Public Records of Miami-Dade; and WHEREAS, the Owners may develop buildings on the Property for sale to multiple owners in a condominium or non-condominium format of ownership and/or in one or more phases; and WHEREAS, this instrument is executed in order to assure that the development of the property with future multiple ownership or phased development will not violate the Land Development Regulations of the City of Miami Beach. NOW THEREFORE, in consideration of the premises, the Owners hereby agree as follows: Page 832 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 2 of 9 1. After a site plan for the Property has been submitted and approved under the City's Land Development Regulations, the Property will be developed as a unified development site in substantial accordance with such approved site plan for the Property. No modification of such approved site plan shall be effectuated without the written consent of the then owner(s) of the portion or phase of the Property for which such proposed modification is sought and the Director of the City's Planning Department (such person, or any successor thereof, is referred to herein as the "Director"). No such then owner(s) nor the Director shall unreasonably withhold, condition or delay its consent, provided the proposed modification is in compliance with the Land Development Regulations. Should any such then owner(s) or the Director withhold, condition or delay its consent to any such proposed modification, then the owner(s) seeking the proposed modification shall be permitted to seek the same by application to modify the approved site plan at public hearing before the appropriate City board or the City Commission of Miami Beach, Florida (whichever by law has jurisdiction over such matters). Approval of such application shall be in addition to all other required approvals necessary for the proposed modification sought. Notwithstanding anything to the contrary contained in this Declaration: (a) if any building on the Property (or portion of a building) is developed and sold to multiple owners in a condominium format or non-condominium format of ownership with an owners' association, then only the owners' association (as opposed to each individual unit owner governed by the owners' association) shall be required to give, grant or execute any consent, approval or document required by this Declaration, and such consent, approval or document as given, granted or executed by the owners' association shall bind each and every individual unit owner in such building (or portion of the building) governed by the owners' association; (b) if the Property is developed in phases, then only the owner(s) of the phase(s) affected by the proposed modification shall be required to give, grant or execute any consent, approval or document required by this Declaration, and no consent, approval or document shall be required from the owner(s) of any phase(s) unaffected by such proposed modification shall be required; (c) the City shall not be required to obtain any consent, approval or document from any owner with respect to any proposed modification (including any subsequent zoning application) relating to the "Park/Streetscape Site" (as such term is defined in the Development Agreement); and (d) this Declaration of Restrictive Covenants in Lieu of Unity of Title (the "Declaration") shall not create any additional obligations for the Owners (or their respective successors and/or assigns) to obtain any consent, approval or document from the City with respect to any proposed modification (including any subsequent zoning application) relating to the "Development Site" (as such term is defined in the Development Agreement), other than the written consent of the Director for modifications to the approved site plan, as provided above. Nothing contained in the preceding sentence shall relieve the Owners (and their'successors and assigns) from the obligation to obtain any approvals or authorizations from the City required by law or any other instrument or agreement apart from this Declaration. 2 Page 833 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 3 of 9 2. If the Property is developed in phases, then each phase will be developed in substantial accordance with the approved site plan for the Property. 3. In the event the Owners shall convey any portion of the Property to any person or entity subsequent to site plan approval for the Property, each of the subsequent owners shall be bound by the terms, covenants, restrictions and limitations of this Declaration. Owners further agree that they will not convey portions of the Property to any other person or entity unless and until the Owners and such other person or entity shall have mutually executed and delivered, in recordable form, an instrument to be known as an "easement and operating agreement" which shall contain, among other things, the following easements to the extent required for the Property to be developed, constructed, conveyed, maintained and operated in accordance with the approved site plan for the Property despite the Property having multiple owners: (i) Easements in the common area of each parcel for ingress to and egress from the other parcels; (ii) Easements in the common area of each parcel for the passage and parking of vehicles: (iii) Easements in the common area of each parcel for the passage and accommodation of pedestrians; (iv) Easements for access roads across the common area of each parcel to public and private roadways; (v) Easements for the installation, use, operation, maintenance, repair, replacement, relocation and removal of utility facilities in appropriate areas in each such parcel; (vi) Easements on each such parcel for construction of buildings and improvements in favor of each such other parcel; (vii) Easements upon each such parcel in favor of each adjoining parcel for the installation, use, maintenance, repair, replacement and removal of common construction improvements such as footings, supports and foundations; (viii) Easements on each parcel for attachment of buildings; (ix) Easements on each parcel for building overhangs and other overhangs and projections encroaching upon such parcel from the adjoining parcels such as, by way of example, marquees, canopies, lights, lighting devices, awnings, wing walls and the like; (x) Appropriate reservation of rights to grant easements to utility companies; (xi) Appropriate reservation of rights to grant road rights-of-way and curb cuts; (xii) Easements in favor of each such parcel for pedestrian and vehicular traffic over dedicated private ring roads and access roads; and 3 Page 834 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page4of9 (xiii) Appropriate agreements between the owners of the several parcels as to the obligation to maintain and repair all private roadways, parking facilities, common areas and common facilities and the like. These easement, reservation and agreement provisions (or portions thereof) will be waived by the Director if they are not applicable to the portion of the Property then being conveyed (such as, but not limited to, conveyances to purchasers of individual condominium units, or conveyance that are separated by a street or road). These easement, reservation and agreement provisions shall not otherwise be waived or amended without prior written approval of the City Attorney. In addition, the easement and operating agreement shall contain such other provisions with respect to the development, construction, conveyance, maintenance and operation of the Property as to which the parties thereto may agree, all to the end that although the Property may have several owners, it will be developed, constructed, conveyed, maintained and operated in accordance with the site plan approved for the Property. 4. The provisions of this Declaration shall become effective upon their recordation in the public records of Miami-Dade County, Florida, and shall continue in effect for a period of thirty (30) years after the date of such recordation, after which time they shall be extended automatically for successive periods of ten (10) years each, unless released in writing by the then owner(s) of the Development Site and the Director (acting for and on behalf of the City) upon the demonstration and affirmative finding that the same is no longer necessary to preserve and protect the Development Site for the purposes herein intended. 5. The terms, covenants, restrictions and limitations of this Declaration may be amended, modified or released by a written instrument executed by the then owner(s) of the Development Site (with joinders by all mortgagees) and the Director (acting for and on behalf of the City). Should this Declaration be so modified, amended or released, then the Director shall forthwith execute a written instrument effectuating and acknowledging such amendment, modification or release; it being acknowledged and agreed that no amendment, modification or release of this Declaration shall be effective without the Director's written approval of, or execution of a written instrument effectuating and acknowledging, such amendment, modification or release. 6. Enforcement of the terms, covenants, restrictions and limitations of this Declaration shall be by action against any parties or persons violating or attempting to violate any such terms, covenants, restriction or limitation of this Declaration. The prevailing party to in action or suit pertaining to or arising out of this Declaration shall be entitled to recover, in addition to costs and disbursements, allowed by law, such sum as the Court may adjudge to be reasonable for the services 4 Page 835 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 5 of 9 of his attorney. As used herein, the term "prevailing party" means the party who receives substantially the relief sought upon final, non-appealable judgment, order, or other disposition of a court of competent jurisdiction. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. 7. Invalidation of any term, covenant, restriction or limitation of this Declaration by a final, non-appealable order of a court of competent jurisdiction shall not affect any of the other term, covenant, restriction or limitation of this Declaration, all of which shall remain in full force and effect. 8. This Declaration shall be recorded in the public records of Miami-Dade County at the Owners' expense. 9. All rights, remedies and privileges granted herein shall be deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other additional rights, remedies or privileges. 10. In the event of any violation of this Declaration, in addition to any other remedies available, the City is hereby authorized to withhold any future permits, and refuse to make any inspections or grant any approval, until such time as this Declaration is complied with. 11. This Declaration is recorded for the limited purpose of ensuring that the Property is developed as a unified development site under the City's land development regulations and is not intended to and does not modify, limit, or derogate any rights or privileges that may benefit the Property or any portion thereof, including, without limitation, any available exemption from or reduction in ad valorem taxation and assessments, nor does this Declaration prohibit the division of the Property into independent tax parcels and folios as the Owner may deem necessary or appropriate in its sole discretion, and all such rights and privileges are hereby expressly reserved. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK—SIGNATURE PAGES TO FOLLOW] 5 Page 836 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 6 of 9 Signed, witnessed, executed and acknowledged on this day of [*Note: All others require attachment of original corporate resolution of authorization] WITNESSES: OWNER: Signature Individual Signature Print Name Print Name Signature Name of Corporate Entity Print Name Position with Corporate Entity (Prez. VP, CEO) Address: STATE OF COUNTY OF The foregoing instrument was acknowledged before me by , who is personally known to me or has produced , as identification. Witness my signature and official seal this day of , in the County and State aforesaid. My Commission Expires: Notary Public-State of Print Name Signed, witnessed, executed and acknowledged on this day of 6 Page 837 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 7 of 9 WITNESSES: OWNER: Signature Individual Signature Print Name Print Name Signature Print Name Address: STATE OF COUNTY OF The foregoing instrument was acknowledged before me by , who is personally known to me or has produced , as identification. Witness my signature and official seal this day of , in the County and State aforesaid. Notary Public-State of My Commission Expires: Print Name 7 Page 838 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 8 of 9 Approved: Approved as to form & language &for execution: Director of Planning Date City Attorney Date 8 Page 839 of 1288 Declaration of Restrictive Covenants in Lieu of Unity of Title Address Folio No.: Page 9 of 9 EXHIBIT A 9 Page 840 of 1288 EXHIBIT "I" This instrument was prepared by: Name: Address: HOLD HARMLESS AGREEMENT WHEREAS, the undersigned owners, (collectively, the "Owners"), hold the fee simple title to that certain parcel of land, which is legally described in Exhibit "A", hereinafter the"Property"; WHEREAS, the Owners and the City of Miami Beach (the "City") have entered into a Development Agreement 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"); WHEREAS, the Development Agreement contemplates that the Owners will develop, design and construct certain park/streetscape improvements on a portion of the Property for use by the general public (the "Park/Streetscape Site"), which parcel is legally described in Exhibit "B" (the "Park/Streetscape Project"); WHEREAS, the Development Agreement contemplates that the Owners will construct a proposed mixed use development consistent with the City's Land Development Regulations for the Ocean Terrace Overlay District and in accordance with the requirements of the Development Agreement (the "Project") on a portion of the Property (the "Development Parcel"), which parcel is legally described in Exhibit"C"; WHEREAS, as contemplated under the Development Agreement, the Owners wish to obtain building permits, including phased permits, for the construction of the Project prior to the completion and acceptance by the City of the Park/Streetscape Project(the"Building Permits"); WHEREAS, the Development Agreement provides that until the Owners have improved, and the City has accepted, both "Phase 1" and "Phase 2" of the Park/Streetscape Project as defined in the Development Agreement, or until such condition is deemed satisfied in accordance with the terms of the Development Agreement, the Owners are not to receive any certificate of occupancy or a temporary certificate of occupancy for any part of the Project(the"Park Contingency"); NOW,THEREFORE,in order to assure the City that the representations made by the Owners in the Development Agreement will be abided by, the Owners freely, voluntarily, and without duress, make the following declaration of restrictions covering and running with the Property: 1. Owners agree that no certificate of occupancy or temporary certificate of occupancy for the Project will be granted until the Park Contingency has been satisfied. pg.1 Page 841 of 1288 EXHIBIT "I" 2. Owners agree that they will not file or cause to be filed any request for a certificate of occupancy or temporary certificate of occupancy for any part of the Project until the Park Contingency has been satisfied. 3. Owners acknowledge that, if they obtain the Building Permits prior to the satisfaction of the Park Contingency, they will be proceeding at their own risk and agree that they will not make or commence any claim or action against the City (including, without limitation, a vested/property rights claim) as a result of the City's issuance of the Building Permits prior to the satisfaction of the Park Contingency. Further, Owners agree that the issuance of the Building Permits prior to the satisfaction of the Park Contingency would not be a grant of any vested right whatsoever to the Owners to occupy the Project prior to the satisfaction of the Park Contingency. 4. Owners acknowledge that condition (2) above shall appear on the face of any and all Building Permits issued by the City pursuant to this Agreement prior to the satisfaction of the Park Contingency. 5. Owners acknowledge that the City, in its regulatory capacity, reserves the right to evaluate all applications for Building Permits for compliance with all existing laws, ordinances, and regulations controlling the issuance of building permits for construction within the City. 6. Owners agree to indemnify, defend, save, and hold harmless the City from any claims, demands, liabilities, losses, and causes of action of any nature whatsoever actually sustained by or brought against the City due to the City's issuance of Building Permits for the Project prior to the satisfaction of the Park Contingency in accordance with this Agreement, including, without limitation, reasonable, out-of-pocket attorneys' fees and expenses incurred by the City in the defense of any such claim, demand, or cause of action. 7. Additional Provisions: a. Covenant Running with the Land. This Agreement shall constitute a covenant running with the land and may be recorded, at Owners' expense, in the public records of Miami-Dade County,Florida, and shall remain in full force and effect and be binding upon the Owners, and their heirs, successors, and assigns until such time as the same is modified, released, terminated or extinguished (including, without limitation, pursuant to paragraph 8(b) below). These restrictions during their lifetime shall be for the benefit of, and a limitation upon, all present and future owners of the Property and for the benefit of the City and the public welfare. However, notwithstanding any other provision of this Agreement, nothing herein shall be binding upon the City in the event that the City takes ownership to any portion of the Property, and Owners, and their heirs, successors, and assigns, acknowledge that acceptance of this Agreement does not in any way obligate or provide a limitation on the City. b. Term. This Agreement is to run with the land and shall be binding on all parties and all persons claiming under it for a period of thirty (30) years from the date this Agreement is recorded after which time it shall be extended automatically for successive periods of ten (10) years each, unless earlier terminated, modified, or released as provided in this Agreement. Notwithstanding the foregoing, this Agreement shall terminate automatically upon the earlier of(i) the satisfaction of the Park Contingency in accordance with the terms of the Development Agreement, or (ii) the expiration or termination of the Development Agreement (other than termination by the City for an uncured Page 842 of 1288 EXHIBIT "I" Developer "Event of Default," as defined in the Development Agreement). The City covenants and agrees, promptly upon the request of the then-owner(s) of the Property following such termination, to execute and deliver to such then-owner(s) an instrument in recordable form that terminates, releases, and discharges this Agreement from the Property and the public record. c. Modification, Amendment, Release. Except as provided in Paragraph 8(b) above with respect to the automatic termination and extinguishment of this Agreement, this Agreement may be modified, amended or released as to the Property, or any portion thereof, by a written instrument executed by the then-owner(s) of the Property, including joinders of all mortgagees, if any, provided that the same is also approved by the City. d. Enforcement. Enforcement shall be by action against any parties or persons violating, or attempting to violate, any term, covenant, condition, or provision of this Agreement. The prevailing party in any action or suit pertaining to or arising out of this Agreement shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be reasonable for the services of his attorney. As used herein, the term "prevailing party" means the party who receives substantially the relief sought upon final, non-appealable judgment, order, or other disposition of a court of competent jurisdiction. This enforcement provision shall be in addition to any other remedies available at law,in equity or both. e. Election of Remedies. All rights, remedies and privileges granted herein shall be deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other additional rights,remedies or privileges. f. No Restriction of Regulatory Remedies. The City shall retain all regulatory remedies and enforcement powers associated with the review, issuance, and enforcement of building permits and their requirements, and the remedies and privileges granted herein shall be deemed to be cumulative to any such regulatory remedies and enforcement powers. g. Severability. Invalidation of any one of the terms, covenants, conditions, or provisions of this Agreement, by judgment of court of competent jurisdiction, shall not affect any of the other terms, covenants, conditions, or provisions of this Agreement, which shall remain in full force and effect. h. Recording. This Agreement shall be filed of record in the public records of Miami-Dade County, Florida at the cost of the Owners. This Agreement shall become effective immediately upon recordation. i. Acceptance of Agreement. Acceptance of this Agreement does not obligate the City in any manner to make,nor does it entitle the Owners to, a favorable recommendation or approval of any application, zoning or otherwise, and the City and its boards, departments and/or agencies retain their full power and authority to deny each such application in whole or in part and to decline to accept any conveyance or dedication. j. Owner. The term Owners shall include the Owners and their heirs, successors, and assigns, except that Owners shall not refer to the City. [Execution Pages Follow] Page 843 of 1288 EXHIBIT "I" IN WITNESS WHEREOF, ., has caused these present to be signed in its name on this day of , 201_. WITNESSES: , a Florida limited liability company Signature By: Print Name: Title: Print Name Address: Signature Print Name STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 201_,by , as of , a Florida limited liability company, on behalf of said corporation, who is personally known to me or has produced as identification. My Commission.Expires: Notary Public—State of Florida Printed Name Page 844 of 1288 EXHIBIT "I" EXHIBIT "A" LEGAL DESCRIPTION: Page 845 of 1288 EXHIBIT "I" EXHIBIT "B" LEGAL DESCRIPTION: Page 846 of 1288 EXHIBIT "I" EXHIBIT "C" LEGAL DESCRIPTION: Page 847 of 1288 ,, 1 , , 1,, .. - -ir- w lir .-: --- i\ / , 11 -`.1. '' _-- . 1- .~ r 1 1,-1 I f,i— 1 Iii I—11 I ' '_____in 1) 1 I i '—`" — *.t.".',v III , rl ",''k k I. t '',:. • ' 1 , , ri „ _, t 1 ; ,-1 _ ),- 4 P 1 ____, .: ' Li [11 ,_..' i _ i r 1 ' ci1,, 1 i 1 _,', ,•. 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Aguila,City Attorney Address: City of Miami Beach 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 EASEMENT AGREEMENT (Ocean Terrace,74th Street and 75th Street Easement) THIS EASEMENT AGREEMENT(the"Agreement"),is made this day of 201_, by , having an address of (together with its successors and permitted assigns,the"Owner")in favor of the City of Miami Beach, a Florida municipal corporation (together with its successors and permitted assigns,the"City"). WITNES SETH: WHEREAS, the Owner holds fee simple title to that certain real property more specifically described on Exhibit"A" attached hereto and incorporated herein by this reference(the"Property"); WHEREAS, the real property more specifically described on Exhibit "B" attached hereto and incorporated herein by this reference(the"Easement Area")is contained within the Property; and WHEREAS, the Owner seeks to grant a perpetual non-exclusive easement in, upon, under and through the Easement Area in favor of the City for the"Easement Purposes"(as hereinafter defined). NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound hereby agree as follows: 1. Recitals. The above recitals are true and correct and by this reference are hereby incorporated into the body of this Agreement as if fully set forth herein. 2. Grant of Easement. The Owner hereby grants to the City a perpetual, non-exclusive and irrevocable easement in,upon,under and through the Easement Area'for the purposes of: (a)providing to the general public, and to the City and its invitees, agents, employees, contractors, and licensees (including, without limitation, Owner and Owner's officers, employees, agents, contractors, subcontractors,invitees,and licensees),an unrestricted way of passage,right of ingress and egress,access to, and reasonable use of,the Easement Area,including,without limitation,for public recreational purposes,and pedestrian and vehicular access over and across the Easement Area; (b) constructing, installing, operating, using, maintaining, repairing and replacing landscaping, sidewalks, pedestrian or bicycle paths, walkways, decks, street lighting, traffic or directional signage, underground utilities, drainage, roadways, parks, and streetscape-related infrastructure, or any other Page 851 of 1288 PAGE 2 improvements which City,in its reasonable discretion,deems necessary for the protection of the health, safety or welfare of the general public(collectively,the"Improvements")within the Easement Area; (c)authorizing the City to grant third parties providing utility services(the"City Grantees")the right to use and occupy the Easement Area for the sole purpose of providing any such utilities,without any need for Owner approval of any City Grantee;and (d) taking all other actions as may be reasonably necessary, without any need for Owner approval thereof,to develop and install Improvements within the Easement Area,or to operate the Easement Area,solely for public purposes, in the same manner as otherwise applicable to any public right of way areas of the City pursuant to the Code of Ordinances of the City of Miami Beach, Florida, as the same may be amended from time to time(the"City Code"),including,without limitation,the issuance by the City of temporary special event permits for cultural,recreational or other programming, sidewalk café permits, or any other actions as may be lawfully undertaken by the City on public right of way areas of the City (collectively, the "Easement Purposes"). The term"utilities" shall include,but not be limited to, water, sewer, stormwater, electrical, gas, telecommunications,telephone and cable. 3. Maintenance, Casualty, and Condemnation. From and after Owner's "Substantial Completion" of the "Park/Streetscape Improvements," as such terms are defined under that certain Development Agreement between the City and , dated , 2019 (the "Ocean Terrace Development Agreement"),City shall be responsible,at City's sole cost and expense,for maintaining the Easement Area and the Park/Streetscape Improvements,including all landscaping and vegetation therein,in accordance with those standards and criteria contained in the final approved plans and specifications for the Park/Streetscape Improvements.In the event that any portion of the Easement Area and/or the.Park/Streetscape Improvements is damaged or destroyed by fire,flood,storm, or other casualty or by the act or omission of the City,any of the City's agents,employees,contractors,vendors, operators,representatives,licensees, or any other party retained by the City or for whom the City is legally responsible, or by the general public, City shall be solely responsible for any repair or restoration of the Easement Area,subject to an appropriation of funds by the City Commission,if any is required,in the same manner as applicable to other public right of way areas of the City. In addition,if any portion of the Easement Area is taken or condemned in any manner as a result of the exercise of the power of eminent domain by any governmental authority for any public or quasi-public use, including,without limitation,a conveyance or assignment in lieu of condemnation or taking,then this Agreement shall immediately terminate as to any portion of the Easement Area so taken, and the parties hereto shall be released automatically from all further obligations under this Agreement with respect to area taken, except for those obligations that expressly survive the termination of this Agreement. The Owner, its successors and assigns, will be entitled to receive the entire amount of any award made for any partial or complete taking of the Easement Area. 4. Construction in Easement Area. A. If the City elects to construct and/or install any Improvements within the Easement Area, the City hereby acknowledges and agrees that: (a) all fees, costs and expenses associated with the Improvements(including,without limitation,the design,permitting,construction,installation,operation,use, maintenance,repair and replacement thereof)shall be paid in full by the City; (b)the design and construction of all Improvements shall be performed and completed by the City(i)in a good and workmanlike manner, (ii) free from liens and defects, and (iii) in full compliance with all laws, rules, regulations, ordinances, codes and other requirements of governmental and quasi-governmental authorities having jurisdiction; and (c)upon final completion of the Improvements,the City shall(i)remove all debris,equipment and materials from the Easement Area, (ii)fill, compact, grade and otherwise restore the Easement Area to substantially the same condition as existed prior to commencement of the Improvements,including harmonizing the soil levels within the Easement Area and the lands adjacent thereto, and (iii) keep and maintain the Page 852 of 1288 PAGE 3 Improvements (and all parts and components thereof) in good condition, repair and working order at all times. B. Following the Owner's Substantial Completion and delivery to the City of the Park/Streetscape Improvements, if the Owner elects to construct and/or install any infrastructure or other improvements within or above the Easement Area for Owner's use (the "Owner Improvements"), the Owner hereby acknowledges and agrees that any such Owner Improvements shall be subject to and contingent upon the prior approval of the City Commission, and further agrees that: (a) all fees, costs and expenses associated with the Owner Improvements (including, without limitation, the design, permitting, construction,installation,operation,use,maintenance,repair and replacement thereof) shall be paid in full by the Owner; (b) the design and construction of all Owner Improvements shall be performed and completed by the Owner (i) in a good and workmanlike manner, (ii) free from liens and defects, and (iii) in full compliance with all laws,rules,regulations,ordinances,codes and other requirements of governmental and quasi-governmental authorities having jurisdiction; and (c) upon final completion of the Owner Improvements,the Owner shall(i)remove all debris,equipment and materials from the Easement Area,(ii) fill,compact,grade and otherwise restore the Easement Area to substantially the same condition as existed prior to commencement of the Owner Improvements, including harmonizing the soil levels within the Easement Area and the lands adjacent thereto, and(iii) keep and maintain the Owner Improvements (and all parts and components thereof)in good condition,repair and working order at all times. 5. Miscellaneous. 5.1 This Agreement shall be governed by, enforced and construed under the laws of the State of Florida. Venue for all actions,litigation and/or other proceedings arising out of this Agreement shall be exclusively in Miami-Dade County, Florida. BY ENTERING INTO THIS AGREEMENT, OWNER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO,OR ARISING OUT OF,THIS AGREEMENT. The prevailing party in any action,litigation or other proceeding that is based on any claim,controversy or other disputed matter arising under,out of or in connection with this Agreement shall recover from the non- prevailing party all fees, costs and expenses (including, without limitation, reasonable attorneys' fees and costs through all trial,appellate and post judgment levels and proceedings)incurred by the prevailing party in such action, litigation or other proceeding. As used herein,the term"Prevailing Party"means the party who receives substantially the relief sought upon final,non-appealable judgment,order,or other disposition of a court of competent jurisdiction. The provisions of this Section shall survive the termination or expiration of this Agreement. 5.2 The parties hereby acknowledge and agree that each has had an opportunity to be represented by or consult with independent legal counsel and that any rule of construction which provides that ambiguities are to be construed against the drafter shall not apply in the interpretation or construction of this Agreement. If any term,provision or portion of this Agreement is for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such term, provision or portion of this Agreement shall be given it nearest valid,legal and enforceable meaning,or construed as deleted,whichever such court may determine,and the same shall not invalidate the remaining terms,provisions and/or portions of this Agreement, which remaining terms, provisions and portions of this Agreement will remain in full force and effect. 5.3 This Agreement includes all exhibits attached hereto. This Agreement, together with all such exhibits, contains the entire agreement and understanding between the parties relating to the subject matter of this Agreement, and all prior or contemporaneous terms, covenants, conditions, representations,warranties,statements,agreements and understandings made by or on behalf of the parties, whether oral or written, are merged herein. Page 853 of 1288 PAGE 4 5.4 This Agreement may not be amended, modified or terminated except by a written instrument executed by the Owner and the City through its City Manager,or his designee,or the successor administrative officer with jurisdiction over the matter, and which is recorded in the Public Records of Miami-Dade County,Florida. All provisions of this Agreement, including the benefits and burdens of the same, are covenants that run with the land, are not intended to be executory in nature, and shall be binding upon,and shall inure to the benefit of,the parties and their respective heirs,legal representatives,successors and assigns. 5.5 The failure of any party to insist in any one or more instances upon strict performance of any term, covenant,condition or other provision of this Agreement will not be construed as a waiver or relinquishment of the future enforcement of such term, covenant, condition or other provision of this Agreement. 5.6 Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular,and pronouns of each gender shall be deemed to comprehend either or both of the other genders. The section and paragraph headings in this Agreement are for convenience only and shall not affect the meaning, interpretation or scope of the terms or provisions set forth therein. 5.7 This Agreement may be executed in multiple counterparts, each of which individually shall be deemed an original,but when taken together shall be deemed to be one and the same Agreement. 5.8 This Agreement shall never be construed as a conveyance in any manner whatsoever of fee simple title to any portion of the Property or the Easement Area; it being intended by the parties that this Agreement conveys only an easement interest with respect to the Easement Area for the specific uses and purposes set forth herein. 5.9 All of the rights, easements and interests herein created and granted are and shall be limited to and utilized solely for the uses and purposes expressly set forth herein. Except for Owner's use of the Easement Area in the same manner as made available to the general public pursuant to the purposes authorized pursuant to Section 2(a) herein or to effectuate the terms and conditions of the Development Agreement,Owner shall not otherwise use the Easement Area for any other purpose,or make any Owner Improvements to the Easement Area,without the City's consent,which consent may be withheld by the City Manager,if the City Manager determines,at his or her reasonable discretion,that such proposed uses or Owner Improvements would interfere in any material respect with the exercise by the public or by the City of the rights granted to the public and the City herein. 5.10 Owner shall not withhold or obstruct City's access to the Easement Area for any of the purposes authorized in Section 2 of this Agreement. 5.11 This Agreement and the rights, easements and interests herein created and granted shall only become effective upon the recordation of this Agreement in the Public Records of Miami-Dade County. This Agreement and the rights,easements and interests herein created and granted shall run with the land,and shall be binding on all persons holding title to said lands. 5.12 Nothing in this Agreement shall be construed to create a joint venture,partnership, tenancy in common, or joint tenancy relationship between the Owner and the City, nor shall this Agreement render either party liable for the debts or obligations of the other party. Page 854 of 1288 PAGE 5 6. Notice. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by either the Owner or the City pursuant to this Agreement shall be in writing and addressed as follows: If to Owner: With a copy to: If to the City: City of Miami Beach Attn: City Manager 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 With copies to: City of Miami Beach Attn: Public Works Director 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Any notice or other communication (i) sent by certified United States mail, postage prepaid, return receipt requested will be deemed effectively given or received on the third(3rd)business day following the postmark date of such notice or other communication; (ii)sent by overnight courier or by hand will be deemed effectively given or received upon receipt or refusal, as the case may be; and(iii)sent by electronic mail will be deemed effectively given or received on the day of transmission of such notice if sent on a business day before 6:00 P.M.Eastern Standard Time, or on the following business day if sent after 6:00 P.M.Eastern Standard Time or on a non-business day.Any notice or other communication given in the manner provided above by counsel for either party will be deemed to be notice or such other communication from the party represented by such counsel. 7. City-Indemnity. Solely to the extent and limits permitted by Section 768.28 of the Florida Statutes, and without waiving any rights or defenses therein,the City shall indemnify, defend and hold the Owner harmless from and against all claims, demands, causes of action, suits, losses, damages, liabilities, liens, judgments, fees, costs, expenses and other charges (including, without limitation, reasonable attorneys'fees and costs through all trial,appellate and post judgment levels and proceedings)(collectively, the "Claims") commenced, incurred and/or paid by or against the Owner to the extent the Claims arise from: (a)the willful misconduct or negligent use of the Easement Area by the City or any successor, assign and/or City Grantee thereof expressly approved by the City Commission; (b) the design, construction, installation, operation, use, maintenance, repair and/or replacement of, or the failure to properly design, construct,install,operate,use,maintain,repair and/or replace,any Improvements by the City or any successor, assign and/or City Grantee thereof expressly approved by the City Commission;and(c)any default,breach or violation of any term, covenant, condition or provision of this Agreement by the City or any successor, . assign and/or City Grantee thereof expressly approved by the City Commission, including, without limitation,any failure by the City to maintain,repair,and restore the Easement Area and the Park/Streetscape Improvements in accordance with Section 3 of this Agreement. Notwithstanding anything to the contrary Page 855 of 1288 PAGE 6 contained in this Agreement: (y) nothing in this Agreement shall impair, limit or prohibit any rights or remedies the Owner has against any person or entity using or occupying the Easement Area under,through or as an assignee of the City or a City Grantee; and(z) the obligation of the City to indemnify, defend and hold the Owner harmless as set forth herein shall not apply to the extent any such Claims arise from the gross negligence or willful misconduct of the Owner or any successor, assign and/or grantee thereof. Nothing herein shall be construed to increase or otherwise waive any limits of liability or immunity afforded to the City under the laws of the State of Florida, including, without limitation, the limitations of liability and immunities set forth in Section 768.28 of the Florida Statutes. 8. Insurance. The City agrees to maintain a self-insurance fund,in compliance with Sections 768.28(16)(a) and 440.09, Florida Statutes, in the same manner as provided by the City with respect to other public right of ways of the City, to cover liability, workmen's compensation, and other claims that may arise against the City with respect to this Agreement or the use of the Easement Area. Owner shall maintain insurance sufficient to cover Owner's liability exposure with respect to the Easement Area,which insurance shall include Commercial General Liability Insurance, including Products-Completed Operations and Contractual Liability,in an amount not less than$1,000,000 combined single limit per occurrence, and $2,000,000 in the aggregate, for bodily injury and property damage, and Workmen's Compensation as required by law. Owner shall name the City as an additional named insured on the Certificates of Insurance for Commercial General Liability Insurance, and upon request of the City, shall provide City with a certificate of insurance evidencing the foregoing coverages. 9. Owner Indemnity. The Owner shall indemnify, defend and hold the City harmless from and against all Claims commenced, incurred and/or paid by or against the City to the extent the Claims arise from the design, construction,installation, operation,use, maintenance,repair and/or replacement of, or the failure to properly design, construct, install, operate, use, maintain,repair and/or replace, any Owner Improvements by the Owner. Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Owner to indemnify, defend and hold the City harmless as set forth herein shall not apply to the extent any such Claims arise from the gross negligence or willful misconduct of the City, any successor or assign of the City, any City Grantee,and/or the general public. 10. Liability Limitation. The Owner, pursuant to and in accordance with the terms and conditions of this Agreement, makes the Easement Area available to the public free of charge for outdoor recreational purposes. Accordingly, to the maximum extent permitted by law, Owner may avail itself of the limitations of liability afforded pursuant to Section 375.251, Florida Statutes, to the fullest extent applicable to the Easement Area. 11. Ad Valorem Taxes and Assessments.The parties acknowledge that the Easement Area historically has been used and controlled by the City as a public right-of-way and, therefore, has been exempt from ad valorem taxation and assessments. As this Agreement is intended to ensure the continued use of the Easement Area solely for public purposes, the City covenants to cooperate with any efforts by the Owner to exempt the Easement Area from ad valorem taxation, by providing documentation to Owner,as may be reasonably necessary,to evidence the public uses of the Easement Area. Notwithstanding the foregoing, Owner shall be solely responsible for the payment of any ad valorem taxes or assessments, if any, with respect to the Easement Area. 12. Mortgages and Encumbrances.This Agreement is made subject to,and with the benefit of, all matters of record. To the extent the Easement Area is presently encumbered by a mortgage, Owner agrees to request that its mortgagee join in and consent to this Agreement and subordinate its mortgage lien to the easements granted herein. In addition, the Owner hereby reserves the right, for itself and its successors and assigns, to encumber all or any portion of the Easement Area, at any time Page 856 of 1288 PAGE 7 and from time to time, with one or more mortgages, deeds of trust,or other financing instruments. Any mortgage hereafter encumbering or otherwise affecting any portion of the Easement Area shall at all times be subject and subordinate to the terms of this Agreement(and any modifications thereto, from time to time), and any party foreclosing any such mortgage, or acquiring title by deed in lieu of foreclosure, shall acquire title subject to all of the terms and provisions of this Agreement (and any modifications thereto, from time to time). No breach of the provisions of this Agreement shall defeat or render invalid the lien of any mortgage made in good faith for value covering any part of the Easement Area and any improvements thereon. 13. Assignment. Prior to Substantial Completion of the Park/Streetscape Improvements in accordance with the Ocean Terrace Development Agreement,the Owner shall only be permitted to assign or transfer its rights and/or delegate the performance of its obligations under this Agreement to a"Permitted Transferee,"as defined in the Ocean Terrace Development Agreement.Following Substantial Completion of the Park/Streetscape Improvements, the Owner may assign or transfer its rights and/or delegate the performance of its obligations under this Agreement to any person or entity in accordance with the Ocean Terrace Development Agreement,so long as such person or entity is a subsequent owner or mortgage lender of the adjacent development parcels subject to the Covenant in Lieu of Unity of Title as contemplated in the Ocean Terrace Development Agreement, or is an organization or association of unit owners and/or parcel owners designated with the responsibility of maintenance of common areas in connection with the development or operation of such adjacent development parcels. Owner's successors and/or assigns shall not include individual unit owners, unless such individual unit owners are an organization or association of unit owners and/or parcel owners or a successor-in-interest to the Ocean Terrace Development Agreement as described above. The City may, in its sole discretion, transfer or assign this Agreement at any time only to a successor municipal corporation, provided, however, that nothing herein shall be deemed a limitation on City's or any successor municipal corporation's right to permit its invitees, agents, employees, licensees and the public to use the Easement Area in accordance with this Agreement. All other transfers, assignments, and delegations are prohibited (and, if attempted, void) absent the other party's prior written consent, which consent such other party may condition or withhold in its sole discretion.A party completing any permitted transfer, assignment,or delegation will promptly provide the other party with a written instrument evidencing the completion of such transaction. Upon any transfer, assignment,or delegation completed in accordance with this Section,the rights and obligations of the party completing such transfer, assignment, or delegation will be binding only on such party's transferee, assignee, or delegatee, as the case may be, and the other party will look only to such transferee, assignee, or delegatee for performance under this Agreement. In the case of a transfer,assignment, or delegation to an organization of unit owners and/or parcel owners, the obligations of the Owner pertaining to such portion transferred, assigned, or delegated shall be binding only upon the organization of unit/parcel owners, and not upon the declarant or any particular unit/parcel owner, except to the extent otherwise specifically provided in the declaration governing such organization. 14. Enforcement. The rights, privileges, and remedies granted by this Agreement are enforceable exclusively by the City and the Owner.Nothing in this Agreement,whether express or implied, confers upon the general public any enforcement rights against the Owner.Notwithstanding anything to the contrary, neither party will be in breach of this Agreement, and no enforcement may be sought against a party through any means,unless such party(i)receives a written notice from the other party, detailing with specificity the ways in which such party is in breach of this Agreement,and(ii)fails to remedy such breach within fifteen (15) days from the date of such written notice, or, if the breach is susceptible to cure but cannot reasonably be cured within fifteen(15) days, then within forty-five (45) days from the date of such written notice,provided the breaching party promptly commences and diligently pursues the curing of such breach within the initial fifteen (15) day period. Page 857 of 1288 PAGE 8 15. Remedies. The parties may enforce the terms of this Agreement by injunctive relief, mandamus, and by any other remedies available at law or in equity, except for rescission, revocation or termination of this Agreement, or any other remedy which would deprive the public with the right to use the Easement Area in accordance with this Agreement. All rights, remedies, and privileges granted to any party under this Agreement are cumulative, and the exercise of any one or more such rights, remedies, or privileges will not preclude the exercising party from exercising any other rights, remedies, or privileges available to such party under this Agreement or at law or in equity. 16. Estoppel. The City will, no later than fifteen (15)business days after a written request therefor by the Owner, by any of the Owner's mortgagees or lenders, or by anyone claiming by or through the Owner (including, without limitation, the Owner's successors, assigns, and transferees), and upon payment of the reasonable fees to cover the City's expenses for any third-party resources required to comply, issue a written estoppel certificate, in recordable form, to the requesting party, certifying as to any matter related to this Agreement that the requesting party may reasonably request of the City,including,without limitation,(i)that this Agreement,or any particular paragraph or section of this Agreement specified by the requesting party, is in full force and effect and unmodified (or in what respects this Agreement is no longer in force or effect or has been modified); (ii) that all monies due and payable under this Agreement, if any, have been paid(or in what respects monies are owed); and (iii) that to the City's knowledge, the Owner is in compliance with this Agreement or with any particular paragraph or section hereof specified by the requesting party (or in what respects there is noncompliance). Such estoppel certificates will be binding on the City and its successors and assigns, and may be relied upon by the Owner, its mortgagees and lenders, and by all others claiming by or through the Owner. Notwithstanding the foregoing section or any representations in any estoppel certificates issued thereunder, City shall not be estopped as to matters to which it did not have knowledge. c [EXECUTION PAGES TO FOLLOW] Page 858 of 1288 EXHIBIT "L" IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed executed and acknowledged on day of ,20_,in its name by its proper officials. City of Miami Beach,Florida Print Name: By: Jimmy L. Morales, City Manager Print Name: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 201_ by , as of ,on behalf of the company. He is personally known to me or has produced as identification and who did/did not take an oath. NOTARY PUBLIC Typed or printed Name of Notary My Commission expires: Serial No.,if any Page 859 of 1288 EXHIBIT "L" IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed executed and acknowledged on day of ,20_,in its name by its proper officials. Print Name: By: Name: Title: Print Name: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 201_ by , as of ,on behalf of the company. He is personally known to me or has produced as identification and who did/did not take an oath. NOTARY PUBLIC Typed or printed Name of Notary My Commission expires: Serial No.,if any Page 860 of 1288 EXHIBIT "L" Exhibit A Legal Description of Property 1 Page 861 of 1288 PAGE 12 Exhibit B Legal Description of Easement Area Page 862 of 1288 EXHIBIT"M" FORM OF PERFORMANCE BOND By this Bond, We as Principal, whose principal business address is as the[Contractor] under the agreement dated , 20 , between Principal and the [Developer Entity] (hereinafter referred to as "Developer") for the construction of the Ocean Terrace Park/Streetscape Project on behalf of the City of Miami Beach, Florida ("City") (which agreement and the other Contract Documents referenced therein are hereinafter referred to as "Contract"),the terms of which Contract are incorporated by reference in its entirety into this Bond, and , a corporation, whose principal business address is as Surety, are bound to Developer, as co-obligee, and City, as co-obligee, in the sum of U.S. dollars ($ ), for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally. THE CONDITION OF THIS BOND is that if Principal: 1. Performs all the work under the Contract, including but not limited to guarantees, warranties and the curing of latent defects, said Contract being made a part of this Bond by reference, and at the times and in the manner prescribed in the Contract; and 2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees, including appellate proceedings, that Developer and City sustains as a result of default by Principal under the Contract, including but not limited to a failure to honor all guarantees and warranties or to cure latent defects in the work or materials within the time period provided in Section 95.11(2)(b), Florida Statutes; and 3. Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, including all warranties and curing all latent defects within the time period provided in Section 95.11(2)(b), Florida Statutes; then this bond is void; otherwise it remains in full force. Surety specifically assumes liability for any and all damages, including but not limited to liquidated damages set forth in the Contract, arising from Principal's default of the Contract, as well as all latent defects uncovered in the work of the Principal after final acceptance of the work by the City. If no specific periods of warranty are stated in the Contract for any particular item or work, material or equipment, the warranty shall be deemed to be a period of one (1) year from the date of final acceptance by the City; provided, however, that this limitation does not apply to suits seeking damages for latent defects in materials or workmanship, such actions being subject to the limitations found in Section 95.11(2)(b), Florida Statutes. 49127872;13 Page 863 of 1288 Whenever the Principal shall be, and is declared by Developer to be, in default under the Contract, Developer having performed Developer's obligations thereunder, the Surety may promptly remedy the default, or shall promptly: (1) Complete the Contract in accordance with its terms and conditions; or (2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or, if Developer elects, upon determination by City, Developer and Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and Developer, and make available as work progresses (even though there should be a default or a succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by Developer to Principal under the Contract and any amendments thereto, less the amount properly paid by Developer to Principal. The Surety hereby waives notice of and agrees that any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect Surety's obligation under this Bond. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Developer and City named herein. Any action under this Bond must be instituted in accordance with the notice and time limitations provisions prescribed in Section 255.05(2), Florida Statutes. Signed and sealed this day of , 20 WITNESSES: (Name of Corporation) Secretary By: (Signature) (CORPORATE SEAL) (Print Name and Title) 49127872;13 Page 864 of 1288 Countersigned by Resident INSURANCE COMPANY: Florida Agent of Surety By: Attorney-in-Fact Address: [attach copy of Agent's ID card (Street) Issued by Fla. Ins. Commissioner] (City/State/Zip Code) [Atty in fact power of atty must be attached] Telephone No.: 49127872;13 Page 865 of 1288 FORM OF PAYMENT BOND By this Bond, We as Principal, whose principal business address is , and whose telephone number is , as the [Contractor] under the agreement dated 20_, between Principal and the [Developer entity] (hereinafter referred to as "Developer") for the construction of the Ocean Terrace Park/Streetscape Project on behalf of the City of Miami Beach, Florida ("City") (which agreement and the other Contract Documents referenced therein are hereinafter referred to as "Contract"), the terms of which Contract are incorporated by reference in its entirety into this Bond, and , a corporation, whose principal business address is as Surety, are bound to Developer, as co-obligee, and City, as co-obligee, in the sum of U.S. dollars ($ ), for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally. THE CONDITION OF THIS BOND is that if the Principal: 1. Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1), providing Principal with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the Contract, and in the times and in the manner prescribed in the Contract; and 2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees including appellate proceedings, that Developer and City sustain because of a failure by Principal to make any payments required under the Contract; then this bond is void; otherwise it remains in full force. A claimant shall have a right of action against the Principal and the Surety for the amount due it. Such action shall not involve the Developer or City in any expense. A claimant, except a laborer, who is not in privity with Principal and who has not received payment for its labor, materials, or supplies shall, within forty-five (45) days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish to Principal a notice that he intends to look to the bond for protection. A claimant who is not in privity with Principal and who has not received payment for its labor, materials, or supplies shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to Principal and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. No action for the labor, materials, or supplies may be instituted against Principal or the Surety unless both of the above-referenced notices have been given. Any action under this Bond must 49127872;13 Page 866 of 1288 be instituted in accordance with the notice and time limitations prescribed in Section 255.05(2), Florida Statutes. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect the Surety's obligation under this Bond. Signature page to follow 49127872;13 Page 867 of 1288 Signed and sealed this day of , 20 . Principal ATTEST: (Name of Corporation) By: (Secretary) (Signature) (Corporate Seal) (Print Name and Title) day of , 20 . Countersigned by Resident INSURANCE COMPANY: Florida Agent of Surety By: 49127872;13 Page 868 of 1288 Attorney-in-Fact Address: [attach copy of Agent's ID card (Street) Issued by Fla. Ins. Commissioner] (City/State/Zip Code) [Atty in fact power of atty must be attached] Telephone No.: 49127872;13 Page 869 of 1288 Exhibit"N" INSURANCE AND BONDING REQUIREMENTS FOR PARK/STREETSCAPE IMPROVEMENTS I. BONDING REQUIREMENTS 1. Developer shall submit all supporting documentation and detailed invoices with respect to insurance and bond premiums required for the Park/Streetscape Improvements. City's reimbursement of insurance and bond premiums shall be for the portion of insurance and bond premiums directly attributable to this Agreement. Premiums shall be net of trade discounts, volume discounts, dividends and other adjustments. 2. The Performance Bond and the Payment Bond must each be executed by a surety company in good standing with the Florida Office of Insurance Regulation and an adequate rating from A.M. Best indicated in this Exhibit, which surety is authorized to do business in the State of Florida as a surety, having a resident agent in the State of Florida and having been in business with a record of successful, continuous operation for at least five (5) years. 3. The surety company that is bound by the Performance Bond and Payment Bond, respectively, shall be responsible for Contractor's acceptable performance of the work under Construction Contract for the Park/Streetscape Improvements, and/or for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 4. The surety company that is bound by the Developer's Surety Bond (if any is provided pursuant to Section 5 of the Agreement),shall be responsible for Developer's acceptable performance of the work under Construction Contract for the Park/Streetscape Improvements, and/or for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 5. The surety company shall hold a current Certificate of Authority as a n acceptable surety on federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If the amount of the Performance Bond and Payment Bond exceeds the underwriting limitation set forth in the Circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other acceptable methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10, Section 223.11.) Further, the surety company shall provide City with evidence satisfactory to City, that such excess risk has been protected in an acceptable manner. 6. The City will accept a surety bond from a company in accordance with the requirements set forth below; provided however, that if any surety company appears on the watch list that is published quarterly by Intercom of the Office of the Florida Insurance Commissioner, the City shall review and either accept or reject the surety company based on the financial information available to the City. The following sets forth, in general, the acceptable parameters for bonds: 49127872;13 Page 870 of 1288 Policy- Financial Holder's Size Amount of Bond Ratings Category $500,001 to $1,000,000 A- Class I $1,000,001 to $2,000,000 A- Class II $2,000,001 to $5,000,000 A Class III $5,000,000 to $10,000,000 A Class IV $10,000,001 to $25,000,000 A Class V $25,000,001 to $50,000,000 A Class VI $50,000,001 or more A Class VII II. INSURANCE REQUIREMENTS Developer, Contractor and Architect shall provide, pay for and maintain in force at all times(unless otherwise provided) and any extensions thereof, the following insurance policies: A. worker's Compensation Insurance for all employees as required by Florida Statute 440, and Employer Liability Insurance with a limit in an amount not less than $1,000,000 per accident for bodily injury or disease. B. Commercial General Liability Insurance on an occurrence basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits in an amount not less than $2,000,000 per occurrence. C. As to Developer and Contractor only: Umbrella Liability Insurance with limits in an amount not less than $5,000,000 per occurrence. The umbrella coverage must be as broad as the primary General Liability coverage. The total limits for the Commercial General Liability and Umbrella Liability Insurance (set forth in Sections II.B and II.0 above) shall be in an amount not less than $7,000,000, and may be provided through a combination of primary and excess/umbrella liability policies. D. Automobile Liability Insurance covering any automobile, if vendor has no owned automobiles, then coverage for hired and non-owned automobiles, with limits in an amount not less than $1,000,000 combined per accident for bodily injury and property damage. E. As to Developer and Architect only: Project-Specific Design Professional Liability (Errors & Omissions) Insurance with limits in an amount not less than $2,000,000 per occurrence or claim, and $5,000,000 policy aggregate, subject to a maximum deductible acceptable to the City, and not-to-exceed $100,000. 49127872;13 Page 871 of 1288 Developer and Architect shall maintain the claims made form coverage with a minimum of 10 years extended reporting following Final Completion and shall annually provide City with evidence of renewal coverage. Developer and Architect are responsible for all deductibles in the event of a claim. Developer and Architect shall indicate the deductible for this coverage on its Certificate of Insurance. Developer and Architect shall notify City in writing within thirty (30) days of any claims filed or made against the Design Project-Specific Professional Liability Insurance Policy(ies). Consultant and Design Subconsultants shall each maintain commercially reasonable Errors & Omissions Liability coverages, as reasonably determined by Developer. F. As to Contractor: Contractors' Pollution Legal Liability with limits in an amount not less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, subject to a maximum deductible acceptable to the City. G. As to Contractor only: Installation Floater Insurance including coverage for material & equipment to be installed during the course of this Project. City shall be included as a Named Insured on this policy, as its insurable interest may appear. This policy shall remain in force until acceptance of the Project by the City. III. ADDITIONAL TERMS AND CONDITIONS: 1. Notice to City. If the initial insurance expires prior to the completion of the work, certificates of insurance evidencing the renewal of the coverage required shall be furnished to the City ten (10) days prior to the date of their expiration. The insurance policy(ies) must be endorsed to require the relevant insured to provide the City with at least thirty (30) days' notice of cancellation and/or restriction, except for non-payment of premium, which shall be subject to ten (10) days' notice. 2. Certificates of Insurance. Developer shall furnish to the City Certificates of Insurance or endorsements evidencing the insurance coverage required of Developer hereunder prior to entering upon the Park/Streetscape Improvements Site, and shall also furnish to the City a copy of each insurance policy required of Developer by this Agreement. Developer shall provide the City with Certificates of Insurance from its Contractor and Architect prior to the commencement of any work or services by any such entity. The Certificates of Insurance shall be in form acceptable to, and subject to, reasonable approval by City. Developer's failure to timely provide the Certificates of Insurance as required by this paragraph, and failure to cure within fifteen (15) days following receipt of written notice of such failure from the City, shall be the basis for the rescission of this Agreement by the City, without any liability to Developer. The official title of the certificate holder is City of Miami Beach, Florida. This official title shall be used in all insurance documentation. 3. Right to revise or reject. City's Risk Management Division reserves the right, but not the obligation, to review and revise any insurance requirements at the time of insurance contract renewal and/or any amendments, not limited to deductibles, limits, coverages and endorsements based on insurance market conditions affecting the availability or affordability of coverage; or changes in the scope of work/specifications affecting the scope and applicability of coverage. 4. Additional Insured. City shall be expressly included as an Additional Insured on all policies (except Professional Liability and workers' Compensation), and with an endorsement that is acceptable to the City. Additional insured certificates for the City shall read "City of Miami 49127872;13 Page 872 of 1288 Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139, Attn: Risk Management, 3rd Floor. 5. Notice of Cancellation and/or Restriction.The policy(ies) must be endorsed to require the relevant insured to provide City with at least thirty (30) days' notice of cancellation or non- renewal and/or restriction, except for non-payment of premium, which shall be subject to ten (10) days' notice. A copy of the endorsement(s) shall be provided with the Certificates of Insurance. 6. Duty of Care. Developer's furnishing insurance coverage shall in no way relieve or limit, or be construed to relieve or limit, Developer or any of its contractors of any responsibility, liability, or obligation imposed under this Agreementor the applicable contract documents relating to the Park/Streetscape Improvements, or by Applicable Laws, including, without limitation, any indemnification obligations which Developer or any of its contractors have to City thereunder. 7. Developer's Failure to Procure. Developer's failure to procure or maintain the insurance required by this Exhibit "N" during the entire term of the work shall constitute a material breach and Default of this Agreement, as long as it is available based on prevalent market conditions. In the event of such a breach (and following all notice and right to cure periods have expired), the City may exercise all available rights and remedies hereunder, including the right to immediately suspend or terminate this Agreement without any further notice to or liability to Developer or, at its discretion, procure or renew such insurance to protect the City's interests and pay any and all premiums in connection therewith, and withhold or recover all monies so paid by the City from the Developer. 8. Waiver of Subrogation. Where permitted by law, Developer hereby waives and shall cause the Contractor to waive all rights of recovery by subrogation or otherwise (including, without limitation, claims related to deductible or self-insured retention clauses, inadequacy of limits of any insurance policy, insolvency of any insurer, limitations or exclusions of coverage), against City, and its respective officers, agents, or employees. Certificates of insurance shall evidence the waiver of subrogation in favor of the City, and that coverage shall be primary and noncontributory, and that each evidenced policy includes a Cross Liability or Severability of Interests provision, with no requirement of premium payment by the City. 49127872;13 Page 873 of 1288 EXHIBIT"0" PRESENTLY PERMITTED DEVELOPMENT (a)Permitted Development and Uses. The Property, generally bounded by Ocean Terrace, 75th Street, Collins Avenue, and 74th Street, is designated Mixed Use Entertainment Category (MXE) on the eastern portions and Medium Intensity Commercial Category(CD-2)on the western portion according to the City's adopted Comprehensive Plan. The Property is zoned MXE Mixed Use Entertainment District on the eastern portions and CD-2 Medium Intensity, Commercial District on the western portion by the City's Land Development Regulations.The property is also located within the Ocean Terrace Overlay. The Ocean Terrace Overlay regulations supersede the underlying regulations and permits apartments, apartment/hotels, hotels, commercial, and uses that serve alcoholic beverages as regulated by the City Code. The Property may be used for the purposes permitted and regulated in these land use designations and zoning districts, as further limited by the by the City's Land Development Regulations and Comprehensive Plan. (b)Density, Building Heights, Setbacks and Intensities. The maximum density, heights, setbacks and intensities for any development on the Property shall be regulated by the City's Land Development Regulations,Comprehensive Plan and any applicable Federal,State or County laws and regulations. In the CD-2 land use designation,the maximum floor area ratio (FAR) is 2.0 for mixed-use buildings. In the MXE land use designation,the maximum FAR is 2.0. In the MXE and CD-2 land use designation,the maximum residential density is 100 dwelling units per acre. The intensity of hotel use is limited by such set back, height, floor area ratio, minimum room size and other provisions of the Land Development Regulations. Page 874 of 1288 EXHIBIT"P" PUBLIC FACILITIES TO SERVE THE PROPERTY The proposed development will be serviced by those roadway transportation facilities currently in existence as provided by state, county, and local roadways. The proposed development will also be serviced by public transportation facilities currently in existence, as provided by Miami-Dade County,the City of Miami Beach,and such other governmental entities as may presently operate public transportation services within the City of Miami Beach. Sanitary sewer,solid waste,drainage,and potable water services for the proposed development shall be those services currently in existence and owned or operated by Miami-Dade County, the Miami-Dade County Water and Sewer Department, the City of Miami Beach, and State of Florida. The proposed development shall be serviced by those existing educational facilities owned or operated by the Miami-Dade Public Schools District, if applicable. The proposed development shall be serviced by those existing parks and recreational facilities owned or operated by the United States Government within Miami Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development shall be serviced by those existing health systems and facilities operated by the United States Government within Miami-Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development will also be serviced by any and all public facilities,as such are defined in Section 163.3221(13) of the Act, that are described in the Comprehensive Plan, specifically including those facilities described in the Infrastructure Element and the Capital Improvements Element therein, a copy of which is available for public inspection in the offices of the City Clerk of the City of Miami Beach. Notwithstanding the foregoing, the Project may be required to provide for some of its own services, including solid waste removal and stormwater drainage. Page 875 of 1288 EXHIBIT"Q" PUBLIC RESERVATIONS AND DEDICATIONS 1. [All easements referenced in the Development Agreement] 2. [The Public Reservation Area depicted in Exhibit"B"] Page 876 of 1288 EXHIBIT"R" REQUIRED DEVELOPMENT PERMITS AND VARIANCES The following constitutes a generalized list of local permits anticipated as necessary to be approved by the terms of this Development Agreement: 1. Historic Preservation Board, Planning Board, and/or Board of Adjustment approvals, pursuant to Chapter 118 of the City of Miami Beach Code. 2. Utility Permits 3. Demolition Permits 4. Building Permits 5. Environmental Permits, including, without limitation, DERM or DEP permits 6. Hazardous Materials Removal Permit, if removal of hazardous materials is found necessary. 7. Public Works Permit, Paving and Drainage 8. Public Works Permit, Water and Sewer 9. Public Works Revocable Permits 10. Certificates of Use and/or Occupancy 11. Any variances or waivers that may be required pursuant to Chapters 114 through 142 of the City of Miami Beach Code 12. All other local governmental approvals as may be applicable to the subject property from time to time pursuant to the terms of this Development Agreement, including but not limited to restrictive covenants in lieu of unity of title Page 877 of 1288 EXHIBIT "S" This instrument was prepared by: Name: Raul J.Aguila,City Attorney. Address: City of Miami Beach 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 CONSTRUCTION AND ACCESS EASEMENT AGREEMENT THIS CONSTRUCTION AND ACCESS EASEMENT AGREEMENT (this "Easement") is made this _ day of , 20_, by the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida 33139 (the "City"), to and in favor of , a , each having its respective principal place of business at (collectively, the "Developer"). WITNESSETH: WHEREAS, the City owns that certain property situated, lying and being in Miami-Dade County, Florida, as more particularly described in Exhibit "A" attached hereto and made a part hereof (the"Park/Streetscape Site"); WHEREAS, Developer owns that certain property situated, lying and being in Miami-Dade County, Florida, as more particularly described in Exhibit "B" attached hereto and made a part hereof (the"Development Site"),and WHEREAS, the City and the Developer entered into that certain Development Agreement dated as of , 20_, a copy of which is recorded in Official Records Book , at Page of the Public Records of Miami-Dade County (the "Development Agreement"), which constitutes a development agreement pursuant to the Florida Local Government Development Act, Section 163.3220,et. seq.,Florida Statutes(the"Act"); WHEREAS, pursuant to the Development Agreement, Developer will construct the "Project" (as defined in the Development Agreement) on the "Development Site" (as defined in the Development Agreement) and will construct the "Park/Streetscape Improvements" (as defined in the Development Agreement)on the Park/Streetscape Site; WHEREAS, the City has agreed to grant to the Developer a non-exclusive, irrevocable, temporary easement over the Park/Streetscape Site for access and construction staging purposes during Developer's construction of the Project and the Park/Streetscape Improvements; WHEREAS, the granting of this Easement is a condition of the effectiveness of the Development Agreement and the issuance of development permits and approvals in order for the Developer to develop the Project and the Park/Streetscape Improvements; 49495785;2 Page 878 of 1288 EXHIBIT "S" NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound hereby agree as follows: 1. Recitals. The above recitals are true and correct and by this reference are hereby incorporated into the body of this Easement as if fully set forth herein. 2. Grant of Easement. (a) The City hereby grants to the Developer and its employees, agents, representatives, architects, engineers, consultants, contractors, subcontractors (of every and any tier), laborers, suppliers, and lenders, and each of their respective successors and assigns (collectively, the "Developer Construction Permittees"), a non-exclusive, irrevocable, temporary easement on, over, under, through, upon, and across the Park/Streetscape Site to perform all acts necessary or desirable to ensure fulfillment and satisfaction of all duties, obligations, and requirements with respect to the construction of the Project and the Park/Streetscape Improvements pursuant to and in accordance with the Development Agreement. The easement granted herein includes, without limitation, the following: (i) during construction of the Park/Streetscape Improvements, the right to stage, store, and operate construction trailers, vehicles, tools, machinery, equipment, and materials related to the Park/Streetscape Improvements on all or any portion of the Park/Streetscape Site;(ii)during construction of the Project,the right to stage, store,and operate construction trailers,vehicles,tools, machinery,equipment, and materials related to the Project on the"Phase 2"portion of the Park/Streetscape Site (as such phase is defined in the Development Agreement); (iii) the right to erect fencing around and within the Park/Streetscape Site; (iv) the right to use the Park/Streetscape Site for site logistics, including but not limited to, the Developer's and the Developer Construction Permittees' ingress and egress to and from the Development Site over and across the Park/Streetscape Site; and(v)the right to do all other things and perform all other activities that are reasonably related to the construction of the Project and the Park/Streetscape Improvements pursuant to and in accordance with the Development Agreement, or that may be necessary or appropriate to give effect to any of the foregoing rights. (b) This Easement and the rights granted herein will terminate upon the earlier of (such earlier date is referred to herein as the "Termination Date"): (i) the date on which the City issues a final certificate of occupancy for the entire Project(as opposed to any individual phase thereof); (ii)the date that is ninety-six (96) months after the "Effective Date"of the Development Agreement, subject to automatic extension and automatic tolling as provided in Sections 42(e) and 55 of the Development Agreement; (iii) the date on which the City terminates the Development Agreement for an uncured Developer "Event of Default" under the Development Agreement; or (iv) the date on which the Developer terminates the Development Agreement for convenience in accordance with Section 45 of the Development Agreement. Although such termination is intended to be automatic and require no further action on the part of any party hereto, upon the request of a party after the occurrence of a termination event, the other party will, no later than thirty (30) days after such request, execute a termination of this Easement in recordable form and in substance reasonably acceptable to the City and the Developer. 3. Restoration. The Developer shall remove all vehicles, equipment and materials from the Park/Streetscape Site on or prior to the Termination Date and,if the entire Park/Streetscape Improvements has not been completed on or prior to the Termination Date, then the Developer shall, at the Developer's cost and expense, sod such un-completed portion of the Park/Streetscape Site promptly after the Termination Date, whereupon the City shall, at the City's cost and expense, be required to keep and maintain such sod. 49495785;2 Page 879 of 1288 EXHIBIT "S" 4. Encumbrances. This Easement and the rights granted herein are subject to all liens, encumbrances, covenants, conditions, restrictions, reservations, contracts, leases and licenses, easements and rights of way pertaining to the Park/Streetscape Site that are of record as of the date of this Easement (collectively, the "Encumbrances"). The use of the word "grant" in this Easement shall not imply any warranty on the part of the City with respect to the status of title to the Park/Streetscape Site. 5. Insurance. The Developer shall maintain the following insurance at all times while this Easement remains in effect: (a) commercial general liability coverage with minimum limits of Two Million and No/100 ($2,000,000)Dollars per occurrence, combined single limit for bodily injury liability and property damage liability; (b) business automobile liability coverage with minimum limits of One Million and No/100 ($1,000,000) Dollars per occurrence, combined single limit for bodily injury liability and property damage liability; and (c) workers compensation insurance for all employees in compliance with the "Workers Compensation Law" of the State of Florida and all applicable federal laws. Such insurance policies (except for workers compensation insurance) shall: (x) name the City as an additional insured thereunder; (y) be written by insurance companies licensed to do business in Florida; and (z) not be subject to cancellation or non-renewal without a minimum of thirty (30) days' notification by the insurer to the City (except for non-payment of premium, which shall be subject to ten (10) days' notice) with a copy to the attention of Risk Manager, 1700 Convention Center Drive, Miami Beach, Florida 33139. The Developer shall provide the City with one or more certificates of insurance evidencing all such insurance coverages set forth above. 6. Representations of the City. The City hereby represents, warrants and covenants to and with the Developer that the City is the fee simple owner of the Park/Streetscape Site and has the right, title,capacity and authority to grant the easements granted herein,subject only to the Encumbrances. 7. Indemnification. The Developer shall indemnify,defend and hold harmless the City from and against any actual, out-of-pocket damages, losses, liabilities, fees, costs and expenses (collectively, "Losses") incurred by the City in any action, suit or proceeding brought against the City by any third- party as a result of any negligent act or omission of the Developer in exercising its rights under this Easement which first occurred prior to the Termination Date of this Easement, except for any Losses that arise out of or are related to the gross negligence or willful misconduct of the City,the City's elected and appointed officials (including, without limitation, the City's Mayor and City Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns, agents, consultants, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees,partners, principals, invitees, affiliates, or the general public. The Developer shall directly pay all actual, out-of-pocket costs and expenses related to any covered Losses, or legal defense required by the City for any covered Losses, using legal counsel that is selected by the Developer and which is reasonably acceptable to the City, pursuant to the foregoing. The City shall reasonably cooperate and collaborate (but at no expense to the City)with the Developer in connection with any legal proceeding in which the Developer is defending the City. 8. Miscellaneous. 8.1 This Easement shall be governed by, enforced and construed under the laws of the State of Florida. Venue for all actions,litigation and/or other proceedings arising out of this Easement shall be exclusively in Miami-Dade County, Florida. The parties hereby knowingly and voluntarily waive the right to a trial by jury of any claim,controversy or disputed matter between them arising under, out of or in connection with this Easement. The Prevailing Party in any action, litigation or other proceeding that is based on any claim, controversy or other disputed matter arising under, out of or in connection with this Easement shall recover from the non-prevailing party all fees, costs and expenses (including, without limitation, reasonable attorneys' fees and costs through all trial, appellate and post- 49495785;2 Page 880 of 1288 EXHIBIT "S" judgment levels and proceedings) incurred by the Prevailing Party in such action, litigation or other proceeding. As used herein, the term"Prevailing Party" means the party who receives substantially the relief sought upon final, non-appealable judgment, order, or other disposition of a court of competent jurisdiction.The provisions of this Section shall survive the termination or expiration of this Easement. 8.2 The parties hereby acknowledge and agree that each has had an opportunity to be represented by or consult with independent legal counsel and that any rule of construction which provides that ambiguities are to be construed against the drafter shall not apply in the interpretation or construction of this Easement. If any term, provision or portion of this Easement is for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such term, provision or portion of this Easement shall be given it nearest valid, legal and enforceable meaning, or construed as deleted, whichever such court may determine, and the same shall not invalidate the remaining terms, provisions and/or portions of this Easement, which remaining terms, provisions and portions of this Easement will remain in full force and effect. 8.3 This Easement includes all exhibits attached hereto. This Easement, together with all such exhibits, contains the entire agreement and understanding between the parties relating to the subject matter of this Easement, and all prior or contemporaneous terms, covenants, conditions, representations, warranties, statements, agreements and understandings made by or on behalf of the parties,whether oral or written, are merged herein. 8.4 This Easement may not be amended, modified or terminated except by a written instrument executed by the Owner and the City through its Public Works Director, or his designee, or the successor administrative officer with jurisdiction over the matter, and which is recorded in the Public Records of Miami-Dade County, Florida. This Easement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. 8.5 The failure of any party to insist in any one or more instances upon strict performance of any term,covenant, condition or other provision of this Easement will not be construed as a waiver or relinquishment of the future enforcement of such term, covenant, condition or other provision of this Easement. 8.6 Wherever appropriate in this Easement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of each gender shall be deemed to comprehend either or both of the other genders. The section and paragraph headings in this Easement are for convenience only and shall not affect the meaning, interpretation or scope of the terms or provisions set forth therein. 8.7 This Easement may be executed in multiple counterparts, each of which individually shall be deemed an original, but when taken together shall be deemed to be one and the same Easement. 8.8 This Easement shall never be construed as a conveyance in any manner whatsoever of fee simple title to any portion of the Park/Streetscape Site, it being intended by the parties that this Easement conveys only an easement interest with respect to the Park/Streetscape Site for the specific uses and purposes set forth herein. 8.9 All of the rights, easements, and interests herein created and granted are and shall be limited to and utilized solely for the uses and purposes expressly set forth in this Easement. Notwithstanding anything to the contrary contained in this Easement, the City shall not be permitted to 49495785;2 Page 881 of 1288 EXHIBIT "S" use or grant others the right to use, all or any portions of the Park/Streetscape Site so long as this Easement remains in effect without the prior written consent of the Developer. 8.10 This Easement and the rights, easements, and interests herein created and granted shall only become effective upon the recordation of this Easement in the Public Records of Miami-Dade County,shall run with the land,and shall be binding on all persons holding title to said lands. 9. Notice. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by either the Developer or the City pursuant to this Easement shall be in writing and addressed as follows: If to Developer at: 1035 N.Miami Avenue, Suite 201 Miami,Florida 33136 Attn: Sandor Scher sscher@clarocorp.com With a copy to: Akerman LLP 98 SE 7 Street,Suite 1100 Miami,FL 33131 Attn: Neisen O.Kasdin,Esq. neisen.kasdin@akerman.com If to the City: City of Miami Beach Attn: City Manager 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 With copies to: City of Miami Beach Attn: Public Works Director 1700 Convention Center Drive,4th Floor Miami Beach,Florida 33139 Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Any notice or other communication(i) sent by certified United States mail, postage prepaid, return receipt requested will be deemed effectively given or received on the third (3rd) business day following the postmark date of such notice or other communication; (ii) sent by overnight courier or by hand will be deemed effectively given or received upon receipt or refusal, as the case may be; and (iii) sent by electronic mail will be deemed effectively given or received on the day of transmission of such notice if sent on a business day before 6:00 P.M. Eastern Standard Time, or on the following business day if sent after 6:00 P.M. Eastern Standard Time or on a non-business day. Any notice or other communication given in the manner provided above by counsel for either party will be deemed to be notice or such other communication from the party represented by such counsel. 10. Enforcement. The rights,privileges, and remedies granted by this Easement are enforceable exclusively by the City in its municipal capacity. Nothing in this Easement, whether express or implied, confers upon the general public any enforcement rights against the Owner. Notwithstanding anything to the contrary,neither party will be in breach of this Easement, and no enforcement may be sought against a party through any means, unless such party (i) receives a written notice from the other party, detailing with specificity the ways in which such party is in breach of this Easement, and (ii) fails to remedy such breach within thirty (30) days from the date of such written notice, or, if the breach is susceptible to cure 49495785;2 Page 882 of 1288 EXHIBIT "S" but cannot reasonably be cured within thirty days, then within sixty (60) days from the date of such written notice, provided the breaching party promptly commences and diligently pursues the curing of such breach within the initial thirty(30)day period. 11. Remedies. The parties may enforce the terms of this Easement by injunctive relief, mandamus, and by any other remedies available at law or in equity. All rights, remedies, and privileges granted to any party under this Easement are cumulative, and the exercise of any one or more such rights, remedies, or privileges will not preclude the exercising party from exercising any other rights, remedies, or privileges available to such party under this Easement or at law or in equity. (Signature pages to follow) 49495785;2 Page 883 of 1288 EXHIBIT "S" IN WITNESS WHEREOF, the undersigned have caused this Easement to be executed by execution of this instrument as of this day of ,201_. Witnesses: CITY OF MIAMI BEACH,FLORIDA, a municipal corporation Sign Name: By: Mayor Print Name: Sign Name: Print Name: ATTEST: City Clerk STATE OF FLORIDA ) )SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of , 20_ by , as of . He is personally known to me or has produced as identification and who did (did not)take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission Expires: Serial No.,if any: 49495785;2 Page 884 of 1288 EXHIBIT "S" ACKNOWLEDGED AND ACCEPTED this day of , 20_by • Witnesses: DEVELOPER: Sign Name: Print Name: By: Print name: Sign Name: Print Name: STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of 20_ by , as of . He is personally known to me or has produced as identification and who did (did not)take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission Expires: Serial No.,if any: 49495785;2 Page 885 of 1288 EXHIBIT "S" Exhibit"A" Park/Streetscape Site 49495785;2 Page 886 of 1288 EXHIBIT "S" Exhibit"B" Legal Description for the Developer Property [see attached] 49495785;2 Page 887 of 1288 EXHIBIT "G" CONCEPT AND PHASING PLANS APLIIIIIM. 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PHASE 2 , �j] Page 889 of 1288 illik4904 Eisenhower Boulevard,Suite 150 WALKER Tampa,FL 33634 CONSULTANTS 813.888.5800 walkerconsultants.com June 19, 2019 (Sent via e-mail:saulfrances(a miamibeachfl.gov) Mr.Jimmy L. Morales, City Manager and Mr. Saul Frances, Director City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Re: Municipal Parking Transaction—Financial Services ITQ#4 04-19-PARKING-RA—Additional Services Walker Project#15-2328.00 Dear Messrs. Morales and Frances: Walker is pleased to submit this assessment on the disposition of the removal of 60 revenue producing spaces and 7 handicap spaces and the subsequent impact on the net income of the City of Miami Beach Parking System. This assessment represents our analysis and conclusions and is intended to assist the City with various impacts associated with the transaction. We thank you and appreciate the opportunity to be of service to the City of Miami Beach. Please do call or email if there are any questions regarding our work. Sincerely, WALKER CONSULTANTS ii- , • / •• 1 ,,...-( r_ rAm)-j-i-"--- Jim Corbett, CAPP Emily Krueger Consultant Analyst/Planner JMC:mm BUILDING ENVELOPE,CONSULTING FORENSIC RESTORATION,PARKING DESIGN,PLANNING Page 890 of 1288 1 "44*°N ,.1 jr: III I 111111 V i BUILDING ENVELOPE A ov "'''IV CONSULTING ; FORENSIC RESTORATION PARKING DESIGN , A"."11111111.11.- . , PLANNING -"Ill""IIP f AO Financial Analysis Walker Project: 15-2328.00 Municipal Parking Transaction ITQ #4 04-19-Parking-RA — Additional Services Miami Beach, Florida June 19, 2019 City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 ' WALKER CONSULTANTS Page 891 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION TABLE OF CONTENTS EXECUTIVE SUMMARY INTRODUCTION 1 Proposed Term Sheet 2 Bond Resolution 4 NET INCOME 6 Operating Revenues 6 Operating Expenses 9 Net Income Summary 10 DISPOSITION IMPACT 11 LIST OF TABLES AND FIGURES Exhibit 1:Ocean Terrace Park/Streetscape Project Area 1 Exhibit 2: Parking System Long-Term Debt Summary by Year 4 Exhibit 3: Parking System Aggregate Maturities of Long-Term Debt 5 Exhibit 4: Four-Year Revenues Net of Sales Tax—Ocean Terrace 6 Exhibit 5: 2018 Parking Violation Summary—Ocean Terrace 7 Exhibit 6: Four-Year Parking Citation Revenues—Ocean Terrace 7 Exhibit 7: Four-Year Revenue Totals—Ocean Terrace 8 Exhibit 8: Four-Year Operating Expense Totals—Ocean Terrace 9 Exhibit 9: Four-Year Net Income—Ocean Terrace 10 Exhibit 10: Parking System Enterprise Fund—Fiscal Year End Summaries... 11 WALKER CONSULTANTS I I Page 892 of 1288 411EWALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION EXECUTIVE SUMMARY The City of Miami Beach Parking Enterprise Fund generated $10,455,307 in operating income effective Fiscal Year Ended, September 30, 2017. After depreciation, nonoperating revenues and expenses, and transfers out were factored,the Fund showed a decrease in net position of$1.7 million.This change represents a decrease of $5.0 million (149%) change in net position from the prior year. Operating revenues decreased $4.2 million (8.2%) from prior year.This change is the result of decreased parking activity or volume due to competition from Uber and Lyft as well as the impact of Hurricane Irmal. Also, non-operating expenses increased by$2.1 million due to the debt service cost for the Series 2015 Parking Revenue Bond. Parking System Enterprise Fund-Fiscal Year End Summaries(FY14-FY17) 2014 2015 2016 2017 2018 Operating Revenues $40,049,313 $42,672,887 $51,499,302 $47,285,421 Operating expenses, excl. depreciation $29,249,957 $30,708,380 $35,647,133 $36,830,114 Operating income, before depreciation $10,799,356 $11,964,507 $15,852,169 $10,455,307 Depreciation ($6,917,621) ($6,518,607) ($5,973,576) ($5,833,405) o 0 Nonoperating revenue 3 436656 -E `� p g $ , $3,251,919 $4,058,273. $3,656,090 ,� y -a Nonoperating expenses ($666,355] ($562,533) ($1,361,533] ($3,454,810) .cef vfa Capital contributions ($517,538) ($165207) $0 $0 2 fi E c C v Transfers out ($4,382,629) ($9,610,597) ($9,215,478) ($6,474,996) < $ 4-6 Change in net position $1,751,869 ($1,640,518) $3,359,855 ($1,651,814) Source:City of Miami Beach Financial Report Fiscal Year Ended September 30,2017 The disposition of on-street parking spaces along Ocean Terrace suggests a peak fiscal year(FY15) net income loss of$77,460.09, representing a per space annual income loss of$1,291.00 for the combined 60 total spaces. Fou- v-r- Nig,* !"-^r„' Pay Stations Along Ocean Terrace Between 73`d Street and 75th Street ir On-Street Meter Revenues Transient $50,463 $52,089 $58,848 $71,280 ParkMobile $22,586 $18,042 $14,422 $12,848 Monthly $1,250 $2,195 $140 $0 Total $74,299 $72,326 $73,411 $84,128 On-Street Meter FY18 F111111111111 Expenses EMS $2,400 $2,400 $2,400 $2,400 Warranty $1,900 $1,900 $1,900 $1,900 Collection $2,368 $2,368 $2,368 $2,368 Total $6,668 $6,668 $6,668 $6,668 On-Street Meter Net Income $67,631 $65,658 $66,742 $77,460 Per Space $1,127 $1,094 $1,112 $1,291 Source:Walker Consultants and City of Miami Beach Parking Department 2019 1 City of Miami Beach FY17 CAFR, Page 5 WALKER CONSULTANTS I ii Page 893 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION In accordance with the City of Miami Beach Parking Bond Resolution No. 2010-27491,Article VII-Particular Covenants;Section 713(b), the City may in any fiscal year sell, lease or otherwise dispose of assets forming a part of the Parking System in excess of the amount set forth in clause (a) of this Section if, before any such transfer,there is delivered to the City Manager a report of the Consulting Engineers or the Rate Consultant demonstrating that the sale, lease or other disposition of the property will not have a material adverse impact on the Net Revenues and stating his or her reasons therefor. As demonstrated in the Four-Year Net Income summary,the disposition and removal of 60 metered parking spaces on Ocean Terrace provides for an approximate peak fiscal year net income loss of$77,460 from the Parking Fund's operating income statement. It is Walker's professional opinion that this estimated annual loss of $77,460 (.0074%of FY17 net revenues) will not have a material adverse impact on the net revenues of the Parking Fund. This opinion is further supported by the results of the FY17 Fiscal Year End Summary where the net revenues of the Parking Fund reveals an operating income of$10,455,307, resulting in a dollar amount that is substantially more than this estimated loss of net income. Subtracting the $77,460 net income loss from the FY17 operating income provides an adjusted operating income of$10,377,847.This adjusted amount allows for the Parking Fund to continue to cover planned reductions to the fund balance to include annual depreciation amounts, annual non-operating expenses, and annual transfers out, which includes payments to the General Fund. WALKER CONSULTANTS I iii Page 894 of 1288 plippp 0 1 Introduction Page 895 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION INTRODUCTION The Ocean Terrace Holdings, LLC(Developer) has expressed interest in developing a mixed-use residential and commercial development in accordance with the requirements of the Ocean Terrace Overlay District. The City of Miami Beach City Commission has adopted the Ocean Terrace Neighborhood Urban Design Plan, a concept plan for proposed public streetscape and park improvements in the Ocean Terrace area the "(Neighborhood Design Plan").The Finance and Citywide Projects Committee (FCWPC) recommended that the City explore entering into a public-private partnership that would fund the proposed $15 million improvements required to bring the Ocean Terrace portion of the Neighborhood Design Plan to fruition. In March 2019,the FCWPC recommended proceeding with the negotiations with the Developer with regard to a development proposal that would provide for the Developer to complete a portion of the public improvements contemplated in the Neighborhood Design Plan, but which would require the vacation of certain City right-of-way areas subject to Developer granting the City with an irrevocable easement for the continued public use of the right-of-way areas for pedestrian and vehicular traffic, as modified by the public improvements, which will pedestrianize portions of Ocean Terrace. For a visual representation of the City on-street parking spaces under consideration, please reference the following exhibit. Exhibit 1: Ocean Terrace Park/Strretscane Project Area, Along Ocean Terrace Between 73'Street and 75'`'Street lit r Phase.2 !t' .. • -1La' 7 , City of Miami Beach , t 0 r Pay Stations t. 'e A to be removed __ t 5 , t Park/Streetscape E� �� . . . ' Project Area U , . d .S. �. r i; 0i �,0 City of Miami Beach fa` 04- .1"— Parking Spaces .• r = "'' •T• to be removed • rt",•*,e-- Ocean Terrace _V , " _ . 60 Angle Spaces 1 I ♦ 7 ADA Spaces ;-.' `to li ' —---,I 4 imam' p .. r,- , :.0 0 w '* 115-?- - -rqu'l 4r1Ar' '' V: t City of Miami Beach s. r Pa Stations _ �;, .A 9 -•e. to be removed '�„--. �� �Phase 1 : W ilia4 i.k- - S Source:Google Earth, Walker Consultants and the City of Miami Beach 2019 1 I Introduction Page 896 of 1288 Ili WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION PROPOSED TERM SHEET The proposed vacation would allow the Developer to make its mixed-use project along Ocean Terrace, between 74th Street and 75th Street,financially viable, and creating new public spaces (including park space),to be funded and constructed by the Developer,that is less auto-oriented, and more centered on the pedestrian experience. The proposed project includes residential and commercial uses on the block between 74th and 75'Street along Ocean Terrace. The terms of the transaction require the City to vacate a portion of Ocean Terrace, between 74th and 75th Streets, the north half of 74th Street between Ocean Terrace and Collins Avenue, and a portion of 75th Street between Ocean Terrace and Collins Avenue. The vacation of the City right-of-way areas would be conditioned on the Developer's execution of a Development Agreement which contains the following conditions of the proposed vacation: 1. Development of the Project 2. Developer to Design and Construct the Park/Streetscape Project for the City 3. Timeframe for Completion of Project and Park/Streetscape Project a. The Developer has proposed to complete the Park/Streetscape Project in two phases,with Phase 1 to be completed within 48 months following the Effective Date of the Development Agreement, and with Phase 2 to be completed within 96 months following the Effective Date. b. The City will not issue a temporary certification of occupation (TCO) or certificate of occupancy (CO) until the Developer has completed the Park/Streetscape Project. 4. Developer to Grant Easements in Favor of City for the Public's Continued Use of the City Right-of-Way Areas a. Developer shall grant a perpetual, non-revocable utility, roadway and pedestrian access easement in favor of the City,for the City's continued use of the City Right-of-Way Areas for public vehicular and pedestrian use and access, as modified by the Park/Streetscape Project. 5. Developer to Provide the City with Bond or Lender Agreement to Guarantee Completion of the Park/Streetscape Project a. As the City would have vacated the City Right-of-Way Areas prior to the Developer's completion of the Park/Streetscape Project, Developer has agreed to provide the City with a bond or a lender recognition agreement to secure Developer's obligations and permit the city to step in and complete the Park/Streetscape Project in the event the Developer fails to do so. 2 I Introduction Page 897 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION b. In addition the Developer's construction contractor for the Park/Streetscape Project shall be required to i. Indemnify the City as provided in the Development Agreement; ii. Name the City as an express intended third-party beneficiary of the construction contract and; iii. Name the City as a co-obligee on a performance and payment bond for the Park/Streetscape Project. 6. Developer to Convey its Fee Interest in the Public Reservation Area located East of Ocean Terrace 7. Timing for Key Project Milestones and Completion of the Park/Streetscape Improvements 8. Application Fees 9. Staging a. During construction of the Park/Streetscape Project,the Developer and its contractors will have the right to use the eastern half of the parking lot at 75th Street and the areas witin Phases I and II of the Park/Streetscape Project as staging areas and lay-down yards in connection with the construction of the Park/Streetscape Project. b. During construction of the Proposed Development,the Developer and its contractors will have the right to use the southern portion of the parking lot at 75th Street and the area within Phase II of the Park/Streetscape Project as staging areas and lay-down yards in connection with the construction of the Proposed Development. 10. Maintenance of the Park/Streetscape Project 11. Café The City has asked Walker Consultants to review the removal of on-street spaces on the east and west sides of Ocean Terrace from 73rd Street to 75th Street.The on-street spaces are located within the City's area of parking responsibility labeled "Zone 9X". Revenue is collected by zone rather than by space,further enforcement revenue is collected by a similar zone which may typically encompass several parking zones.The removal of these on-street spaces will result in the loss of 60 revenue producing spaces and 7 handicap spaces,which are generally enforced between 8:00 am and 6:00 pm with an hourly rate of$1/hour. 3 I Introduction Page 898 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION BOND RESOLUTION Under Article VII—Particular Covenants;Section 713. -Sale or Other Disposition of the Parking System; the City shall not sell, lease or otherwise dispose of all or any part of the Parking System, except as provided in Section 709 and this Section.' Specifically clause (b)states to the extent provided by law, the City may in any Fiscal Year sell, lease or otherwise dispose of assets forming a part of the Parking System in excess of the amount set forth in clause (a) of this Section if, before any such transfer,there is delivered to the City Manager a report of Consulting Engineers or Rate Consultant demonstrating the sale, lease or other disposition of such property will not have a material adverse impact on the Net Revenues and stating his reasons therefore. In determining whether to render such report,the Consulting Engineers or Rate Consultant shall consider the usefulness of the assets to be disposed of to the operations of the Parking System,the uses to be made of any proceeds of sale and the rental income to be received with respect to any lease thereof. In addition to the clauses in this Section, no sale, lease or any other disposition of assets of the Parking System shall be consummated nor shall the proceeds of any such disposition be applied unless prior to such consummation or application,there shall be delivered an opinion of Bond Counsel to the effect that such disposition and the application of the proceeds as required herein will have no adverse impact on the exclusion of interest on any of the Bonds or other System Debt from gross income for Federal income tax purposes.As provided by the City of Miami Beach Finance Department,the following exhibit details a summary of the Parking System long-term debt. Exhibit 2: Parking System Long-Term Debt Summary by Year •. , 2017 $ 1,600,000 $ 4,652,713 $ 6,252,713 2018 1,670,000 4,579,713 6,249,713 2019 1,740,000 4,512,913 6,252,913 2020 1,805,000 4,444,113 6,249,113 2021 1,895,000 4,354,663 6,249,663 2022 1,990,000 4,261,613 6,251,613 2023 2,070,000 4,182,013 6,252,013 2024-2028 11,905,000 19,350,139 31,255,139 2029-2033 15,080,000 16,170,988 31,250,988 2034-2038 19,235,000 12,021,500 31,256,500 2039-2043 24,545,000 6,707,750 31,252,750 2044-2045 11,625,000 879,000 12,504,000 Source:City of Miami Beach Finance Department 2019 2 City of Miami Beach Resolution 2010-27491 Master Parking Bond Resolution 4 I Introduction Page 899 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION In addition to the summary provided in the previous exhibit,the following exhibit details the Parking System aggregate maturities of long-term debt. Exhibit 3: Parking System Aggregate Maturities of Long-Term Debt Fiscal Series 2010A Series 20108 Series 2015 Total Parking Fund Year Principal Interest Principal Principal Interest Principal interest 2017 1,525,000 402,300 - 1,317,563 75,000 2,932,850 1,600,000 4,652,713 2018 1,590,000 331,550 - 1,317,563 80,000 2,930,600 1,670,000 4,579,713 2019 1,660,000 267,950 - 1,317,563 80,000 2,927,400 1,740,000 4,512,913 2020 1,725,000 201,550 - 1,317,563 80,000 2,925,000 1,805,000 4,444,113 2021 1,810,000 115,300 - 1,317,563 85,000 2,921,800 1,895,000 4,354,663 2022 620,000 24,800 1,170,000 1,317,563 200,000 2,919,250 1,990,000 4,261,613 2023 960,000 1,270,763 1,110,000 2,911,250 2,070,000 4,182,013 2024 1,000,000 1,231,163 1,165,000 2,855,750 2,165,000 4,086,913 2025 1,045,000 1,188,663 1,220,000 2,797,500 2,265,000 3,986,163 2026 1,095,000 1,139,019 1,280,000 2,736,500 2,375,000 3,875,519 2027 1,145,000 1,088,375 1,345,000 2,672,500 2,490,000 3,760,875 2028 1,195,000 1,035,419 1,415,000 2,605,250 2,610,000 3,640,669 2029 1,250,000 980,150 1,485,000 2,534,500 2,735,000 3,514,650 2030 1,310,000 922,338 1,560,000 2,460,250 2,870,000 3,382,588 2031 1,370,000 861,750 1,635,000 2,382,250 3,005,000 3,244,000 2032 1,440,000 793,250 1,715,000 2,300,500 3,155,000 3,093,750 2033 1,510,000 721,250 1,805,000 2,214,750 3,315,000 2,936,000 2034 1,585,000 645,750 1,895,000 2,124,500 3,480,000 2,770,250 2035 1,665,000 566,500 1,990,000 2,029,750 3,655,000 2,596,250 2036 1,750,000 483,250 2,090,000 1,930,250 3,840,000 2,413,500 2037 1,835,000 395,750 2,195,000 1,825,750 4,030,000 2,221,500 2038 1,930,000 304,000 2,300,000 1,716,000 4,230,000 2,020,000 2039 2,025,000 207,500 2,415,000 1,601,000 4,440,000 1,808,500 2040 2,125,000 106,250 2,540,000 1,480,250 4,665,000 1,586,500 2041 4,900,000 1,353,250 4,900,000 1,353,250 2042 5,140,000 1,108,250 5,140,000 1,108,250 2043 5,400,000 851,250 5,400,000 851,250 2044 5,670,000 581,250 5,670,000 581,250 2045 5,955,000 297,750 5,955,000 297,750 8,930,000 1,343,450 27,405,000 21,846,518 58,825,000 62,927,150 95,160,000 86,117,118 Source:City of Miami Beach Finance Department 2019 The remaining sections of this analysis will detail the historical net income of the on-street parking revenues generated on Ocean Terrace between 73rd Street and 75th Street and the impact by which the removal of these income generating spaces have on the Parking System Enterprise Fund. 5 I Introduction Page 900 of 1288 02 Net Income Page 901 of 1288 41IE WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION NET INCOME OPERATING REVENUES Historical net revenues for on-street pay stations OT73E01-9X, OT73W02-9X, OT74E01-9X, and OT74W02-9X found in Zone 9x, have primarily consisted of transient and monthly permit revenues.To assist with our analysis, Walker requested a four-year history of parking revenues for the portion of Zone 9X along Ocean Terrace between 73`d Street and 75th Street. The most recent fiscal year(FY18) shows a revenue, net of any sales tax, of $1,238.32 per space for the sixty (60) spaces served by the four pay stations.The following exhibit details the historical breakdown of transient and monthly revenues, net of any sales tax for each pay station. Exhibit 4: Four Year Revenues Net of Sales Tax—Pay Stations Along Ocean Terrace Between 73rd Street and Thu Street FY18 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 16,018.65 $ 39,854.47 Revenue OT73W02-9x $ 9,065.70 $ 9,065.70 Per Space 0174E01-9x $ 13,158.60 $ 22,585.82 $ 1,250.00 $ 13,158.60 0174W02-9x $ 12,220.50 $ 12,220.50 Total $ 74,299.27 $ 1,238.32 FY17 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 17,515.65 $ 37,752.19 Revenue OT73W02-9x $ 8,542.95 $$ 2,195.00 $ 8,542.95 Per Space 0T74E01-9x $ 11,787.80 $ 11,787.80 0T74W02-9x $ 14,243.00 $ 14,243.00 Total $ 72,325.94 $ 1,205.43 FY16 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 21,181.05 $ 35,743.51 Revenue OT73W02-9x $ 9,498.60 $ 14,422.46 $ 140.00 $ 9,498.60 Per Space 0T74E01-9x $ 15,075.65 $ 15,075.65 0T74W02-9x $ 13,093.10 $ 13,093.10 Total $ 73,410.86 $ 1,223.51 FY15 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 21,550.50 $ 34,398.94 Revenue 0173W02-9x $ 20,598.35 $ 848 $ $ 20,598.35 Per Space 0T74E01-9x $ 11,405.10 $ 11,405.10 0174W02-9x $ 17,726.10 $ 17,726.10 Total $ 84,128.49 $ 1,402.14 Source:City of Miami Beach Parking Department 2019 6 I Net Income Page 902 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION In addition to the transient and monthly revenues, Walker also requested the historical citation revenue amounts collected for Zone 9X. Due to the procedure used by the Parking Administration to receive and record parking citation revenues in conjunction with Miami-Dade County, citation totals could not be readily segregated by pay station.To assist with this request from the Parking Administration, Walker received a 2018 annual report detailing citation amounts issued by each of the three blocks along Ocean Terrace. Assuming parking citations issued are a direct correlation of parking meter revenues generated by location,the information provided in the following exhibits has been based upon a similar projection for all citation revenues. It has also been noted that fines assigned from parking citations vary based on the government entity receiving the fine payout distribution.The fine revenues are based on citations issued, not yet collected. Exhibit 5: 2018 Parking Violation Summary—On-Street Spaces Between 7300 Ocean Terrace and 7500 Ocean Terrace Municipal City of Miami 00-7500 Ocean Terrace Fine Amount Valid •u' otal Fin- Fine Beach Fine Citations Amount Distribution Over Time Parking $18.00 297 $5,346.00 $8.40 $2,494.80 Restricted $23.00 175 $4,025.00 $11.40 $1,995.00 Prohibited $28.00 37 $1,036.00 $14.40 $532.80 Obstruct $33.00 4 $132.00 $17.40 $69.60 Statute $34.00 3 $102.00 $18.00 $54.00 Handicap $253.00 1 $253.00 $24.80 $24.80 Total $10,641.00 $5,171.00 Source:City of Miami Beach Parking Administration 2019 As previously shared, one year of citation data was provided to Walker. In the absence of any prior year data, Walker's analysis assumes a percentage projection similar to parking meter revenues generated for the previous three years. Exhibit 6: Four-Year Parking Citation Revenues—On-Street Spaces Between 7300 Ocean Terrace and 7500 Ocean Terrace Annual Citation Revenue Citation by Block FY15 FY16 FY17 FY18 7300 Ocean Terrace $1,181.66 $1,154.81 $1,168.24 $1,342.80 7400 Ocean Terrace $3,203.55 $3,130.74 $3,167.15 $3,640.40 7500 Ocean Terrace $165.26 $161.51 $163.39 $187.80 Total Citation Revenue $4,550.47 $4,447.06 $4,498.78 $5,171.00 Citation Revenue Per Space (60 spaces) i $75.84 $74.12 $74.98 $86.18 Source:City of Miami Beach Parking Administration and Walker Consultants 2019 7 I Net Income Page 903 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION With no other revenue categories available for review and consideration, the following exhibit provides a comprehensive breakdown of all revenue categories associated with the Ocean Terrace Pay Stations. Exhibit 7: Four-Year Revenue Totals—Pay Stations Along Ocean Terrace Between 73rd Street and 75th Street FY18 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 16,018.65 $ 39,854.47 Revenue OT73W02-9x $ 9,065.70 $ 22,585 82 $ 1,250 00 $ 9,065.70 Per Space 0T74E01-9x $ 13,158.60 $ 13,158.60 0T74W02-9x $ 12,220.50 $ 12,220.50 Total $ 74,299.27 $ 1,238.32 FY17 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 17,515.65 $ 37,752.19 Revenue 0T73W02-9x $ 8,542.95 $$ 2,195.00 $ 8,542.95 Per Space 0T74E01-9x $ 11,787.80 $ 11,787.80 0T74W02-9x $ 14,243.00 $ 14,243.00 Total $ 72,325.94 $ 1,205.43 FY16 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 21,181.05 $ 35,743.51 Revenue OT73W02-9x $ 9,498.60 $ 14,422.46 $ 140.00 $ 9,498.60 Per Space 0174E01-9x $ 15,075.65 $ 15,075.65 0T74W02-9x $ 13,093.10 $ 13,093.10 Total $ 73,410.86 $ 1,223.51 FY15 Actual Meter Transient ParkMobile Space Rental Total OT3E01-9x $ 21,550.50 $ 34,398.94 Revenue OT73W02-9x $ 20,598.35 $ 12, $ _ $ 20,598.35 Per Space 0T74E01-9x $ 11,405.10 $ 11,405.10 0T74W02-9x $ 17,726.10 $ 17,726.10 Total $ 84,128.49 $ 1,402.14 Source:City of Miami Beach Parking Department 2019 8 I Net Income Page 904 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION OPERATING EXPENSES Operating expenses associated with the four pay stations located along Ocean Terrace consist of the following itemized costs: 1. Pay station management software costs associated with the operation, communications and management of data for each station and transaction. 2. Pay station warranty costs to maintain software and service repair needs. 3. Pay station collection expenses related to the Parking Administration's effort to collect and deposit monies from parking payment transactions. The following exhibit provides a comprehensive breakdown of all operating expense categories associated with the four pay stations. Exhibit 8: Four-Year Operating Expense Totals-Pay Stations Along Ocean Terrace Between 73rd Street and 75'1'Street FY15 FY16 FY17 FY18 Pay Station Annual EMS Pay Station Expense 0T73E01-9X $600.00 $600.00 $600.00 $600.00 0T73W02-9X $600.00 $600.00 $600.00 $600.00 0T74E01-9X $600.00 $600.00 $600.00 $600.00 0T74W02-9X $600.00 $600.00 $600.00 $600.00 Pay Station Annual Pay Station Warranty Expense 0T73E01-9X $475.00 $475.00 $475.00 $475.00 0T73W02-9X $475.00 $475.00 $475.00 $475.00 0T74E01-9X $475.00 $475.00 $475.00 $475.00 0T74W02-9X $475.00 $475.00 $475.00 $475.00 Pay Station Annual Pay Station Collection Expense 0T73E01-9X $592.10 $592.10 $592.10 $592.10 0T73W02-9X $592.10 $592.10 $592.10 $592.10 0T74E01-9X $592.10 $592.10 $592.10 $592.10 0T74W02-9X $592.10 $592.10 $592.10 $592.10 Pay Station Totals All Stations $6,668.40 $6,668.40 $6,668.40 $6,668.40 Per Space $111.14 $111.14 $111.14 $111.14 Source:City of Miami Beach Parking Department 2019 9 I Net Income Page 905 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION NET INCOME SUMMARY The following exhibit details the combined net income for the four pay stations as a factor of operating revenues minus operating expenses, providing for a net income total and net income per space. Exhibit 9: Four-Year Net Income-Pay Stations Along Ocean Terrace Between 73rd Street and 75th Street II On-Stree . _ Meter FY17 FY16 FY15 Revenues Transient $50,463.45 $52,089.40 $58,848.40 $71,280.05 ParkMobile $22,585.82 $18,041.54 $14,422.46 $12,848.44 Monthly $1,250.00 $2,195.00 $140.00 $0.00 Total $74,299.27 $72,325.94 $73,410.86 $84,128.49 I On-Street Meter FY18 FY17 FY16 FY15 Expenses EMS $2,400.00 $2,400.00 $2,400.00 $2,400.00 Warranty $1,900.00 $1,900.00 $1,900.00 $1,900.00 Collection $2,368.40 $2,368.40 $2,368.40 $2,368.40 Total $6,668.40 $6,668.40 $6,668.40 $6,668.40 On-Street Meter dilncome $67,630.87 $65,657.54 $66,742.46 $77,460.09 IPer Space $1 i'z, 'x,094.29 $1,112.37 $1,291.00 Source:Walker Consultants and City of Miami Beach Parking Department 2019 As shown in the preceding exhibit, the combined net income for the Ocean Terrace pay stations experienced a peak income level of$77,460.09 in FY15, representing a per space income of$1,291 for the 60 total spaces. If the spaces are disposed through a right-of-way vacation, all revenues and expenses become null, except the $2,368 annual collection cost.This operating expense item is the result of an indirect cost allocation from the Parking System, representing the effort the Parking Administration assigns to the collection of revenues for these specific spaces. It is understood that the disposition of the spaces will not reduce Parking System personnel counts. 10 I Net Income Page 906 of 1288 03 Disposition Impact Page 907 of 1288 WALKER FINANCIAL ANALYSIS CONSULTANTS MUNICIPAL PARKING TRANSACTION DISPOSITION IMPACT Walker received a copy of the City of Miami Beach Financial Report for the Fiscal Years Ending September 30, 2014-2017.The reports were prepared by the City of Miami Beach Finance Department and included an Independent Auditor's Report from Crowe Horwath, LLC, a section titled Management's Discussion and Analysis (Unaudited),the 2014-2017 Financial Statements, and a section titled Required Supplementary Information (Unaudited). The following exhibit provides a summary of the revenues, expenses and changes in net position for the Parking System Enterprise Fund as detailed in the Financial Report3. Exhibit 10: Parking System Enterprise Fund—Fiscal Year End Summaries(FY14-FY17) 2014 2015 2016 2017 2018 Operating Revenues $40,049,313 $42,672,887 $51,499,302 $47,285,421 Operating expenses, excl.depreciation $29,249,957 $30,708,380 $35,647,133 $36,830,114 Operating income, before depreciation $10,799,356 $11,964,507 $15,852,169 $10,455,307 Depreciation ($6,917,621) ($6,518,607) ($5,973,576) ($5,833,405) o c Nonoperating revenue $3,436,656 $3,251,919 $4,058,273 $3,656,090 ;7 N I Nonoperating expenses ($666,355) ($562,533) ($1,361,533) ($3,454,810) mCI) ca `O Capital contributions ($517,538) ($165,207) $0 $0 3 E v Transfers out ($4,382,629) ($9,610,597) ($9,215,478) ($6,474,996) < o 6' Change in net position $1,751,869 ($1,640,518) $3,359,855 ($1,651,814) Source:City of Miami Beach Financial Report Fiscal Year Ended September 30,2014 through September 30,2017 As demonstrated in Exhibit 10(Four-Year Net Income), the disposition of Ocean Terrace pay stations provides for an approximate peak fiscal year net income loss of$77,460 from the Parking Fund's operating income statement. It is Walker's professional opinion that this estimated annual loss of$77,460 will not have a material adverse impact on the net revenues of the Parking System. This opinion is further supported by the results of the FY17 Fiscal Year End Summary where the net revenues of the Parking Enterprise Fund reveals an operating income of$10,455,307, resulting in a dollar amount that is substantially more than this estimated loss of net income. Subtracting the $77,460 net income loss from the FY17 operating income provides an adjusted operating income of$10,377,847.This adjusted amount allows for the Parking Enterprise Fund to continue to cover planned reductions to the fund balance to include annual depreciation amounts, annual non-operating expenses, and annual transfers out,which includes payments to the General Fund. 3 City of Miami Beach FY17 CAFR, Page 33 11 I Disposition Impact Page 908 of 1288 From: Aleman.John To: Granado, Rafael Subject: Fwd: OCEAN TERRACE VOTE JUNE 26 Date: Monday,June 17, 2019 9:11:35 PM Please add to 6/26/19 meeting materials for the item. Commissioner John Aleman City of Miami Beach JohnAleman@miamibeachfl.gov Sent from my iPhone Begin forwarded message: From: Judith Bishop <judithmbishop@aol.com> Date: June 17, 2019 at 6:28:32 PM EDT To: Judith Bishop <judithmbishop@aol.com> Subject: OCEAN TERRACE VOTE JUNE 26 Your June 26th meeting will be pivotal for the future of Ocean Terrace where I have resided for thirteen years. Unfortunately, I will be unable attend the meeting since I'll be out of state visiting family. Thank you for your past support and diligent work during the long process of redeveloping our neighborhood. Once again, I ask for your continued support. Please vote a resounding YES! OTH will change the face of Ocean Terrace and facilitate the revitalization of the Town Center. That upgrade, in turn, will have a ripple effect throughout all of North Beach. The stakes are high, but the rewards are too. One of the biggest beneficiaries will be the city of Miami Beach. Tax revenue will increase and continue to roll in like clockwork - year after year after year. This is a golden opportunity to transform a "liability" neighborhood into an "asset" neighborhood that will benefit all the residents of Miami Beach. Thank you, Judith Bishop Page 909 of 1288 St. Tropez Ocean Condo 7330 Ocean Terrace Apartment 502 Miami Beach, FL 33141 305-866-3693 Home 917-562-1960 Mobile Page 910 of 1288 From: Aleman,John To: Granado, Rafael Subject: Fwd: Ocean Terrace Date: Monday,June 17,2019 9:11:29 PM Please add this letter to the item for 6/26/19 Ocean Terrace Commissioner John Aleman City of Miami Beach JohnAleman@rniamibeachfl.gov Sent from my iPhone Begin forwarded message: From: Silvia Coltrane<silvia@retimiami.com> Date: June 16, 2019 at 12:05:08 PM EDT To: "DanGelber@miamibeachfl.gov" <DanGelber@miamibeachfl.gov>, "MickySteinberg@miamibeachfl.gov" <MickySteinberg@miamibeachfl.gov>, "MarkSamuelian@miamibeachfl.gov" <MarkSamuelian@miamibeachfl.gov>, "Michael@miamibeachfl.gov" <Michael@miamibeachfl.gov>, "joymalakoff@miamibeachfl.gov" <joymalakoff@miamibeachfl.gov>, "RickyArriola@miamibeachfl.gov" <RickyArriola@miamibeachfl.gov>, "JohnAlernan@miamibeachfl.gov" <JohnAleman@miamibeachfl.gov> Subject: Ocean Terrace June 16, 2019 Honorable Mayor Gelber and City Commissioners: I am writing to you to respectfully request that you do not waiver in your commitment to the residents of North Beach to assure a revitalized community. Your vote to turn Ocean Terrace into a beautiful park is a very important decision for North Beach because"As Ocean Terrace goes,so does Town Center". While other developers previously explored the area and gave up on North Beach, the City of Miami Beach is fortunate to have the Ocean Terrace Developers committing to build and pay for an oceanfront park and promenade for the entire community to enjoy. We should be glad that they have not given up yet. What is very commendable is that these developers have been very sensitive to the wishes of the residents and have engaged the community in the entire process by holding various charettes and community outreach meetings. Please do not be swayed by the very few people that say that the community voted against allowing for the increase of buildable square footage in Ocean Terrace. Recently, the voters approved a 3.5 FAR for Town Center, the highest FAR in this city today because they want to see change, and a revitalized North Beach. As Kirk Pascal stated at the public charette held in June 12th, the previous Page 911 of 1288 opposition was not because of the increase in buildable, it was because historic buildings were being demolished. The developers heard the public and redesigned the development. The project received the approval of the Historic Preservation Board. We have a win-win situation for all. Yes, the developer will get to build a few more hotel units in order to get a quality hotel company to look at North Beach as a worthy location for one of their flags. Without the right flag,the development will not be financially feasible,and the community will be the real looser. You must not look at what the developer may get,you must look at the bigger picture and the ripple effect that this development will generate. The community will be the larger winner and the recipient of direct and indirect benefits as the subject development moves forward. In addition to the investment by the developer of$11 million plus for world-class park at no cost to the residents of Miami Beach, North Beach will get additional benefits: • More jobs for the community that lives close by. They could bike or walk to work instead of taking long bus rides to get to their jobs away from North Beach. • Attractive jobs nearby will help the historic building to get quality tenants, and this will allow them to invest to improve their properties. • The Business community will be able to flourish again. (6 businesses have closed in the last six months in North Beach and 4 more are ready to close within the next 2 months). • Quality retail and fun restaurants will replace t-shirt shops,Tattoo parlors and bikini bars. • About$49 Million in net present value increase to the City budget from Ad valorem taxes, bed tax, hotel related fees,construction related fees, etc.This will alleviate budget deficits. The level of comfort of lenders,hotels and investors is very thin as they view this area. With your vote, you will be telling, lenders, investors and hotel companies to believe in the future of this area, and this is vital for any change to occur. I can attest to this from my own personal experience. I am respectfully requesting that you deliver on your promise to the residents of North Beach and support progress for a community that has been left behind.A vote against allowing this proposal to move forward, is a vote against the entire North Beach and the potential of a bright future. "As Ocean Terrace goes,so does Town Center". Respectfully yours, Silvia Coltrane Collins and 72nd Developers, LLC. Collins and 73rd Developers, LLC. Page 912 of 1288 16NE NEIGHBORS SUNDAY JULY 212019 MIAMIHERALD.COM MIAMI BEAD H CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARING AND INTENT TO CONSIDER A DEVELOPMENT AGREEMENT July 31, 2019 NOTICE IS HEREBY given that a Second Reading/Public Hearing will be heard by the Mayor and City Commission of the City of Miami Beach, Florida, in the Commission Chambers,3rd Floor,City Hall, 1700 Convention Center Drive,Miami Beach,Florida,on Wednesday,July 31,2019 at 11:40 a.m.,or as soon thereafter as the matter can be heard,to consider: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, APPROVING, FOLLOWING SECOND READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT AS AUTHORIZED UNDER SECTION 118-4 OF THE CITY CODE, AND SECTIONS 163.3220 - 163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE,LLC, 7420 OCEAN TERRACE INVESTMENT, LLC,7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, 7441 COLLINS AVENUE INVESTMENT, LLC, 7439 COLLINS AVENUE INVESTMENT, LLC, 7433 COLLINS AVENUE INVESTMENT, LLC,7421 COLLINS AVENUE INVESTMENT,LLC AND 7409 COLLINS AVENUE INVESTMENT,LLC(COLLECTIVELY,THE"DEVELOPER"),WHICH DEVELOPMENT AGREEMENT:(1) DELINEATES CONDITIONS FOR THE DEVELOPMENT OF THE PROPERTIES LOCATED AT 7409,7421,7433,7435,7437, 7439,7441,AND 7449 COLLINS AVENUE,AND 7400,7410,7420,7430,7436,AND 7450 OCEAN TERRACE(COLLECTIVELY,THE"DEVELOPMENT SITE"),WITH SUCH DEVELOPMENT SITE TO BE DEVELOPED IN ACCORDANCE WITH THE REQUIREMENTS OF THE CITY'S OCEAN TERRACE OVERLAY DISTRICT,AS SET FORTH IN SECTIONS 142- 870 AND 142-870.1 OF THE CITY CODE;(2)MEMORIALIZES THE CONDITIONS FOR VACATING THE CITY'S RIGHT-OF-WAY AT OCEAN TERRACE,BETWEEN 74TH STREET AND 75TH STREET,AS WELL AS PORTIONS OF 74TH STREET AND 75TH STREET,BETWEEN OCEAN TERRACE AND COLLINS AVENUE(COLLECTIVELY, THE"CITY RIGHT-OF-WAY AREAS");(3)GRANTS TO THE CITY A PERPETUAL EASEMENT ACROSS THE VACATED CITY RIGHT-OF-WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR AND PEDESTRIAN USE AND ACCESS;(4)PROVIDES FOR THE DEVELOPER'S DESIGN, PERMITTING,AND CONSTRUCTION OF CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE,BETWEEN 73RD STREET AND 75TH STREET,AT DEVELOPER'S SOLE COST AND EXPENSE(EXCEPT FOR PAYMENT OF CERTAIN CITY FEES);AND(5)WITH THE FOREGOING SUBJECT TO AND CONTINGENT UPON DEVELOPER'S SATISFACTION OF THE CONDITIONS SET FORTH IN THE DEVELOPMENT AGREEMENT AND THE CITY COMMISSION'S VACATION OF THE CITY RIGHT-OF-WAY AREAS AND ENACTMENT OF CERTAIN AMENDMENTS TO THE CITY'S FUTURE LAND USE MAP AND ZONING MAP,AT ITS SOLE DISCRETION. PROPERTIES:The Development Site consists of 7409 Collins Avenue(02-3202-003-0120),7421 Collins Avenue(02-3202-003-0110),7433 Collins Avenue(02-3202-003-0100), 7435 Collins Avenue(02-3202-003-0090),7437 Collins Avenue(02-3202-003-0090),7439 Collins Avenue 02-3202-003-0090),7441 Collins Avenue(02-3202-003-0080),And 7449 Collins Avenue(02-3202-003-0070),and 7400 Ocean Terrace(02-3202-003-0060),7410 Ocean Terrace(02-3202-003-0050),7420 Ocean Terrace(02-3202-003-0040), 7430 Ocean Terrace(02-3202-003-0030),7436 Ocean Terrace(02-3202-003-0020),And 7450 Ocean Terrace(02-3202-003-0010). ZONING DISTRICTS: The proposed Development Site is currently located within the Ocean Terrace Overlay District, and the two separate underlying zoning districts are designated as CD-2,"Commercial Medium Intensity,"and MXE,"Mixed-Use Entertainment." The proposed Development Agreement contemplates that the City Commission will approve amendments to the City's Future Land Use Map and Zoning Map,to:(a)amend the Future Land Use Map to change the designation of the portions of the City Right-of-Way Areas designated PF,"Public Facility,"and ROS,"Recreation and Open Space,"to the Future Land Use categories of CD-2,"Commercial Medium Intensity"and MXE,"Mixed-Use Entertainment";and(b)amend the City's Zoning Map to rezone the City Right-of-Way Areas from the current zoning classification of GU,"Government Use District,"to CD-2,"Commercial Medium Intensity"and MXE,"Mixed-Use Entertainment,"and extending the boundary of the Ocean Terrace Overlay Zone to encompass the City Right-of-Way Areas. MAXIMUM HEIGHT:Within the Ocean Terrace Overlay District,the maximum height of a main use residential building shall not exceed 235 feet;and the maximum height of a main use hotel building shall not exceed 125 feet.Architectural projections will comply with the terms of the Development Agreement and other applicable provisions of the City's Land Development Regulations. PERMITTED USES:The current main permitted uses in the Ocean Terrace Overlay District are(a)apartments;(b)apartment/hotels;(c)hotels;(d)commercial;and(e)uses that serve alcoholic beverages.The City's Comprehensive Plan provides for population densities for the underlying future land use designations of 100 units per acre. A copy of the proposed Development Agreement is available for public inspection during normal business hours in the Office of the City Clerk, 1700 Convention Center Drive, 1st Floor,City Hall,Miami Beach,Florida 33139. INTERESTED PARTIES are invited to appear at this meeting,or be represented by an agent,or to express their views in writing addressed to the City Commission,c/o the City Clerk,1700 Convention Center Drive,1"Floor,City Hall,Miami Beach,Florida 33139.This item is available for public inspection during normal business hours in the City Clerk's Office, 1700 Convention Center Drive, 1s'Floor, City Hall, Miami Beach, Florida 33139.This meeting,or any item herein, may be continued, and under such circumstances, additional legal notice need not be provided.Pursuant to Section 286.0105,Fla.Stat.,the City hereby advises the public that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at its meeting or its hearing,such person must ensure that a verbatim record of the proceedings is made,which record includes the testimony and evidence upon which the appeal is to be based.This notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence,nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in alternate format,sign language interpreter(five-day notice required),information on access for persons with disabilities,and/or any accommodation to review any document or participate in any City-sponsored proceedings,call 305.604.2489 and select option 6;TTY users may call via 711 (Florida Relay Service). Rafael E.Granado,City Clerk City of Miami Beach Ad 073119-01 Page 92b of 12813 II I I IWI4II III#III CCFt 2 3 1 F 12 5 11 2 55 2 ¢ OR EK 31563 Fas 1201-1335 1 35Pss) REGRET 92/19/2/19 19319:28 This instrument was prepared by (record and return to): Akerman LLP 98 SE 7" Street, Suite 1100 Miami, Florida 33131 Attn: Kristofer D. Machado, Esq. H#WEY RJVJl+ CLER! OF CURT IARiI-A£ CO/JE'Y> FLORIA (Space reserved for Clerk) DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of the 31° day of July 2019, by and am on g the CITY OF MIAMI BEA CH , a Florida municipal corporation (the "City"), and jointly and severally 7450 OCEAN TERRACE LLC, 7436 OCEAN TERRACE LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7410 OCEAN TERRACE LLC, 7400 OCEAN TERRACE, LLC, 7409 COLLINS AVE INVESTMENT, LLC, 7421 COLLINS AVE INVESTMENT, LLC, 7433 COLLINS AVE INVESTMENT, LLC, 7439 COLLINS AVE INVESTMENT LLC, and 7441 COLLINS AVE INVESTMENT, LLC (collectively, the "Developer"). City and Developer are each a "Party" and collectively are the "Parties" to this Agreement. Introduction A. The property that is the subject of this Agreement lies in Miami Beach, Miami-Dade County, Florida. This Agreement; among other things, is intended to and shall constitute a development agreement between the parties pursuant to Sections 163.3220-163.3243, Florida Statutes, the "Florida Local Government Development Agreement Act" (the "Act") and Section 118-4 0f the City Code. B. The Developer owns or has a legal or equitable interest in the property located east of Collins Avenue between 7 4th and 75th Streets, Miami Beach, Florida, more specifically described in Exhibit "A" (the "Developer Property") and intends to redevelop the Developer Property with a mixed-use residential, hotel, and retail development (as defined in Section 3.43, the "Project"). C. The Developer holds a reversionary interest in the public reservation area immediately east of Ocean Terrace between 74th and 75th Streets, more specifically described in Exhibit "B" (the "Reversionary Interest"). D. The City has a beneficial and legal interest in the property specifically described in Exhibit "C" (the "?5th Street Parcel"), which is currently improved with a portion of 75th Street between Collins Avenue and Ocean Terrace. ) E. The City has a beneficial and legal interest in the property specifically described in Exhibit "D" (the "74th Street Parcel"), which is currently improved with a portion of 74th Street between Collins Avenue and Ocean Terrace. . F. The City has a beneficial and legal interest in the property specifically des ~6'ºd~~~\ Exhibit "E" (the "Ocean Terrace Parcel"), which is currently improved with a portion f ~,,j, )~:\} \ J..• "•te :i el.% ; 22 49127872,13 T e rr a c e b e t w e e n 7 4 t h a n d 7 5 t h S t r e e t s (c o ll e c t iv e ly , w it h t h e 7 4 t h S t r e e t P a r c e l a n d t h e 7 5 t h S t r e e t P a r c e l, t h e "Ci t y P a r c el "). G . T h e C it y w is h e s t o r e le a s e t h e C it y 's b e n e fi c ia l a n d le g a l in t e r e s t in t h e C it y P a r c e l t o p r o v id e a u n ifi e d d e v e lo p m e n t s it e w it h t h e D e v e lo p e r P ro p e rt y . H . T h e D e v e lo p e r P ro p e rt y a n d t h e C it y P a r c e l c o m b in e d c o n s t it u t e t h e "D e v e lo p m e n t S it e ," a n d is le g a ll y d e s c r ib e d in E x h ib it "F ." I. The Developer desires to develop, design, permit and install, at Developer's sole cost and expense, a public park and streetscape project in the vicinity of Ocean Terrace, which area is described more fully in Exhibit "G" hereto, and will include improvements to (i) Ocean Terrace, between 73' Street and 75" Street; (ii); the public reservation area immediately east of ' Ocean Terrace between 73rd Street and 75th Street; and (iii) 73° Street, 74" Street, and 75% Street, from Collins Avenue to Ocean Terrace (as defined in Section 3.37, the "Park/Streetscape Site"), to be designed by Raymond Jungles (or by a comparable landscape architecture firm approved in accordance with Section 65 of this Agreement), substantially as shown on the Park/Streetscape Concept Plan, and to be constructed in phases in accordance with this Agreement (the "Park/Streetscape Improvements"). J. The City and Developer anticipate that, once completed, the Park/Streetscape Improvements will have an estimated value of approximately Fourteen Million Eight Hundred Thousand Dollars ($14,800,000.00). K. Pursuant to City Resolution No. 2019-30927 (the "Vacation Resolution"), concurrently with the execution of this Agreement, the City has approved the vacation of the City Parcel, subject to and conditioned upon the terms and conditions contained in such Vacation Resolution, including, without limitation, (1) the grant by the Developer to the City of a perpetual, non-revocable easement against the City Parcel for subsurface utilities and public recreational, vehicular, and pedestrian use and access (the "City Parcel Easement"); (2) the Developer conveying the Reversionary Interest to the City; and (3) the Developer's commitment to improve the City Parcel with the Park/Streetscape Improvements as provided in this Agreement. L. The City is a Florida municipal corporation with powers and authority conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the Miami Beach City Charter and City Code. The City has all governmental, corporate and proprietary powers to enable it to conduct municipal government, perform municipal and governmental functions, and render municipal services, including the authority to adopt, implement and enforce (together with any other required governmental approvals) comprehensive plans, zoning ordinances, redevelopment plans, and other police power and legislative measures necessary to assure the health, safety and general welfare of the City and its inhabitants. M. Having fully considered this Agreement at two duly noticed public hearings in compliance with Section 163.3225 of the Act; having determined that the Project, Park/Streetscape Improvements and this Agreement are in compliance with the City's Comprehensive Plan and Land Development Regulations as of the Effective Date; and having further determined that it is in the City's best interest to address the issues covered by this Agreement in a comprehensive manner, in compliance with all applicable laws, ordinances, plans, rules and regulations of the City, the City has agreed to enter into this Agre em ent wi th the Developer. {i i ..e. ·] '{',s il "' 2 \ ·, , ,' / ¢ / 49127872,13 ? N . In accordance w ith S ection 16 3.3227(1 )(h) of the Florida S tatutes, the C ity ha s determ ined that the P roject, the P ark/S treetscape Im pro vem ents, and the C ity P arcel E ase m e nt w ill benefit the C ity and the public, and that the conditions, term s, restrictions and requ irem e nts he rein are necessary fo r the public health, safety and w elfa re of its citizens. T he P roject and P ark/S treetscape Im provem ents w ill help revitalize and im pro ve the character and appe aran ce of the surro unding neighborhood and w ill have a significant positive fiscal im pact fo r the C ity. T he P ark/S treetscape Im provem ents w ill also pro vide a significant public am enity and increa se recreational open space in the nort hern port ion of the C ity. N O W , T H E R E F O R E , in conside ration of the fo regoing, and other good and valua b le consideration, the receipt and suffi ciency of w hich are hereby acknow ledged, the par ti e s hereby agree as fo llow s: 1. Recitation s. T he fo regoing recitations are true and correct and are inco rpora te d he rein by this reference. 2. A uthority. T his A greem ent is entered into pursuant to the authority and pro cedu res provided by the A ct and S ection 118-4 of the C ity C ode. 3. D efinitions. A ll capitalized term s in this A greem ent shall have the definitions set fo rt h in this S ection unless such term s are defined elsew here in this A gree m ent. 3.1 "A ct" shall m ean the Florida Local G overn m e nt D evelopm ent A g reem e nt A ct (S ections 16 3.3220 - 16 3.324 3, Fl orida S tatutes (2018 )). 3.2 "A ffi lia te" shall mean any Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with another Person. For purposes hereof, the term "control" (including the terms "controlled by" and "under common control with") shall mean the possession of a Controlling Interest. Unless the context otherwise requires, any reference to "Affiliate" in this Agreement shall be deemed to refer to an Affiliate of Developer. 3.3 "Affiliate Mortgagee" shall mean a lender who is an affiliate of the Developer or of the Developer's principals, including, without limitation, Access Industries, Inc. and its subsidiaries, and who holds a mortgage, lien, or other security interest on the Development Site or a portion thereof. 3.4 "Assignment of Construction Agreements" means an assignment by Developer to the City of all of Developer's right, title and interest in and to the Construction Agreements, which assignment shall include a duly executed consent by the Contractor and architect/engineer of record and all other Persons having any interests therein, and shall otherwise be in form and substance reasonably satisfactory to the Parties, which assignment shall be executed by Developer solely for the purpose of providing additional security to the City for the performance and discharge of Developer's obligations in this Agreement with respect to the Park/Streetscape Improvements, and shall only be exercisable by the City upon the occurrence of an uncured Event of Default by Developer under this Agreement pertaining to the Park/Streetscape Improvements. 3.5 "Assignment of Plans, Permits and Approvals" means an assignment by Developer to the City of all of Developer's right, title and interest in and to the approved Permit 3 49127872;13 P la n s a n d S p e c ifi c a t io n s a n d a ll P e r m it s a n d A p p ro v a ls fo r t h e P a r k/S t r e e t s c a p e Im p r o v e m e n t s , w h ic h a s s ig n m e n t s h a ll in c lu d e a d u ly e x e c u t e d c o n s e n t b y t h e a r c h it e c t/e n g in e e r o f r e c o r d a n d a ll o t h e r P e r s o n s h a v in g a n y in t e r e s t s th e r e in , a n d s h a ll o t h e rwi s e b e in fo r m a n d s u b s t a n c e r e a s o n a b ly s a t is fa c t o ry t o t h e P a rt ie s , w h ic h a s s ig n m e n t s h a ll b e e x e c u t e d b y D e v e lo p e r s o le ly f o r t h e p u r p o s e o f p r o v id in g a d d it io n a l s e c u r it y t o t h e C ity fo r t h e p e rfo r m a n c e a n d d is c h a r g e o f D e v e lo p e r 's o b lig a t io n s in t h is A g r e e m e n t w it h r e s p e c t t o t h e P a r k/S t r e e t s c a p e Im p ro v e m e n t s , a n d s h a ll o n ly b e e x e r c is a b le b y th e C it y u p o n th e o c c u rr e n c e o f a n u n c u r e d E v e n t o f D e f a u lt b y D e v e lo p e r u n d e r t h is A g r e e m e n t p e rt a in in g t o t h e P a r k/S t r e e t s c a p e Im p ro v e m e n t s . 3 .6 "B u ild in g P e r m it" s h a ll m e a n a n y p e r m it is s u e d b y t h e C ity o f M ia m i B e a c h B u ild in g D e p a rt m e n t o r B u ild in g O ffi c ia l, in c lu d in g a n y fo u n d a t io n , b u ild in g , o r p h a s e p e r m it s . 3 .7 "B u s in e s s D a y " s h a ll m e a n a n y d a y ot h e r t h a n a S a t u r d a y , S u n d a y , a n d a n y f e d e r a l o r s t a t e h o lid a y . If a n y p e r io d e x p ir e s o n a d a y t h a t is n o t a B u s in e s s D a y , o r a n y e v e n t o r c o n d it io n is r e q u ir e d b y t h e te r m s o f t h is A g r e e m e n t t o o c c u r o r b e f u lfi ll e d o n a d a y th a t is n o t a B u s in e s s D a y , t h e n s u c h p e r io d s h a ll e xp i re , or s u ch e v en t o r c o n d it io n s h a ll o c c u r o r b e f ul fi lle d, a s t h e c a s e m a y b e , o n t h e n e xt s u c c e e d in g B u s in e s s D a y . 3 .8 "C it y " s h a ll m e a n t h e C it y o f M ia m i B e a c h , a F lo r id a m u n ic ip a l c o r p o r a t io n , h a v in g it s p r in c ip a l o ff ic e s a t 17 0 0 C o n v e n t io n C e n t e r D r iv e , M ia m i B e a c h , F lo r id a 3 3 1 3 9 . In a ll r e s p e c t s h e r e u n d e r , C it y 's o b lig a t io n s a n d p e rf o r m a n c e is p u r s u a n t to C ity 's p o s it io n a s th e o w n e r o f t h e C it y P a r c e l a c t in g in it s p ro p r ie t a ry c a p a c ity . In th e e v e n t C it y e x e r c is e s it s re g u la t o ry a u t h o r it y a s a g o v e rn m e n t a l b o d y , t h e e x e r c is e o f s u c h re g u la t o ry a u t h o r it y a n d t h e e n fo r c e m e n t o f a n y r u le s , r e g u la t io n s , la w s a n d o r d in a n c e s (in cl u d in g t h ro u g h t h e e x e r c is e o f t h e C it y 's b u il d in g , fi r e , c o d e e n fo r c e m e n t , p o lic e d e p a rt m e n t o r o t h e rw is e ) s h a ll b e d e e m e d t o h a v e o c c u r re d p u r s u a n t t o C it y 's r e g u la t o ry a u t h o r it y a s a g o v e rn m e n t a l b o d y a n d s h a ll n o t b e a tt r ib u t a b le in a n y m a n n e r t o C it y a s a P a rt y to t h is A g r e e m e n t o r in a n y w a y d e e m e d in c o n fli c t w it h , o r a d e fa u lt u n d e r , t h e C it y 's o b lig a t io n s h e r e u n d e r. 3 .9 "C it y C o d e " s h a ll m e a n t h e C o d e o f O r d in a n c e s o f t h e C it y . 3 .1 O "City Parcel" shall mean the area described in Exhibits "C " "D," and "E." 3.11 "City's Consultant" has the meaning provided in Section 18. 3.12 "Closing" shall refer to the formal exchange of documents between the parties, as further described in Section 5 of this Agreement. 3.13 "Commence Construction," "Commencement of Construction" and terms of similar import mean, with respect to the Park/Streetscape Improvements, the commencement of bona-fide site work for the Park/Streetscape Improvements, including, without limitation, clearing, grubbing, erection of construction fencing, and drainage improvements. 3.14 "Comprehensive Plan" shall mean the comprehensive plan which the City has adopted and implemented for the redevelopment and continuing development of the City pursuant to Chapter 163, Part 11 of the Florida Statutes. 3.15 "Construction Agreements" shall mean those contracts bet the Developer and the Contractor, architects, and engineers with whom Developer is i ~~ of contract for the construction of the Park/Streetscape Improvements. i{ f1f l ! #A. (z\ +1A 4 49127872;13 3.16 "C ontractor" shall m ean the Developer's general contractor fo r the construction of the Park/Streetscape Im provem ents, to be selected by Developer in com pliance w ith the requirem ents of Section 65 of this A greem ent. 3.17 "C ontro lli ng Interest" m eans the pow er to dire ct the m anagem ent and decisions (both m ajor decisions and day-to-day operational decisions) of any Person. 3.18 "C ovenant in Lieu of Unity of Title" shall m ean the covenant in lieu of unity of title covering the D evelopm ent Site, substantially in the fo rm attached as Exhibit "H ." 3.19 "D eveloper" m eans the persons or entities undertaking the developm ent of the Devel opm ent Site and th e Park/Stre et scape Impr o vem ent s, as define d in the pre am ble to this Agreem ent, or any perm itted successors, assigns, transferees, delegatees, or heirs thereof. 3.20 "D evelopm ent D efa ult Deadlines" shall m ean those default deadlines set fo rth in Sections 42(b), (c), (d), and (e) of this Agreem ent. 3.21 "D evelopm ent D ispute" shall m ean any contention by Developer that C ity has unreasonably failed to appro ve or give its consent to any m odifications to any Plans and Specifications pursuant to Sections 8, 9, an d/or 11 of this A greem ent, or any contention by C ity that Developer has not com plied w ith its obligations or responsibilities set fo rt h in those sections. 3.22 "D evelopm ent O rder" m eans any order granting, denying, or gra nting w ith conditions an application fo r a Developm ent Perm it. 3.23 "D evelopm ent Site" shall m ean the area described in Exhibi t "F," incl udin g, after the Closing, the D eveloper's right, title, and interest in and to the City Parcel. 3.24 "D evelopm ent Perm it" shall have the m eaning set fo rth in Section 163.3221(5), Florida Statutes (2018). 3.25 "Econom ic Force Majeure" m eans econom ic or political conditions or events that m aterially im pair access to debt or equity m arkets by developers fo r developm ent of pro jects sim ilar to the Project or allow a com m itted debt or equity partici pant to term inate its debt or equity com m itm ent, such as a tem porary or long-term liquidity crisis or m ajor recession, as w ell as disruptions in the norm al functioning of the econom y and/or related debt and equity capital m arkets, including ext re m e and/or prolonged recessionary conditions, sustained elevated levels of unem ploym ent, sustained increased interest rates, sustained losses in valuations of equity, debt, real estate, hospitality and other m arkets, and severe lim itations in the ability to raise liquidity and/or capital thro ugh those m arkets. 3.26 "Effective Date" is the date w hen the C ity records the executed A greem ent in the Public Records of Miam i-D ade County, as pro vided in Section 163.3239, Florida Statutes (2018), and Section 36 of this Agreem ent. 3.27 "Execution D ate" is the date the last of the required Parties executes this Agreem ent. 3.28 "Final A ppro val" shall m ean, w ith respect to the Pro ject Zoning A pprovals, th e Park/Stre et scape Zonin g Appro val, or any other Permits and Approvals for the Projector the Park/Streetscape Improvements, that such permit or approval has been finally approved by the ±%, 5 {{ „±! < oz7n.rs lz"/5 a y .a issuing govern m ental or regulatory body. W ith respe ct to the P roje ct Z o ning A pp rova ls and the P ark/S treetscape Zoning A pprova l, and any other discretio na ry P e rm it or A p p roval req uirin g a public hearing, it shall furt her m ean that all ap p ea l and lim itatio ns pe riod s have expired , w ith no challenges or appeals having bee n m ade or w ith all cha lle ng e s an d ap peals ha ving be e n fin a lly disposed of (by judgem ent, sett lem e nt or othe rw ise ) to D evelope r's satisfa ctio n . N o tw ithstan d ing anyt hing to the contrary , D eveloper w ill be de e m ed to have accepted all cond itio ns att ac hing to a part icular P erm it or A ppro val unle ss the D evelo p e r notifies the C ity in w ritin g , no later tha n th irty (30) days aft er such P erm it or A ppro val is fina lly ap pro ved , of its objectio ns to any suc h cond itio ns and intent to appeal or avail itself of othe r rem edie s. U p on de live ry of such w ritte n notice , the Perm it or A ppro val at issue shall not be dee m e d a "F in al A p prova l" unless and until the off end ing condition is rem oved or the D evelop er w aives its objectio ns by w ritte n notice to the C ity. 3.29 "F orce M ajeure Eve nts" illcl ud e , w itho ut lim itatio n , flo ods, sto rm s, hurr icanes, and other acts of G o d (in cluding reaso nab le prepa ratio n the refo r); w ar, te rro ris m , riots, civil com m otion, fire, and other casualty ; ep idem ics; qua rantine s; strikes, lo ckouts, la bo r disputes, and any inability to procure, or a ge neral sho rt age of, la b o r, eq u ip m e nt, facilitie s, m aterials, or supplies in the open m a rket; bre a kdow n of transm issio n or othe r syste m s or fa cilitie s; the declaration of a state of em ergency by the P re sid ent of the U n ite d S tate s or by the G ove rn o r of Florida that, in each case, incl ud es M iam i-D ade C o unty, B ro w ard C o unty, and/or P alm B e ac h C ounty; m oratoria; the pende ncy of any Law su it (as define d be lo w ) and any un ex pired ap p e a l periods thereof at all levels of ap pe al; acts of the othe r P a rt y; and all othe r causes and circum stances sim ilar to the fo rego ing, but exclud ing E cono m ic Fo rce M aje ure . 3.30 "H old H a rm le ss" sha ll m ea n the H o ld H a rm le ss A g ree m e nt, sub stantia lly in the fo rm attached in E xhibit. "I." 3.31 "Lan d D evelo p m ent R e g u lation s" sha ll ha ve the m e a ning se t fo rt h in S ection 16 3.3221 (8), Florida Statutes (2018 ) and sha ll also incl ud e , w itho ut lim itation , the definition of "land developm ent reg ulatio ns" in S e ction 114 -1 of the C ity C od e . 3.32 "Law s" m eans all ordinan ce s, resolutio ns, re gu latio ns, the C o m p rehe ns ive P lan, Land D evelopm ent R egulatio ns, and rules adopte d by a local go ve rn m e nt hav ing ju risd ictio n affecting the developm ent of land, specifically includ in g the C ity's C om p rehe ns ive P la n and the C ity's Land D evelopm ent R egulatio ns. 3.33 "M aterial M o d ification" and w ords of sim ila r im p o rt sha ll m e an (i) any m odification that reduces the total area of the P a rk/S treetsca pe S ite fro m that show n on the P ark/S treetscape C oncept P lan or on any su b se q u e ntly ap pro ve d P la ns and S p e cificatio ns , as applicable; (ii) any m odification that introdu ce s use s at the Park/S treetscape S ite that have no t been previously approved by the C ity and are sub stantia lly incom p atib le w ith the P ark/S treetscape C oncept P lan or w ith any su b se q uently ap p ro ve d P la ns and S pe ci fication s , as applicable; or (iii) any m odificatio n that sub stantially dim inishe s the physical qua lity of the landscaping and im provem ents sho w n on the P ark/S treetsca p e C on ce pt P la n or on any subsequently appro ved P lans and S p e cification s, as ap p licab le . A ny disa g ree m e nt be tw ee n the P art ies as to w hether a pro posed m o dificatio n is a M a terial M o d ificatio n sha ll be reso lved by expedited arbitration pursuant to S e ctio n 34 of this A gree m e nt. 3.34 "P ark/S treetsca pe C o nce pt P la n" sha ll m e a n the pla ns , de sig n s, and draw ings, illustrating the pro posed concept fo r the Pa rk/S tre et scap e im pr o vem en t s, wh ich -"7- --7-- approved plans are attached in Exhibit "J." 5.- ,717,2 2e +·.) ••+;3 6 49127872;13 3 .3 5 "P a rk/S tre e ts c a p e C o n s tru c tio n C o m m e n c e m e n t D a te " s h a ll m e a n th e d a te o n w h ic h D e v e lo p e r C o m m e n c e s C o n s tru c tio n o f th e P a rk/S tre e ts c a p e Im p ro v e m e n ts . 3 .3 6 "P a rk/S tre e ts c a p e Im p ro v e m e n ts " s h a ll m e a n th e im p ro v e m e n ts to b e m a d e to th e P a rk/S tre e ts c a p e S ite a s fu rt h e r d e s c rib e d in a c c o rd a n c e w ith th is A g re e m e n t. 3 .3 7 "P a rk/S tre e ts c a p e S ite " s h a ll m e a n th e p ro p e rty d e s c rib e d in th e In t ro d u c t io n a n d d e p ic t e d in t h e P a r k/S t r e e t s c a p e C o n c e p t P la n , a s t h e s a m e m a y b e m o d ifi e d b y a n y s u b s e q u e n t ly a p p ro v e d P la n s a n d S p e c ifi c a t io n s . 3 .3 8 "P e r m it s a n d A p p ro v a ls " s h aJ I m e a n t h e P ro j e c t Z o n in g A p p ro v a ls , t h e P a r k /S t r e e t s c a p e Z o n in g A p p r o v a l, a ll B u ild in g P e r m it s (in cl u d in g , w it h o u t li m it a t io n , a "f u ll b ui l di n g p er m i t," a s d e fi n e d in t h e L a n d D e v el o pm en t R e g ul a ti on s ), an d a n y o t h e r D e v e lo p m e n t O r d e r s , D e v e lo p m e n t P e r m it s , o r o t h e r lo c a l, s t a t e , o r f e d e r a l p e r m it s o r a p p r o v a ls r e q u ire d b y a p p lic a b le L a w s o r R e q u ir e m e n t s , fo r t h e P ro j e c t o r t h e P a r k/S t r e e t s c a p e Im p ro v e m e n t s , a s a p p lic a b le . 3 .3 9 "P e r m it t e d T r a n s f e r e e " m e a n s a n y A ffi lia t e o f t h e D e v e lo p e r. 3 .4 0 "P e r s o n " m e a n s a n y in d iv id u a l, fi r m , g e n e r a l o r lim it e d p a rt n e r s h ip , c o r p o r a t io n , lim it e d lia b ilit y c o m p a n y , a s s o c ia t io n , j o in t v e n t u r e , e s t a t e , t r u s t , u n in c o r p o r a t e d a s s o c ia t io n , o r o t h e r e n t it y , a n d a n y fi d u ci a ry a c t in g in s u c h c a p a c it y o n b e h a lf o f a n y o f t h e fo r e g o in g . 3 .4 1 "P h a s e " s h a ll m e a n Ph a s e s 1 and 2 of the Park/Streetscape Improvements, as depicted on the Park/Streetscape Concept Plan or on any subsequently approved Plans and Specifications, as applicable. 3.42 "Plans and Specifications" shall mean the plans and specifications for the design, development, and construction of the Park/Streetscape Improvements, including fully detailed drawings showing the location, character, dimensions, details, and specifications of the work to be done, and comprising all of the written directions, provisions, and requirements for the Park/Streetscape Improvements, including detailed technical requirements as to labor, materials, supplies, equipment, and standards to which such work is to be performed, prepared by duly qualified, licensed and insured architects and engineers, in each case, consistent with the approved Park/Streetscape Concept Plan. As used in this Agreement, the "Plans and Specifications" include, without limitation, the Preliminary Plans and Specifications, the Final Plans and Specifications, the Permit Plans and Specifications, and any approved modifications thereto. 3.43 "Project" shall mean the development, design and construction of the Development Site (including, after the Closing, the Developer's right, title, and interest in and to the City Parcel) consistent with the City's Land Development Regulations for the Ocean Terrace Overlay District and the underlying CD-2 and MXE zoning districts, as the same may be amended from time to time, but subject to Section 28 of this Agreement, and provided that the Project must include at least 75 hotel units and may only include one tower in excess of 125 feet. 3.44 "Recognized Mortgagee" shall mean any Affiliate Mortgagee, bank, savings and loan association, insurance company, an agency of the United Stat · - the Federal National Mortgage Association, the Federal Home Loan Mortgage 7 49127872, 13 any other lender generally recognized as an institutional lender, holding a m ort gage, lie n, or other security interest on the Developm ent Site or a portion thereof, and w ho has notified the C ity that it is a Recognized M ortgagee under this Agreem ent and has pro vided an address fo r notices. 3.4 5 "R equirem ents" shall m ean any and all law s, constitutio ns, rules, regulations, orders, ordinances, charters, statutes, codes, executive orders and requirem ents of all govern m ental authorities having jurisdiction over a person, the Project, and/or the Park/Streetscape Site or any street, ro ad, avenue or sidew alk com prising a part of, or lying in front of, the Park/Streetscape Site. 3.4 6 "S ubstantial C om pletion" and w ords of sim ilar im port shall m ean, w ith respect to the Project or the Park/Streetscape Im provem ents, that such com ponent has been com pl eted in accordance with the Permit Plans and Specifications and the requirements of Section 14.2(a) through (d) have been satisfied, and such component is ready for occupancy, except for so-called "punch list" items (including, without limitation, adjustments to equipment, fixtures, landscaping, and similar items of work) that can be completed after occupancy has been taken without causing substantial interference with the use of such component. 3.47 "Vacation Resolution" means the City's Resolution No. 2019-30927, approving, with conditions, the vacation of the City Parcel. VACATION RESOLUTION 4. Initial Rights and Obligations of City and Developer. The following will constitute the initial rights and obligations of the Developer and City: (a) yacation Resolution for City Parcel. City acknowledges that Developer has submitted a complete application for the vacation of the City's beneficial and legal interest in the City Parcel, also known as portions of Ocean Terrace, 74th Street, and 75th Street. The City agrees to diligently process that application and to promptly schedule same for consideration by the City Commission and adoption of the Vacation Resolution, which shall be substantially in the form attached as Exhibit "K." The Parties recognize that this Agreement does not obligate the City Commission to adopt the Vacation Resolution, and that the City Commission retains the sole and absolute discretion, subject to applicable Laws and Requirements, whether to adopt, adopt with changes, or deny the Vacation Resolution. (b) Failure to Adopt Vacation Resolution. In the event that the City Commission denies the application for the Vacation Resolution or approves it in a form or with any terms, conditions, or obligations inconsistent with this Agreement or that are otherwise unacceptable to Developer in its sole and absolute discretion, then within sixty (60) days of such denial or approval Developer shall, at its option, either: (i) notify the City of its intent to submit a revised application for the vacation of the City Parcel; or (ii) terminate this Agreement in accordance with Section 45 hereof. CLOSING 5. Closing. The Closing shall occur on a date set by Developer, at its election, with prior written notice to the City, but in no event later than ten (1 O) Business Days after the date on which Developer has obtained Final Approval of all Permits and Approvals to „ammence Construction of the Park/Streetscape Improvements and Final Approval of the Pr sr.e' ·t~nin~\ ;;:· 1.î-•,(i ~'\ ;A )] ±\ £>./] 8 i· -_°· ' 49127872;13 .-- A p p ro v als, subje ct to th e termi n a tio n pro vi si on s in S e ctio n 45 be lo w . A t the C lo sing , the D eve lo p e r a n d C it y s h a ll p e rf o r m t h e fo ll o w in g : (a ) T h e C ity , p u r s u a n t t o a n d s u bje c t t o t h e te r m s of the V ac ation R e so lu tio n, w ill de live r a quit cl aim de ed to D e ve lop e r thro ugh w hich the C ity qu it cla im s, rem ises , rele a s e s a n d tra n s f e r s u n t o D evelope r and D ev e lop e r's successo rs and as sig n s fo rever, all right, title , in t e r e s t , cl a im a n d d e m a n d t h a t C it y h a s in a n d to t h e C it y P a r c e l, s u bje c t to D e v e lo p e r 's d e li v e ry o f th e S u r e t y B o n d a n d th e C it y P a r c e l E a s e m e n t (t h e Ci t y D e e d "). (b ) D e v e lo p e r w ill , s u b je c t t o C it y 's d e li v e ry o f t h e C ity D e e d , d e liv e r to C ity a q u it cl a im d e e d th ro u g h w h ic h t h e D e v e lo p e r q u it cl a im s , r e m is e s , r e le a s e s a n d tr a n s f e r s u n t o Ci t y a n d Ci ty's s u c c e s s or s a n d a s si gn s f or e v er , a ll ri g h t, ti tl e , int er e st , cl ai m and demand that Developer has in and to the Reversionary Interest, but reserving the Reversionary Interest in the eastern thirty (30) feet of the Ocean Terrace right-of-way. (c) Developer will grant to City the City Parcel Easement, in the form attached as Exhibit "L," and subject to Section 60.5 of this Agreement. (d) Developer will deliver to City, at Developer's election, either: i. A written tri-party agreement among Developer, the City and the lender providing a construction loan for the construction of the Park/Streetscape Improvements (the "Park_Lender"), in form and substance reasonably acceptable to the City (the "Recognition Agreement"), pursuant to which the Park Lender agrees to (a) fund the then remaining cost to Substantially Complete the construction of the Park/Streetscape Improvements (the "Park Construction Amount") directly to the City in the event the Developer fails to Substantially Complete the Park/Streetscape Improvements in accordance with this Agreement and such failure continues uncured past applicable notice and cure periods, (b) fund the then remaining Park Construction Amount by way of monthly draws pursuant to the draw procedure set forth in the construction loan documents, and (c) fund such then remaining Park Construction Amount directly to the City pursuant to (a) and (b) above, notwithstanding that the Developer may be in default of its construction loan with the Park Lender. The right to draw funds under the Recognition Agreement (or Surety Bond, as applicable) shall be the City's sole and exclusive remedy for the Developer's failure to Substantially Complete the Park/Streetscape Improvements in accordance with this Agreement. If the City receives any funds under the Recognition Agreement, then all conditions precedent to the issuance of all certificates of occupancy and/or certificates of completion for the Project (whether in whole or in part) shall be deemed satisfied, and the Developer shall have the right to apply for, and the City shall have an obligation to issue (when and as required by the City Code), all such approvals, whether or not construction of the Park/Streetscape Improvements has been completed by the City; or ii. A surety bond with a penal sum equivalent to the guaranteed maximum price set forth in the Construction Agreements for the then-remaining design and construction of the Park/Streetscape Improvements, plus City's estimated oversight/inspection costs, or, if the Developer has not executed the Construction Agreements as of the Closing, then with a penal sum equivalent to the City's estimate to complete the then-remaining work for the design and construction of the Park/Streetscape Improvements, but provided that in no event shall the penal sum for the surety bond exceed Fourteen Million Eight Hundred Thousand Dollars ($14,800,000.00), and naming the City as obligee, in a form reasonably acceptable to City, issue by a surety listed in the most recent United States Department of Treasury listing of/ ípproved sureties (the "Surety Bond"). The Surety Bond shall provide that, if Developer fails tos Prf~q~~lyj~: 9 ~"}\ " !.: '-~--~ )__r $.<s 49127872;13 <e.y. C om p lete th e P a rk/S tre e tsc a p e Im p ro v e m e n ts in a c c o rd a n c e w ith th is A g re e m e n t a n d s u c h failure co n tin u e s un c u re d pa st ap p lic a b le no tic e an d cu re pe rio d s , th e n , a s th e C ity 's so le a n d excl usive re m e d y fo r su ch de fa u lt (s u bje c t to C ity 's ex e rci s e of its rig h ts p u rs u a n t to S e c tio n 4 4 (b )), th e su re ty sh a ll be lia b le to C ity fo r th e C ity 's a c tu a l, ou t-o f-p o c k e t e x p e n s e s in c u rr e d in S ubstan tia lly C o m p le tin g th e P a rk/S tre e tsc a p e Im p ro v e m e nts , up to a m a x im u m a g g re g a te liab ility of th e pe n a l su m . D e ve lo p e r sh a ll ha v e the rig h t to re d u c e th e p e n a l s u m of th e S u re ty B ond o n a m o n th ly ba s is to re fle ct the n-re m a in in g co s t of S u b s ta n tia lly C o m p le tin g th e P ark/S tre e tsca p e Im p ro ve m e n ts . T he S u re ty B o n d sh a ll te rm in a te im m e d ia te ly u p o n th e S ubsta ntia l C o m p le tio n of th e P a rk/S tre e tsc a p e Im p ro v e m e n ts in ac c o rd a n c e w ith th is A greem e n t. If th e C ity re ce iv e s an y fun d s fro m the s u re ty p u rs u a n t to th e S u re ty B o n d , th e n a ll con d itio ns pre c e d e n t to th e is s u a n c e o f a ll ce rt ifi c a te s of o c c u p a n c y a n d /o r c e rt ifi c a te s of co m p letio n fo r th e P roje ct sh a ll be de e m e d satis fi e d , a n d th e D e v e lo p e r s h a ll h a v e th e rig h t to ap ply fo r, an d th e C ity sh a ll ha v e a n o b lig a tio n to is s u e (w h e n an d as re q u ire d by th e C ity C o d e ), a ll such ap p ro v a ls , w he th e r o r no t co n stru c tio n of the P a rk/S tre e ts c a p e Im p ro v e m e n ts ha s b e e n com p leted b y th e C ity . (e ) D e v e lo p e r w ill exe c ute a n d re c o rd th e H o ld H a rm le s s A g re e m e n t. (f) The City and Developer shall execute the Covenant in Lieu of Unity of Title. (g) Developer shall submit confirmatory evidence of an agreement between the Developer and the owner of the property located at 7401 Collins Avenue, with respect to any acquisition by Developer of any property rights pertaining to 7401 Collins Avenue in connection with the development of the Project, and any joinder to the Covenant in Lieu of Unity of Title or other Closing documents, as may be required to include the 4,380 sq. ft. right-of-way area abutting 7401 Collins Avenue as part of the unified development site for the Project. Developer shall, in accordance with the provisions of Section 56 of this Agreement, indemnify, defend and hold harmless the City from and against any and all Losses sustained by the City in connection with Developer's election to include property rights related to 7401 Collins Avenue as part of the Project. (h) The City and Developer will execute and record a temporary construction and access easement agreement, substantially in the form of Exhibit "S" to this Agreement, through which the City grants Developer the right to access the Park/Streetscape Site for construction and installation of the Park/Streetscape Improvements and for staging and storage of construction vehicles, equipment, and materials related to the development and construction of the Project and the Park/Streetscape Improvements, including, without limitation, the rights specified in Sections 13.2(a) and 13.2(b) of this Agreement. (i) Developer will deposit in escrow with Akerman LLP or with such other escrow agent selected by Developer in its reasonable discretion ("Escrow Agent") the sum of Fifty Thousand Dollars ($50,000.00) (the "Unwinding Funds"), to be paid to the City in accordance with Section 45 of this Agreement to cover any City Unwinding Expenses ( defined in Section 45 below) in the event that the Developer terminates this Agreement for convenience following the Closing but prior to the Commencement of Construction of the Park/Streetscape Improvements (the "Jnyyinding Escrow"). 10 49127872;13 D E S IG N A N D D IS C R E T IO N A R Y A P P R O V A L S 6. City Cooperation. (a) Developer acknowledges that until the Closing, the City will remain the owner of the City Parcel, and, therefore, applications for design review approval for the Park/Streetscape Improvements, or any other zoning application for any other development that includes the City Parcel while the City is the owner, may lawfully be approved only with the City's joinder. The City, in its proprietary capacity, hereby covenants to cooperate with Developer and agrees to join and execute all applications and supporting documents as Developer may reasonably request of the City in connection with Developer's pursuit of any Permits and Approvals for the Project or the Park/Streetscape Improvements, so long as the same are not materially inconsistent with this Agreement. Notwithstanding the foregoing, the City may revoke such proprietary consent if the Developer terminates or is in material default of this Agreement, and, upon such revocation, the City may, in its governmental capacity, withhold issuance of any Permits and Approvals for the Project or the Park/Streetscape Improvements that require the City's proprietary consent for issuance. Furthermore, the Developer shall not commence vertical construction of the Project prior to the Closing. 7. Pr oje ct Approvals. (a) Developer shall be responsible for the development, design, permitting, and construction of the Project at Developer's sole cost and expense, except as provided in Section 23 below. Developer acknowledges that development of the Project will require design review approval by the City's Historic Preservation Board ("HPB") and, if applicable, conditional use approval by the Planning Board (collectively, the "Project Zoning Approvals"). (b) After the adoption of the Vacation Resolution, the Developer shall, at its sole cost and expense, diligently prepare applications requesting the Project Zoning Approvals (the "Project Zoning Ap plication s"). The City shall join in such Project Zoning Applications as the owner of the City Parcel unless the development requested in such Project Zoning Applications is materially inconsistent with this Agreement. (c) Upon the Developer filing the Project Zoning Applications, the City shall process those applications as expeditiously as possible and in accordance with the requirements of the City Code. The Developer acknowledges that review of the Project Zoning Applications by the City and its boards is quasi-judicial and that nothing in this Agreement obligates the City to approve those applications or limits the quasi-judicial authority of the City and its boards to impose conditions or take any action on the Project Zoning Applications as provided by the City Code. If the Project Zoning Application is denied by the City, or if it is approved by the City with any terms, conditions, or obligations not consistent with this Agreement or that are otherwise unacceptable to Developer in its sole and absolute discretion, then the Developer may elect to: (i) diligently prepare revised applications requesting the Project Zoning Approvals for a revised Project; (ii) exercise any rights of appeal or redress the Developer may have; or (iii) terminate this Agreement in accordance with Section 45 hereof. 8. Park/Streetscape Approvals. 7..5 (a) Developer shall be responsible for the developr , desit ermitting, and construction of the Park/Streetscape Improvements at Developer' cost expense, except as provided in Section 23 below. The design of the Park/Streets Iimprc mnts sh all .¿ .a1 7;---, 11 49127872;13 be su bstan tia lly in a c co rd a n c e w ith th e de s ig n sh o w n in th e P a rk/S tre e ts c a p e C o n c e p t P la n , excep t to th e e xt e nt tha t cha n g e s th e re to ha v e b e e n ne g o tia te d w ith , a n d a p p ro v e d by , C ity . D e ve lo pe r ack n o w le d g e s th a t de ve lo p m e n t of th e P a rk/S tre e tsc a p e Im p ro v e m e n ts , b a s e d o n th e P ark/S tree tsca p e C o n c e p t P la n , w ill re q u ire d e s ig n re v ie w a p p ro v a l by th e C ity 's H P B (th e "P ark/S tree tsc a p e Z o n in g A p p ro va l"). D e v e lo p e r sh a ll be so le ly re s p o n s ib le fo r o b ta in in g th e ap p roval of the C ity's H P B , a n d , su bje ct to a p p lic a b le La w s a n d R e q u ire m e n ts , th e H P B s h a ll have no d uty o r o b lig a tio n to a p p rov e an y p a rt ic u la r d e s ig n . (b ) A ft e r the ad o p tio n of th e V a c atio n R e s o lu tio n , th e D e v e lo p e r s h a ll d ilig e n tly p re pa re an ap p lic a tio n se e k in g de s ig n re v ie w a p p ro v a l of th e P a rk/S tre e ts c a p e Im p ro v e m e n ts (the "P a rk/S tre e tsc a p e Z o n in g A p p lic a tio n "). P rio r to su b m is s io n of the P a rk/S tre e ts c a p e Im p ro v e m e n ts de s ig n to th e H P B , D e ve lo p e r sh a ll s u b m it to C ity (a c tin g in its p ro p rie ta ry ca p a c ity as 'o wn er of th e Ci ty P ar c el ) all of th e pr el im in ar y Pl a n s and Specifications for the Park/Streetscape Improvements, which shall include, but not be limited to, a detailed site plan, elevations, and landscape plan for the Park/Streetscape Improvements (the "Preliminary Plans and Specifications"), which shall be submitted to the City Manager for approval. At a minimum, the Preliminary Plans and Specifications shall be developed to ensure pedestrian and vehicle circulation and access, including, without limitation, the following: i. The Preliminary Plans and Specifications shall address accessibility needs for elderly and/or disabled persons, and shall be designed to ensure that public access to the City's beaches is maintained. ii. The Preliminary Plans and Specifications shall provide for a "reasonable flow" for ingress/egress of vehicles on 75th Street, with a proposed solution that may include either a drop-off loop or other turn-around at the east end of 75th Street, or any other similar proposed solution as may be approved by the City Manager at the City Manager's sole discretion, to ensure vehicular access to the 75th Street parking lot and/or access for drop-offs to the beach. iii. The Preliminary Plans and Specifications shall provide for emergency vehicle access to the Park/Streetscape Site, as well as for buildings located in the vicinity of the Park/Streetscape Site, including vehicular drop-offs for elderly visitors to the UNIDAD building at 7251 Collins Avenue, and load- in/load-out needs for the North Beach Bandshell located at 7275 Collins Avenue. iv. The Preliminary Plans and Specifications shall provide for ingress/egress for pedestrians and vehicles accessing the St. Tropez property located at 7330 Ocean Terrace ("St. Tropez"), and shall incorporate any comments as may be provided by the City Manager with respect to ingress/egress for the St. Tropez. Notwithstanding any other provisions in this Agreement to the contrary, the portions of the Plans and Specifications for the Park/Streetscape Project relating to Subsections 8(b)(i) through 8(b)(iv) shall be subject to approval by the City Manager at the City Manager's sole discretion (or by the City Commission pursuant to Section 63). ·-.. (c) The City Manager shall review the Preliminary Plans ±68 specifications solely for general consistency with the Park/Streetscape Concept Plan and t t~J; of 12 <we 49127872;1 3 ) / this Agreement. The City Manager (or the City Commission pursuant to Section 63) will not withhold, delay, or condition the City's proprietary approval so long as the proposed Park/Streetscape Improvements substantially accord with the Park/Streetscape Concept Plan in all material respects, or contain only those material changes that were previously negotiated with, and approved by, City in its proprietary capacity. If the City Manager (or the City Commission pursuant to Section 63) disapproves the Preliminary Plans and Specifications, then Developer shall, at its election, either (x) submit the City's disapproval to expedited arbitration pursuant to Section 34 as to the reasonableness of the disapproval, or (y) submit a revised modification to the Preliminary Plans and Specifications to meet the City's objections, which revised modification shall be submitted and reviewed as provided in Section 9. The Developer may not file, and the City may not join, the Park/Streetscape Zoning Application until the City Manager (or the City Commission pursuant to Section 63) has approved the design of the Park/Streetscape Improvements in its proprietary capacity. (d) After the City Manager has approved the design of the Park/Streetscape Improvements in its proprietary capacity, the Developer shall diligently pursue the approval of the Park/Streetscape Zoning Application through the issuance of an HPB Order (the "Park/Streetscape Zoning Approval"). Although the Project Zoning Applications will be separate applications from the Park/Streetscape Zoning Application, it is the express intent of the Parties that the Project Zoning Applications and the Park/Streetscape Zoning Application will all be scheduled before and heard by the HPB on and at the same meeting date. Developer will endeavor to have the Park/Streetscape Zoning Application and the Project Zoning Applications heard by HPB within twelve (12) months following the Effective Date of this Agreement, but the failure to do so will not be deemed an Event of Default. (e) Developer acknowledges that review of the Park/Streetscape Zoning Application by the City and its boards is quasi-judicial, and that nothing in this Agreement obligates the City to approve that application or limits the quasi-judicial authority of the City and its boards to impose conditions or take any action on the Park/Streetscape Zoning Application as provided by the City Code. If the Park/Streetscape Zoning Application is denied by the City, or if it is approved by the City with any terms, conditions, or obligations not consistent with this Agreement or that are otherwise unacceptable to Developer in its sole and absolute discretion, then the Developer may elect to: (i) diligently prepare revised applications requesting the Park/Streetscape Improvements Zoning Approval for revised Park/Streetscape Improvements after proprietary approval by the City Manager as set forth above; (ii) exercise any rights of appeal or redress the Developer may have; or (iii) terminate this Agreement in accordance with Section 45. (f) Upon receipt of the HPB's approval of the Park/Streetscape Improvements, Developer shall prepare plans and specifications for construction of the Park/Streetscape Improvements, consistent with the Preliminary Plans and Specifications, as approved by the HPB, if applicable, for confirmatory review by the City Manager (the "Final Plans and Specifications"). Developer shall pursue approval by the City Manager of the Final Plans and Specifications diligently and in good faith. The Final Plans and Specifications shall be reviewed by the City Manager for substantial consistency with the Preliminary Plans and Specifications as the same have been modified by the HPB, if applicable. If the City Manager (or the City Commission pursuant to Section 63) disapproves the Final Plans and Specifications, then Developer shall, at its election, either (x) submit the City Manager's disapproval to expedited arbitration pursuant to Section 34 as to the reasonableness of the disapproval, or (y) submit a revised modification to the Final Plans and Specifications to meet the City Manager's objections, which révised modification shall be submitted and reviewed as provided in Section 9. Nothing in this jaragrap ?} shall obligate the City to accept Final Plans and Specifications that are inconsister ;iithithè ,, i? 2k ? is/8 y¿n ¢ ¢ 13 %oz5Sp 49127872;13 P re lim in a ry P la n s a n d S p e c ifi c a tio n s e x c e p t fo r th o s e in c o n s is te n c ie s th a t a re n e c e s s ita te d b y th e P a rk/S tre e ts c a p e Im p ro v e m e n ts Z o n in g A p p ro v a l o r b y th e R e q u ire m e n ts . 9. Park/Streetscape Plan Material Modifications. (a) If Developer desires to implement Material Modifications to previously approved Plans and Specifications, Developer shall submit any such modified Plans and Specifications to the City Manager for approval in the City's proprietary capacity. Such modified Plans and Specifications shall clearly indicate, by "ballooning", highlighting, blacklining or describing in writing in sufficient detail in a memorandum accompanying such modified Plans and Specifications, all such proposed Material Modifications to the Plans and Specifications. Promptly after its receipt of the proposed Material Modifications, the City Manager shall notify Developer in writing, with specificity, of any Material Modifications of which City disapproves, it being agreed, however, that the City Manager's failure to notify Developer of its disapproval within fifteen (15) Business Days of its receipt of the proposed Material Modifications shall be deemed to constitute City's conclusive approval of such modified Plans and Specifications. Notwithstanding anything to the contrary, City shall not unreasonably withhold, condition, or delay the City's approval of any modifications to the Plans and Specifications that, regardless of materiality, are necessitated by Requirements or as a result of a drafting, coordination, mechanical or technical error in the Plans and Specifications, and all such modifications shall be deemed approved by the City in its proprietary capacity. (b) If the City Manager (or the City Commission pursuant to Section 63) disapproves any proposed Material Modifications to the Plans and Specifications, then Developer shall submit revised Plans and Specifications or a revised modification to the Plans and Specifications to meet the City Manager's objections, which revised Plans and Specifications or revised modification shall be reviewed as provided in Section 9(a), as applicable. BUILDING PERMITS 10. City Joinder. The Developer acknowledges that until the Closing, no application for a Building Permit for the Project or the Park/Streetscape Improvements may lawfully be approved (and no Building Permit may be issued) without the City's joinder to such application while the City is the owner of the City Parcel. The City agrees, upon Developer's request, to join any application for a Building Permit for the Project and/or Park/Streetscape Improvements, and any application for a Covenant in Lieu of Unity of Title, so long as the same are not materially inconsistent with this Agreement, but a Building Permit for the Park/Streetscape Improvements shall not issue until the Closing, and a Building Permit for the Project shall not issue until the City has issued a Building Permit for the Park/Streetscape Improvements. Notwithstanding the foregoing, the City may revoke such proprietary consent if the Developer terminates or is in material default of this Agreement, and, upon such revocation, the City may, in its governmental capacity, withhold issuance of any Building Permits for the Project or the Park/Streetscape Improvements that require the City's proprietary consent for issuance. 11. Prerequisites to Park/Streetscape Building Permit. Prior to submitting an application for a Building Permit for the Park/Streetscape Improvements, Developer shall prepare and submit to City (acting in its proprietary capacity as owner of the City Parcel), for confirmatory review and approval by the City Manager, the Plans and Specifications intended to be used to obtain the required Building Permit (the "Permit Plans and Specifications"). If such submitted Permit Plans and Specifications contain Material Modifications to the Final Plans and Specifications approved by the City Manager following HPB approval in accordance ith Section @@$ 49127872,13 ~j'> 8 (f) a b o v e (o r a n y m o re re c e n tly m o d ifi e d P la n s a n d S p e c ifi c a tio n s a p p ro v e d in a c c o rd a n c e w ith S e c t io n 9 (a ) a b o v e ), t h e n s u c h P e r m it P la n s a n d S p e c ifi c a tio n s s h a ll cl e a rly in d ic a te , by "bal lo on in g", highlighting, blacklining or describing in writing in sufficient detail in a memorandum accompanying such Permit Plans and Specifications, all such Material Modifications. Promptly after its receipt of such Permit Plans and Specifications, the City Manager shall notify Developer, in writing, describing, with specificity, the basis for disapproval of any Material Modifications of which the City Manager disapproves. Further, whenever Developer advises the City Manager in writing, and the City Manager agrees with Developer in writing, that the Permit Plans and Specifications, as approved as herein provided above, are complete and sufficient and suitable to construct, furnish and equip the entire Park/Streetscape Improvements in accordance with the provisions of this Agreement, such written agreement shall be deemed to constitute City's conclusive approval of all modifications and inconsistencies, whether or not th-e modifications are highlighted, in such Permit Plans and Specifications. Notwithstanding anything to the contrary, City shall not object to any modifications to any Plans and Specifications (i) that are not Material Modifications, or (ii) that, regardless of materiality, are necessitated by Requirements or as a result of a drafting, coordination, mechanical or technical error in the Plans and Specifications, and all such modifications shall be deemed approved by the City in its proprietary capacity. CONSTRUCTION OF PARK/STREETSCAPE IMPROVEMENTS 12. Conditions Precedent to Developer's Commencement of Construction of the Park/Streetscape Improvements. 12.1 Developer shall not Commence Construction of the Park/Streetscape Improvements or any Phase thereof unless and until: i. the Closing shall have occurred; ii. Developer shall have obtained and delivered to City's Consultant copies of all Permits and Approvals required to Commence Construction of the Park/Streetscape Improvements; iii. Developer shall have delivered to City original certificates of the policies of insurance required to be carried pursuant to the provisions of Exhibit "N" to this Agreement; iv. Contractor shall have furnished to City the Payment Bond and Performance Bond required by Section 12.3; v. City Manager shall have approved the Permit Plans and Specifications, as provided in Section 11; vi. Developer shall have delivered to the City a duly executed original Assignment of Construction Agreements for the Park/Streetscape Improvements, and a duly executed original Assignment of Plans, Permits and Approvals for the Park/Streetscape Improvements; and vii. Contractor shall have submitted to Developer and City a schedule as provided in Section 19.2; 15 49127872,13 pro vided, how ever, if Developer chooses to perform any construction of the Park/Streetscape Impro vements on a "fast track" basis (other than pursuant to the Phases approved herein), Developer may request the necessary appro val of the City Manager in stages and perform that portion of the construction work w hich has been appro ved by the City Manager at the City Manager's reasonable discretion (provided Developer shall com ply with all of the requirem ents of Section 12.1 above, and all other applicable requirem ents w ith respect to such portion of the construction work), even if pro gress plans and specifications fo r other portions of the construction work have not yet been prepared. 12.2 In addition to the City's cooperation obligations set fo rth elsew here in this Agreement, the City (solely in its capacity as the ow ner of the City Parcel and not in its govern m ental capacity) hereby covenants to fully cooperate with Developer (at no cost to the City) in obtaining any an d all Perm its an d Ap pro vals require d for th e Project and th e Park/Stre etscape Impro vements, and any necessary utility access agreements, including, w ithout lim itation, by signing all applications reasonably made by Developer that are required to obtain such Perm its and Appro vals and utility access agreem ents. In addition, the City shall provide Developer w ith any info rmation and/o r docum entation not otherw ise reasonably available to Developer (if available to City) which is necessary to pro cure such Permits and Approvals and utility access agreements. Any such accommodation by City shall be w ithout prejudice to, and shall not constitute a waiver of, City's rights to exercise its discretion in connection w ith its govern m ental functions. Developer shall reim burse City , w ithin thirty (30) Business Days after City's w ritten demand, fo r all actual, documented out-of-pocket cost and expenses paid by the City to the City's outside technical consultants (other than City's Consultant and City's em ployees), such as architects and engineers, in connection w ith City's assistance in obtaining any such Perm its and Appro vals and utility access agreements; provided, how ever, that any reim bursable cost or exp ense exceeding On e Th ousan d Dollar s ($1,000.00) indivi dually, and all reimb u rsable costs or expenses exceeding Five Thousand Dollars ($5,000.00) in the aggregate for any discrete task or component, shall require the Developer's prior written approval. The· City's failure to obtain Developer's prior written approval shall relieve Developer of any obligation to reimburse the City for such unapproved costs or expenses. In addition, the City hereby agrees to furnish Developer, on or by the fifth (5) Business Day of each month, with a monthly financial report detailing, with specificity, expenditures by the City Consultant for the immediately preceding month. Developer shall have the right to audit all City Consultant expenditures from time to time. 12.3 Prior to Commencement of Construction of the Park/Streetscape Improvements, Developer shall cause the Contractor to furnish to City a payment bond ("Payment Bond") and performance bond ("Performance Bond") naming the City and Developer as co- obligees, substantially in the form attached as Exhibit "M" hereto (with any modifications approved in advance by the City), issued by a surety satisfying the bonding requirements set forth in Exhibit "N" attached hereto, guaranteeing the performance of the Contractor under that certain guaranteed maximum price contract for the construction of the Park/Streetscape Improvements. If the Contractor fails to complete the construction of the Park/Streetscape Improvements as required by this Agreement, (i) the City may make demand upon the surety to perform its obligations under the Payment Bond and Performance Bond, including completion of the work; or (ii) in the alternative and provided that same does not render the Payment Bond and Performance Bonds void or otherwise voidable by the surety, the City may take over and complete the work, or any portion thereof, by its own devices, by entering into a new contract or contracts for the completion of the work, or using such other methods as in the City's reasonable opinion shall be required for the proper completion of the work, including succeeding to the rights of the Developer. and/or Contractor. Subject to the terms and conditions of the Payment Bond and the Performance· , Bond, as applicable, the City may also charge against the Performance Bond and Payment Porfdj }I al5%2 1o $<es 49127872,13 a ll fe e s a n d ex p e n s e s fo r s e rv ic e s in c id e n ta l to a s c e rt a in in g a n d c o lle c tin g lo s s e s un d e r th e P e rf o rm a n c e B o n d a n d P a y m e n t B o n d in c lu d in g , w ith o u t lim ita tio n , a c c o u n tin g , e n g in e e rin g , a n d le g a l fe e s , to g e th e r w ith a n y a n d a ll c o s ts in c u rre d in co n n e c tio n w ith re n e g o tia tio n of th e A g re e m e n t. T h e C o n tra c to r s h a ll ha v e th e rig h t to re d u c e th e fa c e v a lu e o f th e P a y m e n t B o n d a n d P e rf o rm a n c e B o n d o n a c a le n d a r q u a rt e r b a s is a s co n s tru c tio n of th e P a rk/S tre e ts c a p e Im p ro v e m e n ts p ro g re s s e s to re fle ct th e n -re m a in in g c o s ts of S u b s ta n tia lly C o m p le tin g th e P a rk/S tre e ts c a p e Im p ro v e m e n ts . 13 . C o m m e n c e m e n t o f C o n s tru c tio n o f th e P a rk/S tre e ts c a p e Im p ro v e m e n ts . 13 .1 D e v e lo p e r s h a ll at its e x p e n s e (a ) C o m m e n c e C o n s tru c tio n of P h a s e 1 of th e P a rk/S tre e ts c a p e Im p ro v e m e n ts n.o la te r th a n n in e ty (9 0 ) B u s in e s s D a y s aft e r D e v el op er • o b ta in s (i) F in a l A p p ro v a l of th e P roje c t Z o n in g A p p ro v a ls , o r (ii) F in a l A p p ro v a l of a ll P e rm its an d A p p ro v a ls fo r th e P a rk/S tre e ts c a p e Im p ro v e m e n ts , w h ic h e v e r o c c u rs la s t, a n d (b ) th e re a ft e r c o n tin u e to p ro s e c ute c o n s tru c tio n of th e P a rk/S tre e ts c a p e Im p ro v e m e n ts w ith re a s o n a b le g o o d fa ith d ilig en c e an d con ti n u ity to c om p le ti on . In th e e v e n t th e 74" Street design feature depicted in the Park/Streetscape Concept Plan is approved by the HPB and is approved as part of the Final Plans and Specifications, such design feature shall be completed as part of Phase 1 of the Park/Streetscape Improvements. 13.2 During the construction of the Project and the Park/Streetscape Improvements, the City shall provide the following construction staging, storage, use and construction parking accommodations to the Developer and the Contractor at no cost or expense to the Developer or the Contractor: (a) During construction of the Park/Streetscape Improvements, the Developer and its contractors will have the right to use the areas within Phases 1 and 2 of the Park/Streetscape Improvements as staging areas and lay-down yards in connection with the construction of the Park/Streetscape Improvements. (b) During construction of the Project, the Developer and its contractors will have the right to use the area within Phase 2 of the Park/Streetscape Improvements as staging areas and lay-down yards in connection with the construction of the Project. (c) The City will budget and appropriate, from the General Fund, the amounts necessary to pay the Parking Department for up to 100 monthly parking passes at the then-prevailing standard rates, for use by the Developer and its contractors, during construction of the Park/Streetscape Improvements and the Project or any phase or portion thereof, up to the aggregate not-to-exceed amount of Three Hundred Thousand Dollars ($300,000.00) (the "Not-to- Exceed Amount"). Once the Not-to-Exceed Amount has been expended, Developer shall be solely responsible for making appropriate parking arrangements for its employees, contractors and their respective employees. Developer and its contractors may use such monthly parking passes at the following City-owned parking lots, provided such parking lots are then being operated as municipal parking lots: i. Collins Ayenue and 75 Street_ (Lot 1Q6). A maximum of 25 Developer/contractor parking spaces may be utilized at this location at any time, with the remainder of the lot to be made available for parking for the general public. No Developer/contractor park" tay occur on this lot on weekends or legal holidays. ~./ 1::J.-:3,f~q. 3 -' /{ a f 4..s Is \·?. __ '' r, < 11 ••• <, ..... :' o EG 11.-- 17 49127872;13 ii. 2 9 9 7 2 ° St re et (L o t 9 2 ). P a rking wi ll b e m a d e a v ai la bl e un ti l s u ch tim e a s th e C ity co m m e n c e s co n s tru c tio n o f a C ity p a rk in g g a ra g e at th is lo c a tio n . N o lim ita tio n o n th e nu m b e r o f D e v e lo p e r/c o n tra c t pa rk in g s p a c e s th a t m a y b e us e d a t th is lo t a n d no re s tric tio n s o n w e e k e n d o r h o lid a y us e ; ho w e v e r, th e C ity 's p a rk in g d ire c to r re ta in s d is c re tio n to lim it D e v e lo p e r/c o n tra c to r p a rk in g o n th is lo t to n o t le s s th a n 2 5 p a rk in g s p a c e s a t a n y g iv e n tim e if h e /sh e d e te rm in e s , b a s e d o n d o c u m e n te d p a rk in g c o u n ts a n d oth e r o bje c tiv e d a ta , th a t s u c h lim ita tio n is n e c e s s a ry to sa tisfy p u b lic pa rk in g d e m a n d o n th e lo t. iii. 8 0 4 0 C o llin s A v e n u e (L o t 10 8 ). N o lim ita tio n o n th e n u m b e r of D e v e lo p e r/c o n tra c t p a rk in g sp a c e s th a t m a y b e u s e d a t th is lo t a n d no re s tric tio n s o n w e e k e n d o r ho lid a y u s e , e x c e pt as ne c e s s a ry to ac c o m m o d a te va le t us e a s p ro v id e d in S e c tio n 13 .3 o f th is A g re e m e n t. iv . 8 3 0 0 C o llin s A v e n u e (L o t 10 9 ). N o lim itatio n o n th e nu m b e r of D e v e lo p e r/c o n tra c t p a rk in g s p a c e s th a t m a y b e u s e d a t th is lo t a n d no re s tric tio n s o n w e e k e n d o r ho lid a y u s e . v . O th e rs . S u c h a d d itio n a l C ity lo ts in th e g e n e ra l v ic in ity of th e D e v e lo p m e n t S ite a s th e C ity m a y d e s ig n a te fr o m tim e to tim e , w ith su c h lim ita tio n s a n d re s tric tio n s , if a n y , as a g re e d to b y th e C ity a n d D e v e lo p e r. 13 .3 City, through its valet concessionaire, will operate the Collins Avenue and 75 Street parking lot (Lot 106) and the 8040 Collins Avenue parking lot (Lot 108) for valet purposes on Saturdays, Sundays, and legal holidays or as otherwise agreed to by the Developer and the City, commencing upon the Commencement of Construction of Phase 1 of the Park/Streetscape Improvements, and will establish and maintain discounted pricing for City residents comparable to the differential pricing in favor of City residents at other City-owned parking lots. Developer agrees to reimburse the City for 75% of the actual, documented, out-of- pocket losses, if any, sustained by the City for such valet operations at Lots 106 and 108, up to a maximum of One Hundred Thousand Dollars ($100,000.00) in the aggregate, until the later of (i) Substantial Completion of Phase 1 of the Park/Streetscape Improvements, or (ii) four (4) years following the Effective Date of this Agreement. 13.4 In addition, if the City adopts a suitable amendment to the City Code that permits the construction of a temporary gravel or stone parking lot on one or more of the vacant North Beach "West Lots," and exempts such temporary parking lot from compliance with the temporary parking lot standards of Section 130-70 of the City Code, then the Developer will, at its sole cost and expense, construct such gravel or stone parking lot with chain-link perimeter construction fencing for use as overflow valet parking and as temporary construction parking for the Project and the Park/Streetscape Improvements in support of the parking arrangements contemplated by Sections 13.2(c) and 13.3 of this Agreement. 49127872,13 13.5 During the construction of the Park/Streetscape improvements, Developer shall sequence its work to ensure that at least one continuous beachwalk path is maintained running north and south through the Park/Streetscape Site, for the benefit of the general p lio, Notwithstanding the foregoing, the Developer may (with prior approval from the City „4ager\ close the beachwalk access for periods not to exceed ten (1 O) consecutive calendar d1 ß!át-41!1~ '\,,~~\ ft »¡ [7 t nt, I Me"i„ s u g iv e n tim e , at th e C ity M a n a g e r's re a s o n a b le d is c re tio n , fo r th e p u rp o s e o f a c c o m m o d a tin g u n u s u a l co n s tru ct io n a c tiv itie s th a t m a y re q u ire s u c h cl o s u re . 14 . S u b s ta n tia l C o m p le tio n of C o n s tru c tio n of th e P a rk/S tre e ts c a p e Im p ro v e m e n ts . 14 .1 D e v e lo p e r s h a ll S u b s ta n tia lly C o m p le te th e c o n s tru c tio n of th e P a r k /S t r e e t s c a p e Im p ro v e m e n ts in P h a s e s in a c c o rd a n c e w ith th e c o n s tru c tio n s c h e d u le se t fo rt h in S e c t io n 4 2 o f t h is A g r e e m e n t. S u b s t a n t ia l C o m p le tio n of th e P a rk/S tre e ts c a p e Im p ro v e m e n ts s h a ll b e a c c o m p li s h e d in a d ili g e n t m a n n e r , a n d fi n a l c o m p le t io n o f t h e C o n s t r u c t io n o f t h e P a r k /S t r e e t s c a p e Im p ro v e m e n t s , in cl u d in g b u t n o t li m it e d t o c o m p le t io n o f a ll p u n c h -lis t it e m s , s h a ll b e a c c o m p lis h e d in a d ilig e n t m a n n e r t h e r e a ft e r , in e a c h c a s e in a g o o d a n d w o r k e r lik e m a n n e r , in s u b s t a n t ia l a c co r d a n c e w it h t h e P la n s a n d S p e c ifi c a t io n s (w it h n o M a t e r ia l . M o d ifi c a t io n s e x c e p t a s e x p r e s s ly p e r m itt e d h e r e in ), in a c c o r d a n c e w it h a ll a p p lic a b le R e q u ir e m e n t s a n d , e x c e p t a s p ro v id e d in S e c ti on 2 3 , a t D e v e lo p e r 's s o le c o s t a n d e x p e n s e . 1 4 .2 U p o n S u b s t a n t ia l C o m p le t io n o f t h e P a r k/S t r e e t s c a p e Im p ro v e m e n t s o r a n y P h a s e t h e r e o f , D e v e lo p e r s h a ll f u rn is h C it y w it h t h e fo ll o w in g : (a ) c er ti fi c a ti on of the architect (certified to City on the standard AIA certification form) that it has examined the Plans and Specifications and that, in its professional judgment, after diligent inquiry, the Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) have been Substantially Completed in accordance with the Plans and Specifications applicable thereto and, as constructed, the Park/Streetscape Improvements comply with all applicable construction Requirements; (b) if Requirements require the same, a copy or copies of the temporary certificates of occupancy and/or certificates of completion for the Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) issued by the City of Miami Beach Building Department; (c) lien waivers in form and substance reasonably satisfactory to City from the Contractor and any other contractor, subcontractor, supplier or materialman retained by Developer in connection with the construction of the Park/Streetscape Improvements, evidencing that such persons have been paid in full for all work performed or materials supplied in connection with the construction of the Park/Streetscape Improvements; and (d) a complete set of "as built" plans and a survey showing the Park/Streetscape Improvements (or the relevant Phase thereof, as applicable) as Substantial Completed. City shall have an unrestricted license to use such "as built" plans and survey for any purpose related to the Park/Streetscape Site without paying any additional cost or compensation therefor, subject to copyright and similar rights of the architect to prohibit use of designs for purposes unrelated to the Park/Streetscape Site, as such rights exist in law or may appear in the architect's contract, and subject to applicable public records laws. The foregoing requirement with respect to "as built" plans shall be satisfied by Developer furnishing to City, at Developer's expense, a complete set of Plans and Specifications, with all addenda thereto and change orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Park/Streetscape Improvements up to Substantial Completion. 19 49127872;13 14 .3 U p o n D e v e lo p e r's d e liv e ry to C ity o f ite m s 14 .2 (a ) th ro u g h (d ) a b o v e , th e P a rk /S tre e ts c a p e Im p ro v e m e n ts s h a ll b e d e e m e d to b e S u b s ta n tia lly C o m p le te a n d C ity s h a ll b e d e e m e d to h a v e ac c e p te d th e P a rk/S tre e ts c a p e Im p ro v e m e n ts in th e ir th e n co n d itio n . 15. 16. Not Used. Compliance with Requirements: Construction Standards 16.1 Notwithstanding anything to the contrary contained herein, the Plans and Specifications shall comply with all applicable Requirements. It is Developer's responsibility to assure such compliance. City's approval in accordance with this Section 16 of any Plans and Specifications shall be deemed to be a determination by City that the Plans and Specifications so approved are in substantial conformity with this Agreement, but shall not be, and shall not be construed as being, or relied upon as, a determination that such Plans and Specifications comply with other applicable Requirements, including, without limitation, any Requirements providing for the review and approval of the Plans and Specifications by any governmental authority (in its governmental capacity as opposed to its proprietary capacity). 16.2 In connection with any work related to the construction of the Park/Streetscape Improvements, Developer shall comply promptly with all Requirements. No consent to, approval of or acquiescence in any plans or actions of Developer by City, in its proprietary capacity, or City's designee shall be relied upon or construed as being a determination that such are in compliance with the Requirements, or, in the case of construction plans, are structurally sufficient, prudent or in compliance with the Requirements. Failure of this Agreement to address a particular governmental or regulatory permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the Laws governing said permitting requirements, conditions, term or restriction. 17. Not Used. CITY PARTICIPATION 18. City's Right to Use Field Personnel. City reserves the right, at its sole cost and expense, to maintain on site-representative(s) at the Park/Streetscape Site to observe the progress of the construction of the Park/Streetscape Improvements (provided, however, that City shall be entitled to maintain additional on-site representatives from time to time to the extent reasonably necessary to perform such progress reviews), and Developer agrees to provide access to the Park/Streetscape Site for such limited purpose, including, without limitation, access to the preparation work and work in progress wherever located. No such progress review by the City's on-site representative(s) shall impose upon City responsibility or liability for any failure by Developer to observe any Requirements or safety practices in connection with such construction work, or constitute an acceptance of any work which does not comply with the provisions of this Agreement, and no such progress review shall constitute an assumption by City of any responsibility or liability for the performance of Developer's obligations hereunder, nor any liability arising from the improper performance thereof. The City's on-site representative(s) shall not interfere with any construction work being performed at the Park/Streetscape Site, shall comply with all safety standards and other job-site rules and regulations of Developer, and shall make entry upon the Park/Streetscape Site in its "as-is" condition, with all faults, whether latent or apparent. The City's on-site representative(s) will observe the progress of the construction of the Park/Streetscape Improvements only. Further, the City shall designate, by written notice to Developer, one on-site representative as the City's principal representative (such indiyidual the e#i sas» _ "C ity's C onsultant"). The City's Consultant shall serv e as Developer's direct point of contact w ith th e C ity fo r c o n s tru c tio n m a tt e rs re g a r ding the Park/Streetscape Im provem ents and shall be responsible fo r coordinating all progress review s by the City's other representative(s) w ith D e v e lo p e r u n d e r th is S e ct i on 18 and gathering and submitting to Developer all comments provided by such other representative(s). The City's on-site representative(s) shall communicate only with the City's Consultant and shall make only such communications as are reasonably necessary to enable the City's on-site representative to conduct its investigations under this Section 18. In no event shall the City's Consultant or the other on-site representative(s) give directions to Developer, to the Developer's representative, or to any member of the Developer's construction team. Developer shall endeavor to provide a reasonable work area for use by the City's Consultant and on-site representative(s) during such progress reviews as is customarily provided at similar construction sites for such purposes. All expenses. incurred by City's Consultant and on-site representative(s) shall be paid by City. 19. City's Right to Notice, Access and Review. 19.1 Developer acknowledges that City has appointed the City's Consultant as the City's consultant in connection with the construction of the Park/Streetscape Improvements in accordance with the terms of this Agreement. In connection therewith, Developer agrees to cooperate with the reasonable requests of the City's Consultant. In furtherance thereof, Developer agrees that the City's Consultant, and its authorized representatives, shall have such rights of notice, access and review with respect to the Park/Streetscape Improvements and the Construction Agreements as is reasonably necessary to achieve the foregoing (including, but not limited to verifying on City's behalf that the construction of the Park/Streetscape Improvements is being conducted in accordance with the terms hereof), including, without limitation, the following: (a) the opportunity for attendance by the City's Consultant at regularly scheduled construction work status meetings between the Developer and the Contractor (which Developer will endeavor to have scheduled not less frequently than once each month following Commencement of Construction until Substantial Completion of the Park/Streetscape Improvements) and at any special meetings which Developer deems necessary in its reasonable discretion as to change orders, delays and other material issues concerning the Park/Streetscape Improvements; (b) the inspection by the City's Consultant of all construction work (in accordance with the provisions of Section 18); (c) the opportunity for attendance by the City's Consultant at the design presentations given to Developer for the Park/Streetscape Improvements; (d) upon the City's prior written request, the delivery by Developer to the City's Consultant of a copy of: (i) the executed contract between Developer and the Contractor for the Park/Streetscape Improvements; (ii) the Plans and Specifications (and modifications thereto, with such modifications being clearly indicated, by "ballooning", highlighting, or blacklining or, the Plans and Specifications or describing in writing in sufficient detail in a memorandu accompanying such modified Plans and Specifications to be provided following· ··-súbs,t~rïi)g. 7 E \ +.i» S •é = 21 49127872,13 C om pletion of the Park/Streetscape Im pro vem ents), w orking and other draw ings, re nderings, blueprints, specifications, layouts and change orders; and (iii) all insurance certificates required by Exhibit "N" of this Agreement. To the extent the exercise of the City's rights hereunder requires the opportunity for review of any documents or the opportunity for participation in any meetings, as determined by Developer in its reasonable discretion, Developer agrees, without request therefor by City, to promptly provide copies of such documents or notice of such meetings to City and the City's Consultant, as applicable, after receipt of the same by Developer and reasonably in advance of any meetings to allow for appropriate travel arrangements to the extent practical under the circumstances. If City's Consultant is not in attendance, the meeting will proceed and, upon the City's prior written request, Developer will provide City's Consultant with minutes of the meeting. The City's Consultant shall not interfere with any construction work being performed at the Park/Streetscape Site and shall comply with all safety standards and other job-site rules and regulations of Developer and shall make entry upon the site in its as-is condition, with all faults, whether latent or apparent. The City shall require the City's Consultant to maintain, at no cost to the Developer, commercial general liability insurance naming the City and the Developer as additional insureds. 19.2 Prior to the Commencement of Construction of the Park/Streetscape Improvements, Developer shall provide to City a construction schedule for each Phase of the Park/Streetscape Improvements, which schedule shall be prepared using the critical path method ("CPM"); such schedule, as it shall be amended from time to time in accordance with the Construction Agreements, shall be referred to as the "CPM Schedule"), including a CPM network diagram, for use in scheduling and controlling the construction of the Park/Streetscape Improvements. Developer shall, upon the City's prior written request, promptly provide to the City's Consultant information copies of the CPM Schedule. The CPM Schedule shall (1) be revised by Developer whenever there is a material variance in the progress of the construction of the Park/Streetscape Improvements from the then-current CPM Schedule and otherwise at appropriate intervals, but no more frequently than monthly unless Developer elects, in its sole discretion, to undertake more frequent updates; and (2) provide for expeditious and practicable execution of the construction of the Park/Streetscape Improvements. Developer shall promptly inform the City's Consultant of any deviation from the CPM Schedule which, in Developer's good- faith determination, is likely to cause a material delay in the Substantial Completion of the Park/Streetscape Improvements (as shown on the current CPM Schedule). 20. Not Used. 21. Construction Agreements; Required Clauses. 21.1 AII Construction Agreements which provide for the performance of labor for the construction of the Park/Streetscape Improvements shall, to the extent applicable to the scope of work governed by such Construction Agreement, include the following provisions (or language substantially similar thereto which is approved in advance by City); provided, however, that any Construction Agreement having aggregate payments of Five Hundred Thousand Dollars ($500,000.00) or less shall not be required to include the provisions set forth in paragraph (i) below: 4,E7° (a) "Contractor shall provide, prior to the commencement(f#a.4. of the work, and maintain during the performance thereof, the insurance set forth or ·ji" - .. ~ . e -- 22 E. 49127872;13 attache d he reto an d incorporated by reference he rein . S uc h C o ntracto r sha ll procure an ap p ro p riate clause in , or endo rse m e nt on , any po licy of insuranc e ca rrie d by it pursua nt to w hich th e in s u r a n c e c o m p a n y w a iv e s s u b ro g a t io n o r c o n s e n t s to a w a iv e r o f r ig h t o f r e c o v ery consis tent w it h t h e r e le a s e , d is c h a r g e , e x o n e r a t io n a n d c o v e n a n t s n o t to s u e c o n t a in e d h e r e in . O r ig in a l c e rt ifi c a t e s o f in s u r a n c e s h a ll n a m e th e C it y o f M ia m i B e a c h , F lo r id a (a n d a n y s u c c e s s o r C it y ), a s a d d it io n a l in s u r e d s (t h e "C e rt ifi c a t e o f In s u r a n c e "), a n d s h a ll b e f u rn is h e d to D e v e lo p e r b y th e C o n t r a c t o r p r io r t o C o m m e n c e m e n t o f C o n s t r u c t io n o f th e P a r k/S t r e e t s c a p e Im p ro v e m e n t s , d e n o t in g a ll in s u r a n c e re q u ir e d o f th e C o n t r a c to r p u r s u a n t t o t h e t e r m s o f t h e c o n t r a c t. T h e C o n t r a c t o r s h a ll s e c u r e a n o r ig in a l C e rt ifi c a t e o f In s u r a n c e fr o m e a c h o f it s s u b -c o n t r a ct o r s w it h lim it s o f lia b il it y a p p ro p r ia t e to s u c h s u b -c o n t r a c to r 's s c o p e o f w or k "; (b ) "C o n t r a c t o r h e r e b y w a iv e s a ll r ig h t s o f r e c o v e r y , cl a im s , a c t io n s o r c a u s e s o f a c t io n a g a in s t th e C it y o f M ia m i B e a c h , F lo r id a (a n d a n y s u c c e s s o r C it y ), a n d t h e ir r e s p e c t iv e e le c t e d a n d a p p o in t e d o ff ic ia ls (in c lu d in g , w it h o u t li m it a t io n , t h e C it y 's M a y o r a n d C it y C o m mi s s io n er s ), d ir e ct or s, o ffi c ia ls , o ff ic e r s , s h a r e h o ld e r s , m e m b e r s , e m p lo y e e s , s u c c e s s o r s , a s s ig n s , a g e n t s , c o n t r a c to r s , s u b c o n t r a c t o r s , e x p e rt s , lic e n s e e s , le s s e e s , m o rt g a g e e s , tr u s t e e s , p a rt n e r s , p r in c ip a ls , in v it e e s a n d a ff ilia t e s , fo r a n y lo s s o r d a m a g e to p ro p e rt y o f C o n t r a ct o r w h ic h m a y o c c u r a t a n y t im e in c o n n e c t io n w it h t h e P a r k/S t r e e t s c a p e Im p r o v e m e n t s , e x c e p t to t h e e xt e n t a r is in g o u t o f o r r e la t e d t o th e g ro s s n e g lig e n c e o r w illf u l m is c o n d u c t o f th e C it y , th e C it y 's C o n s u lt a n t , t h e C it y 's o ff ic e r s , d ir e c to r s , o ff ic ia ls , e m p lo y e e s , c o n t r a c to r s , o r a g e n t s , a n d /o r a n y o f th e C it y In d e mn i fi e d P ar ti e s."; (c ) "T o th e f u lle s t e xt e n t p e r m it te d b y la w , C o n t r a c t o r s h a ll a n d d o e s h e r e b y in d e m n if y a n d h o ld h a r m le s s t h e C it y o f M ia m i B e a c h , F lo r id a , a n d it s r e s p e c t iv e o ff ic e r s a n d e m p lo y e e s , fr o m lia b ilit ie s , d a m a g e s , lo s s e s a n d c o s ts in c lu d in g , b u t n o t lim it e d to , r e a s o n a b le a tt o rn e y s ' f e e s , to t h e e xt e n t c a u s e d b y t h e n e g lig e n c e , r e c k le s s n e s s o r in t e n t io n a l wron g f ul m is c o n d u c t o f C on t r a ct or a n d person s employed or utilized by Contractor in the performance of this Agreement. Notwithstanding anything to the contrary, Contractor shall not be required to indemnify, defend or hold the City of Miami Beach, Florida or any of its respective officers and employees from liabilities, damages, losses or costs to the extent caused by the acts, omissions, negligence of the City of Miami Beach, Florida or any of its officers or employees. The indemnification obligations set forth in this Section 14 shall survive the termination and/or expiration of this Agreement." (d) "Developer shall have the right to assign to City, subject and subordinate to the rights of Lender, the Construction Agreement and Developer's rights thereunder, at the City's request, without the consent of the Contractor, and (2) that without the necessity of such assignment and without thereby assuming any of the obligations of Developer under the Construction Agreement occurring prior to such assignment and/or purchase order, except for Developer's payment obligations, City shall have the right to enforce the full and prompt performance by the Contractor of such Contractor's obligations under the Construction Agreement; and (3) the City is a third party beneficiary of the Construction Agreement"; (e) "Contractor agrees to comply with all laws and requirements applicable to Contractor and the Park/Streetscape Improvements"; (f) "Upon an Event of Default by Developer resulting in a termination of that certain Development Agreement between Developer and City, dated as of July 31, 2019, at the option of the City of Mi am i Beach, Florida, subject and subordinate to the fights of(ender, „ %} ,, i ):· .,• ) \ . "!\ -< ¿s i .· cr/5/ es7 23 49127872;13 this agreem ent shall be term inated or C ontractor w ill honor this agreem e nt as if this ag reem e nt had been originally entered into w ith the C ity of M iam i B each, Florida."; (g) "N othing contained in this contra ct is in any w ay intended to be a w aiver of the pro hibition on C ontractor's ability to file liens against pro perty of the C ity of M ia m i Beach, Florida, or of any other constitutional, statutory , com m on law or other protections aff orde d to public bodies or govern m ents."; (h) "U pon an E vent of D efault by D eveloper resulting in a term in ation of that cert ain D evelopm ent A greem ent betw een D eveloper and C ity, dated as July 31, 20 19, all covenants, representations, guarantees and warranties of Contractor hereunder shall be, subject and subordinate to the rights of Lender, .deemed to be made for the benefit of the City of Miami Beach, Florida, (and the City of Miami Beach, Florida, shall be deemed to be a third party beneficiary hereof) and shall be, subject and subordinate to the rights of Lender, enforceable by the City of Miami Beach, Florida."; (i) "Unless and until the City of Miami Beach, Florida, expressly assumes the obligations of Developer under this contract (and then only to the extent the same arise from and after such assumption), the City of Miami Beach, Florida, shall not be a party to this contract and will in no way be responsible to any party for any claims of any nature whatsoever arising or which may arise in connection with such contract."; and U) "Contractor hereby agrees that notwithstanding that Contractor performed work at the Park/Streetscape Site or any part thereof, the City of Miami Beach, Florida shall not be liable in any manner for payment or otherwise to Contractor in connection with the work performed at the Park/Streetscape Site, except to the extent the City of Miami Beach, Florida, expressly assumes the obligations of Developer hereunder (and then only to the extent such obligations arise from and after such assumption)." (k) "Contractor warrants that all materials and equipment included in the work will be new except where indicated otherwise in Permit Plans and Specifications or the Construction Agreement (collectively, the "Contract Documents"), and that such work will be of good quality, free from improper workmanship and defective materials and in conformance with the Contract Documents, and that such work will provide proper and continuous service under all conditions of service required by, specified in, or which may be reasonably inferred from the Contract Documents. With respect to the same work, Contractor further agrees to correct all work found by Developer or the City of Miami Beach, Florida to be defective in material and workmanship or not in conformance with the Contract Documents for a period of one year from Substantial Completion of the work or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Contract Documents, as well as any damage to the work resulting from defective design, materials, equipment, or workmanship which develop during construction or during the applicable warranty period. Contractor shall collect and deliver to Developer and the City of Miami Beach, Florida any specific written warranties given by subcontractors or others as required by the Contract Documents (and such warranties shall be in addition to, and not substitutes for, those warranties mandated to be obtained pursuant to the Contract Documents). All such warranties shall commence upon Substantial Completion or such other dates as provided for in the Contract Documents, or unless the warranted work is not completed or has been rejected, in which case the warranty for the vork " ,0» shall commence on the completion or acceptance of the work." f6,j\ /je,) ¡} \ \ , ... , "·• • t•.• o />! ,i 24 49127872;13 22. N ot Used. 23. Fees. 23.1 C ity Fees. T he P arties acknow ledge that the P roject and the P ark/S treetscape Im pro vem ents m ay require paym e nt of certain fees, w hich include , w ithout lim itation, application fees, notice fees, developm ent review fees, building perm it fees, inspection, c e rt ifi c a t io n , im p a c t, c o n c u rr e n c y , tr a n s p o rtation/m obility and connection fees, and othe r fees that th e C ity m a y le v y u n d e r a p p li c a b le L a w s (in c lu d in g , w ith o u t lim it a t io n , w a te r a n d s e w e r f e e s a n d a ll fe e s re la t in g to H P B , D e s ig n R e v ie w B o a r d , a n d /o r P la n n in g B o a r d re v ie w s ), a s w e ll a s th o s e fe e s , to th e e xt e n t a p p li c a b le , lis te d in th e m o s t c u r r e n t e d it io n o f th e C ity o f M ia m i B e a c h B u ild in g D ep ar tm e n t F e e S ch e d ul e a d o p t e d b y th e Ci t y, which fee schedule is hereby incorporated. by reference and made a part of this Agreement (collectively, the "City Fees"). The Parties further acknowledge that, under the current City Code, the application fees for the Project Zoning Applications and the Park/Streetscape Zoning Application total a maximum of $80,000. Developer shall remain responsible for the City Fees notwithstanding any and all modifications or changes in price structure as imposed by the City. The Parties assume payment responsibility as follows: (a) Zoning Application Fees. In consideration for the Developer's commitment to complete the Park/Streetscapes Improvements and in recognition of Developer's prior payment of $206,835.00 (as per invoice number 00091435) for application fees in connection with the Project Zoning Applications (the "Fee Overage Balance"), the City assumes payment responsibility for the up to $80,000.00 in application fees required for the Project Zoning Applications and the Park/Streetscape Zoning Application. The City shall accept the Developer's filing of the Project Zoning Applications and the Park/Streetscape Zoning Application without requiring payment of any application fees from Developer and shall diligently process the same pursuant to the requirements of the City Code through Final Approval of the Project Zoning Approvals and the Park/Streetscape Zoning Approval. (b) Other Project City Fees. Developer assumes payment responsibility for any and all other City Fees required for the construction of the Project. (c) Qther Park/Streetscape City Fees. Developer is solely responsible for payment of all City Fees for the Park/Streetscape Improvements other than the application fees for the Park/Streetscape Zoning Application; provided, however, that the City hereby agrees to waive all City fees relating to the Park/Streetscape Improvements, to the extent that any such waiver is currently permitted under the City Code (that is, without requiring any legislation to provide for any such waiver). The Developer shall not be obligated to pay any City Fees for the Park/Streetscape Improvements that can currently be waived under the City Code, and the City shall accept Developer's filing of applications for Permits and Approvals for the Park/Streetscape Improvements, and process the same to Final Approval, without payment of any such City Fees by Developer. (d) Future City Fee Waivers and Refunds. The City may, in its sole and absolute discretion, adopt amendments to the City Code that permit the waiver or refund of all or part of the City Fees for the Project. Promptly following the adoption of such amendments, the City shall waive all applicable City Fees to be paid for the Project to the maximum extent permitted by such amendments, and, with respect to the Fee Overage Balance and all oth er City Fees previously paid by Developer, the City shall refund Developer the cost of all such appli . ijë:~òìfY: ~)>,\\ Fees to the maximum extent permitted by such amendments. '[/ r? \\ \ ç ré] ii . s %5 EE.2> 25 49127872;13 23.2 N on-C ity Fe es. D evelope r shall assum e respo nsib ility fo r pay m e nt of all fe es charged by govern m ental autho ritie s relating to the P roje ct, and the C ity he re by assu m e s responsibili ty fo r paym ent of all fee s charged by go ve rn m e ntal autho ritie s re la ting to the Par k/S tre etscape Imp ro vem en t s. 24 . N otice and R ight to C ure D evelope r's D efaults. 24 .1 C ity shall give to the R ecognized M o rt ga ge e a copy of eac h D evelo pe r Default N otice at the sam e tim e as it give s such notice to D e ve lo pe r, and no suc h notice sha ll be deem ed eff ective w ith respect to any R ecog nized M o rt ga ge e un le ss and until a copy the reof sha ll have been so received by or refuse d by such R e cog nized M o rt gag e e , as ap p lica b le . A ll suc h notices to a R ecognized M ort gag e e sha ll be se nt as set fo rt h in S e ction 47 of this A g ree m e nt. City shall also give the Recognized Mortgagee notice (each, a "Notice of Failure to Cure") in the event Developer fails to cure an Event of Default within the cure period, if any, provided in this Agreement for such cure, promptly following the expiration of such cure period. 24.2 The Recognized Mortgagee shall have a period of thirty (30) Business Days after receipt of the Notice of Failure to Cure, in the case of any Event of Default, to (1) cure the Event of Default referred to in the Notice of Failure to Cure, or (2) cause it to be cured, subject to the same additional time periods provided to Developer pursuant to the provisions of Section 42 or elsewhere in this Agreement, unless such default is not susceptible of being cured by a Recognized Mortgagee. Nothing contained herein shall be construed as imposing any obligation upon any Mortgagee to so perform or comply on behalf of Developer. 24.3 City shall accept performance by a Mortgagee of any covenant, condition or agreement on Developer's part to be performed hereunder with the same force and effect as though performed by Developer. 24.4 Notwithstanding any other provision of this Agreement, no payment made to City by any Mortgagee shall constitute the Mortgagee's agreement that such payment was, in fact, due under the terms of this Agreement. 24.5 Notwithstanding the foregoing provisions of this Section 24, if a Recognized Mortgagee fails (for any reason) to cure any Event of Default by Developer within sixty (60) days following receipt of the Notice of Failure to Cure regarding such Event of Default, then City may, but shall be under no obligation to, perform the obligation of Developer the breach of which gave rise to such Event of Default (including, without limitation, the performance of any of the obligations of Developer under any Construction Agreement), without waiving or releasing Developer from its obligations with respect to such Event of Default. Developer hereby grants City access to the Park/Streetscape Site in order to perform any such obligation. Any amount paid by City in performing Developer's obligations as provided in this Section 24, including, without limitation, all costs and expenses incurred by City in connection therewith, shall be reimbursed to City within thirty (30) days following City's demand therefor, together with a late charge on amounts actually paid by City, from the date of notice of any such payment by City to the date on which payment of such amounts is received by City. 24.6 If there is more than one Recognized Mortgagee, only that Recognized Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized Mortgage is most senior in lien shall be recognized as having rights under this Section 24, unles such first 3 : 45à }} v' ·, i>j ·/J, 26 %, ge 9 49127872,13 ==:-- priority R ecognized M ortgagee has designated in w riting to C ity a R ecognized M ortgagee w hose M ort gage is junior in lien to exerci se such right. CONDITIONS PRECEDENT TO ISSUANCE OF CERTIFICATE OF OCCUPANCY 25. Conditions Precedent to Issuance of Certificate of Occupancy. The Developer acknowledges that conveyance of the Park/Streetscape Improvements Parcel and completion and conveyance of the Park/Streetscape Improvements is additional and essential consideration for the City's vacation of the City Parcel. Accordingly, (i) the City shall not issue a temporary certificate of occupancy and/or a temporary certificate of completion for the Project (in whole or in part), until the Developer has Substantially Completed construction of Phase 1 of the Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond, whether or not construction of Phase 1 of the Park/Streetscape Improvements has been completed by the City; and (ii) the City shall not issue a final certificate of occupancy and/or a final certificate of completion for the Project (in whole or in part) until the City has issued a final certificate of occupancy and/or a final certificate of completion for both Phases of the Park/Streetscape Improvements, or the City receives any funds under the Surety Bond (or the Recognition Agreement, as applicable) or under the Payment Bond and/or Performance Bond, whether or not construction of the Park/Streetscape Improvements has been completed by the City. 26. Developer's Reserved Rights. 26.1 Beachfront Concession. As part of the consideration for the completion of the Park/Streetscape Improvements, and in an effort to incentivize Developer to attract a quality hotel and stimulate economic development in the Ocean Terrace area, if a hotel is ultimately operated as part of the Project that is substantially similar in quality of operations and level of service provided, as of the Effective Date, at the Delano Hotel (1685 Collins Avenue), the Nautilus Hotel (1825 Collins Avenue), or the Shelborne Hotel (1801 Collins Avenue) (the "Hotel"), then in such event, Developer shall have the right to utilize, along with City's beachfront concessionaire for the concession area located between 72nd Street and 77th Street (the "Ocean Terrace Concession Area"), up to 175 linear feet of the concession area located between 74th Street and 75th Street (the "Enhanced Service Area"), for a beachfront concession for the Hotel's guests, visitors, and patrons. 26.2 The intent of the Enhanced Service Area is to permit the Developer and/or the Hotel to enter into an agreement with City's then-existing concessionaire for the Ocean Terrace Concession Area ("City's Concessionaire"), which concessionaire, as of the Effective Date of this Agreement, is Boucher Brothers Miami Beach, LLC, to provide upgraded beach equipment offerings and food & beverage services not otherwise part of the standard concession services offered by City's Concessionaire within the Ocean Terrace Concession Area. Any such beachfront concession within the Enhanced Service Area shall be operated by City's Concessionaire for the Ocean Terrace Concession Area. 26.3 The terms for the Enhanced Service Area shall be memorialized in City's agreement with City's Concessionaire (or, in the case of the current concessionaire, Boucher Brothers Miami Beach, LLC, via an amendment to the Concession Agreement da -::fy1 . 21, CG3r's? 2019), prior to the issuance of a temporary certificate of occupancy for the Hotel. S ~-, .. r.r:n~,-8- II provide (@) the right for the Hotel to brand uniforms of Hotel staff providing fcd 8.béyerad services, and to brand beach equipment and/or signage located within the Enhanced Serl • 27 •- 49 127872;13 A rea; and (ii) fo r the City to continue to receive, w ith respect to standard beach equipm ent rentals and pre-packaged fo od serv ices offered by the C ity's Concessionaire w ithin the Enhanced Serv ice Area, the sam e percentage of gro ss receipts the C ity w ould otherw ise receive fo r such standard serv ices pursuant to the C ity's concession agreem ent w ith the C ity 's C oncessionaire fo r the O cean Terr ace C oncession Area. 26.4 Raised Pavilion/Café. D eveloper shall have the right to construct and operate a raised pavilion/café w ithin the Park/Streetscape Site, generally consistent w ith the sidew alk café perm it requirem ents as set fo rth in C hapter 82 of the C ity C ode, and in accordance w ith the m inim um standards, criteria, and conditions set fo rth in Sections 82-385 to 82-388 of the City Code, provided such pavilion/café is approved by the HP B . This Section shall surv ive the term ination or expiration of this Agreem ent. 26.5 Parking Space R em oval. Developer reserv es the right, if appro ved by the HPB , to elim inate those certain parking spaces located along O cean Terr ace betw een 73rd Stre et and 75th Street, and along 73rd Street, 74th Street, and 75th Street betw een O cean Terra ce and C ollins Avenue. C ity agrees that such rem oval shall not require the paym ent of any fee by Developer under Section 106-55(h) of the City Code, as the sam e m ay be am ended from tim e to tim e. This Section shall surv ive the term ination or expira tion of this Agreem ent. GENERAL PROVISIONS 27. Applications for Development Approvals and Development Permits. This Agreement contemplates that the Developer will file applications for Development Orders and Development Permits. The City shall process all Development Permit and Development Order applications as expeditiously as possible. Notwithstanding the foregoing, Developer shall be solely responsible for obtaining Final Approval of all Development Orders and Development Permits for the Project and the Park/Streetscape Improvements. 28. Laws Governing this Agreement. For the entire term of this Agreement, the City hereby agrees that the City's Law's and Requirements governing the development of the Development Site as they exist as of the Execution Date of this Agreement shall govern the development of the Development Site and the Project during the Term. Notwithstanding the foregoing, the City may apply subsequently adopted laws or policies to the Development Site and the Project (particularly as they may relate to quality of life issues such as, but not limited to noise, litter, and hours of operation) as permitted or required by the Act, including, without limitation, Section 163.3233(2), Florida Statutes, as same may be amended from time to time; provided, however, that in no event shall the City apply any subsequently adopted laws or policies in a manner that requires any alterations or modifications to the Project or the Park/Streetscape Improvements or any amendments or modifications to the Project Zoning Approvals or the Park/Streetscape Zoning Approval, or in a manner that renders the Project or the Park/Streetscape Improvements "nonconforming" as to any Laws or Requirements. Without limiting the generality of the foregoing, Developer expressly reserves the right to challenge any subsequently adopted changes to the Laws or Requirements based on, among others, (i) equitable estoppel, vested rights, or other common law principles; or (ii) rights that may accrue under Chapter 70, Florida Statutes (2018) or any successor or similar laws. In addition, the expiration or termination of this Agreement (other than termination for an uncured Developer Event of Default) shall not act to waive, limit, or invalidate any vested right (or equitable estoppel defense) that may have accrued to Developer pursuant to or in furtherance of thiy Agreer ent prior to such expiration or termination. ,.,,0,,,;o_"~~~;:-\(',~:~ $ $ s ] e3#3 )} = fel,'A Si±±.2] }.U, 2 52 ..e 28 49127872;13 ) 29. Compliance with Local Regulations Regarding Development Permits. This Agreement is not and shall not be construed as a Development Permit, Development Order, approval or authorization to commence any development, fill, or other land modification. The Developer and the City agree that the failure of this Agreement to address a particular permit, approval, procedure, condition, fee, term or restriction in effect on the Execution Date of this Agreement shall not relieve Developer of the necessity of complying with the regulation governing said permitting requirements, conditions, fees, terms or restrictions, subject however to the terms and provisions of this Agreement. 30. Reservation of Rights. This Agreement shall not affect any rights that may have accrued to any Party to this Agreement under applicable Laws or Requirements and each Party hereto reserves any and all of such rights. 31. Consistency with the City's Comprehensive Plan. The City has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of this Agreement dealing with the Development Site and the Project are consistent with the City's Comprehensive Plan and Land Development Regulations (subject to all applicable requirements, permits and approvals). 32. Concurrency. Developer shall be solely responsible for obtaining all land use permits, including, but not limited to, all permits and approvals required pursuant to Section 163.3180, Florida Statutes (2018), with respect to concurrency requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and schools for the Project (the Concurrency Requirements"). Prior to applying for its full Building Permit for the Project, Developer shall apply to the appropriate governmental authorities and obtain letters or other evidence that Developer has satisfied all. applicable Concurrency Requirements, and shall diligently and in good faith obtain such letters or other evidence that the Project meets all applicable Concurrency Requirements and shall pay such impact fees as may then be due or applicable to meet Concurrency Requirements for the Project. 33. Books and Records: Audit Rights: Public Records. 33.1 Developer shall at all times during the Term keep and maintain (separate from any of Developer's other books, records and accounts), accurate and complete records pertaining to the construction of the Park/Streetscape Improvements in accordance with suitable accounting principles with such exceptions as may be provided for in this Agreement. City and its representatives shall have, during normal business hours and upon reasonable advance notice, access to the books and records of Developer pertaining to the Park/Streetscape Improvements for the purpose of examination and audit (including copying), including books of account properly reflecting the construction of the Park/Streetscape Improvements. 33.2 The obligations of Developer under this Section to maintain, and to provide City and its representatives access to, the books and records related to the Park/Streetscape Improvements shall survive the expiration of this Agreement for a period of one (1) year. 33.3 The City will be solely responsible for responding to all requests for public records in accordance with Florida law. In the event that a third party submits a request to the City for records of the Developer regarding this Agreement, the City sh all notify the Developer of the public records request, to provide Developer the opportunity to determine whether any documents responsive to the request contain confidential trade secret information .entitled to protection from disclosure under Florida law. If the Developer certifies to the ~~t~ fä~ ~~ jf cific ' \J' r,'lî ,-,'t 11 •./~-3 29 o-s 49127872,13 5gg docum ents responsive to the request contain confidential trade secrets info rm ation (w ith such certification specifying the basis fo r the trade secret assertions, and the steps taken by the Developer to otherw ise pro tect the confidentiality of such info rm ation), C ity shall w ithhold the subject docum ents, and shall pro vide the requestor w ith a copy of the D eveloper's trade se cret certification. If the requestor objects and continues to m ake dem and fo r the release of such records, City shall notify the Developer of the requestor's objection, to perm it the D eveloper to fil e an action in a court of com petent jurisdiction w ithin fo urteen (14) calendar days, seeking a protective order barring disclosure of any confidential trade secret info rm ation. If D eveloper fa ils to file an action fo r injunctive relief w ithin the tim e period speci fied, or fa ils to subm it the trade secret certification referenced herein, the C ity shall treat such fa ilure as a w aiver of any claim of trade secret protection, and the C ity shall thereafter release the docum ent as requested , in accordance w ith Florida law . 34. Expedited A rbitration of Developm ent D isputes. 34.1 If Developer or C ity asserts that a Developm ent D ispute has arisen, such asserting Party shall give pro m pt w ritten notice thereof to the other Party and to the D evelopm ent Arbitrator. 34.2 The Developm ent A rbitrator shall no later than five (5) Business Days after receipt of such notice, hold a prelim inary , info rm al m eeting w ith C ity and D eveloper in an atte m pt to m ediate such D evelopm ent D ispute. If such Developm ent D ispute shall not be resolved at that m eeting, the Developm ent Arbitrator shall at such m ediation m eeting establish a date, not earlier than five (5) Business Days after the m ediation m eeting nor later than tw enty (20) Business D ays after th e m ediation m eeting, fo r a m ediation hearing (a "He arin g") to be held in accordance w ith th is Agreem ent to resolve such Develo pm ent Disp ute. 34.3 Developer and City shall have the right to make one (1) written submission to the Development Arbitrator prior to any Hearing. Such submission shall be received by the Development Arbitrator and the other Party not later than two (2) Business Days prior to the Hearing date. The parties agree that no discovery (as the term is commonly construed in litigation proceedings) will be needed and agree that neither Party nor the Development Arbitrator shall have discovery rights in connection with a Development Dispute. 34.4 Each Hearing shall be conducted by the Development Arbitrator. It is the intention of the parties that the Hearings shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each Party shall have the opportunity to make a brief statement and to present documentary and other support for its position, which may include the testimony of not more than four (4) individuals, two (2) of whom may be outside experts. There shall be no presumption in favor of either Party's position. Any procedural matter not covered herein shall be governed by the Amended 1993 edition of the CPR Rules for the Arbitration of Business Disputes and the Florida Arbitration Code to the extent not inconsistent with the CPR Rules and this Section. 34.5 The Hearings shall be held in a location selected by the Development Arbitrator in Miami-Dade County, Florida. Provided the Development Arbitrator is accompanied by representatives of both Developer and City, the Development Arbitrator may, at its option, visit the work site to make an independent review in connection with any Developrent Dispute. £G14 {l ,\, , [\ si% "2% SC 49127872; 13 ) 34.6 Once it has been determined by the Development Arbitrator or by agreement of the parties that the disputed matter is a Development Dispute under this Agreement, the Development Arbitrator shall take into account, in resolving such Development Dispute, such factors as he deems relevant which are not inconsistent with this Agreement, which in all events shall include the following factors: (a) City does not have any approval rights with respect to the matter of design and decor of the Park/Streetscape Improvements except to the extent the same is reflected in the Plans and Specifications. (b) The Park/Streetscape Improvements shall be of first-class quality, compatible with the quality set forth in the original approved Plans and Specifications (without regard to changes thereto). (c) The mutual goal of Developer and City that cost overruns for the construction of the Park/Streetscape Improvements shall be minimized. (d) Applicability of any Requirement. (e) The magnitude of the modification to the previously approved Plans and Specifications. (f) The magnitude of the consistency or inconsistency from the previously approved Plans and Specifications. 34. 7 Pending resolution of the Development Dispute, Developer may not implement the matter which is the subject of such Development Dispute. 34.8 The Development Arbitrator shall render a decision, in writing, as to any Development Dispute not later than two (2) Business Days following the conclusion of the Hearings regarding such Development Dispute and shall provide a brief written basis for its decision not later than five (5) Business Days thereafter. As to each Development Dispute, the Development Arbitrator's decision shall be limited to (i) whether or not Developer's proposed modification(s) to the Plans and Specifications is a Material Modification; (ii) whether or not City has unreasonably failed to approve or give its consent to any modifications to the Plans and Specifications pursuant to Sections 8, 9, and/or 11; (iii) whether or not Developer has complied with its obligations or responsibilities set forth in Sections 8, 9, and/or 11; and (iv) whether or not Developer or City is entitled to any extension of time for performance. The Development Arbitrator may not award any other or different relief. 34.9 The decision of the Development Arbitrator shall be final and binding on the Parties for all purposes and may be entered in any court of competent jurisdiction. 34.1 O The Parties shall reasonably cooperate to select an independent, neutral, professional firm having hotel development or construction experience to serve as the arbitrator (the "Development Arbitrator"). If the Parties cannot agree on the selection of a Development Arbitrator, then any Party may ask the CPR Institute for Dispute Resolution to select a substitute who will act as Development Arbitrator of that Development Dispute. The cost of the Development Arbitrator shall be equally shared by the Parties, but each Party shall bear its own cost · eluding those of its experts and legal fees, associated with the arbitration. f,_¿/:~_·:~t'~\~ 4% ( ¡4 ) 31 ([] C g 1-i 4912787213 zas.3sí, t'-,y s2' 3 5 . Li tig a tio n . A n y d is p ute b e tw e e n th e P a rt ie s , o th e r th a n a D e v e lo p m e n t D is p u te , s h a ll b e s u bje c t to litig a tio n an d n o t a rb itra tio n . 3 6 . E ff e c tiv e D a te a n d D u ra tio n (T e rm ). (a ) W ith in fo u rt e e n (14 ) d a y s fo llo w in g a p p ro v a l a t tw o p u b lic h e a rin g s an d e x e c u tio n by th e P a rt ie s , th e C ity s h a ll re c o rd th e A g re e m e n t in th e P u b lic R e c o rd s o f M ia m i- D a d e C o u n ty . T h is A g re e m e n t s h a ll b e c o m e e ffe c tiv e o n ly a ft e r it h a s b e e n re c o rd e d in th e P u b lic R e c o rd s o f M ia m i-D a d e C o u n ty , F lo rid a . T h e D e v e lo p e r a g re e s th a t it s h a ll b e re s p o n s ib le fo r a ll re c o rd in g fe e s a n d oth e r cu s to m a ry fe e s a n d c o s ts re la te d to th e re c o rd in g o f th is A g re e m e n t a s de s c rib e d in th is S e c tio n . (b ) T hi s A g re em en t sh a ll ru n fo r a n in itia l te rm o f ten (1 0 ) y e ar s from the Effective Date (the "Term"); provided, however, if the Developer completes construction of Phases 1 and 2 of the Park/Streetscape Improvements within the time periods set forth in Section 42(c) and (d) of this Agreement, then the Term shall automatically be extended (without the need of any notice to or consent of the City, or being subject to any public hearing) for an additional eight (8) years, so that the Term of this Agreement shall be a total of eighteen (18) years from the Effective Date. Except for the automatic eight (8) year extension of the Term set forth above (which does not require any consent of the City or public hearing): (i) the Term of this Agreement may be extended only by the mutual consent of the City and the Developer subject to a public hearing pursuant to Section 163.3225, Florida Statutes; and (ii) consent to any extension of this Agreement is within the sole discretion of each Party to this Agreement. No notice of termination shall be required by either Party upon the expiration of this Agreement, and after the expiration of this Agreement the Parties shall have no further obligations under this Agreement, except for those obligations that expressly survive the expiration of this Agreement. 37. Presently Permitted Development. The development that is presently permitted on the Development Site, including population densities, and building intensities and height, which are subject to this Agreement, is more specifically set forth in Exhibit "O" hereto. 38. Public Facilities to Serve the Development Site. A description of the public facilities that will service the Project of the properties subject to this Agreement, including who shall provide such facilities; the date any new facilities, if needed, will be constructed; and a schedule to assure public facilities are available concurrent with the impacts of the development is included as Exhibit "P" hereto. 39. Public Reservations and/or Dedications. A description of the reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement is included as Exhibit "Q" hereto. 40. Reguired Development Permits. Attached and made a part hereof as Exhibit "R" is a listing and description of all local development permits approved or needed to be approved for the development of the Project. 41. Not Used. 42. Developer Defaults. Developer hereunder: Each of the following shall be an "Event of Default" by 32 49127872;13 ) (a) If Developer shall fail to observe or perform any term, covenant or condition of this Agreement on Developer's part to be observed or performed and Developer shall fail to cure or remedy the same within ten (1 O) Business Days following Developer's receipt of written notice from the City, with respect to monetary defaults, or within thirty (30) Business Days following Developer's receipt of written notice from the City with respect to non-monetary defaults (each, a "Developer Default _Notice"). If such non-monetary default is susceptible to cure but cannot reasonably be cured within said thirty (30) Business Day period, then Developer shall have any additional sixty (60) Business Day period to cure such failure and no Event of Default shall be deemed to exist hereunder so long as Developer commences such cure within the initial thirty (30) Business Day period and diligently and in good faith pursues such cure to completion within such resulting ninety (90) Business Day period from the date the Developer receives the • Developer Default Notice. (b) If Developer shall fail to Commence Construction of Phase 1 of the Park/Streetscape Improvements within ninety (90) Business Days after Developer obtains (i) Final Approval of the Project Zoning Approvals, or (ii) Final Approval of all Permits and Approvals for the Park/Streetscape Improvements, whichever occurs last. (c) If Developer shall fail to Substantially Complete the construction of Phase 1 of the Park/Streetscape Improvements within forty-eight (48) months after the Effective Date. (d) If Developer shall fail to Substantially Complete the construction of Phase 2 of the Park/Streetscape Improvements within ninety-six (96) months after the Effective Date. (e) If Developer shall fail to Substantially Complete the construction of the Project within ninety-six (96) months after the Effective Date, subject to one automatic twenty- four (24) month extension if Developer has completed Phases 1 and 2 of the Park/Streetscape Improvements within the timeframes set forth in this Agreement and has Commenced Construction of the Project. (f) If, prior to Substantial Completion of Phase 2 of the Park/Streetscape Improvements, Developer shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall consent to the appointment of a receiver or trustee or liquidator of all of its property or the major part thereof or if all or a substantial part of the assets of Developer are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the possession of any receiver, trustee, custodian or assignee for the benefit of creditors. 49127872;13 (g) If, prior to Substantial Completion of Phase 2 of the Park/Streetscape Improvements, Developer shall commence a voluntary case under the Title 11 of the United States Code (the "Bankruptcy Code"); or an involuntary proceeding is commenced against Developer under the Bankruptcy Code and relief is ordered against Developer, or the petition is controverted but not dismissed or stayed within one hundred fifty (150) days after the commencement of the case, or a custodian (as defined in the Bankruptcy Code) is appointed for or takes charge of all or substantially all of the property of Developer and is not discharged or dismissed within one hundred fifty (150) days; or Developer commences any other proceedings under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar Law of any jurisdiction whether now or hereafts,fip éffect relating to Developer; or there is commenced against Developer any such proce ~e· ~f~l.clì{;.t !g à i l } 33 25i,# -é ...- re m a ins un dism isse d o r unsta yed fo r a pe rio d of o n e hu n d re d fift y (15 0 ) d a ys ; or D e ve lo p e r fa ils to con tro ve rt in a tim e ly m a nn e r a n y su ch ca se un d e r the B a n k ru p tcy C o d e o r a ny s u c h p ro ceed in g , or a n y orde r of relief o r oth e r o rd e r ap p ro v in g an y su ch ca se or pro ce e d in g is e nte re d ; or D evelop e r conse n ts to o r ap p ro ve s of, in a n y su c h ca se o r pro ce e d in g o r th e a p p o in tm e n t of a n y cu sto d ian or the like of o r fo r it fo r an y su b sta n tia l pa rt of its pro p e rt y o r su ffe rs a ny su c h ap poin tm e n t to contin u e und isch a rg e d or un sta y e d fo r a pe rio d of on e hu n d re d fifty (15 0 ) da y s. (h ) If, p rio r to S u b sta n ti a l C o m p le tio n of P h a se 2 of th e P ark/S tre e tscape Im p ro v e m e n ts, D e v elo pe r sh a ll ass ig n o r tra n sfe r its rig h ts a n d/o r d e le g a te th e pe rf o rm a n c e of its o b liga tions und e r this A g re e m e n t to a n y o n e , at a n y tim e , oth e r th a n a P e rm itt e d T ra nsfe ree w ith o ut th e C ity's p rio r w ritt e n co n se n t an d ap p ro v a l, as go v e rn e d by S e ctio n 54 . 4 3 . E ff e ct of C ure . N otw ith sta n d in g S e ctio n 4 2 o r a n yt h in g e lse to thie con tr ar y, D eve lo p e r w ill no t be d e e m e d to be in defa u lt of th is A g re e m e nt fo r a n y E v e nt of D e fa u lt th a t is cu red by the D eve lope r, by the R e cog n iz ed M o rt g a g e e , o r by th e C ity 's re ce ip t of fu n d s fo r su c h E ven t of D e fa ult und e r th e S urety B o nd , th e R e co g n itio n A g re e m e nt, o r th e P a y m e nt B o n d a n d /o r P e rf orm a nc e B o nd , a s a p p lica b le . 4 4 . E n fo rcem e nt of P e rfo rm a nce ; D a m a g e s a n d T e rm in a tio n . In th e ev e nt the C ity sh a ll cl a im any E ve n t of D efault sha ll have o c c u rre d he re u n d e r, the D e v e lo p e r D e fa u lt N o tic e sh all state w ith sp ecifi city the pro visio n s of th is A g re e m e nt un d e r w h ic h th e D e fa u lt is cl a im e d , th e na tu re a n d cha ra cte r of su ch E ve n t of D e fa u lt, the d a te by w h ich su c h E v e nt of D e fa u lt m u st be cure d p ursua n t to this A g reem e n t, if ap p lica b le , an d , if e le cte d by th e C ity , th a t th e fa ilu re of D e ve lop e r to cu re such D efa ult b y th e d ate se t fo rt h in su c h no tic e w ill re s u lt in th e C ity ha v in g th e rig h t to term inate th is A g re e m e nt. S u bje ct to the ex cl u siv e re m e d ie s se t fo rt h in S e ctio n s 5 (d ) a n d 12 .3 of this A g ree m e nt, if an E ve n t of D e fa u lt oc c u rs he re u n d e r, th e C ity m a y e le ct an y o n e or m o re of the fo llow in g re m ed ie s as th e C ity 's so le an d ex cl u s ive re m e d y w ith re s p e ct to su c h E ven t of D e fault: (a) E nfo rce strict pe rf o rm a n ce by D e v e lo p e r; o r (b) E xe rcise an d e n fo rce the C ity 's rig h ts pu rsu a nt to e a c h of th e A ssig n m e n t of P la n s , P e rm its a n d A p p ro v a ls a n d th e A ssig n m e n t of C onstru ctio n A g re e m e n ts; o r (c) P ursu e a ny oth e r re m e d y av a ila b le to th e C ity at la w or in e q u ity . In th e even t C ity e lects to e xe rcise its re m ed ie s p u rsu a n t to S e ctio n s 5(d ) a n d /o r 4 4 (b ), D e v e lo p e r sh a ll: i. P ro m p tly d e liv e r to th e C ity all su b m itt a ls a n d P ark/S treetsca pe Im p ro ve m e n ts re co rd s in th e ir o rig in a l/n a tiv e e le ctro n ic fo rm a t (i.e . C A D , W ord, B IM , E x ce l, etc .), an y an d a ll oth e r u n fi n ish e d do c u m e n ts, a n d a n y an d a ll w arr antie s fo r w o rk, eq u ip m e nt or m a te ria ls a lre a d y in sta lle d or purch ase d , to the ext e n t th e sa m e are in D e ve lo p e r's po ss e ssio n ; ii. A s dire cte d by th e C ity , tra n sfe r or ca u s e th r to tran sfe r title a n d d e live r or d e m a n d th a t th e C o n tra cto r de liv e r to fab rica ted and non-fabricated parts, work in progress, completed j and other material produced or required for the work; and (2) th $le 7!3 partially completed project records that, had the work been compl /ö 2-' -«." 34 49127872; 13 re q u ire d to be fu rn is h e d to th e C ity , to th e e xt e n t th e sa m e a re in D e v e lo p e r's p o s s e s s io n ; a n d iii. T a k e a n y a c tio n th a t m a y b e re a s o n a b ly ne c e s s a ry , o r th a t th e C ity m a y re a s o n a b ly d ire ct , fo r th e p ro te c tio n a n d p re s e rv a tio n o f th e p ro p e rt y re la te d to th is D e v e lo p m e n t A g re e m e n t th a t is in D e v e lo p e r's p o s s e s s io n a n d in w h ic h th e C ity ha s o r m a y a c q u ire a n in te re s t. T h e rig h ts a n d re m e d ie s of th e C ity in th is S e c tio n 4 4 s h a ll a p p ly to a ll E v e n ts of D e fa u lt th a t fa il to be c u re d w ith in th e a p p lic a b le c u re p e rio d o r a re c u re d b u t in a n u n tim e ly m a n n e r, a n d th e C ity s h a ll n o t b e o b lig a te d to a c c e p t s u c h la te c u re . » In addition, if the City violates, breaches or defaults on any term, covenant, condition or other provision of this Agreement (a "City Default"), then the Developer shall have all rights and remedies available to it under this Agreement, at law, and/or in equity (including, without limitation, an action for specific performance and injunctive relief to enforce the terms, covenants, conditions and other provisions of this Agreement) against the City as a result of or arising out of such City Default. The Developer's election of a right or remedy under this Agreement, at law, and/or in equity with respect to any City Default shall not limit or otherwise affect the Developer's right to elect any other right or remedy available to it under this Agreement, at law, and/or in equity with respect to the same or any other City Default. 45. Termination Outside of Default. (a) Developer Termination. Notwithstanding anything to the contrary in this Agreement, Developer shall have the right to terminate this Agreement and be released from its liability and obligations hereunder by written notice to City delivered not later than on the Park/Streetscape Construction Commencement Date if any of the following occurs: (a) changes to the Park/Streetscape Improvements, the Park/Streetscape Concept Plan, the Plans and Specifications or any other aspect required by the HPB, Planning Board, or any other governmental or regulatory authority (including the City) render the Project or the Park/Streetscape Improvements economically unfeasible in the sole judgment of Developer; (b) the Project cannot meet Concurrency Requirements under Section 163.3180, Florida Statutes (1997), or the costs of concurrency mitigation, in the sole judgment of Developer, render the Project or the Park/Streetscape Improvements economically unfeasible; (c) Developer, after good-faith efforts, has been unable to obtain Final Approval of all Permits and Approvals for the Project or the Park/Streetscape Improvements; or (d) after good-faith efforts, Developer has not been able to arrange appropriate financing for the Project or the Park/Streetscape Improvements. In the event of termination of this Agreement pursuant to this Section, each Party shall bear its own costs and expenses incurred in connection with this Agreement and neither Party shall have any further liability to the other except for any matters that expressly survive termination of this Agreement. The right of termination pursuant to this Section shall expire and become void if not exercised by Developer on or prior to the Park/Streetscape Construction Commencement Date. If Developer exercises its right of termination under this Section 45(a), then the Parties shall promptly schedule a closing for the unwinding of the Closing consummated in Section 5 of this Agreement (the "Unwinding Closing"), at which time the Parties shall execute, exchange, and, if applicable, record such documents and instruments as are necessary or convenient to vest the Parties with the respective rights and interests each Party possessed, and leave each Party in the position it enjoyed, prior to the Closing, as if the Closing had not occurred and as if this Agreement had not been signed, but excluding the refund of any monies expended or costs incurred by either Party in performing such Party's obligations under this Agreem,~ ;.p1 rior; t{~" iJ( t¿·~-11 ) : I 36 k! zd il} 49127872,13 (<é .e ') <_,·-~t: :.-~· .. >,' D e v e lo p e r's e x e rc is e o f su c h rig h t o f te rm in a tio n . D e v e lo p e r fu rt h e r a g re e s to re im b u rs e th e C ity fo r th e re a s o n a b le o u t-o f-p o c k e t c o s ts a n d e x p e n s e s a c tu a lly in c u rre d by th e C ity fo r th e m e c h a n ic s o f u n w in d in g th e C lo s in g (th e "C ity U n w in d in g E x p e n s e s "), re g a rd le s s of w he n th e U n w in d in g C lo s in g o c c u rs . If th e D e v e lo p e r te rm in a te s th is A g re e m e n t p u rs u a n t to th is S e c tio n 4 5 a ft e r th e C lo s in g b u t p rio r to C o m m e n c e m e n t o f C o n s tru c tio n o f th e P a rk/S tre e ts c a p e Im p ro v e m e n ts , th e C ity w ill, no la te r th a n th re e (3 ) B u s in e s s D a y s a ft e r th e U n w in d in g C lo s in g , s u b m it a w ritt e n in v o ic e to th e D e v e lo p e r a n d E s c ro w A g e n t d e ta ilin g th e C ity U n wi n d in g E x p e n s e s . E s c ro w A g e n t w ill, n o la te r th a n th re e (3 ) B u s in e s s D a y s aft e r re c e iv in g s u c h in v o ic e , p a y to th e C ity fro m th e U n w in d in g F u n d s a n a m o u n t s u ffi c ie n t to c o v e r th e C ity U n w in d in g E x p e n s e s a n d w ill re tu rn th e re m a in in g b a la n c e of th e U n w in d in g F u n d s , if a n y , to th e D e v e lo p e r. If th e U n w in d in g F u n d s a re no t s u ff ici e n t to co v e r th e C ity U n w in d in g E x p e n s e s , th e D e v e lo p e r w ill p a y th e de fi ci e n c y to th e C ity n o la te r th a n th re e (3 ) B u s in e s s D a y s aft e r th e D e v e lo p e r re c e iv e s w ritt e n no tic e fr o m th e C ity a n d /o r E s cr o w A g e n t o f th e d e fic ie n c y . If th e D e v e lo p e r d o e s no t te rm in a te th is A g re e m e n t fo r c o n v e n ie n c e p rio r to C o m m e n c e m e n t of C o n s tru c tio n o f th e P a rk/S tre e ts c a p e Im p ro v e m e n ts , th e n E s c ro w A g e n t w ill re tu rn th e U n w in d in g F u n d s to D e v e lo p e r in fu ll no la te r th a n th re e (3 ) B u s in e s s D a y s a ft e r s u c h C o m m e n c e m e n t o f C o n s tru c tio n . T h e P a rt ie s a g re e to a c c e p t a n d a b id e b y s u c h te rm s a n d c o n d itio n s o f e s c ro w a s E s c ro w A g e n t re a s o n a b ly re q u e s ts to im p le m e n t th e in te n t o f, a n d a v o id o r re s o lv e d is p u te s re g a rd in g , th e U n w in d in g E s c ro w . (b ) E ff e c t. In th e e v e n t th a t e ith e r P a rt y c h o o s e s to e x e rc is e its e x p re s s rig h t to te rm in a te th is A g re e m e n t fo r c o n v e n ie n c e (in cl u d in g , w ith o u t lim ita tio n , un d e r S e c tio n 4 5 (a ) a b o v e ), b u t a p a rt fr o m su c h P a rt y 's rig h t to te rm in a te in a n E v e n t of D e fa u lt by th e o th e r P a rt y , th e n e a c h P a rt y s h a ll b e a r its ow n co s ts a n d e x p e n s e s in c u rre d in co n n e c tio n w ith th is A g re e m e n t a n d th e P roje c t, a n d ne ith e r P a rty s h a ll h a v e o r o w e a n y fu rt h e r lia b ility to th e o th e r Party. 46. Strict Performance; Waiver. No failure by the City or Developer to insist upon strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy available to such Party by reason of the other Party's default or an Event of Default hereunder shall constitute a waiver of any such default, Event of Default or of such other covenant, agreement, term or condition hereunder. 47. Notices. All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if (i) delivered by hand, (ii) sent by electronic mail, (iii) sent by recognized overnight courier (such as Federal Express), or (iv) mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, in each case addressed as follows or to such other addresses as either Party may from time to time designate for itself by notice to the other Party in accordance with this Section: If to the City at: With a copy to: City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager City of Miami Beach, City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney 36 49127872;13 W ith copies to: If to Developer at: W ith a copy to: H olland & Knight LLP 701 Brickell Avenue Miami, Florida 33131 Attn: Joseph G. Goldstein, Esq. 1035 N. Miami Avenue, Suite 201 Miami, Florida 33136 Attn: Sandor Scher sscher@clarocorp.com Akerman LLP 98 SE 7 Street, Suite 1100 Miami, FL 33131 Attn: Neisen O. Kasdin, Esq. neisen.kasdin@akerman.com ) Notices personally delivered or sent by electronic mail or by overnight courier shall be deemed given on the date of delivery (or upon refusal of such delivery), and notices mailed in accordance with the foregoing shall be deemed given three (3) Business Days after deposit in the U.S. mails. The terms of this Section 4 7 shall survive the termination of this Agreement. 48. Governing Laws, Construction and Litigation. This Agreement shall be governed and construed in accordance with the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws that would require the application of any other law. The Developer and the City agree that Miami-Dade County, Florida is the appropriate and exclusive state court venue, and that the U.S. District Court for the Southern District of Florida is the appropriate and exclusive federal court venue, in connection with any litigation between the parties with respect to this Agreement. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; accordingly, this Agreement shall not be more strictly construed against any of the parties hereto. In construing this Agreement, captions, and section and paragraph headings shall be disregarded and the use of any gender shall include every other and all genders. All of the exhibits referenced in this Agreement are incorporated in, and made a part of, this Agreement. In the event of any litigation between the parties under this Agreement for a breach thereof, the prevailing Party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. BY ENTERING INTO THIS AGREEMENT THE CITY AND DEVELOPER EXPRESSLY WAIVE ANY RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. The terms of this Section shall survive the termination of this Agreement. 49. Severability. In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or construed as deleted, as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 50. Time of Essence. Time shall be of the essence for each and every provision hereof. 51. Entire Agreement. This Agreement, together with its exhibits and all other documents referenced herein, constitutes the entire agreement and understanding at 3fg the parties with respect to the subject matter hereof, and there are no other acféémnents, ? 12j % l $5 , (@Ne=riel, 37 èz.$ 4912787213 ';:!_ r e p r e s e n t a t io n s o r w a r r a n t ie s o t h e r th a n a s s e t fo rt h h e r e in . N e it h e r P a rt y s h a ll b e b o u n d b y a n y a g r e e m e n t , c o n d it io n , w a r r a n t y n o r r e p r e s e n t a t io n o t h e r th a n a s e x p r e s s ly s t a t e d in t h is A g r e e m e n t. T h is A g r e e m e n t m a y n o t b e c h a n g e d , a lt e r e d o r m o d ifi e d e x c e p t b y a n in s t r u m e n t in w r it in g s ig n e d b y b o t h p a rt ie s h e r e to , s u b je c t to th e re q u ir e m e n ts fo r th e a m e n d m e n t o f d e v e lo p m e n t a g r e e m e n t s in th e A c t. 5 2 . O t h e r A g r e e m e n t s . T h is A g r e e m e n t h a s n o e ff e c t o n a n y o t h e r a g r e e m e n t , D e v e lo p m e n t O r d e r , o r d e c la r a t io n o f r e s t r ic t io n s e n c u m b e r in g t h e D e v e lo p m e n t S it e a s o f t h e E ff e c ti v e D a t e . A n y a n d a ll a g r e e m e n t s in t h e p u b li c re c o r d s a s o f th e E ffe c t iv e D a t e r e m a in v a lid . T h e p a rt ie s in c o r p o ra t e b y r e f e r e n c e e a c h a n d e v e ry a p p lic a b le r e q u ir e m e n t s e t fo rt h in t h e A c t. 5 3 . Bi n di n g E ff e c t. T h e o b li g a t io n s im p o s e d p ur s u an t .t o this Agreement upon the Developer and upon the Development Site shall run with and bind the Development Site as covenants running with the Development Site, and this Agreement shall be binding upon and enforceable by and against the parties hereto and their personal representatives, heirs, successors, grantees and assigns. 54. Transfer, Assignment, and Delegation. (a) By Developer. Developer may, in its sole discretion, assign or transfer its rights and/or delegate the performance of its obligations under this Agreement pertaining to those portions of the Project other than the Park/Streetscape Improvements, in whole or in part, to anyone at any time, without the City's prior written consent or other approval. With respect to transfers, assignments, and delegations of Developer's rights and obligations pertaining to the Park/Streetscape Improvements, the following shall apply: i. Prior to Substantial Completion of the Park/Streetscape Improvements, Developer may not assign or transfer its rights, or delegate the performance of its obligations, pertaining to the Park/Streetscape Improvements under this Agreement, in whole or in part, to any third party other than a Permitted Transferee, unless Developer first obtains the City's prior written consent, which consent the City may withhold in its sole discretion. ii. Following Substantial Completion of the Park/Streetscape Improvements, Developer may, in its sole discretion, assign or transfer its rights or delegate the performance of its obligations pertaining to the Park/Streetscape Improvements under this Agreement, in whole or in part, to anyone at any time, without the City's prior written consent or other approval. Notwithstanding the foregoing or anything else to the contrary, the City's prior written consent shall not be required to allow (i) any financing or refinancing of all or any portion of the Project, including, without limitation, the granting of any mortgage, the foreclosure by any mortgagee thereunder (or designee of such mortgagee), or the transfer or conveyance to such mortgagee or designee by deed or assignment in lieu of foreclosure; or (ii) the submission of all or any portion of the Project to a condominium form of ownership under Chapter 718, Florida Statutes, the creation of an organization of unit owners and/or parcel owners, or the sale of condominium units or other types of individually conveyable units or parcels within the Project. Upon the recordation of a declaration in the public records submitting all or any portion of the Project to a condominium form of ownership or other form of ownership governed by an organization of unit/parcel owners, the obligations of Developer hereunder pertaining to such portion(s) of the Project, as applicable, shall be binding only upon the organization of unit/parcel owners, and not upon the decl; inf or , NY Is ;"ß ¡ '¿d [i :. ' th ase o./t ks 38 49127872;13 any part icu la r un it/pa rce l ow ne r exce p t to the ext ent othe rw ise spe cifica lly provide d in suc h d e c la r a t io n . ) (b) By City. The City may not assign or transfer its rights, or delegate the performance of its obligations under this Agreement, in whole or in part, to any third party other than a successor municipal corporation, unless City first obtains Developer's prior written consent, which consent Developer may withhold in its sole discretion. (c) Notice; Effect; Invalidity. A Party making any transfer, assignment, or delegation under this Agreement shall, no later than twenty (20) Business Days after completing such transaction, deliver to the other Party a written notice specifying the nature and effective date of such transfer, assignment, or delegation. Any transferee, assignee, or delegatee (including through foreclosure or deed-in-lieu thereof) shall assume all of the obligations expressly transferred, assigned, or delegated. Upon any transfer, assignment, or delegation carried out in accordance with this Section, the obligations transferred, assigned, or delegated shall be binding only on such Party's transferee, assignee, or delegatee, as the case may be, and the other Party shall look only to such transferee, assignee, or delegatee for performance of the obligations being transferred, assigned, or delegated. Any purported assignment or transfer of rights, or delegation of performance, in violation of this Section is void. 55. Force Majeure; Economic Force Majeure; and Third-Party Challenges. Neither Party shall be liable for damages, for breach of contract or otherwise, for any failure, suspension, diminution, or other variation of service or performance occasioned by or arising from a Force Majeure Event. In addition, all time periods in this Agreement and/or in any Permits and Approvals issued in connection with the Project and/or the Park/Streetscape Improvements, whether express or implied, will be tolled automatically to account for Force Majeure Events, and the Party against whom enforcement of a time period is sought wi ll not be considered to have missed a deadline or to be in breach or default of this Agreement for so long as such Part/ is unable to complete any work or take any action required by this Agreement due to such Force Majeure Event(s). In addition, if, due to Economic Force Majeure, Developer is delayed, hindered, or prevented from being able to obtain or maintain adequate financing for the Park/Streetscape Improvements or for the Project or is otherwise unable to satisfy any Development Default Deadline, then all Development Default Deadlines shall be extended for the period of such delay (but not to exceed the total aggregate maximum period of thirty (30) months for all events of Economic Force Majeure that may arise throughout the term of this Agreement); provided, that, with respect to any such delay by Economic Force Majeure, Developer shall give written notice of such occurrence to City describing in reasonable detail the events giving rise to the Economic Force Majeure, and the date of commencement thereof. Developer shall use good-faith, diligent, efforts to attempt to remove, resolve, or otherwise seek to mitigate such delay, shall advise the City periodically of such efforts, and shall notify the City of the date of cessation of the event of Economic Force Majeure (or the date Developer elects to no longer claim an extension of time therefor), to permit the City and Developer to track development deadlines and ensure the maximum aggregate extension of thirty (30) months for Economic Force Majeure is not exceeded. Time is of the essence with respect to this provision. 49127872,13 In the event that a third party (unrelated or unaffiliated with the City or the Developer) institutes any action, suit, or proceeding relating to the Project (including, without limit ion, any action, suit, or proceeding challenging the validity of this Agreement or any eler íér of the\ 3 è +e , l , 1i \3 wwce.s -. MO Ea - 39 pro posed tra n s a ctio n , o r th e va lid ity o r is su a n c e of th e V a c atio n R e s o lutio n , th e P ro je c t Z o n in g A ppro vals, the P a rk/S tre e tsca p e Z o n in g A p p ro v a l, an y am e n d m e nts to th e C o m p re h e n s iv e P la n o r Lan d D e ve lo p m e nt R e g u la tio n s re la tin g to th e P ro je c t o r to th e P a rk/S tre e ts c a p e Im p rovem e n ts, o r a n y oth e r P e rm its a n d A p p ro v a ls re la tin g to th e P ro je c t o r to th e P a rk/S tre e tsca p e Im p ro v e m e n ts (in e a c h in s ta n c e , in c lu d in g a ny re la te d a p p e a ls a n d a p p e a l pe rio ds, a "L a w su it"), th e n th e D e ve lo p e r sh a ll, at its o p tio n , e ith e r: (i) a tte m p t to d e fe n d s u c h Law suit at its so le co st a n d us in g le g a l co u n s e l re a s o n a b ly ac c e p ta b le to th e C ity , in w h ic h c a s e all tim e pe rio d s in th is A g re e m e n t a n d in a n y P e rm its a n d A p p ro v a ls is s u e d in c o n n e c tio n w ith th e P roje ct a nd /o r th e P a rk/S tre e tsc a p e Im p ro v e m e nts , w h e th e r e x p re s s o r im p lie d , s h a ll b e to lle d auto m a tica lly th ro ug h a ll le v e ls of ap p e a l un til su c h La w s u it ha s be e n fin a lly d is p o s e d o f (b y judge m e nt, se tt le m e n t o r oth e rw ise ) to D e v e lo p e r's sa tis fa c tio n ; o r (ii) te rm in a te th is A g re e m e n t in accord a n ce w ith S e c tio n 4 5 . D e v e lo p e r sh a ll in d e m n ify an d ho ld th e C ity h a rm le s s fro m a n d ag ai ns t all actual claims, injury, damage, loss and liability, cost and expense (including attorneys' fees, costs and expenses) of any and every kind arising out of or relating to any such Lawsuit, except to the extent arising out of or related to the City's negligence or misconduct. Developer shall be entitled to control the defense and conduct of any such Lawsuit and to compromise, settle, or abandon the Lawsuit, in its sole discretion, and the City agrees to reasonably cooperate with Developer (at no expense to the City) in connection with the conduct of any such Lawsuit. This Section shall survive the termination or expiration of this Agreement. In addition, if a Lawsuit is commenced prior to the City's approval of the Vacation Resolution, then the City shall not be required to effectuate the vacation of the City Parcel until thirty (30) days after the Lawsuit has been finally disposed of (whether by judgment, settlement, or otherwise) on terms and conditions acceptable to Developer in its sole discretion; provided, however, that if such Lawsuit is still pending more than sixty (60) months after it has been commenced, then either Party at its option may, from and after the expiration of such sixty (60) month period and while such Lawsuit remains unresolved, elect to terminate this Agreement by delivering a written notice of termination to the other Party, whereupon the Vacation Resolution application shall be withdrawn and the Agreement shall be terminated, and the City and Developer shall have no further obligation and/or liability to each other. 56. Indemnification. In addition to the indemnification obligations provided elsewhere in this Agreement, and subject to the City's liability limitations as set forth herein and in Section 60 below, each Party hereby agrees to defend, indemnify and hold harmless the other Party, its agents and employees, from and against all actual, documented loss, cost, expense, claim, demand or cause of action of whatever kind or nature arising out of or related to the gross negligence or willful misconduct of such Party and/or its officers, directors, officials, employees, contractors, and agents, related to (i) this Agreement, (ii) the Project; and/or (iii) the Park/Streetscape Improvements, except to the extent arising out of or related to the gross negligence or willful misconduct of the other Party and/or its officers, directors, officials, employees, contractors, or agents (collectively, "Losses"). The indemnifying Party shall directly pay all actual, documented costs and expenses related to any cost charged or legal defense required by the other Party, using legal counsel reasonably acceptable to the other Party (but subject to the requirements of the indemnifying Party's insurers), pursuant to the foregoing indemnification obligation. The non-indemnifying Party shall notify the indemnifying Party of any Losses promptly after receiving notice of same and shall reasonably cooperate and collaborate (but at no expense to the non-indemnifying Party) with the indemnifying Party in connection with any legal proceeding in which the indemnifying Party is defending the other Party hereunder. This Section shall survive termination or expiration of this Agreement. City's indemnity;obligations herein shall be solely to the extent and limits permitted by Section 768.28 of the F 'L~~~~~tQl~,-, a ». li Z 40 ?-- SR 49127872;13 a n d w ith o u t w a iv e r of a n y rig h ts o r d e fe n s e s th e re u n d e r o r a n y p riv ile g e s o r im m u n itie s aff o rd e d t o t h e C it y u n d e r t h e la w s o f th e S ta te of F lo rid a . 5 7 . C o rp o ra te O b lig a tio n s . It is e x p re s s ly un d e rs to o d th a t th is A g re e m e n t a n d th e o b lig a tio n s is s u e d he re u n d e r a re so le ly co rp o ra te o b lig a tio n s , a n d th a t n o pe rs o n a l lia b ility w ill a tt a c h t o , o r is o r sh a ll b e in c u rr e d by , th e in c o rp o ra to rs , s to c k h o ld e rs , off ic e rs , d ire c to rs , e le c te d o r a p p o in t e d o ff ic ia ls ,(in cl u d in g , w ith o u t lim ita tio n , th e M a y o r a n d C ity C o m m is s io n e r o f th e C ity ) o r e m p lo y e e s , a s s u c h o f D e v e lo p e r , C it y , o r a n y o f a n y s u c c e s s o r c o r p o r a t io n o r a n y o f t h e m , u n d e r o r b y r e a s o n o f t h e o b lig a t io n s , c o v e n a n t s o r a g r e e m e n t s c o n t a in e d in t h is A g r e e m e n t o r im p lie d t h e r e fr o m ; a n d t h a t a n y a n d a ll s u c h p e r s o n a l lia b ili t y , e it h e r a t c o m m o n la w o r in e q u ity o r b y c o n s t it u t io n o r s t a t u t e , o f , a n d a n y o f a ll s u c h r ig h t s a n d c la im s a g a in s t , e v e ry s u c h in c o r p o r a t o r , s t o c k h o ld e r , o ff ic e r , d ir e c t o r , e le c te d o r a p p o in t e d o ffi c ia l . (in cl u d in g , w ith o u t li m it a t io n , th e M a y o r a n d C ity C o m m is s io n e r o f th e C ity ) o r e m p lo y e e , a s s u c h , o r u n d e r o r b y re a s o n o f th e ob lig a tio n s , c o v e n a n ts o r ag re e m e n ts c o n ta in e d in th is A g re e m e n t o r im p lie d th e re fr o m a re e x p re s s ly w a iv e d a n d re le a s e d a s a co n d itio n o f, a n d a s co n s id e ra tio n fo r, th e e x e c u tio n o f th is A g re e m e n t. 5 8 . N o C o n fl ic t of In te re s t. D e v e lo p e r re p re s e n ts a n d w a rra n ts th a t, to D e v e lo p e r's k n o w le d g e , n o m e m b e r , o ff ici a l o r e m p lo y e e o f t h e C it y ha s a n y d ire c t o r in d ire c t fin a n c ia l in te re s t in t h is A g r e e m e n t n o r h a s p a rt ic ip a t e d in a n y d e c is io n r e la t in g t o t h is A g r e e m e n t t h a t is p r o h ib it e d b y la w . D e v e lo p e r r e p r e s e n t s a n d w a rr a n t s t h a t , t o D e v e lo p e r 's k n o w le d g e , n o o ff ic e r , a g e n t , e m p lo y e e , o r r e p r e s e n t a t iv e o f t h e C it y h a s r e c e iv e d a n y p a y m e n t o r o t h e r co n s id e ra tio n fo r th e m a k in g o f t h is A g r e e m e n t , d ir e c tly o r in d ire c tly , fro m D e v e lo p e r. 59. No Third-Party Beneficiaries. This Agreement is not intended to, and shall not be construed to give, any third. party (including, without limitation, any homeowners association, condominium association, or neighborhood association in the surrounding area, or any individual members thereof) any rights or interests whatsoever, nor is it intended that any third party shall be a third party beneficiary of any provisions hereof. 60. Limitations of Liability. 60.1 Any tort liability to which the City is exposed under this Agreement shall be limited to the extent permitted by applicable law and subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as may be amended, and City expressly does not waive any of its rights and immunities thereunder. 60.2 City will not in any event whatsoever be liable for any injury or damage to Developer (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees) or to any other person happening on, in or about the City Parcel or the Park/Streetscape Site and its appurtenances, nor for any injury or damage to the City Parcel or the Park/Streetscape Site (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees) or to any other person which may be caused by any fire or breakage, or by the use, misuse or abuse of any of the City Parcel or the Park/Streetscape Site, or which may arise from any other cause whatsoever (unless caused by the gross negligence or willful misconduct of City, its agents, contractors or employees). 60.3 Other than as provided in the City Parcel Easement, City will n liable to Developer or to any other person for any injury or damage to any property of D ~:ê~p,~~R. to any person or to the City Parcel caused by or resulting from gasoline, oil, steam, ·· , ~lê9trì)- t, (~ .r1.r.:j ··01 ·¿;hl <} = +u59.y -'} «: " Epy &Es 41 4912 7872;13 or hurr icane, torn ado, flood, w ind or sim ilar storm s or disturbances, or w ater, rain or sno w w hich m ay leak or flow fr om the str,eet, sew er, gas m ains or subsurf ace area or from any part of the C ity P arcel or the Park/S treetscape S ite, or leakage of gasoline or oil fr om pipes, appliances, se w e r or plum bing w orks therein, or fro m any other place, nor fo r interf erence w ith light or othe r incorporeal hereditam ents by any person (unless caused by the gross neglige nce or w illful m isconduct of C ity, its agents, contra ctors or em ployees). 60.4 Except as m ay be otherw ise expressly pro vided he rein, no approval to be m ade by the C ity in its pro prietary capacity under this A greem ent or any inspection of the Pro ject or P ark/S treetscape Im pro vem e nts by the C ity under this A greem ent, shall render the C ity liab le fo r its failure to discover any defects or nonconfo rm ance w ith any govern m ental requirem e nt. 60.5 D evel oper shall, pursuant to and in accordance with the terms and conditions of the City Parcel Easement, make the City Parcel available to the public free of charge for outdoor recreational purposes. Accordingly, to the maximum extent permitted by law, Developer may avail itself of the limitations of liability afforded pursuant to Section 375.251, Florida Statutes, to the fullest extent applicable to the City Parcel Easement. 61. Police Power. (a) The Parties recognize and agree that certain provisions of this Agreement require the City and its boards, departments or agencies, acting in their governmental capacity, to consider governmental actions, as set forth in this Agreement. All such considerations and actions shall be undertaken in accordance with established requirements of state statutes and municipal ordinances, in the exercise of the City's jurisdiction under the police power. Nothing contained in this Agreement shall entitle the Developer to compel the City to take any such actions, save and except the consents, if applicable, to the filing of such applications for Development Permits or Development Orders, as more fully set forth herein, and to process such applications as expeditiously as possible. (b) The Parties further recognize and agree that these proceedings shall be conducted openly, fully, freely and fairly in full accordance with law and with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing in this Agreement shall be construed to prohibit the City from duly acting under its police power to approve, approve with conditions, or reject any public hearing application dealing with the Development Site. 62. Art in Public Places. Developer shall comply with the City's Art In Public Places program requirements under Section 82-536 through 82-612 of the City Code, as applicable (the "AIPP Ordinance"), and shall pay to the City's Art in Public Places fund the total of 2.0% of the "construction cost" (as such term is defined in Section 82-537 of the City Code) of the Park/Streetscape Improvements (the "Public Art Funds") no later than the date of execution of Construction Agreement with the Contractor for the Park/Streetscape Improvements. The full amount of the Public Art Funds shall be dedicated to Developer's use for public art within the Park/Streetscape Site. In view of the Developer's overall design responsibility for the Park/Streetscape Improvements, the Developer shall either: (a) submit the proposed artworks to be funded with the Public Art Funds to the City's Art In Public Places Committee for its review, recommendation and approval; or (b) seek the City Commission's approval of the proposed artworks and waiver of any applicable AIPP Ordinance program requirements, which approval by the City Commission shall not to be unreasonably withheld, conditioned or delayed.~--:·-- y%D58 i% ft d. ~t~:~~ ~¿s~j/ 42 49127872, 13 6 3 . C ity M a n a g e r's D e le g a te d A u th o rity . N o tw ith s ta n d in g a n y p ro v is io n to th e co n tra ry in t h is A g r e e m e n t , no th in g he re in s h a ll p re cl u d e e ith e r P a rt y fro m s e e k in g d ire c tio n fr o m o r e le c tin g to ha v e th e C ity C o m m is s io n d e te rm in e a n y m a tte r a ris in g o u t of o r re la te d to th e P a rk/S tre e ts c a p e P ro je c t, in cl u d in g , w ith o u t lim ita tio n , a n y a p p ro v a l co n te m p la te d un d e r th is A g re e m e n t (w ith in th e tim e fr a m e s p e c ifi e d th e re fo r a s if th e a p p ro v a l w a s b e in g d e te rm in e d b y th e C ity M a n a g e r). 6 4 . C o n fli c t. In th e e v e n t o f a n in c o n s is te n c y o r c o n fli c t b e tw e e n th e te rm s of th is A g r e e m e n t a n d th e V a c a tio n R e s o lu tio n , th e te rm s o f th is A g re e m e n t s h a ll c o n tro l. 6 5 . F re e d o m f r o m In t e rf e r e n c e . E x c e p t a s is o t h e rw is e e x p r e s s ly p ro v id e d in t h is A g r e e m en t , D e v el o p er shall have discretion, control, and authority, free from interference, interruption, or disturbance by the City, in all matters relating to the development, design, permitting, and construction of the Project and the Park/Streetscape Improvements, including, among others, with respect to the following specific matters: (i) the selection, approval, hiring, and discharge of architects, engineers, contractors, subcontractors, professionals, and other third parties on such terms and conditions as Developer deems appropriate in its sole discretion, provided that the Contractor for the Park/Streetscape Improvements must be duly licensed by the State of Florida, must satisfy the insurance and bonding requirements set forth in Exhibit "N" to this Agreement, and must have completed at least two (2) projects with an estimated value of at least Ten Million Dollars ($10,000,000.00) each during the five (5) years immediately preceding the Contractor's engagement for the Park/Streetscape Improvements, and provided further that the landscape architect for the Park/Streetscape Improvements, if other than Raymond Jungles, must be approved in advance by City, but the City will not unreasonably withhold, condition, or delay such approval; (ii) the negotiation and execution of contracts, agreements, instruments, covenants, and other documents with third parties, in form and substance satisfactory to Developer in its sole discretion; and (iii) the preparation of such budgets, cost estimates, financial projections, statements, information, and reports as Developer deems appropriate in its sole discretion. 66. Estoppel. The City will, no later than fifteen (15) Business Days after a written request therefor by Developer, by any Recognized Mortgagee, or by anyone claiming by or through Developer (including, without limitation, Developer's successors, assigns, transferees, and mortgagees and other lenders providing financing for the Project or the Park/Streetscape Improvements), and upon payment of the reasonable fees to cover the City's expenses for any third-party resources required to comply, issue a written estoppel certificate, in recordable form, to the requesting party, certifying as to any matter related to this Agreement that the requesting party may reasonably request of the City, including, without limitation, (i) that this Agreement, or any particular paragraph or section of this Agreement specified by the requesting party, is in full force and effect and unmodified (or in what respects this Agreement is no longer in force or effect or has been modified); (ii) that all monies due and payable under this Agreement, if any, have been paid (or in what respects monies are owed); and (iii) that to the City's knowledge, Developer is in compliance with this Agreement or with any particular paragraph or section hereof specified by the requesting party (or in what respects there is noncompliance). Such estoppel certificates will be binding on the City and its successors and assigns, and may be relied upon by Developer, its mortgagees and lenders, and by all others claiming by or through Developer. Notwithstanding the foregoing section or any representations in any estoppel certificates issued thereunder, City shall not be estopped as to matters to which it did not have knowledge. [Signatures Follow] 43 49127872; 13 EXECUTED as of the date first above written in several counterparts, each of which shall be deemed an original, but all constituting only one agreement. Signed, sealed and delivered in the presence of: CITY OF MIAMI BEACH, a Florida municipal corporation Name : t o "c I Name~ Dan Gelber, Mayor Attest: u vs S,er R ranado, City Clerk STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) Th e foregoing instrum en t was acknowledged before me this / spy of ,7u ~ , 2019, by DAa Gel as Mayor of the City of Mia i Beach, a municipal corporation, on behalf of the Corporation. He is personally known _to me or has produced asidentification and wh o did (did not) take an oath. e =o 4EE»,, r ile [Vloal e$ Typed or Printed Name of Notary My Commission expires: e ria] [o,, ff an7/.- ,+o ''··+«,, . - . . . . · , &<s.' s d ·.: . -• .o ( ~c·· •·J,.o, 6HQ 6" ri;k .si;y.. YAMI LE X MORALES [ IJœ•;¡:/t- \ Notary Public - State of Florida i.' ·i Commission # GG 071355 3y Jes My Comm. Expi res Mar 16, 2021 ",9,f;"" Bon ded throu gh National Not ary Assn. APPP AS TO L#TH-LAN G U A G E U TI ON S ig n e d , se a le d and de live red in the prese nce of: 7450 OCEAN TERRACE LLC, a Delaware limited liability company Print Name: Ezri B-A. By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, 2725e Sand r Scher Manager STATE OF FLORIDA COUNTY OF MIAMI-DADE . l The foregoing instrument was acknowledged before me this )h_day of_U±''7_ 2019 by Sandor Scher, _as Manager of Ocean Terrace Holdings, LLC, a Delaware In#8 liability company sole ember f7450 Ocean Terrace LLC, a Delaware limit liability company. He is pers 5nally known to ór has produced Al as identification and /ho(did/did my e an oath. ) ) SS: ) rinted Name of Notary ission expires: erlal r., ff all'a.at.a.tttttttd 3ii. JULIANNE PRESS $pp Notary Public - state ot Florid i, #;&i commission # GG 299114 $2,é y comm. Expires Fe 6, 2023 ""gonded through National Notary Assn. Signed, sealed and delivered in the presence of: Print~/ ,ns;;;t•q íf¼,;PL 7436 OCEAN TERRACE LLC, a Delaware limited liability company Print Name: [zg• D.Ly, By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, ::s::nz~ Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this ~ day of ' t j, 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delawar~ability company, t f 7436 Ocean Terrace LLC, a D re limited liability company. He ly' has produced 'las identification e an oath. T pires: s JULIANNE . %, tary Public - State of Florida F,± No „.s. GG299114 ±! Commission. + 6 2023 e Si +m, Expires Fer o, "?Ks$ ye""„ aisrat o any A"" ""sonded throu " S ig n e d , s e a le d a n d d e liv e re d in th e p re s e n c e o f: 7420 OCEAN TERRACE INVESTMENT, LLC, a Florida limited liability company By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole member By Sando,~ Manager STATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) SS: ) ) The foregoing instrument was acknowledged before me this5_ì_J- day of _-=-J_1v_Í+-¡ _ 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware iatd liability company, an Terrace Invest[ ent, LL ,A IIIIIa limited liability compan .„+a+anf- 1e or has pro ted identification= oath. \ as NO LIC Typ ted Name of Notary My expires: ·{&r i;;. JULIANNE PRESS '$p, Notary Public - sate ot Florida 393;i commission + GG 299114 @ê?5 wy comm. Expires Feb 6, 2023 "" gonded through National Notary Assn. Signed, sealed and delivered in the presence of: 7410 OCEAN TERRACE LLC, a Delaware limited liability company By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, :e SandorSJ. Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me thijl "- day of J }~ 2019 by Sandor Scher ¡er of Ocean Terrace Holdings, LLC, a Delaware Infíed liability e sole me b 7410 Ocean Terrace LLC, a Del liability company. He 0me or has produced ' ll as identification And y4 3}4/did not take an oath. ö z¿. JUANNE PRESS #é@@; oso, Poe-sa«e ot Force 3jig; commission + GG 299114 2%á?° My Comm. Expires Feb 6, 2023 Borde¢ through National Notary Assn. 5 S ig n e d , se a le d a n d d e liv e re d in th e p re s e n c e o f: 7400 OCEAN TERRACE, LLC, a Florida limited liability company By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, 25e Sandor Schr Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me th isr day of__.._~-+--2019 by Sandor Scher, as r of Ocean Terrace Holdings, LLC, a Delaware li "ed liability company, thy \O0 Ocean Terrace, LLC, a Elorida lirjted liability company. He IS perSot ll kn2 up A, n is produced ' I as identification and who e an oath. inted Name of Notary mmi sion expires: o., fany _ iii;y. JULIANE 2RESS /~mo\ /fi;\ Notary Pub:ic . State of Florida i? ?:si commissior = GG 299114 ê;= é y comm. Expires Feb 6, 2023 , F£-.° ,q, Assn " gonded through Natiora' Notary 65 • S ig n e d , s e a le d a n d d e liv e r e d in th e p r e s e n c e o f : 7409 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company ..$$á±. _ Print Name: Kuia P.CAlys By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole me~mber • ~ ./'J ,,...._ - 4 Sand6r scñer Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) :cl. The foregoing instrument was acknowledged before me this'_day or AA_ 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware lit íted liability company, the sole 2mer of+A Collins Ave Investment, Ly a Florida limited liability Company. He is De9''2lQnte me r has produ f] f) aS identification and a e an oath. nted Name of Notary sion expires: any . JUAN PRESS _. .. ._-:;,,_• •ú;;¿; .. _ Public • State of F l~nCò t ¿êp e otanY +cc199ve i?'f$-i cam mi sso . ¿6.2 023 Ge; Expires e: . & @2sf wre"„„„irat otrow} "" 3onde¢ thrO U re Signed, sealed and delivered in the presence of: 7421 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company 5 175,R IEE<I ú Print Name: [ea De> By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole mem~ _ - Sani@r sñer Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me th ;QI Sl day of ~ 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware Id liability company, the sole member of 7421 Collins Ave Investment, LLC, a Florida limited liability company. He _ya.. me or has produced p]==}as identification an ake an oath. pires: s $%@ Ju Ress ¿ 35 ?ç; votary Public - sate ot Florice iS? commission # GG 299114 .9n My Corm. Expires Feb 6, 2023' 3or de¢ through ational Notary A5Sr. Signed, sealed and delivered in the presence of: 7433 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company .."#tés • Print Name: Ke g.a D.lye By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole ~emlber '7 /1 _ le san& s6Rei Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me thi~ da,:: 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LL, a De ware · d liability company, the sole , of 7, 33 Collins Ave Investment, L·, a Fl ida Ii liability company. He is p 'sonally_ mn tome or has produced Ill as identification and I did not take an oath. NOT ARY PUBLI Typed or printed Na My Commission x ires: Serial No., if any _ . JUL E PRESS , wary vii« -sate ot Florida ê?¿ì arr«is =cs@a9'3 I ·---~/,, IAY Comm. E~¡wes Feb 6, • ·;F .. +Notary Assn. 5" ¡ded through Nat1oai T f Bonl ec '5' ' Signed, sealed and delivered in the presence of: 7439 COLLINS AVE INVESTMENT LLC, a Florida limited liability company 1.é"$ é t- Print Name: Ku.a Del ,2 By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, : Sand4Í Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me thij\,;. day of · LJ 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delawar~ability company, the sol o 743 ollins Ave Investment LLC, a · · ited liability Company. He" tome or has produced I I'la identification 1 /did not take an oath. Typ me of Notary My pires: ri; ,di.ttc.dt.t.th.th.th.dit{ irii;;; Ju4 4g PRE SS 8pg a.._s@yegg } ¡é, f@ :çi Comm ission # GG 299114 %$,sf; y corm. tires Fe 6, 2023 , o nded th rough Nation al Not ary Assr.. y Signed, sealed and delivered in the presence of: 7441 COLLINS AVE INVESTMENT, LLC, a Delaware limited liability company .$4$/%ta ~dL Print Name: keu. DC .lo - By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, 4es san@or Snl; Manager STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this3 l P- day of J~ 2019 by Sandor Scher, as Manager of Ocean Terrace Holdings, LLC, a Delaware if¡ed liability company, the of Collins Ave Investment LLC,a Delaware limited liability Company He me or has prodt ed l aS identification and no a e an oath. Exhibit "A" The Developer Property Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in Block 1 of Harding Townsite, according to the Plat thereof, as recorded in Plat Book 34, Page 4, of the Public Records of Miami-Dade County, Florida. ) 49033640;2 E x h ib it II B 11 Reversionary Interest see following page(s) 49033720,1 ) LEGAL DESCRIPTION: A portion of the Public Reservation shown on Plot of TOWNSITE OF HARDING, according to the Plot thereof, os recorded in Plot Book 34 at Page 4, of the Public Records of Miami-Dade County, Florido, being more particularly described as follows: Commence at the Southeast comer of Lot 7 in Block 1, of said Plat of TOWNSITE OF HA RDING; thence South 02'58'50" East, along the Southerly prolon gation of the West Right-of-Way line of Ocean Terrace, (First Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the center line of 74th Street (Second Stree t per Plat Book 34 at Page 4); thence North 8659'28" East, along said center line , for 60.00 feet to a point on the East Right-of-Woy line of sold Ocean Terrace and the Point of Beginning; thence continue North 86'59'28" East, alon g said center line, for 31.53 feet to a point on the East line of said Public Reservation ; thenc e North 04'12'42" West, alon g said East line, for 420.09 feet to a point on the North line of Government Lot 7, lying in Section 2, Town ship 53 South, Range 42 East, also being the North line of Plot Book 34 at Poge 4; thenc e South 8659'28" west alon g said North line of Governm ent Lot 7 for 22 .50 feet to a point on said East Right-of-Way line of Ocean Terra ce, also being the West line of said Public Reservation; thence South 02'58'50" East, along said East Right--of-Way line and West line, for 420.00 feet to the Point of Beginn ing. SURVEYOR'S NOTES: - This site lies in Section 2, Townsh ip 53 South, Range 42 East, City of Miami Beach, Miami -Da de County, Florida. - Bearings hereon are referred to an assume d value of N 02"58'50"° W for the centerline of Collins Aven ue. - Lands shown hereon were not abs tracted for easem ents and/or rights-of-way of records. - Lands shown hereon containing 11,346 square feet, or 0,260 acres, more or less. -- This is not a "B oundary Survey but only a graphic depiction of the description sh own hereon . - Dim ensions shown hereon are based on Fortin, Leavy , Skiles, sk etch J2016-170-NGVD . SURVEYOR'S CERTIFICATION: I hereby certify that this "Sk etch of Descripti on " was made under my responsible charge on May 8, 2019, and meets the applicable codes as set forth in the Florido Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" FORTIN, LEAVY, SKILES, INC., LB3653 By: Daniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florida. _2'e_y LEGAL DESCRIPTION, NOTES & CERTIFICATION\[@@@?Aye/1g +. • l y [cale'kgf /T SCAL_E H., nm I FORTIN, LEAVY, SKILES, INC.XE» i6490441 CON SUL TING EN GINE ERS, SURVEYORS & MAP PERS l_.,i FL ORID A CERTIFI CATE OF AUTH ORIZA TI ON NUMB ER: 00 003653 [Wg. No. 1019-007-K 18O N orth ea st 168th. Stre et / N orth Miami Bec h, Fl orida . 33162 Phone : 305-6 53-44 93 /Fax 305-651-7152 / Emil fls @fls surv ey.co m {Sheet 1 of 3 Dramn By MAP Cad. No. 190176 _) Ret. Dg. 2016-170 Plotted: 5/9/19 7:29a L __ i y I L _ (ALLAMANDA (75TH) STREET - PLAT BOOK 31 PAGE 4O) 75TH STREET oRm uN or .. GOVERNMENT LOT 7 g SECT0ON 2-53--42 ± NORTH LUNE OF PLAT BOOK 34 PAGE 4 ---,- 1 ----1- 1 -I- I BE- IC K_1 I I -,--- 1 -,--- 1 _, _ LOT 8 LOT9 LOT1 LOT2 I8. I <:~ re -- Jät 1 1-51- <ê zs l<$à l 15È 1? -1?g £ 1% ,si l lg? o I LOT7 L,.J ~ ~ POINT OF , coiigeNcMENT\ 5= s@cirri „k} 5 cp.per-- ECON STREET-PLAT ok a4PaE) sie }"" 7ou seer 4TH STR EET Ln li (PUBLIC RIGHT OF WAY) NS6 '59'28'E 60.00' LOT10 LOT11 LOT12 LOT13 LOT3 TOWNSITE OF HARDING PLAT BOOK 34 PAGE 4 LOT4 LOT5 LOT6 60' LOT 14 GRAP HIC SCALE o 30 60 120 (IN FEET ) 1 inc h s 80 ft Dram By MAP Cad. No. 190176 Ref. Dog. 2016-170 Plotted: 5/9/19 729a ( 8ero# or DscniT Jr FORTIN, LEAVY, SKILES, INC. CONSUL TING ENGINE ERS, SURVEYORS & MAP PERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653 18O Northeast 168th. Street / North Miami Bech, Florida. 33162 Phone: 305-653-4493 / Fa 305--651-7152 / Email fls@flssurvey.com T (PUBLIC RIGHT OF WAY) L-evTERLUNE OF 75T STREET (FIRST STREET - PLAT BOOK 34 PAGE 4) ----7 I --7 7 5TH S TR E E T UJ z ::> << < z UJ UJ O 2 > o <1 I O zz D ¡::: 7a7H STREET z z .....J UJ z r .....J O 5 CJ o <4 z £ O r r uI ) l z < I O o = 73RD STREET 72ND STREET 3 [_ LOCATION SKE TCH _Jr# I )l FORTIN, LEAVY, SKILES, INC. CONSULTING ENGINEERS, SURVEYORS & MAP PERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00 003653 '-1 "7-K 18 O Northeast 1 6 8 th. Street/ North Miami Bech, Florida. 33162 P h on e : 3 0 5 -6 5 3 -44 93 /Fax 305-651-7152 /Emil fs@fls surv ey.co m (Sheet of 3 Dram By MAP Cad. No. 190176 Ret. Dg. 2016-170 Plotted: 5/9/19 7:29a E xh i bi t "C" 75 Stre et Parc el see following page(s) 49183387; I ) LEGAL DESCRIPTION: A portion of the Right-of-Woy of 75th Street that adjoins Lots 1 and 8 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florido, being more particularly described os follows: Begin at the Northeast corner of said Lot 1; thence South 86'59'28" West along the North line of said Lots 1 and 8, also being the South Right-of-Way line of said 75th Street, (First Street per Plat Book 34 at Page 4) for 296.00 feet to the Northwest corner of said Lot 8, also being o point on the East Right-of-Woy line of Collins Avenue (Second Avenue per Plat Book 34 at Page 4); thence North 0258'50" West, along the Northerly prolongation of the West line of said Lot 8, also being said East Right-of-Woy line of Collins Avenue for 40.00 feet to o point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 8659'28" East along said North line of Government Lot 7 for 296.00 feet; thence South 0258'50" East, along the Northerly prolongation of the East line of said Lot 1, for 40.00 feet to the Point of Beginning. SURVEY OR 'S NOTE S: -- This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami-Dade County, Florida. - Bearings hereon are referred to an assumed value of N 02"58'50" W for the centerline of Collins Avenue. - Lands shown hereon were not abstracted for easements and/or rights-of-way of records. - Lands shown hereon containing 11,840 square feet, or 0.272 ocres, more or less. -- This is not a "Boundary Survey but only o graphic depiction of the description shown hereon. - Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170--NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on June 13, 2019, and meets the applicable codes os set forth in the Florido Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surveyor and Mapper" FORTIN, LEAVY, SKILES, INC., LB3653 By: Doniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florido. Dramn By DANJR Cad. No. 190176 Ref. Dwg. 2016-170 / Pl otted: 5/9/19 729a e [GAL DESCRIPTI ON, NOTES & CER TIFI CAT7 ON] [se „/is/2si9, y scet4ion 'tóks ckit F O RT IN , L E A VY , S KI L E S, IN C. to». lie. ¡cs@ l CONSULTING ENGINEERS, SURVEYORS & MAP PERS __ls9 9__] FLORIA CERTIFICATE OF AUTH ORIZA TION NUMB ER: 000036s3 [Dg. Nö.¡@j9057_p 180 Northeast 168th. Street/North Miami Hcach, Florida. 33162 Phone: 305-653-4493 /Fa 305-651-7152 /Email fls@flssurvey.com Sheet 1 of 3 7 L _ NO2'58'50"W 40.00' N8'59'28"E $86'59'28'W NORTH LUNE OF LOT 8 l_ LOTS l5~ E ? WEST LUNE •~ "'~ r-- OF LOT 8 « 8/ E !z °% p LOT9 H~---- -1--- LOT10 I e L e_g_« z? j ¡ I $ > 8 LOT11 <(. ID t li·, I ; 23 Cf) 1 I ii 1 - - - - - - 1 - - - o su <¿4 ss lg é 1ê ? O, " H- I o I LOT13 I ~------1--- 1 LOT14 I '" ¡ "°"-::°'\ ~OON-D STR_E_ET - P-LA-T-BOO_K_34-PA_G_E-4) TH STREET \ 74TH STREET -~-- ---- (PUBLIC RIGHT OF WAY) EAST UNE__:J OF" LOT 8 I .. TOWNSITE OF HARDING PLAT BOOK 34 PAGE 4 LOT 4 LOT5 LOTS £$ I 75TH L - --·- =·- $02'58'50"E STREET ±e 08 GRAPHIC SCALE 30 60 (IN FEET ) 1 inch 80 ft LOT1 296.00' POINT OF BEGINNING N.E. CORNER Of' LOT 1 LOT2 LOT3 LOT7 1 I I I I I + I I I I I I 60' __ º -c1 18, I 4 è i± I lé H- '<E I è zso 1<g? i$ê l 'êi I I [ I I ) I ] Dramn By DANJR Cad. No. 190176 Ret. Dg. 2016-170 Plotted: 5/9/19 7:290 ( SKETCH OF DESCRIPTION FORTIN, LEAVY, SKILES, INC. CONSULTING ENGINE ERS, SURVEYORS & MAPPERS FLORIDA CERTIFICATE OF AUTHORIZATION NUMB ER: 00003653 I8O North east 168th. Street/ North Mi ami Beach, Florida . 33162 Phone: 305-653-4493 /Fax 305-651-7152 / Email fls@flssurvey.com Sheet 2 ot 94 --007-P 3 \ - 75TH STREET í SUBJECT LEGAL DESCRIPTION rey LI LOC 1 z ::i < < z uI uI O ...- > o ± << \ O >- D ¡::: - < 7anH STREET z , _J Lu) z O << r _J l CJ o <1' z r £ O r I b z << LI O o - 73RD STREET = 72ND STREET • Dram By DANJR ( Cad. No. 19 0 17 6 ) Ret. Dwg . 2016-170 Plotted: 5/9/19 7:29 LOCATION SKETCH )[ate s/13/201s sé@te Rojo SCAE FORTIN, LEAVY, SKI LES, INC. [l. Tarr CONSULTING ENGINEERS, SURVEYORS & MAPPERS /] [{"; [! I FLORID A CERTIFICATE OF AUTH ORIZA TION NUMBER: 000o036s3 \] [Dng, No. 1019-007-P 18O North east 168th. Street/ North Mini Beach, Florida . 33162 '7 CC.- 7 Phon e: 305-653-4493 /Fax 305-651-7152 /Em ail fls@fissurv ey.com '{Sheet-36f 3 Exhibit "D" 74 Street Parcel see following page(s) 49183387.1 LEGAL DESCRIPTION: A portion of the Right-of-Woy of 74th Street that adjoins Lots 7 and 14 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florido, being more particularly described os follows: Begin at the Southeast corner of said Lot 7; thence South 86'59'28" West, along the South line of said Lots 7 and 14, also being the North Right-of-Way line of 74th Street (Third Street per Plat Book 34 at Page 4), for 296.00 feet to the Southwest corner of said Lot 14; thence South 0258'50" East, along the Southerly prolongation of the West line of said Lot 14, also being the East Right-of-Way line of Collins Avenue (Second Avenue per Plot Book 34 at Page 4), for 30.00 feet to a point on the center line of said 74th Street; thence North 86'59'28" East. along said center line, for 296.00 feet to a point on the Southerly prolongation of the East line of said Lot 7; thence North 02'58'50" West, along said Southerly prolongation, for 30.00 feet to the Point of Beginning. SURVEYOR'S NOTES: -- This site lies in Section 2, Township 53 South, Range 42 East, City of Miami Beach, Miami-Dade County, Florida. - Bearings hereon are referred to an assumed value of N 0258'50" W for the centerline of Collins Avenue. - Lands shown hereon were not abstracted for easements and/or rights-of-way of records. - Lands shown hereon containing 8,880 square feet, or 0.204 acres, more or less. -- This is not a "Boundary Survey but only a graphic depiction of the description shown hereon. - Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #2016-170--NGVD. SURVEYOR'S CERTIFICATION: I hereby certify that this "Sketch of Description" was made under my responsible charge on dune 13, 2019, and meets the applicable codes os set forth in the Florido Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Licensed Surv eyor and M apper" FORTIN, LEAVY, SKILES, INC., LB3653 b e e e e e Doniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florido. Dramn By DANJR Cad. No. 190176 Ref. Dwg. 2016-170 _._) Plotted: 5/9/19 7:29 • -o • s y[GA DESCRIPTION,. NOTES & CERTIFICAT7ON] [@se s]3/2o1s [, [Scale[t SA]_E #... I FORTIN, LEAVY, SKILES, INC, {[. iealsoss4 CONSUL TING ENGINE ERS. SURVE YORS & MAP PERs'J [5 I FL oRr A cRTmF IcATE or hnír oRrzA n1 oN NUB ER: oooo3cs '[pea,ck ¡19-007-S 180 Northeast 168th. Street/North Miami Bech, Florida. 33162 Phone: 305-653-4493 /Fax 305-651-7152 /Emil fl s@fl ssurv ey .com Sheet 1 of 3 o GRAPHIC SCALE 30 60 120 ( IN FEET ) 1 inch » 60 ft io N J L 75TH STREET T (PUBLIC RIGHT OF WAY) \ceNTERLUNE OF 75TH STREET (FIRST STREET· PLAT BOOK 34 PAGE 4) -----_7 I -----7 I l I [ I I --7 I --Î I ---,- 1 ------I- I -1--- 1 ge I I _I _ I -1--- 1 [-]] L'&'.ST LI;;- - - LOT? EOFASTLOUTNi "i OF LOT 14 I LOT14 POINT OF s02'58'50'E sounuNE- oRn_Ror'or_wAr LuNE- BEGINNING NO2'58'50"w 30.00' OF LOT 14 OF 74TH/STREET SE. CORNER OF LOT 7 S86'59'28"w 296.00' 30.00' (1)~~ , --~··)G.;..;;: ~ ..... -~:;;;;;;.COR~N~ER ........ · ..... · ;.;;;..;;_;_. ;_;;7--4 __ T;.;.;..rl __ : ·.· s __ · · • __ t.....,R ...... E~·• :·.•·..,.Ê..,.T~· --c~--lER-UN-=· ~·-::-:OF:-:r- ... · .......... .a....,¡,_-e l ' êf9'1 (PUBLIC RIGHT OF WAY) 7+1STREET N86'59'28'E (SECOND STREET - PLAT BOOK 34 PAGE 4) 296.00 • LOT8 LOT9 - - - - LOT 10 e3 L- - - LOT 11 - - - - LOT 12 - - - - LOT13 LOT1 LOT2 LOT3 LOT5 LOT6 1 TOWNSITE OF HARDING PLAT BOOK 34 PAGE 4 LOT4 60' LI O= <t$ ris 5- r 4 ~ u.. LLI 8 o I- ' b- r a.. e, $ E z± O <<' 5 Ill ul =i ~ 0 E o Drawn By DANJR Cad. No. 190176 Ref. Dwg. 2016-170 Plotted: 5/9/19 7:290 [_ SKETCH OF DESCRIPTION _J} %A I FORTIN, LEAVY, SKILES, INC. CONSULTING ENGINEERS, SURVEYORS & MAPPERS FLORID A CERTIF ICATE OF AUTH ORIZA TION NUMB ER: 00003653 7-S 180 Northeast 168th. Street/ North Mi ami Bech, Florida. 33162 Phone: 305-653-44 93 /Fax 305-651-7152 / Emil fls@flssurvey.com . ) 75TH STREET ¡ _,7'--'4~TH~STREET r D Ï = 73RD STREET SUBJECT LEGAL DESCRIPTION 72ND STREET «.3 Drawn By DANJR Cad. No. 190176 Ref. Dwg. 2016--170 Plotted: 5/9/19 7:29 [_ LOCATION SKETCH _ Ph' I E FORTIN, LEAVY, SKILES, INC. CONSULTING ENGINEERS, SURVEYORS & MAPPERS FLORID A CERTIF ICATE OF AUTH ORIZA TION NUMB ER: 00003653 180 Northeast 168th. Street/North Miami Beach, Florida. 33162 Phone: 305-653-4493 /Fax 305-651-7152 / Emil fls@flssurvey.com Exhibit "E" Ocean Terrace Parcel see following page(s) 49183443;1 ) LEGAL DESCRIPTION: A portion of the Right-of-Woy of Ocean Terrace that adjoins Lots 1 through 7 in Block 1, of TOWNSITE OF HARDING, according to the Plot thereof, os recorded in Plot Book 34 at Page 4, of the Public Records of Miomi-Dode County, Florido, being more particularly described os follows: Begin at the Southeast corner of said Lot 7; thence North 02'58'50" West along the East line of said Block 1, also being the West Right-of-Way line of said Ocean Terrace, (First Avenue per Plat Book 34 at Page 4) for 390.00 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 5 South, Range 42 East, also being the North line of Plat Book 4 at Page 4; thence North 8659'28" East along said North line of Government Lot 7 for 60.00 feet to o point on the East Right-of-Woy line of said Ocean Terrace; thence South 02'58'50" East along said East Right-of-Way line for 420.00 feet to the centerline of 74th Street (Second Street per Plat Book 34, Page 4); thence South 86'59'28" West, along said center line, for 60.00 feet; thence North 02'58'50" West along the Southerly extension of said East line of Block 1 for 30.00 feet to the Point of Beginning. SURVEYOR'S NOTES: - This site lies in Section 2, Township 53 South, Range 42 East, City of Miomi Beach, Miami-Dode County, Florido. - Bearings hereon are referred to an assumed value of N 02'58'50" W for the centerline of Collins Avenue. - Lands shown hereon were not abstracted for easements and/or rights-of-way of records. - Lands shown hereon containing 25,200 square feet, or 0.537 ocres, more or less. -- This is not o "Boundary Survey" but only o graphic depiction of the description shown hereon. - Dimensions shown hereon ore based on Fortin, Leavy, Skiles, sketch #2016-170-NGVD. SURVEYO R'S CERTIFICATION: I hereby certify that this "Sketch of Description" was mode under my responsible charge on June 13, 2019, and meets the applicable codes os set forth in the Florida Administrative Code, pursuant to Section 472.027, Florida Statutes. "Not valid without the signature and the original raised seal of a Florida Li censed Surv eyor and M apper" FO RTIN, LEAVY, SKILES, INC., LB3653 By:------------ Doniel C. Fortin, Jr., For The Firm Surveyor and Mapper, LS6435 State of Florido. Dram By DANJR Cad. No. 190176 Ref. Dwg. 2016-170 ) Potted: 5/9/19 7:29a .. [EGAL DESCRIPTION, NOTES & CERTIFICATION] F O R T IN, L E A VY, S KI L E S , IN C . CONSUL TIN G ENGINE ERS, SURVE YORS & MAP PERS FL O RID A C E RTIF IC ATE O F AUTH O RIZA TI ON NUMB ER: 00003653 180 Northeast 168th. Strcr/North Miami Beach, Florida. 33162 Phone: 305-653-44 93 /Fax 305-651-7152 / Email fls@flssurv ey.com Date 6/13/2019 Scale N O T TO S C A L E Jo»,A6. 4o5g4 pé. eo. 1öy9-#9b7-0 sheet t./r ]3 7 L __ io (y _ _J L 75T H S TR EET NORT uNe or / GOVERNMENT LOT 7 SECTION 2-53-42 & NORTH LINE OF PLAT BOOK 34 PAGE 4 ¡--- 1 r----- 1 s GRAP HI C SCALE 30 60 3 ( IN FEET ) 1 inc h = 80 ft. LOT8 LOT9 N86 '59'28'E LOT10 LOT11 E LOT12 LOT13 LOT 14 (PUBLIC RIGHT OF WAY) (FIRST STREET - PLAT BOOK 34 PAGE 4)] SOUTH RIGHT OF WAY LINE"7 or 7sm smeEr _L .l OF LOT 1 LOT1 -¡- I -1--- 1 -1--- 1 _I _ I I 0 e tee I -1--- 1 -1--- 1 LOT3 LOT2 EAST LINE OF BL.OCK 1 TOWNSITE OF HARDING PLAT BOOK 34 PAGE 4 LOT4 LOTS LOT6 'íl Dran By DANJR Cad. No. 190176 Ret. Dg. 2016--170 Plotted: 5/9/19 7:29a 60.00' [_ SKETCH OF DESCRIPTION Jr""I I FORTIN, LEAVY, SKILES, INC. CONSUL TIN G ENGINE ERS, SURVEYORS & MAP PERS FL O RID A CE RT IF IC A TE O F AUTH O RIZA TI ON NUMB ER: 00003653 -Q 180 North east 168th . Street / North Mi ami Beach, Florida . 33162 Phone: 305-653-4493 /Fax 305-651-7152 / Email fls@flssurvey.com Sheet 2 of 3 ) 75TH STR E E T IsLoc i z u ] <'7musieEer , T 2 2 l Q < 5l I uI b z Lu O » SUBJECT LEGAL DESCRIPTION z <4 I O o O ¡::: z 3 z = 73R ST R E E T 72ND STREET Q Dran By DANJR Cad. No. 190176 Rei. Dwg. 2016--170 Plotted: 5/9/19 7:29a [_ LOCATION SKETCH ][w e zors ..._ __, Sp,6.Íê, CALE FORTIN, LEAVY, SKILES, INC. CONSUL TING ENGINE ERS, SURVEYORS & MAP PERS FL O RID A C E RTIFI C A TE O F AUTH O RIZA TI O N NUMB ER: 00003653 107---Q 18O Northeast 168th. Street / North Miami Beach, Florida. 33162 Phone: 305-653-4493 /Fax 305-651-7152 /Email fls@fl ssurvey.com Exhibi t "F" Development Site Developer Prop erty Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 in Block 1 of Harding Townsite, according to the Plat thereof, as recorded in Plat Book 34, Page 4, of the Public Records of Miami-Dade County, Florida. Ocean Terrace Parcel A portion of the Right-of-Way of Ocean Terrace that adjoins Lots 1 through 7 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Southeast corner of said Lot 7; thence North 02º58'50" West along the East line of said Block 1, also being the West Right-of-Way line of said Ocean Terrace, (First Avenue per Plat Book 34 at Page 4) for 390.00 feet to a point on the North line of Government Lot 7, lying in Section 2, Township 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 86°59'28" East along said North line of Government Lot 7 for 60.00 feet to a point on the East Right-of-Way line of said Ocean Terrace; thence South 02º58'50" East along said East Right-of-Way line for 420.00 feet to the centerline of 74th Street (Second Street per Plat Book 34, Page 4); thence South 8659'28" West, along said center line, for 60.00 feet; thence North 02º58'50" West along the Southerly extension of said East line of Block 1 for 30.00 feet to the Point of Beginning. 74" Street Parcel A portion of the Right-of-Way of 74th Street that adjoins Lots 7 and 14 in Block 1, of TOWNSITE OF HARDING, according to the Plat thereof, as recorded in Plat Book 34 at Page 4, of the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Southeast corner of said Lot 7; thence South 86º59'28" West, along the South line of said Lots 7 and 14, also being the North Right-of-Way line of 7 4th Street (Third Street per Plat Book 34 at Page 4), for 296.00 feet to the Southwest corner of said Lot 14; thence South 02º58'50" East, along the Southerly prolongation of the West line of said Lot 14, also being the East Right-of-Way line of Collins Avenue (Second Avenue per Plat Book 34 at Page 4), for 30.00 feet to a point on the ceptfh},, of said 74th Street; thence North 86°59'28" East, along said center line, for/296.00 feè to a point on the Southerly prolongation of the East ne of said Lot7 th$ceorth o 49183559,1 02º58'50" W est, along said Southerly pro longation, fo r 30.00 feet to the Point of Beginning. 75 Street Parc el A portion of the R ight-of-W ay of 75th Street that adjoins Lots 1 an d 8 in Bl o ck 1, of TOW NS ITE O F HARD IN G , according to the Plat thereof, as recorded in Plat B ook 34 at Page 4, of the Public R ecords of M iam i-D ade C ounty, Florida, being m ore particularly described as fo llow s: Begin at the Northeast corn er of said Lot 1; th en ce South 86º59'28" W est along the North line of said Lot s 1 an d 8, also being the South R ight-of-W ay line of said 75th Street, (First Street per Plat Book 34 at Page 4) fo r 296.00 feet to the Northw est corn er of said Lot 8, also being a point on the East Right-of-W ay line of C ollins A venue (Second A venue per Plat B ook 34 at Page 4); thence North 02º58'50" W est, along the Northerly prolongation of the W est line of said Lot 8, also being said East Right-of-W ay line of Collins Avenue fo r 40.00 feet to a point on the N orth line of G overn m ent Lot 7, lying in Section 2, Tow nship 53 South, Range 42 East, also being the North line of Plat Book 34 at Page 4; thence North 86°59'2 8" East along said North line of G overn m ent Lot 7 fo r 296.00 feet; thence South 02º58'50" East, along the N ortherly prolongation of the East line of said Lot 1, for 40.00 feet to the Point of Beginning. 49183559;1 Exhibit "G" the Park/Streetscape Site • Ocean Terrace between the City Library property and the Bandshell Park • 73, 74 and 75 Streets between Collins Avenue and Ocean Terrace 49034339; 1 EXHIBIT H Prepared by and Return to: Raul J. Aguila, City Attorney City of Miami Beach 1700 Convention Center Drive, 4" Floor Miami Beach, Florida 33139 (Space Reserved for Clerk) DECLARATION OF RESTRICTIVE COVENANTS IN LIEU OF UNITY OF TITLE KNOW ALL BY THESE PRESENTS that the undersigned Owners hereby make, declare and impose on the land herein described, the following covenants that will run with the title to the land, which shall be binding on the Owners, their heirs, successors, assigns, personal representatives, mortgagees and lessees, and against all persons claiming by, through or under any of them; WITNESSETH: WHEREAS, the Owners hold fee simple title to certain property in the City of Miami Beach, Florida, located at -------~ Miami Beach, Florida, and which is legally described in Exhibit "A" attached hereto and made a part hereof (the "Property"); and WHEREAS, the Owners and the City of Miami Beach, a Florida municipal corporation (the "City"), entered into that certain Development Agreement dated as of ,20,a memorandum of which is recorded in Official Records Book,at Page of the Public Records of Miami-Dade County (the "Development Agreement"); and WHEREAS, on [date] the Owners obtained approval of the Historic Preservation Board (HPB) under File No. as recorded in Official Records Book _____ _, at Page of the Public Records of Miami-Dade; and WHEREAS, the Owners may develop buildings on the Property for sale to multiple owners in a condominium or non-condominium format of ownership and/or in one or more phases; and WHEREAS, this instrument is executed in order to assure that the development of the property with future multiple ownership or phased development will not violate the Land Development Regulations of the City of Miami Beach. NOW THEREFORE, in consideration of the premises, the Owners hereby agre ~GS' ~Ì!t0)- ·0_?·· 8, „ el r'¡" .' &» •%,,4 I , 1 Z,'es ,---. / g. ·-- Declaration of Restrictive Covenants in Lieu of Unity of Title Address -------- Eolio [o.. Page 2 of 9 1. After a site plan for the Property has been submitted and approved under the City's Land Development Regulations, the Property will be developed as a unified development site in substantial accordance with such approved site plan for the Property. No modification of such approved site plan shall be effectuated without the written consent of the then owner(s) of the portion or phase of the Property for which such proposed modification is sought and the Director of the City's Planning Department (such person, or any successor thereof, is referred to herein as the "Director"). No such then owner(s) nor the Director shall unreasonably withhold, condition or delay its consent, provided the proposed modification is in compliance with the Land Development Regulations. Should any such then owner(s) or the Director withhold, condition or delay its consent to any such proposed modification, then the owner(s) seeking the proposed modification shall be permitted to seek the same by application to modify the approved site plan at public hearing before the appropriate City board or the City Commission of Miami Beach, Florida (whichever by law has jurisdiction over such matters). Approval of such application shall be in addition to all other required approvals necessary for the proposed modification sought. Notwithstanding anything to the contrary contained in this Declaration: (a) if any building on the Property (or portion of a building) is developed and sold to multiple owners in a condominium format or non-condominium format of ownership with an owners' association, then only the owners' association (as opposed to each individual unit owner governed by the owners' association) shall be required to give, grant or execute any consent, approval or document required by this Declaration, and such consent, approval or document as given, granted or executed by the owners' association shall bind each and every individual unit owner in such building (or portion of the building) governed by the owners' association; (b) if the Property is developed in phases, then only the owner(s) of the phase(s) affected by the proposed modification shall be required to give, grant or execute any consent, approval or document required by this Declaration, and no consent, approval or document shall be required from the owner(s) of any phase(s) unaffected by such proposed modification shall be required; {c) the City shall not be required to obtain any consent, approval or document from any owner with respect to any proposed modification {including any subsequent zoning application) relating to the "Park/Streetscape Site" (as such term is defined in the Development Agreement); and (d) this Declaration of Restrictive Covenants in Lieu of Unity of Title (the "Declaration") shall not create any additional obligations for the Owners (or their respective successors and/or assigns) to obtain any consent, approval or document from the City with respect to any proposed modification (including any subsequent zoning application) relating to the "Development Site" (as such term is defined in the Development Agreement), other than the written consent of the Director for modifications to the approved site plan, as provided above. Nothing contained in the preceding sentence shall relieve the Owners (and their successors and assigns) from the obligation to obtain any approvals or authorizations from the City required by law or any other instrument or agreement apart from this Declaration. 2 D e cl a ratio n o f R e stric tiv e C o v e n a n ts in Li e u of U n ity of T itle A d d r e s s --------- Fo I i o No.: ---------- Page 3 of 9 2. If the Property is developed in phases, then each phase will be developed in substantial accordance with the approved site plan for the Property. 3. In the event the Owners shall convey any portion of the Property to any person or entity subsequent to site plan approval for the Property, each of the subsequent owners shall be bound by the terms, covenants, restrictions and limitations of this Declaration. Owners further agree that they will not convey portions of the Property to any other person or entity unless and'until the Owners and such other person or entity shall have mutually executed and delivered, in recordable form, an instrument to be known as an "easement and operating agreement" which shall contain, among other things, the following easements to the extent required for the Property to be developed, constructed, conveyed, maintained and operated in accordance with the approved site plan for the Property despite the Property having multiple owners: () (ii) ) (iii) (iv) (v) (vi) (vii) Easements in the common area of each parcel for ingress to and egress from the other parcels; Easements in the common area of each parcel for the passage and parking of vehicles: Easements in the common area of each parcel for the passage and accommodation of pedestrians; Easements for access roads across the common area of each parcel to public and private roadways; Easements for the installation, use, operation, maintenance, repair, replacement, relocation and removal of utility facilities in appropriate areas in each such parcel; Easements on each such parcel for construction of buildings and improvements in favor of each such other parcel; Easements upon each such parcel in favor of each adjoining parcel for the installation, use, maintenance, repair, replacement and removal of common construction improvements such as footings, supports and foundations; (viii) Easements on each parcel for attachment of buildings; (ix) Easements on each parcel for building overhangs and other overhangs and projections encroaching upon such parcel from the adjoining parcels such as, by way of example, marquees, canopies, lights, lighting devices, awnings, wing walls and the like; (x) Appropriate reservation of rights to grant easements to utility companies; (xi) Appropriate reservation of rights to grant road rights-of-way and curb cuts; (xii) Easements in favor of each such parcel for pedestrian and vehicular traffic over dedicated private ring roads and access roads; and 3 Declaration of Restrictive Covenants in Lieu of Unity of Title Address --------- Fo li o No.: _ Page 4 of 9 (xiii) Appropriate agreements between the owners of the several parcels as to the obligation to maintain and repair all private roadways, parking facilities, common areas and common facilities and the like. These easement, reservation and agreement provisions (or portions thereof) will be waived by the Director if they are not applicable to the portion of the Property then being conveyed (such as, but not: limited to, conveyances to purchasers of individual condominium units, or conveyance that are separated by a street or road). These easement, reservation and agreement provisions shall not otherwise be waived or amended without prior written approval of the City Attorney. In addition, the easement and operating agreement shall contain such other provisions with respect to the development, construction, conveyance, maintenance and operation of the Property as to which the parties thereto may agree, all to the end that although the Property may have several owners, it will be developed, constructed, conveyed, maintained and operated in accordance with the site plan approved for the Property. 4. The provisions of this Declaration shall become effective upon their recordation in the public records of Miami-Dade County, Florida, and shall continue in effect for a period of thirty (30) years after the date of such recordation, after which time they shall be extended automatically for successive periods of ten (10) years each, unless released in writing by the then owner(s) of the Development Site and the Director (acting for and on behalf of the City) upon the demonstration and affirmative finding that the same is no longer necessary to preserve and protect the Development Site for the purposes herein intended. 5. The terms, covenants, restrictions and limitations of this Declaration may be amended, modified or released by a written instrument executed by the then owner(s) of the Development Site (with joinders by all mortgagees) and the Director (acting for and on behalf of the City). Should this Declaration be so modified, amended or released, then the Director shall forthwith execute a written instrument effectuating and acknowledging such amendment, modification or release; it being acknowledged and agreed that no amendment, modification or release of this Declaration shall be effective without the Director's written approval of, or execution of a written instrument effectuating and acknowledging, such amendment, modification or release. 6. Enforcement of the terms, covenants, restrictions and limitations of this Declaration shall be by action against any parties or persons violating or attempting to violate any such terms, covenants, restriction or limitation of this Declaration. The prevailing party to in action or suit pertaining to or arising out of this Declaration shall be entitled to recover, in addition to costs and disbursements, allowed by law, such sum as the Court may adjudge to be reasonable for the services i A E:,, ·Y ,0 3.4 } ) e Decl aration of Restrictive Covenants in Lieu of Unity of Title Address --------- Folio No.: _ Page 5 of 9 of his attorney. As used herein, the term "prevailing party" means the party who receives substantially the relief sought upon final, non-appealable judgment, order, or other disposition of a court of competent jurisdiction. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. 7. Invalidation of any term, covenant, restriction or limitation of this Declaration by a final, non-appealable order of a court of competent jurisdiction shall not affect any of the other term, covenant, restriction or limitation of this Declaration, all of which shall remain in full force and effect. 8. This Declaration shall be recorded in the public records of Miami-Dade County at the Owners' expense. 9. All rights, remedies and privileges granted herein shall be deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other additional rights, remedies or privileges. 10. In the event of any violation of this Declaration, in addition to any other remedies available, the City is hereby authorized to withhold any future permits, and refuse to make any inspections or grant any approval, until such time as this Declaration is complied with. 11. This Declaration is recorded for the limited purpose of ensuring that the Property is developed as a unified development site under the City's land development regulations and is not intended to and does not modify, limit, or derogate any rights or privileges that may benefit the Property or any portion thereof, including, without limitation, any available exemption from or reduction in ad valorem taxation and assessments, nor does this Declaration prohibit the division of the Property into independent tax parcels and folios as the Owner may deem necessary or appropriate in its sole discretion, and all such rights and privileges are hereby expressly reserved. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK-SIGNATURE PAGES TO FOLLOW] 5 D e claration of Restrictive C o vena nts in Li e u of U n ity of T itle A dd ress -------- Fo I i o No.: ---------- Page 6 of 9 Signed, witnessed, executed and acknowledged on this day of [*Note: All others require attachment of original corporate resolution of authorization] WITNESSES: OWNER: Signature Individual Signature Print Name Print Name Signature Name of Corporate Entity Print Name Position with Corporate Entity (Prez. VP, CEO) Address: _ STATE OF COUNTY OF The foregoing instrument was acknowledged before me by _ , Who is personally Known to me or has produced ,dS[denti[jgtjn, Witness my signature and official seal this day of ...., __, in the County and State aforesaid. My Commission Expires: Notary Public-State of _ Print Name Signed, witnessed, executed and acknowledged on this day of 6 Decl aration of Restrict ive Covenants in Lieu of Unity of Title Address -------- Fo I i o No.: ---------- Page 7 of 9 WITNESSES: OWNER: Signature Individual Signature Print Name Print Name Signature Print Name Address: _ STATE OF ) COUNTY OF _ The foregoing instrument was acknowledged before me by _ Who IS personally known to me or has produced as identification. -----------~ Witness my signature and official seal this dayof in the County and State aforesaid. Notary Public-State of _ My Commission Expires: Print Name 7 Declaration of Restrictive Covenants in Lieu of Unity of Title Address -------- Fo li o No.: ---------- Page 8 of 9 Approved: Approved as to form & language & for execution: Director of Planning Date City Attorney Date 8 Declaration of Restrictive Covenants in Lieu of Unity of Title Address -------- E]jo [[o., Page 9 of 9 EXHIBIT A ) 9 i I t ' '°, .. / Exhibit "I" This instrument was prepared by: Name: Address: HOLD HARMLESS AGREEMENT WHEREAS, the undersigned owners,(collectively, the "Owners"), hold the fee simple title to that certain parcel of land, which is legally described in Exhibit "A", hereinafter the "Property"; WHEREAS, the Owners and the City of Miami Beach (the "City") have entered into a Development Agreement 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"); WHEREAS, the Development Agreement contemplates that the Owners will develop, design and construct certain park/streetscape improvements on a portion of the Property for use by the general public (the "Park/Streetscape Site"), which parcel is legally described in Exhibit "B" (the "Park/Streetscape Project"); WHEREAS, the Development Agreement contemplates that the Owners will construct a proposed mixed use development consistent with the City's Land Development Regulations for the Ocean Terrace Overlay District and in accordance with the requirements of the Development Agreement (the "Project") on a portion of the Property (the "Development Parcel"), which parcel is legally described in Exhibit "C"; WHEREAS, as contemplated under the Development Agreement, the Owners wish to obtain building permits, including phased permits, for the construction of the Project prior to the completion and acceptance by the City of the Park/Streetscape Project (the "Building Permits"); WHEREAS, the Development Agreement provides that until the Owners have improved, and the City has accepted, both "Phase 1" and "Phase 2" of the Park/Streetscape Project as defined in the Development Agreement, or until such condition is deemed satisfied in accordance with the terms of the Development Agreement, the Owners are not to receive any certificate of occupancy or a temporary certificate of occupancy for any part of the Project (the "P ark Contingency"); NOW, THEREFORE, in order to assure the City that the representations made by the Owners in the Development Agreement will be abided by, the Owners freely, voluntarily, and without duress, make the following declaration of restrictions covering and running with the Property: 1. Owners agree that no certificate of occupancy or temporary certificate of occupancy for the Project will be granted until the Park Contingency has been satisfied. 2. Owners agree that they will not file or cause to be filed any request for a certificate of occupancy or temporary certificate of occupancy for any part of the Project until the Park Contingency has been satisfied. pg.l 49210512;4 Exhibit "I" ) 3. Owners acknowledge that, if they obtain the Building Permits prior to the satisfaction of the Park Contingency, they will be proceeding at their own risk and agree that they will not make or commence any claim or action against the City (including, without limitation, a vested/property rights claim) as a result of the City's issuance of the Building Permits prior to the satisfaction of the Park Contingency. Further, Owners agree that the issuance of the Building Permits prior to the satisfaction of the Park Contingency would not be a grant of any vested right whatsoever to the Owners to occupy the Project prior to the satisfaction of the Park Contingency. 4. Owners acknowledge that condition (1) above shall appear on the face of any and all Building_ Permits issued by the City pursuant to this Agreement prior to the satisfaction of the Park Contingency. 5. Owners acknowledge that the City, in its regulatory capacity, reserves the right to evaluate all applications for Building Permits for compliance with all existing laws, ordinances, and regulations controlling the issuance of building permits for construction within the City. 6. Owners agree to indemnify, defend, save, and hold harmless the City from any claims, demands, liabilities, losses, and causes of action of any nature whatsoever actually sustained by or brought against the City due to the City's issuance of Building Permits for the Project prior to the satisfaction of the Park Contingency in accordance with this Agreement, including, without limitation, reasonable, out-of-pocket attorneys' fees and expenses incurred by the City in the defense of any such claim, demand, or cause of action. 7. Additional Provisions: a. Covenant_Running with_ the_Land. This Agreement shall constitute a covenant running with the land and may be recorded, at Owners' expense, in the public records of Miami-Dade County, Florida, and shall remain in full force and effect and be binding upon the Owners, and their heirs, successors, and assigns until such time as the same is modified, released, terminated or extinguished (including, without limitation, pursuant to paragraph 7(b) below). These restrictions during their lifetime shall be for the benefit of, and a limitation upon, all present and future owners of the Property and for the benefit of the City and the public welfare. However, notwithstanding any other provision of this Agreement, nothing herein shall be binding upon the City in the event that the City takes ownership to any portion of the Property, and Owners, and their heirs, successors, and assigns, acknowledge that acceptance of this Agreement does not in any way obligate or provide a limitation on the City. 49210512;4 b. Term. This Agreement is to run with the land and shall be binding on all parties and all persons claiming under it for a period of thirty (30) years from the date this Agreement is recorded after which time it shall be extended automatically for successive periods of ten (1 O) years each, unless earlier terminated, modified, or released as provided in this Agreement. Notwithstanding the foregoing, this Agreement shall terminate automatically upon the earlier of (i) the satisfaction of the Park Contingency in accordance with the terms of the Development Agreement, or (ii) the expiration or termination of the Development Agreement ( other than termination by the City for an uncured Developer "Event of Default," as defined in the Development Agreement). The City covenants and agrees, promptly upon the request of the then-owner(s) of the Property following such termination, to execute and deliver to such then-owner(s) an instrument in recordable form that terminates, releases, and discharges this Agreement from the Property and the public record. JG 1/o -----.e·~ ~ 'í: ,.:, .. ....-;1.~""· '-ºc- # Mj ).} (\ BM. j ?+ Exhibit "I" c. Modification, Amendment. Release. Except as provided in Paragraph 7(b) above with respect to the automatic termination and extinguishment of this Agreement, this Agreement may be modified, amended or released as to the Property, or any portion thereof, by a written instrument executed by the then-owner(s) of the Property, includingjoinders of all mortgagees, if any, provided that the same is also approved by the City. d. Enforcement. Enforcement shall be by action against any parties or persons violating, or attempting to violate, any term, covenant, condition, or provision of this Agreement. The prevailing party in any action or suit pertaining to or arising out of this Agreement shall be entitled to recover, in addition to costs and disbursements allowed by law, such sum as the court may adjudge to be reasonable for the services ofhís attorney. As used herein, the term "prevailing party" means the party who receives substantially the relief sought upon final, non-appealable judgment, order, or other disposition of a court of competent jurisdiction. This enforcement provision shall be in addition to any other remedies available at law, in equity or both. e. Election of Remedies. All rights, remedies and privileges granted herein shall be deemed to be cumulative and the exercise of any one or more shall neither be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other additional rights, remedies or privileges. f. No Restriction of Regulatory Remedies. The City shall retain all regulatory remedies and enforcement powers associated with the review, issuance, and enforcement of building permits and their requirements, and the remedies and privileges granted herein shall be deemed to be cumulative to any such regulatory remedies and enforcement powers. g. Severability. Invalidation of any one of the terms, covenants, conditions, or provisions of this Agreement, by judgment of court of competent jurisdiction, shall not affect any of the other terms, covenants, conditions, or provisions of this Agreement, which shall remain in full force and effect. h. Recording. This Agreement shall be filed of record in the public records of Miami-Dade County, Florida at the cost of the Owners. This Agreement shall become effective immediately upon recordation. i. Acceptance of Agreement. Acceptance of this Agreement does not oblígate the City in any manner to make, nor does it entitle the Owners to, a favorable recommendation or approval of any application, zoning or otherwise, and the City and its boards, departments and/or agencies retain their full power and authority to deny each such application in whole or in part and to decline to accept any conveyance or dedication. j. Owner. The term Owners shall include the Owners and their heirs, successors, and assigns, except that Owners shall not refer to the City. [Execution Pages Follow] 49210512;4 pg. 3 Exhibit "I" IN WITNESS WHEREOF, has caused these present to be signed in its name on this day of , 201_ WITNESSES: a Florida limited liability company Signature By: Print Name: ---------- ]'pf[e,, Print Name d]resS, Signature ) Print Name ST A TE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 201_,by ___________ , as of ., a Florida limited liability company, on behalf of said corporation, who is personally known to me or has produced as identification. ------ My Commission Expires: Notary Public - State of Florida Printed Name pg. 4 49210512;4 Exhibit "I" EXHIBIT "A" LEGAL DESCRIPTION: 49210512;4 · · + e , t +rs i tt;' ' f! ±] I?)e "; <. s E xhibit "I" EXHIBIT 'B" LEGAL DESCRIPTION: 49210512;4 pg.6 Exhibit "I" EXHIBIT "C" LEGAL DESCRIPTION: pg. 7 49210512;4 E X H IBI T "J" CONCEPT AND PHASING PLANS . " L ° ------- 9 PHASING PLAN I i Exhibit "K " Vacation Resolution see following page(s) ) ' I RESOLUTION NO. 2019-30927 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORID A, APPROVING, ON SECOND READING/PUBLIC HEARING OF THIS RESOLUTION, THE VACATION OF THAT PORTION OF (1} OCEAN TERRACE, BETW EEN THE CENTERLINE OF 74th STREET AND THE NORTHERN RIGHT-OF-WAY LINE OF 75th STREET, W HICH CONSISTS OF A 60- FOOT WIDE RIGHT-OF-WAY CONTAINJNG APPROXIMATELY 25,200 SQUARE FEET IN TOTAL LOT AREA; (2) THE NORTH HALF OF 74th STRE ET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 30-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 8,880 SQUARE FEET IN TOT Al LOT AREA; AND (3} A PORTION OF 75th STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE; WHICH CONSISTS OF A 40-FOOT WID E RIGHT-OF-WAY CONTAINING APPROXIMATELY 11,840 SQUARE FEET IN TOTAL LOT AREA {COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"), IN FAVOR OF THE ABUTTING PROPERTY OW NERS, 7400 OCEAN TERRACE, LLC, 7410 OCEAN TERRACE, LL C, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, AND 7441 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVE LOPER") AN D G & V REAL TY , LLC, THE OWNER OF 7401 COLLINS AVENUE; CONDI TIONING THE VACATION UPON THE CITY COMMISSION'S APPROVAL OF, AND DEVELOPER'S SATISFACTION OF, CERTAIN TERMS AND CONDITIONS, TO BE SET FORTH IN A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND DEVELOPER, WHICH CONDITI ONS SHALL, AMONG OTHER TERMS, REQUIR E THE DEVELOPER TO (1) GRANT TO THE CITY A PERPETUAL EASEMENT OVER, ACROSS AND UNDER THE CITY RIGHT-OF-WAY AREAS FOR UTILITIES AND PUBLIC VEHICULAR, PEDRESTRIAN AND RECREATIONAL USE AND ACCESS; AND (2) DEVE LOP , DESIGN, AND CONSTRUCT, AT THE DEVELOPER'S SOLE COST AND EXPENSE (EXCEPT FOR PAYMENT OF CERTAIN CITY FEES), CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND 75TH STREET, WITH SUCH PUBLIC IMPROVEMENTS HAVING A VALUE OF APPROXIMATELY FOURTEEN MILLION EIGHT HUNDRED THOUSAND DOLLA RS ($14,800,000); AN D FURTHER, WAIVING, BY 5/7THS VOTE, THE COMPETITIVE BIDDING REQUIREMENT, PURSUANT TO SECTION 82-38 OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY. W HEREAS, the City holds a right-of-way dedication to the following right-of-way areas: (1)a portion of Ocean Terrace, runn ing from the centerline of 74" Street and the north ern right-of-way line of 75 Street, consi sting of a sixty (60) foot wide right-of-way, and containing approximately 25,200 square feet in total lot area; as shown on as shown on the Plat of the To wnsite of Harding, recorded in Plat Book 34, Page 4 of the Public Records of Miami-Dade County (the "Harding Town site Plat"); (2) the north half of 7 4th Street, between Ocean Terrace and Collins Avenue, which consi sts of a 30-foot wide righ t-of-way containing approxim ately 8,880 square feet in total lot area; and f -·,·•. : , % ,,. + i±27 (3) a portion of 75th Street, between Ocean Terrace and Collins Avenue, which consists of a 40-foot wide right-of-way containing approximately 11,840 square feet in total lot area (collectively, (1) through (3) above, the "City Right-of-Way Areas"), each as shown on the Harding Townsite Plat, and depicted in the sketch attached as Exhibit "A" to the Commission M em orandum accom panying this R esolution; and WHEREAS, various entities controlled by and affi liated w ith the principals of Ocean Terrace H oldings, LLC , nam ely, 7400 O cean Terrace, LL C, 7410 O cean Terr ace, LLC , 7420 O cean T errace Investm ent, LLC , 7436 O cean Terra ce, LL C, 7450 O cean Terrace, LLC , and 7441 C ollins A venue Investm ent, LLC (collectively, th e "D evelop er "), and G&V R ealty, LLC (the ow ner of 7401 C ollins A venue), ow n the pro perties abutting or in the vicinity of the C ity Right-of-W ay Ar e as; which parc els are kn own as 7401, 7409, 7421, 7433, 7435, 7437, 7439, 7441, an d 7449 C ollin s A ven ue, and 7400, 7410, 7420, 7430, 7436, and 7450 Ö cean Terrace (col le ctivel y, th e "Pr op er ty"); an d WHEREAS, th e D eveloper inten ds to devel op th e Prop er ty as a m ixed-use residen tial and com m ercial developm ent ( collectively, the "P roposed D evelopm ent") pursuant to a Florida S tatute Chapter 163 develop m ent agreem ent entered into betw een the City and the D eveloper (the "D evelopm ent A greem ent"), and to develop, design and construct, at the Developer's sole cost and expense, certain public park and streetscape im provem ents in the vicinity of O cean Terrace, betw een 73rd S treet and 75th Street; and WHEREAS, the P ro posed Developm ent shall be developed as a unified developm ent site; and WHEREAS, in conjunction w ith P roposed D evelopm ent, the D eveloper is requesting that the C ity vacate the C ity R ight-of-W ay A reas ab uttin g 7401, 7441, and 744 9 C ollins A venue and 7400, 7410 , 7420, 7430, 7436, an d 7450 O cean Terr ace, and has submitte d its application to th e C ity's P ublic W orks D epart m ent w ith respect thereto, to perm it D eveloper to utilize the FA R. associ ated w ith the City R ight-of-W ay A reas w ithin the D eveloper's P roject (but w ith the City Right-of-W ay A reas to continue to be used fo r pedestrian and vehicular access and travel); and WHEREAS, w ith respect to the proposed vacation of the 4,380 square feet of City right- of-w ay abutting 7401 C ollins A venue, the proposed vacation shall be subject to and contingent on D eveloper's agreem ent w ith the property ow ner to include the vacated right-of-w ay area as part of the unified developm ent site for the P ro ject; and WHEREAS, the vacation of City streets, alleys, and/or rights of w ay, require com pliance w ith A rticle II, S ection s 82-36 thro ugh 82-40, of the City C ode (w hich establish the pro cedures govern ing the sale or lease of public property); WHEREAS, prior to appro ving a request fo r vacation, the follow ing requirem ents m ust be satisfied: (1) th e title of the R esolution appro ving the proposed vacation shall be heard by the C ity C om m ission on tw o separate m eeting dates, w ith the second re ading to be accom panied by a duly noticed public hearing; (2) th e pro posed vacation shall be transm itted to the Finance and Cityw ide P ro jects Com m ittee (the "Fin an ce C om m i tte e") for its review ; (3) the City's P lanning D epartm ent shall prepare a w ritten planning analysis, to be subm itted to the City C om m ission concurrent w ith its consideration of the proposed vacation; and (4) the C ity shall obt ain an ind ep end ent appraisal of th e fair m ark et value of the prop er ty prop osed to be vacate d; and I I WHEREAS, the Finance Committee reviewed the proposed vacation at its March 22, 2019 meeting, which recommen dations were accepted by the City Commission in Resolution No. 2019- 30771; and WHEREAS, the Planning Department analysis of the vacation, pursuant to Section 82-38 of the City Code, is attached as Exhibit "B" to the Commission Memorandum accompanying this Resolution; and WHEREAS, the July 3, 2019 appraisal of the City Right-of-Way Areas, which appraisal is attached as Exhibit "C" to the Commission Memorandum accompanying this Resolution, valued the City Right-of-Way Areas at $12,400,000) and WHEREAS, on December 12, 2018, the City. Commission unanimously adopted the Ocean Terrace Neighborhood Urban Design Plan, a concept plan for proposed public streetscape and park improvements to the Ocean Terrace area ("Concept Plan"), prepared by The Corradino Group and Garcia-Pons + Associates; and WHEREAS, on March 22, 2019, the Finance Committee recommended proceeding with the vacation process, subject to the following public benefits being memorialized in the Development Agreement: 1. Developer would develop, design, permit and construct, at its sole cost and expense, certain public park and streetscape improvements in the vicinity of Ocean Terrace, between 73rd Street and 75th Street, based on the Concept Plan approved by the City Commission; and 2. Developer would grant a perpetual, non-revocable utility, roadway and pedestrian access easement in favor of the City against the City Right-of-Way Areas, for public vehicular and pedestrian use and access, as modified by the public improvements, which will pedestrianize portions of Ocean Terrace; and WHEREAS, Section 82-39(a) of the City Code provides that the lease or sale of public property also requires an advertised public bidding process, which requirement may be waived by 5/7 vote of the City Commission ; and WHEREAS, Florida law, requires, upon vacation, a right-of-way reverts to the abutting property own ers and/or the holders of any interest in any reversionary rights to the vacated area; and WHEREAS, as the abutting property owners and holders of the appropriate reversionary interests are the only persons entitled to the vacation, the City Administration recommends that the Mayor and City Commission waive the competitive bidding requirement, finding that the public interest is served by waiving such condition; and WHEREAS, pursuant to the requirements of Section 1.03(b)(4) of the City Charter, the Planning Board at its May 21, 2019 meeting. unanimously approved the proposed vacation; and WHEREAS, Section 1.03 (b)(4) of the City Charter also requires that the vacation be approved by 6/7 vote of the City Commission; and W H E R E A S , on June 26, 2019, the Mayor and City Commission held the first reading of this Resolution and the companion agenda items (for the proposed Development Agreement and amendments to the City's Land Development Regulations), and read the title of the vacation Resolution into the record as required by Section 82-37 of the City Code; and WHEREAS, the Administration, recommends approval of the vacation at second reading, subject to the Developer's satisfactíon of the terms and conditions set forth in the Development Agreement. NOW THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, on second reading of this Resolution, the vacation of that portion of (1) Ocean Terrace, between the centerline of 7 4th Street and the northern right-of-way line of 75th Street, which consists of a 60-foot wide right of way containing approximately 25,200 square feet in total lot area; (2) the north half of 74th Street, between Ocean Terrace and Collins Avenue, which consists of a 30-foot wide right of way containing approximately 8,880 square feet in total lot area; and (3) a portion of 75th Street, between Ocean Terrace and Collins Avenue, which consists of a 40-foot wide right-of-way containing approximately 11,840 square feet in total lot area ( collectively, the "City Right-of-Way Areas"), in favor of the abutting property owners, 7 400 Ocean Terrace, LLC, 7410 Ocean Terrace, LLC, 7420 Ocean Terrace Investment, LLC, 7436 Ocean Terrace, LLC, 7450 Ocean Terrace, LLC, and 7441 Collins Avenue Investment, LLC (collectively, the "Developer") and G & V Realty, LLC, the owner of 7401 Collins Avenue; conditioning the vacation upon the City Commission's approval of, and Developer's satisfaction of, certain terms and conditions, to be set forth in a development agreement between the City and Developer, which. conditions shall, among other terms, require the Developer to (1) grant to the City a perpetual easement over, across and under the City Right-of- Way Areas for utilities and public vehicular, pedestrian, and recreational use and access; and (2) develop, design, and construct, at the Developer's sole cost and expense (except for the payment of certain City fees), certain public park and streetscape improvements in the vicinity of Ocean Terrace, between 73rd Street and 75th Street, with such public improvements having a value of approximately Fourteen Million Eight Hundred Thousand Dollars ($14,800,000); and further, waive, by 5/7ths vote, the competitive bidding requirement, pursuant to Section 82-38 of the City Code, finding such waiver to be in the best interest of the City. ATTEST: PASSED and ADOPTED this _3/_ day of July, 2019. 2 APPROVED AS TO GUAGE UTI ON --/1L l :a,,-~·r•·} .--<$ : ... S O A JULY 21 201 9 MIAMI;AERALD.(COM NEIGHBORS I 2SNE ---. { .«c l ?6 ,,u~ \\,3E. CITY OF MIAMI BEACH NOTICE OF PUBLIC HEARING duly 31, 2019 NOTICE IS HEREB Y given that a Second Reading/Public Hearing will be heard by the Mayor and City Comm ission of the City oi Miami Beach, Florida, in the Commission Chambers, 3rd Floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday, July 31, 2019 at 11:40 a.m., or as soon thereafter as the malter can be heard, to consider:. A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF TH E CITY OF MIAMI BEACH, FLORIDA, APPR OVING, FOLLOWING SECOND READING/PUBLIC HEARING OF THIS RESOLUTION, THE VACATION OF THAT PORTION OF (1) OCEAN TERRACE, BETWEEN THE CENTERLINE OF 74TH STR EET AND THE NORTH ERN RIGHT-OF-WAY LINE OF 75TH STREET, WHICH CONSISTS OF A 6O-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 25,200 SQUARE FEE T IN TOTAL LOT AREA; (2) THE NORTH HALF OF 74TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A 30-FOOT WIDE RIGHT-OF-WAY CONTAINING APPROXIMATELY 8,880 SQUARE FEET IN TOTAL LOT AREA; AND (3) A PORTION OF 75TH STREET, BETWEEN OCEAN TERRACE AND COLLINS AVENUE, WHICH CONSISTS OF A A0-FOOT WIDE RIGHT-OF- WAY CONTAINING APPROXIMATELY 11,840 SQUARE FEET IN TOTAL LOT AREA (COLLECTIVELY, THE "CITY RIGHT-OF-WAY AREAS"), IN FAVOR OF THE ABUTTING PROPERTY OWNERS, 7400 OCEAN TERRACE, LLC , 7410 OCEAN TERRACE, LLC, 7420 OCEAN TERRACE INVESTMENT, LLC, 7436 OCEAN TERRACE, LLC, 7450 OCEAN TERRACE, LLC, AND 7441 COLLINS AVENUE INVESTMENT, LLC (COLLECTIVELY, THE "DEVELOPER") AND G & VREALTY, LLC, THE OWNER OF 7401 COLLINS AVENUE; CONDITIONING THE VACATION UPON THE CITY COMMISSION'S APPROVAL OF, AND DEVELOPER'S SATISFACTION OF, CERTAIN TERMS AND CONDITIONS, TO BE SET FORTH IN A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND DEVELOPER, WHICH CONDITIONS SHALL, AMONG OTHER TERMS, REQUIRE THE DEVELOPER TO (1) GRANT TO THE CITY A PERPETUAL UTILITY, ROADWAY AND PEDESTRIAN ACCESS EASEMENT OVER, ACROSS AND UNDER THE CITY RIGHT- OF-WAY AREAS; AND (2) OBLIGATE THE DEVELOPER TO DEVELOP, DESIGN, AND CONSTRUCT, AT THE DEVELOPER'S SOLE COST AND EXPENSE (EXCEPT FOR PAYMENT OF CERTAIN CITY FEES), CERTAIN PUBLIC PARK AND STREETSCAPE IMPROVEMENTS IN THE VICINITY OF OCEAN TERRACE, BETWEEN 73RD STREET AND T5TH STREET WITH SUCH PUBLIC IMPROVEMENTS HAVING A VALUE OF APPROXIMATELY FIFTEEN MILLION DOLLARS ($15,000,000); FURTHER, WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, PURSUANT TO SECTION 82-38 OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY, This Resolution is being heard pursuant to Section 82-37 of the City of Miami Beach Code or Ordinances, and Section 1.03(b)(4) ot the City Charter. A copy of the proposed Development Agreement that is related to this item is available for public inspection during normal business hours in the Ofice of the City Clerk, 7U0 Convention Center Drive, 1st Foor, City Hall, Miami Beach, Florida 33139. INTERESTED PARTIES are invited to appear at this meeting, or be represented by an agent, or to express their views in writing addressed to the City Commission, c/o the City Clerk, 1700 Convention Center Drive, 1" Floor, City Hall, Miami Beach, Florida 33139. This item is available for public inspection during normal business hours in the City Clerk's Oifice, 1700 Convention Center Drive, 1 Fl oor, City Hall, Miami Beach, Florida 33139. This meeting, or any item herein, may be continued, and under such circumstances. additional legal notice need not be provided. Pursuant to Section 286.0105, Fla. Slat., the City hereby advises the public that if a person decides to appeai any decision made by the City Commission with respect to any matter considered at its meeting or its hearing, such person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. To request this material in alternate format, sign language interpreter (five-day notice required), information on access for persons with disabilities, and/or any accommodation to review any document or participate in any City-sponsored proceedings, call 305.604.2489 and select option 6; TTY users mnay call via 711 (Florida Relay Service). Fafael E. Granado, City Clerk City ol Miami Beach Ad 073119-02 +age 9Z5 o1 12dó E X H IB IT "L" This instrument was prepared by: Name: Address: Raul J. Aguila, City Attorney City of Miami Beach 1700 Convention Center Drive, 4 Floor Miami Beach, Florida 33139 E A SE M ENT. AGRE EMENT (Ocean Terrace, 74 Street and 75 Street Easement) THIS EASEMENT AGREEMENT (the "Agreement"), is made this day of _, 20]_, by having an address of ______________ (together with its successors and permitted assigns, the "Owner") in favor of the City of Miami Beach, a Florida municipal corporation (together with its successors and permitted assigns, the "C ity "). WITNESSETH: WH E RE A S, the Owner holds fee simple title to that certain real property more specifically described on E xh ibit "A " attached hereto and incorporated herein by this reference (the "P roper ty"); W H E RE A S, the real property more specifically described on E xh ibit "B " attached hereto and incorporated herein by this reference (the "Easement Area") is contained within the Property; and W H E RE A S, the Owner seeks to grant a perpetual non-exclusive easement in, upon, under and through the Easement Area in favor of the City for the "Easement Purposes" (as hereinafter defined). N O W T H E RE F O RE , in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound hereby agree as follows: l. Recitals. The above recitals are true and correct and by this reference are hereby incorporated into the body of this Agreement as if fully set forth herein. 2. Grant of Easement. The Owner hereby grants to the City a perpetual, non-exclusive and irrevocable easement in, upon, under and through the Easement Area for the purposes of: (a) providing to the general public, and to the City and its invitees, agents, employees, contractors, and licensees (including, without limitation, Owner and Owner's officers, employees, agents, contractors, subcontractors, invitees, and licensees), an unrestricted way of passage, right of ingress and egress, access to, and reasonable use of, the Easement Area, including, without limitation, for public recreational purposes, and pedestrian and vehicular access over and across the Easement Area; (b ) constructing, installing, operating, using, maintaining, repairing and replacing landscaping, sidewalks, pedestrian or bicycle paths, walkways, decks, street lighting, traffic or directional signage, underground utilities, drainage, roadways, parks, and streetscape-related infrastructure, or any other PAGE2 improvements which City, in its reasonable discretion, deems necessary for the protection of the health, safety or welfare of the general public (collectively, the "Im provements") within the Easement Area; (c) authorizing the City to grant third parties providing utility services (the "City Grantees") the right to use and occupy the Easement Area for the sole purp ose of providing any such utilities, without any need for Owner approval of any City Grantee; and (d) takin g all other actions as may be reasonably necessary, without any need for Own er approval thereof, to develop and install Improvements within the Easement Area, or to operate the Eas ement Area, solely for public purp oses, in the same mann er as otherwise applicable to any public right of way areas of the City pursuant to the Code of Ordinances of the City of Miami Beach, Florida, as the same may be am ended from tim e to time (the "City Code"), including, without limi tation, the issuance by the City of temporary special event permit s for cultural, recreational or other programmin g, sidewalk café permit s, or any other actions as may be lawfu lly undertaken by the City on public right of way areas of the City (collectively, the "Easement Purposes"). The term "utili ties" shall include, but not be limi ted to, water, sewer, stormwater, electrical, gas, telecomm unications, telephone and cable. 3. Maintenance_ Casual ty._ and Condemnation. From and after Own er's "Substanti al Completion" of the "Park/Streetscape Im provem ents," as such terms are defined under that certain Development Agreement between the City and ,dated 2019 (the "Ocean Terrace Development Ag reement"), City shall be responsible, at City's sole cost and expense, for maintainin g the Easement Area and the Park/Streetscape Improvements, including all landscaping and vegetation therein, in accordance with those standards and criteria contain ed in the final approved plans and specifications for the Park/Streetscape Improvements. In the event that any portion of the Easement Area and/or the Park/Streetscape Improvements is damaged or destroyed by fire, flood, storm, or other casualty or by the act or omission of the City, any of the City's agents, employees, contractors, vendors, operators, representatives, licensees, or any other party retained by the City or for whom the City is. legally responsible, or by the general public, City shall be solely responsible for any repair or restoration of the Easement Area, subject to an appropriation of fun ds by the City Commi ssion, if any is required, in the sam e mann er as applicable to other public right of way areas of the City. In addition, if any portion of the Eas ement Area is taken or condemned in any mann er as a result of the exercise of the power of emin ent domain by any governm ental authority for any public or quasi-public use, including, without limi tation, a conveyance or assignm ent in lieu of condemnation or takin g, then this Agreement shall imm ediately termin ate as to any portion of the Easement Area so taken, and the parties hereto shall be released automatically from all furt her obligations under this Agreement with respect to area taken, except for those obligations that expressly surv ive the termination of this Agreement. The Owner, its successors and assigns, will be entitled to receive the entire am ount of any award made for any partial or complete taking of the Easement Area. 4. Construction in Easement Area. A. If the City elects to construct and/or install any Improvements within the Easement Area, the City hereby acknowledges and agrees that: (a) all fees, costs and expenses associated with the Improvements (including, without limitation, the design, permitting, construction, installation, operation, use, maintenance, repair and replacement thereof) shall be paid in full by the City; (b) the design and construction of all Improvements shall be perform ed and completed by the City (i) in a good and workmanlike manner, (ii) free from liens and defects, and (iii) in full compliance with all laws, rules, regulations, ordinances, codes and other requirements of governm ental and quasi-governm ental authorities having jurisdiction; and (c) upon final completion of the Improvements, the City shall (i) remove all debris, equipment and materials from the Easement Area, (ii) fill, compact, grade and otherwise restore the Easement Area to substantially the same condition as existed prior to comm encement of the Improvements, including harm onizing the soil levels within the Easement Area and the lands adjacent thereto, and (iii) keep and maintain the ~ l •'J:;ffe \ ~~:\ i °sM» ·g ±,zeswwo».é 2,).- :2cc!¿ PAGE3 Improvements (and all parts and components thereof) in good condition, repair an d working order at all times. B. Following the Owner's Substantial Completion and delivery to the City of the Park/Streetscape Improvements, if the Owner elects to construct and/or install any infrastructure or other improvements within or above the Easement Area for Owner's use (the "Owner Improvements"), the Owner hereby acknowledges and agrees that any such Owner Improvements shall be subject to and contingent upon the prior approval of the City Commi ssion, and further agrees that: (a) all fees, costs and expenses associated with the Own er Improvements (including, without limitation, the design , perm itting, construction, ins tallation, operation, use, maintenance, repair an d replacement thereof) shall be paid in full by the Owner; (b) the design and constru ction of all Owner Im provements shall be perform ed and completed by the Owner (ú) in a good and workm anl ike mann er, (úi) free from liens and defects, and (úii) in full compliance with all laws, rules, regulations, ordinances, codes an d other requirements of governm ental and quasi-governm ental authorities having jurisdiction; and (c) upon final completion of the Owner Im provements, the Owner shall (i) remove all debris, equipment and materials from the Easement Ar ea, (ii) fill, compact, grade and otherw ise restore the Easement Ar ea to substantially the sam e condition as existed prior to commencement of the Owner Im provements, including harm onizing the soil levels within the Easement Area and the lands adjacent thereto, and (iii) keep and maintain the Owner Improvements (and all part s and components thereof) in good condition, repair and working order at all tim es. 5. Miscellaneous. 5.1 THis Agreement shall be governed by, enforced and construed un der the laws of the State of Florida. Venue for all actions, litigation and/or other proceedings arising out of this Agreement shall be exclusively in Miam i-Dade Coun ty, Florida. BY ENTERJN G IN TO THI S AGRE EME NT, OWNE R AND CITY EXP RE S SL Y WAIV E ANY RI GHTS EITHE R PAR TY MA Y HA VE TO A TRIAL BY JUR Y OF ANY CIVIL LITIGATION RE LATED TO, OR ARI SIN G OUT OF, THI S AGRE EME NT. The prevailing party in any action, litigation or other proceeding that is based on an y claim, controversy or other disputed matter arising under, out of or in conn ection with this Agreement shall recover from the non- prevailing party all fees, costs and expenses (including, without limitation, reasonable attorneys' fees and costs through all trial, appellate and post-judgm ent levels and proceedings) incurred by the prevailing party in such action, litigation or other proceeding. As used herein, the term "Prevailing Party " means the party who receives substantially the relief sough t upon final, non-appealable judgm ent, order, or other disposition of a court of competent jurisdiction. The provisions of this Section shall survive the termination or expiration of this Agreement. 5.2 The parties hereby ackn owledge and agree that each has had an opportun ity to be represented by or consult with independent legal counsel and that any rule of construction which provides that ambiguities are to be construed against the drafter shall not apply in the interpretation or construction of thi s Agreement. If any term, provision or portion of this Agreement is for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such term , provision or portion of this Agreement shall be given it nearest valid, legal and enforceable meaning, or construed as deleted, whichever such court may determ ine, and the same shall not invalidate the remainin g terms, provisions and/or portions of this Agreement, which remainin g term s, provisions and portions of this Agreement will remain in full force and effect. 5.3 This Agreem ent incl udes all exhibits attached hereto. This Agreement, together wi th all such exhi bits, contains the entire agreem ent and un derstanding betw een the parti es relating to the subject matter of this Agreement, and all prior or contemporaneous term s, covenants, conditions, representation s, warr ant ies, statements, agreements and understanding s made by or on behalf of.the parties, whether oral or written, are merged herein. _,:J PA G E4 5.4 Thi s A gr eem ent m ay not be am ended, m odified or termi nated except by a w ritten instru m ent executed by the O w ner an d th e City thr ough its City M anager, or his designee, or the successor administrative officer with jurisdiction over the matter, and which is recorded in the Public Records of Miami-Dade County, Florida. All provisions of this Agreement, including the benefits and burdens of the same, are covenants that run with the land, are not intended to be executory in nature, and shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, legal representatives, successors and assigns. 5.5 The failure of any party to insist in any one or more instances upon strict performance of any term, covenant, condition or other provision of this Agreement will not be construed as a waiver or relinquishment of the future enforcement of such term, covenant, condition or other provision of this Agreement. ° 5 .6 Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of each gender shall be deemed to comprehend either or both of the other genders. The section and paragraph headings in this Agreement are for convenience only and shall not affect the meaning, interpretation or scope of the terms or provisions set forth therein. 5.7 This Agreement may be executed in multiple counterparts, each of which individually shall be deemed an original, but when taken together shall be deemed to be one and the same Agreement. 5.8 This Agreement shall never be construed as a conveyance in any manner whatsoever of fee simple title to any portion of the Property or the Easement Area; it being intended by the parties that this Agreement conveys only an easement interest with respect to the Easement Area for the specific uses and purposes set forth herein. 5 .9 All of the rights, easements and interests herein created and granted are and shall be limited to and utilized solely for the uses and purposes expressly set forth herein. Except for Owner's use of the Easement Area in the same manner as made available to the general public pursuant to the purposes authorized pursuant to Section 2(a) herein or to effectuate the terms and conditions of the Development Agreement, Owner shall not otherwise use the Easement Area for any other purpose, or make any Owner Improvements to the Easement Area, without the City's consent, which consent may be withheld by the City Manager, if the City Manager determines, at his or her reasonable discretion, that such proposed uses or Owner Improvements would interfere in any material respect with the exercise by the public or by the City of the rights granted to the public and the City herein. 5.10 Owner shall not withhold or obstruct City's access to the Easement Area for any of the purposes authorized in Section 2 of this Agreement. 5 .11 This Agreement and the rights, easements and interests herein created and granted shall only become effective upon the recordation of this Agreement in the Public Records of Miami-Dade County. This Agreement and the rights, easements and interests herein created and granted shall run with the land, and shall be binding on all persons holding title to said lands. 5.12 Nothing in this Agreement shall be construed to create a joint venture, partnership, tenancy in common, or joint tenancy relationship between the Owner and the City, nor shall this Agreement render either party liable for the debts or obligations of the other party. PAGE 5 6. Notice. All notice s, deman ds, requests or other comm un ications which may be or are required to be given, served, or sent by either th e Owner or the City pursuan t to thi s Agreement shall be in writing an d addressed as follows: If to Owner: W ith a copy to: If to the City: W ith copies to: City of Miami Beach Attn: City M anager 1700 Convention Center Drive, 4th Floor M iam i Beach, Florida 3313 9 City of M iam i Beach Attn: Public W orks Director 1700 Convention Center Drive, 4th Floor M iam i Beach, Florida 3313 9 ) Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Any notice or other communication (i) sent by certified United States mail, postage prepaid, return receipt requested will be deemed effectively given or received on the third (3rd) business day following the postmark date of such notice or other communication; (ii) sent by overnight courier or by hand will be deemed effectively given or received upon receipt or refusal, as the case may be; and (iii) sent by electronic mail will be deemed effectively given or received on the day of transmission of such notice if sent on a business day before 6 :00 P.M. Eastern Standard Time, or on the following business day if sent after 6:00 P.M. Eastern Standard Time or on a non-business day. Any notice or other communication given in the manner provided above by counsel for either party will be deemed to be notice or such other communication from the party represented by such counsel. 7. City Indemnity. Solely to the extent and limits permitted by Section 768.28 of the Florida Statutes, and without waiving any rights or defenses therein, the City shall indemnify, defend and hold the Owner harmless from and against all claims, demands, causes of action, suits, losses, damages, liabilities, liens, judgments, fees, costs, expenses and other charges (including, without limitation, reasonable attorneys' fees and costs through all trial, appellate and post judgment levels and proceedings) (collectively, the "Claims") commenced, incurred and/or paid by or against the Owner to the extent the Claims arise from: (a) the willful misconduct or negligent use of the Easement Area by the City or any successor, assign and/or City Grantee thereof expressly approved by the City Commission; (b) the design, construction, installation, operation, use, maintenance, repair and/or replacement of, or the failure to properly design, construct, install, operate, use, maintain, repair and/or replace, any Improvements by the City or any successor, assign and/or City Grantee thereof expressly approved by the City Commission; and (c) any default, breach or violation of any term, covenant, condition or provision of this Agreement by the City or any successor, assign and/or City Grantee thereof expressly approved by the City Commission, in u. without limitation, any failure by the City to maintain, repair, and restore the Easement Area and tjíé Park!Strét$ape Improvements in accordance with Section 3 of this Agreement. Notwithstanding anyt 1 ~ 0 ~]lft~~_j;; ¿¿64·'.5; ,, 2t PAGE6 contained in this Agreement: (y) nothing in this Agreement shall impair, limit or prohibit any rights or remedies the Owner has against any person or entity using or occupying the Easement Area under, through or as an assignee of the City or a City Grantee; and (z) the obligation of the City to indemnify, defend and hold the Owner harmless as set forth herein shall not apply to the extent any such Claims arise from the gross negligence or willful misconduct of the Owner or any successor, assign and/or grantee thereof. Nothing herein shall be construed to increase or otherwise waive any limits ofliability or immunity afforded to the City under the laws of the State of Florida, including, without limitation, the limitations of liability and immunities set forth in Section 768.28 of the Florida Statutes. 8. Insurance. The City agrees to maintain a self-insurance fund, in compliance with Sections 768.28(16)(a) and 440.09, Florida Statutes, in the same manner as provided by the City with respect to other public right of ways of the City, to cover liability, workmen's compensation, and other claims that may arise against the City with respect to this Agreément or the use of the Easement Area. Owner shall maintain insurance sufficient to cover Owner's liability exposure with respect to the Easement Area, which insurance shall include Commercial General Liability Insurance, including Products-Completed Operations and Contractual Liability, in an amount not less than $1,000,000 combined single limit per occurrence, and $2,000,000 in the aggregate, for bodily injury and property damage, and Workmen's Compensation as required by law. Owner shall name the City as an additional named insured on the Certificates of Insurance for Commercial General Liability Insurance, and upon request of the City, shall provide City with a certificate of insurance evidencing the foregoing coverages. 9. Owner Indemnity. The Owner shall indemnify, defend and hold the City harmless from and against all Claims commenced, incurred and/or paid by or against the City to the extent the Claims arise from the design, construction, installation, operation, use, maintenance, repair and/or replacement of, or the failure to properly design, construct, install, operate, use, maintain, repair and/or replace, any Owner Improvements by the Owner. Notwithstanding anything to the contrary contained in this Agreement, the obligation of the Owner to indemnify, defend and hold the City harmless as set forth herein shall not apply to the extent any such Claims arise from the gross negligence or willful misconduct of the City, any successor or assign of the City, any City Grantee, and/or the general public. 1 O. Liability Limitation. The Owner, pursuant to and in accordance with the terms and conditions of this Agreement, makes the Easement Area available to the public free of charge for outdoor recreational purposes. Accordingly, to the maximum extent permitted by law, Owner may avail itself of the limitations of liability afforded pursuant to Section 3 7 5 .251, Florida Statutes, to the fullest extent applicable to the Easement Area. 11. Ad Valorem Taxes and Assessments. The parties acknowledge that the Easement Area historically has been used and controlled by the City as a public right-of-way and, therefore, has been exempt from ad valorem taxation and assessments. As this Agreement is intended to ensure the continued use of the Easement Area solely for public purposes, the City covenants to cooperate with any efforts by the Owner to exempt the Easement Area from ad valorem taxation, by providing documentation to Owner, as may be reasonably necessary, to evidence the public uses of the Easement Area. Notwithstanding the foregoing, Owner shall be solely responsible for the payment of any ad valorem taxes or assessments, if any, with respect to the Easement Area. 12. Mortgages and Encumbrances. This Agreement is made subject to, and with the benefit of, all matters of record. To the extent the Easement Area is presently encumbered by a mortgage, Owner agrees to request that its mortgagee join in and consent to this Agreement and subordinate its mortgage lien to the easements granted herein. In addition, the Owner hereby reserves the right, for itself and its successors and assigns, to encumber all or any portion of the Easement Area, at any time [te' ·o Il · « k / • PA G E 7 ) and from time to time, with one or more mortgages, deeds of trust, or other financing instruments. Any mortgage hereafter encumbering or otherwise affecting any portion of the Easement Area shall at all times be subject and subordinate to the terms of this Agreement (and any modifications thereto, from time to time), and any party foreclosing any such mortgage, or acquiring title by deed in lieu of foreclosure, shall acquire title subject to all of the terms and provisions of this Agreement ( and any modifications thereto, from time to time). No breach of the provisions of this Agreement shall defeat or render invalid the lien of any mortgage made in good faith for value covering any part of the Easement Area and any improvements thereon. 13. Assignment. Prior to Substantial Completion of the Park/Streetscape Improvements in accordance with the Ocean Terrace Development Agreement, the Owner shall only be permitted to assign or transfer its rights and/or delegate the performance of its obligations under this.Agreement to a "Permitted Transferee," as defined in the Ocean Terrace Development Agreement. Following Substantial Completion of the Park/Streetscape Improvements, the Owner may assign or transfer its rights and/or delegate the performance of its obligations under this Agreement to any person or entity in accordance with the Ocean Terrace Development Agreement, so long as such person or entity is a subsequent owner or mortgage lender of the adjacent development parcels subject to the Covenant in Lieu of Unity of Title as contemplated in the Ocean Terrace Development Agreement, or is an organization or association of unit owners and/or parcel owners designated with the responsibility of maintenance of common areas in connection with the development or operation of such adjacent development parcels. Owner's successors and/or assigns shall not include individual unit owners, unless such individual unit owners are an organization or association of unit owners and/or parcel owners or a successor-in-interest to the Ocean Terrace Development Agreement as described above. The City may, in its sole discretion, transfer or assign this Agreement at any time only to a successor municipal corporation, provided, however, that nothing herein shall be deemed a limitation on City's or any successor municipal corporation's right to permit its invitees, agents, employees, licensees and the public to use the Easement Area in accordance with this Agreement. All other transfers, assignments, and delegations are prohibited (and, if attempted, void) absent the other party's prior written consent, which consent such other party may condition or withhold in its sole discretion. A party completing any permitted transfer, assignment, or delegation will promptly provide the other party with a written instrument evidencing the completion of such transaction. Upon any transfer, assignment, or delegation completed in accordance with this Section, the rights and obligations of the party completing such transfer, assignment, or delegation will be binding only on such party's transferee, assignee, or delegatee, as the case may be, and the other party will look only to such transferee, assignee, or delegatee for performance under this Agreement. In the case of a transfer, assignment, or delegation to an organization of unit owners and/or parcel owners, the obligations of the Owner pertaining to such portion transferred, assigned, or delegated shall be binding only upon the organization of unit/parcel owners, and not upon the declarant or any particular unit/parcel owner, except to the extent otherwise specifically provided in the declaration governing such organization. 14. Enforcement. The rights, privileges, and remedies granted by this Agreement are enforceable exclusively by the City and the Owner. Nothing in this Agreement, whether express or implied, confers upon the general public any enforcement rights against the Owner. Notwithstanding anything to the contrary, neither party will be in breach of this Agreement, and no enforcement may be sought against a party through any means, unless such party (i) receives a written notice from the other party, detailing with specificity the ways in which such party is in breach of this Agreement, and (ii) fails to remedy such breach within fifteen (15) days from the date of such written notice, or, if the breach is susceptible to cure but cannot reasonably be cured within fifteen (15) days, then within forty-five (45) days from the date of such written notice, provided the breaching party promptly commences and diligently pursues the curing of such breach within the initial fifteen (15) day period. PAGE8 15. Remedies. The parties may enforce the terms of this Agreement by injunctive relief, mandamus, and by any other remedies available at law or in equity, except for rescission, revocation or termination of this Agreement, or any other remedy which would deprive the public with the right to use the Easement Area in accordance with this Agreement. All rights, remedies, and privileges granted to any party under this Agreement are cumulative, and the exercise of any one or more such rights, remedies, or privileges will not preclude the exercising party from exercising any other rights, remedies, or privileges available to such party under this Agreement or at law or in equity. 16. Estoppel. The City will, no later than fifteen (15) business days after a written request therefor by the Owner, by any of the Own er's mortgagees or lenders, or by anyone claiming by or through the Owner (including, without limitation, the Owner's successors, assigns, and transferees), and upon payment of the reasonable fees to cover the City's expenses for any third-party resources required to comply, issue a written estöppel certificate, in recordable form, to the requesting party, certifying as to any matter related to this Agreement that the requesting party may reasonably request of the City, including, without limitation, (i) that this Agreement, or any particular paragraph or section of this Agreement specified by the requesting party , is in full force and effect and unmodified (or in what respects this Agreement is no longer in force or effect or has been modified); (ii) that all monies due and payable under this Agreement, if any, have been paid (or in what respects monies are owed); and (iii) that to the City's knowledge, the Owner is in compliance with this Agreement or with any particular paragraph or section hereof specified by the requesting party ( or in what respects there is noncompliance). Such estoppel certificates will be binding on the City and its successors and assigns, and may be relied upon by the Owner, its mortgagees and lenders, and by all others claiming by or through the Owner. Notwithstanding the foregoing section or any representations in any estoppel certificates issued thereunder, City shall not be estopped as to matters to which it did not have knowledge. [EXECUTION PAGES TO FOLLOW] E X H IB IT "L " IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed executed and acknowledged on day of ,20_in its name by its proper officials. City of Miami Beach, Florida Print Name: _ By: _ Jimmy L. Morales, City Manager Print Name: _ ST ATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) SS: ) The foregoing instrument was acknowledged before me this day of , 201 _ by __________ , as of , on of the company. He is personally known to me or has produced _______________ as identification and who did/did not take an oath. behalf ) NOTARY PUBLIC Typed or printed Name ofNotary My Commission expires: Serial No., if any EXHIBIT "L" IN WITNESS WHEREOF, the Owner has caused these presents to be signed, sealed executed and acknowledged on day of 20 in its name by its proper officials. Hr1n1 [arr. By: _ Name: _ [ pf[, [rint [ame. ST A TE OF FLORIDA COUNTY OF MIAM I-DADE ) ) SS: ) The foregoing instrument was acknowledged before me this day of ,201 by _________ ,. as of ,on of the company. He is personally known to me or has produced as identification and who did/did not talee an oath. --------------- behalf NOTARY PUBLIC Typed or printed Name of Notary My Commission expires: Serial No., if any _ E X H IB IT "L " Exhibit A Legal Description of Property PAGE12 ExhibitB Legal Description of Easement Area E XH I BI T "M" F O R M O F P E R F O R M A N C E B O N D B y this B o n d , W e as P rin ci pal , wh ose prin ci p a l DI,][SS 4}]fe,, [S as the [Contractor] under the agreement dated ,20_ between Principal and the [Developer Entity] (hereinafter referred to as "Developer") for the construction of the Ocean Terrace Park/Streetscape Project on behalf of the City of Miami Beach, Florida ("City") (which agreement and the other Contract Documents referenced therein are hereinafter referred to as "Contract"), the terms of which Contract are incorporated by reference in its entirety into this Bond, and , a corporation, whose principal business address is as Surety, are bound to Developer, as CO-Obligee, and City, as co-obligee, in the sum of U.S. dollars y for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally. THE CONDITION OF THIS BOND is that if Principal: 1. ) Performs all the work under the Contract, including but not limited to guarantees, warranties and the curing of latent defects, said Contract being made a part of this Bond by reference, and at the times and in the manner prescribed in the Contract; and 2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees, including appellate proceedings, that Developer and City sustains as a result of default by Principal under the Contract, including but not limited to a failure to honor all guarantees and warranties or to cure latent defects in the work or materials within the time period provided in Section 95.11 (2)(b), Florida Statutes; and 3. Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, including all warranties and curing all latent defects within the time period provided in Section 95.11 (2)(b), Florida Statutes; then this bond is void; otherwise it remains in full force. Surety specifically assumes liability for any and all damages, including but not limited to liquidated damages set forth in the Contract, arising from Principal's default of the Contract, as well as all latent defects uncovered in the work of the Principal after final acceptance of the work by the City. If no specific periods of warranty are stated in the Contract for any particular item or work, material or equipment, the warranty shall be deemed to be a period of one (1) year from the date of final acceptance by the City; provided, however, that this limitation does not apply to suits seeking damages for latent defects in materials or workmanship, such actions being subject to the limitations found in Section 95.11 (2)(b), Florida Statutes. 49127872;13 W h e n e v e r th e P rin c ip a l s h a ll b e , a n d is d e c la re d b y D e v e lo p e r to b e , in d e fa u lt u n d e r th e C o n tra c t, D e v e lo p e r ha v in g p e rf o rm e d D e v e lo p e r's o b lig a tio n s th e re u n d e r, th e S u re ty m a y p ro m p tly re m e d y th e d e fa u lt, o r s h a ll p ro m p tly : (1) C o m pl et e th e C o n tra c t in a c c o rd a n c e w ith its te rm s a n d co n d itio n s ; o r (2 ) O b ta in a b id o r b id s fo r c o m p le tin g th e C o n tra ct in a c c o rd a n c e w ith its te rm s a n d c o n d itio n s , a n d u p o n d e te rm in a tio n by S u re ty o f th e lo w e s t re s p o n s ib le b id d e r, o r, if D e v e lo p e r e le c ts , u p o n d e te rm in a tio n b y C ity , D e v e lo p e r a n d S u re ty jo in tly o f th e lo we s t re s p o n s ib le b id d e r, a rra n g e fo r a c o n tra c t b e tw e e n s u c h b id d e r a n d D e v e lo p e r, a n d m a k e a v a ila b le a s w o rk p ro g re s s e s (e v e n th o u g h th e re s h o u ld b e a d e fa u lt o r a s u c c e s s io n o f d e fa u lts u n d e r th e C o n tra c t o r C o n tra c ts of c o m p le tio n a rra n g e d u n d e r th is p a ra g ra p h ) s u ffi c ie n t fu n d s to p a y th e c o s t o f c o m p le tio n le s s th e b a la n c e of th e C o n tra c t P ric e ; b u t n o t e x c e e d in g , in c lu d in g o th e r c o s ts a n d d a m a g e s fo r w h ic h th e S u re ty m a y be lia b le he re u n d e r, th e a m o u n t se t fo rt h in th e fir s t p a ra g ra p h he re o f. T h e te rm "b al a n c e o f th e C on tr a c t P ri c e" a s us e d in thi s p ar a gr ap h , sh al l m e a n th e tot al am o un t p a y ab l e b y D e v e lo p e r to P rin ci p a l un d e r th e C o n tr a c t a n d a n y a m e n d m e n ts th e re to , le s s th e a m o u n t p ro p e rly pa id by D e v e lo p e r to P rin c ip a l. T h e S u re ty he re b y w a iv e s no tic e o f a n d a g re e s th a t a n y c h a n g e s in o r u n d e r th e C o n tra ct a n d c o m p lia n c e o r no n c o m p lia n c e w ith a n y fo rm a litie s c o n n e c te d w ith th e C o n tra c t o r th e c h a n g e s d o e s n o t a ff e c t S u re ty 's o b lig a tio n u n d e r th is B o n d . N o rig h t of ac tio n s h a ll a c c ru e o n th is b o n d to o r fo r th e u s e o f a n y p e rs o n o r c o rp o ra tio n o th e r th a n th e D e v e lo p e r a n d C ity n a m e d he re in . A n y a c tio n u n d e r th is B o n d m u s t be in s titute d in a c c o rd a n c e w ith th e n o tic e a n d tim e lim ita tio n s p ro v is io n s p re s c rib e d in S e c tio n 2 5 5 .0 5 (2 ), F lo rid a S ta tu te s . S ig n e d a n d se a le d thi s d a y of , 20 WITNESSES: (Name of Corporation) Secretary By: (Signature) (CORPORATE SEAL) (Print Name and Title) 49127872;13 C ountersigned by R esident Florida A ge nt of S urety IN S U RA N C E C O M P A N Y : By: _ Attorney-in-Fact Address: [attach copy of Agent's ID card Issued by Fla. Ins. Commissioner] (Street) (City/State/Zip Code) [Atty in fact power of atty must be attached] Telephone po.. 49127872,13 F O R M O F P A Y M E N T B O N D By this Bond, We asPrincipal, whose principal DUSineSS address IS , and whose telephone number is , as the [Contractor] under the agreement dated _ 20_, between Principal and the [Developer entity] (hereinafter referred to as "Developer") for the construction of the Ocean Terrace Park/Streetscape Project on behalf of the City of Miami Beach, Florida ("City") (which agreement and the other Contract Documents referenced therein are hereinafter referred to as "Contract"), the terms of which Contract are incorporated by reference in its entirety into this Bond, and , a corporation, whose principal business address is as Surety, are bound to Developer, as co-obligee, and City, as co-obligee, in the sum of _ U.S. dollars ( s,for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally. THE CONDITION OF THIS BOND is that if the Principal: 1. Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1), providing Principal with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the Contract, and in the times and in the manner prescribed in the Contract; and 2. Pays Developer and City all losses, damages, expenses, costs and attorney's fees including appellate proceedings, that Developer and City sustain because of a failure by Principal to make any payments required under the Contract; then this bond is void; otherwise it remains in full force. A claimant shall have a right of action against the Principal and the Surety for the amount due it. Such action shall not involve the Developer or City in any expense. A claimant, except a laborer, who is not in privity with Principal and who has not received payment for its labor, materials, or supplies shall, within forty-five (45) days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish to Principal a notice that he intends to look to the bond for protection. A claimant who is not in privity with Principal and who has not received payment for its labor, materials, or supplies shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to Principal and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. No action for the labor, materials, or supplies may be instituted against Principal 0,.,1¡.thi.· urety unless both of the above-referenced notices have been given. Any action under th;,j·tÀ~ ust -- 49127872;13 b e in s titu te d in a c c o rd a n c e w ith th e n o tic e a n d tim e lim ita tio n s p re s c rib e d in S e c tio n 2 5 5 .0 5 (2 ), F lo r id a S t a t u t e s . T h e S u r e t y h e r e b y w a iv e s n o t ic e of a n d ag re e s th a t a n y c h a n g e s in o r u n d e r th e C o n tra c t D o c u m e n ts a n d co m p lia n c e o r n o n c o m p lia n c e w ith a n y fo rm a litie s c o n n e c te d w ith th e C o n tra ct o r t h e c h a n g e s d o e s n o t a ff e c t th e S u re ty 's o b lig a tio n un d e r th is B o n d . Signature page to follow ) <E=E= a '.l<;Y lt 3% ¢ 49127872;13 S ig n e d a n d s e al e d th is d a y of 2 0 . P rin c ip a l A T T E S T : (N a m e o f C orp o ra tio n ) (S e c re ta ry ) [\, (Signature) (Corporate Seal) (Print Name and Title) day of,20 - Countersigned by Resident Florida Agent of Surety INSURANCE COMPANY: 49127872;13 --- /" . ~~...,__ By: _.µ.../~·- .. _.-~-=·,::,.'· ' ! i ! s ·£z ~··•.· .+ A tt o rn e y -i n -Fa ct A d d re s s : [a tt a c h co p y of A g e n t's ID c a rd Is s u e d by F la . In s . C o m m is s io n e r] (S tre e t) (C ity /S ta te /Z ip C o d e ) [A tt y in f a c t p o w e r o f a tt y m u s t b e a tt a c h e d ] T e le p h o n e N o .: _ 49127872;13 Exhi bit "N" INSURANCE AND BONDING REQUIREMENTS FOR PARK/STREETSCAPE IMPROVEMENTS I. BONDING REQUIREMENTS 1. Developer shall submit all supporting documentation and detailed invoices with respect to insurance and bond premiums required for the Park/Streetscape Improvements. City's reimbursement of insurance and bond premiums shall be for the portion of insurance and bond premiums directly attributable to this Agreement. Premiums shall be net of trade discounts, volume discounts, dividends and other adjustments. 2. The Performance Bond and the Payment Bond must each be executed by a surety company in good standing with the Florida Office of Insurance Regulation and an adequate rating from A.M. Best indicated in this Exhibit, which surety is authorized to do business in the State of Florida as a surety, having a resident agent in the State of Florida and having been in business with a record of successful, continuous operation for at least five (5) years. 3. The surety company that is bound by the Performance Bond and Payment Bond, respectively, shall be responsible for Contractor's acceptable performance of the work under Construction Contract for the Park/Streetscape Improvements, and/or for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 4. The surety company that is bound by the Developer's Surety Bond (if any is provided pursuant to Section 5 of the Agreement), shall be responsible for Developer's acceptable performance of the work under Construction Contract for the Park/Streetscape Improvements, and/or for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 5. The surety company shall hold a current Certificate of Authority as an acceptable surety on federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If the amount of the Performance Bond and Payment Bond exceeds the underwriting limitation set forth in the Circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other acceptable methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10, Section 223.11.) Further, the surety company shall provide City with evidence satisfactory to City, that such excess risk has been protected in an acceptable manner. 6. The City will accept a surety bond from a company in accordance with the requirements set forth below; provided however, that if any surety company appears on the watch list that is published quarterly by Intercom of the Office of the Florida Insurance Commissioner, the City shall review and either accept or reject the surety company based on the financial information available to the City. The following sets forth, in general, the acceptable parameters for bonds: 5> ,,76 4e1 j ls El {3y¿»s ·/&l z', -/, <G---=.$// ±e=< 49127872;13 Policy- Financi al H older's Size A m ount of Bond Ratings C ategory $500,001 to $1,000,000 A- Class I $1,000,001 to $2,000,000 A- Class II $2,000,001 to $5,000,000 A Class Ill $5,000,000 to $10,000,000 A Class IV - $10,000,001 to $25,000,000 A Class V $25,000,001 to $50,000,000 A Class VI $50,000,001 or more A Class VII 11. INSURANCE REQUIREMENTS ) Developer, Contractor and Architect shall provide, pay for and maintain in force at all times (unless otherwise provided) and any extensions thereof, the following insurance policies: A. worker's Compensation Insurance for all employees as required by Florida Statute 440, and Employer Liability Insurance with a limit in an amount not less than $1,000,000 per accident for bodily injury or disease. B. Commercial General Liability Insurance on an occurrence basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits in an amount not less than $2,000,000 per occurrence. C. As to Developer and Contractor only: Umbrella Liability Insurance with limits in an amount not less than $5,000,000 per occurrence. The umbrella coverage must be as broad as the primary General Liability coverage. The total limits for the Commercial General Liability and Umbrella Liability Insurance (set forth in Sections I1.B and 11.C above) shall be in an amount not less than $7,000,000, and may be provided through a combination of primary and excess/umbrella liability policies. Automobile Liability Insurance covering any automobile, if vendor has no owned automobiles, then coverage for hired and non-owned automobiles, with limits in an amount not less than $1,000,000 combined per accident for bodily injury and property damage. D. E. As to Developer and Architect only: Project-Specific Design Proie ,~a.l Liability (Errors & Omissions) Insurance with limits in an amount not fés< .than} $2,000,000 per occurrence or claim, and $5,000,000 policy aggregate /~'l".ìo \~ a maximum deductible acceptable to the City, and not-to-exceed/ $100,000. j1 \ .•,\,.",>OM -~·/}1/, . .... w £ 49127872; 13 Developer and Architect shall m aintain the cl aim s m ade fo rm coverage w ith a m inim um of 1 O years extended reporting following Final Completion and shall annually provide City with evidence of renewal coverage. Developer and Architect are responsible for all deductibles in the event of a claim. Developer and Architect shall indicate the deductible for this coverage on its Certificate of Insurance. Developer and Architect shall notify City in writing within thirty (30) days of any claims filed or made against the Design Project-Specific Professional Liability Insurance Policy(ies). Consultant and Design Subconsultants shall each maintain commercially reasonable Errors & Omissions Liability coverages, as reasonably determined by Developer. F. As to Contractor: Contractors' Pollution Legal Liability with limits in an amount not less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, subject to a maximum deductible acceptable to the City. G. As to Contractor only: Installation Floater Insurance including coverage for material & equipment to be installed during the course of this Project. City shall be included as a Named Insured on this policy, as its insurable interest may appear. This policy shall remain in force until acceptance of the Project by the City. Ill. ADDITIONAL TERMS AND CONDITIONS: 1. Notice to City. If the initial insurance expires prior to the completion of the work, certificates of insurance evidencing the renewal of the coverage required shall be furnished to the City ten (10) days prior to the date of their expiration. The insurance policy(ies) must be endorsed to require the relevant insured to provide the City with at least thirty (30) days' notice of cancellation and/or restriction, except for non-payment of premium, which shall be subject to ten (10) days' notice. 2. Certificates of Insurance. Developer shall furnish to the City Certificates of Insurance or endorsements evidencing the insurance coverage required of Developer hereunder prior to entering upon the Park/Streetscape Improvements Site, and shall also furnish to the City a copy of each insurance policy required of Developer by this Agreement. Developer shall provide the City with Certificates of Insurance from its Contractor and Architect prior to the commencement of any work or services by any such entity. The Certificates of Insurance shall be in form acceptable to, and subject to, reasonable approval by City. Developer's failure to timely provide the Certificates of Insurance as required by this paragraph, and failure to cure within fifteen (15) days following receipt of written notice of such failure from the City, shall be the basis for the rescission of this Agreement by the City, without any liability to Developer. The official title of the certificate holder is City of Miami Beach, Florida. This official title shall be used in all insurance documentation. 3. Right to revise or reject. City's Risk Management Division reserves the right, but not the obligation, to review and revise any insurance requirements at the time of insurance contract renewal and/or any amendments, not limited to deductibles, limits, coverages and endorsements based on insurance market conditions affecting the availability or affordability of coverage; or changes in the scope of work/specifications affecting the scope and applicability of coverage. 4. Additional Insured. City shall be expressly included as an Additional lnsu,r:ed.. n all policies (except Professional Liability and workers' Compensation), and with an endorsement; 1t is acceptable to the City. Additional insured certificates for the City shall rea\'Cit~Jrr O : . , ,g • o · 49127872;13 .è ) Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139, Attn: Risk Management, 3' Floor. 5. Notice of Cancellation and/or Restriction. The policy(ies) must be endorsed to require the relevant insu red to provide City with at least thirty (30) days' notice of cancellation or non- renewal and/or restriction, except for non-payment of premium, which shall be subject to ten (1 O) days' notice. A copy of the endorsement(s) shall be provided with the Certificates of lnsurançe. 6. Duty of Care. Developer's furnishing insurance coverage shall in no way relieve or limit, or be construed to relieve or limit, Developer or any of its contractors of any responsibility, liability, or obligation imposed under this Agreementor the applicable contract documents relating to the Park/Streetscape Improvements, or by Applicable Laws, including, without limitation, any indemnification obligations which Developer or any of its contractors have to City thereunder. 7. Developer's Failure to Procure. Developer's failure to procure or maintain the insurance required by this Exhibit "N" during the entire term of the work shall constitute a material breach and Default of this Agreement, as long as it is available based on prevalent market conditions. In the event of such a breach (and following all notice and right to cure periods have expired), the City may exercise all available rights and remedies hereunder, including the right to immediately suspend or terminate this Agreement without any further notice to or liability to Developer or, at its discretion, procure or renew such insurance to protect the City's interests and pay any and all premiums in connection therewith, and withhold or recover all monies so paid by the City from the Developer. 8. Waiver of Subrogation. Where permitted by law, Developer hereby waives and shall cause the Contractor to waive all rights of recovery by subrogation or otherwise (including, without limitation, claims related to deductible or self-insured retention clauses, inadequacy of limits of any insurance policy, insolvency of any insurer, limitations or exclusions of coverage), against City, and its respective officers, agents, or employees. Certificates of insurance shall evidence the waiver of subrogation in favor of the City, and that coverage shall be primary and noncontributory, and that each evidenced policy includes a Cross Liability or Severability of Interests provision, with no requirement of premium payment by the City. 49127872 ;13 EXHIBIT "O" PRESENTLY PERMITTED DEVELOPMENT (a)Permitted Development and Uses. The Property, generally bounded by Ocean Terrace, 75" Street, Collins Avenue, and 74 Street, is designated Mixed Use Entertainment Category (MXE) on the eastern portions and Medium Intensity Commercial Category (CD-2) on the western portion according to the City's adopted Comprehensive Plan. The Property is zoned MXE Mixed Use Entertainment District on the eastern portions and CD-2 Medium Intensity, Commercial District on the western portion by the City's Land Development Regulations. The property is also located within the Ocean Terrace Overlay. The Ocean Terrace Overlay regulations supersede the underlying regulations and permits apartments, apartment/hotels, hotels, commercial, and uses that serve alcoholic beverages as regulated by the City Code. The Property may be used for the purposes permitted and regulated in these land use designations and zoning districts, as further limited by the by the City's Land Development Regulations and Comprehensive Plan. (b)Density, Building Heights, Setbacks and Intensities. The maximum density, heights, setbacks and intensities for any development on the Property shall be regulated by the City's Land Development Regulations, Comprehensive Plan and any applicable Federal, State or County laws and regulations. In the CD-2 land use designation, the maximum floor area ratio (FAR) is 2.0 for mixed-use buildings. In the MXE land use designation, the maximum FAR is 2.0. In the MXE and CD-2 land use designation, the maximum residential density is 100 dwelling units per acre. The intensity of hotel use is limited by such set back, height, floor area ratio, minimum room size and other provisions of the Land Development Regulations. EXHIBIT "P" PUBLIC FACILITIES TO SERVE THE PROPERTY The proposed development will be serviced by those roadway transportation facilities currently in existence as provided by state, county, and local roadways. The proposed development will also be serviced by public transportation facilities currently in existence, as provided by Miami- Dade County, the City of Miami Beach, and such other governmental entities as may presently operate public transportation services within the City of Miami Beach. Sanitary sewer, solid waste, drainage, and potable water services for the proposed development shall be those services currently in existence and owned or operated by Miami-Dade County, the Miami-Dade County Water and Sewer Department, the City of Miami Beach, and State of Florida. The proposed development shall be serviced by those existing educational facilities owned or operated by the Miami-Dade Public Schools District, if applicable. The proposed development shall be serviced by those existing parks and recreational facilities owned or operated by the United States Government within Miami Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development shall be serviced by those existing health systems and facilities operated by the United States Government within Miami-Dade County, by the State of Florida, by Miami-Dade County, and by the City of Miami Beach. The proposed development will also be serviced by any and all public facilities, as such are defined in Section 163.3221(13) of the Act, that are described in the Comprehensive Plan, specifically including those facilities described in the Infrastructure Element and the Capital Improvements Element therein, a copy of which is available for public inspection in the offices of the City Clerk of the City of Miami Beach. Notwithstanding the foregoing, the Project may be required to provide for some of its own services, including solid waste removal and stormwater drainage. EXH IBIT "Q" PUBLIC RESERVATIONS AND DEDICATIONS l. All easements referenced in the Development Agreement 2. Th e Public Reservation Area depicted in Exhibit "B" EXH IB IT "R" REQUIRED DEVELOPMENT PERMITS AND VARIANCES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10 . ) 11 . 12. The following constitutes a generalized list of local permits anticipated as necessary to be approved by the terms of this Development Agreement: Historic Preservation Board, Planning Board, and/or Board of Adjustment approvals, pursuant to Chapter 118 of the City of Miami Beach Code. Utility Permits Demolition Permits Building Permits Environmental Permits, including, without limitation, DERM or DEP permits Hazardous Materials Removal Permit, if removal of hazardous materials is found necessary. Public Works Permit, Paving and Drainage Public Works Permit, Water and Sewer Public Works Revocable Permits Certificates of Use and/or Occupancy Any variances or waivers that may be required pursuant to Chapters 114 through 142 of the City of Miami Beach Code All other local governmental approvals as may be applicable to the subject property from time to time pursuant to the terms of this Development Agreement, including but not limited to restrictive covenants in lieu of unity of title a , ,•··\ d. ¢° ·< EXH IBIT "S" This instrument was prepared by: Name: Address: Raul J. Aguila, City Attorney. City of Miami Beach 1700 Convention Center Drive, 4 Floor Miami Beach, Florida 33139 CONSTRUCTION AND ACCESS EASEMENT AGREEMENT THIS CONSTRUCTION AND ACCESS EASEMENT AGREEMENT (this "Easement") is made this day of ,20_, by the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida 33139 (the "City"), to and in favor of a, each having its respective principal place of business at (collectively, the "Developer"). WITNESSETH: WHEREAS, the City owns that certain property situated, lying and being in Miami-Dade County, Florida, as more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Park/Streetscape Site"); WHEREAS, Developer owns that certain property situated, lying and being in Miami-Dade County, Florida, as more particularly described in Exhibit "B" attached hereto and made a part hereof (the "Development Site"), and WHEREAS, the City and the Developer entered into that certain Development Agreement dated as of,20,a copy of which is recorded in Official Records Book , at Page ___ of the Public Records of Miami-Dade County (the "Development Agreement"'), which constitutes a development agreement pursuant to the Florida Local Government Development Act, Section I 63 .3220, et. seq., Florida Statutes (the "Act"); WHEREAS, pursuant to the Development Agreement, Developer will construct the "Project" (as defined in the Development Agreement) on the "Development Site" (as defined in the Development Agreement) and will construct the "Park/Streetscape Improvements" (as defined in the Development Agreement) on the Park:/Streetscape Site; WHEREAS, the City has agreed to grant to the Developer a non-exclusive, irrevocable, temporary easement over the Park/Streetscape Site for access and construction staging purposes during Developer's construction of the Project and the Park:/Streetscape Improvements; WHEREAS, the granting of this Easement is a condition of the effectiveness of the Development Agreement and the issuance of development permits and approvals in order for the Developer t@develop the Project and the Park/Streetscape Improvements; f "j ?} /,. ( E.- ,·,1 1·~~ I - , L ,,. ' , . ·U3 ; \ ' I .. ,. HT~~;; j'II ·/ · i 49495785,2 EXH IBIT "S" NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound hereby agree as follows: 1. Recitals. The above recitals are true and correct and by this reference are hereby incorporated into the body of this Easement as if fully set forth herein. 2. Grant of Easement. (a) The City hereby grants to the Developer and its employees, agents, representatives, architects, engineers, consultants, contractors, subcontractors ( of every and any tier), laborers, suppliers, and lenders, and each of their respective successors and assigns (collectively, the "Developer Construction Permittees"), a non-exclusive, irrevocable, temporary easement on, over, under, through, upon, and across the Park/Streetscape Site to perform all acts necessary or desirable to ensure fulfillment and satisfaction of all duties, obligations, and requirements with respect to the construction of the Project and the Park/Streetscape Improvements pursuant to and in accordance with the Development Agreement. The easement granted herein includes, without limitation, the following: (i) during construction of the Park/Streetscape Improvements, the right to stage, store, and operate construction trailers, vehicles, tools, machinery, equipment, and materials related to the Park/Streetscape Improvements on all or any portion of the Park/Streetscape Site; (ii) during construction of the Project, the right to stage, store, and operate construction trailers, vehicles, tools, machinery, equipment, and materials related to the Project on the "Phase 2" portion of the Park/Streetscape Site (as such phase is defined in the Development Agreement); (iii) the right to erect fencing around and within the Park/Streetscape Site; (iv) the right to use the Park/Streetscape Site for site logistics, including but not limited to, the Developer's and the Developer Construction Permittees' ingress and egress to and from the Development Site over and across the Park/Streetscape Site; and (v) the right to do all other things and perform all other activities that are reasonably related to the construction of the Project and the Park/Streetscape Improvements pursuant to and in accordance with the Development Agreement, or that may be necessary or appropriate to give effect to any of the foregoing rights. (b) This Easement and the rights granted herein will terminate upon the earlier of (such earlier date is referred to herein as the "Termination Date"): (i) the date on which the City issues a final certificate of occupancy for the entire Project (as opposed to any individual phase thereof); (ii) the date that is ninety-six (96) months after the "Effective Date" of the Development Agreement, subject to automatic extension and automatic tolling as provided in Sections 42(e) and 55 of the Development Agreement; (iii) the date on which the City terminates the Development Agreement for an uncured Developer "Event of Default" under the Development Agreement; or (iv) the date on which the Developer terminates the Development Agreement for convenience in accordance with Section 45 of the Development Agreement. Although such termination is intended to be automatic and require no further action on the part of any party hereto, upon the request of a party after the occurrence of a termination event, the other party will, no later than thirty (30) days after such request, execute a termination of this Easement in recordable form and in substance reasonably acceptable to the City and the Developer. 3. Restoration. The Developer shall remove all vehicles, equipment and materials from the Park/Streetscape Site on or prior to the Termination Date and, if the entire Park/Streetscape Improvements has not been completed on or prior to the Termination Date, then the Developer shall, at the Developer's cost and expense, sod such un-completed portion of the Park/Streetscape Site promptly after the Termination Date, whereupon the City shall, at the City's cost and expense, be required to keep and maintain such sod. · ~{} '" ~';/-ì' "cc~ 3 é'J'~~,,) !)-;: l «so i"$j 9ou' a.<< EX H IB IT "S " 4. Encumbrances. This Easement and the rights granted herein are subject to all liens, encumbrances, covenants, conditions, restrictions, reservations, contracts, leases and licenses, easements and rights of way pertaining to the Park/Streetscape Site that are of record as of the date of this Easement (collectively, the "Encumbrances"). The use of the word "grant" in this Easement shall not imply any warranty on the part of the City with respect to the status of title to the Park/Streetscape Site. 5. Insurance. The Developer shall maintain the following insurance at all times while this Easement remains in effect: (a) commercial general liability coverage with minimum limits of Two Million and No/100 ($2,000,000) Dollars per occurrence, combined single limit for bodily injury liability and property damage liability; (b) business automobile liability coverage with minimum limits of One Million and No/100 ($1,000,000) Dollars per occurrence, combined single limit for bodily injury liability and property damage liability; and ( c) workers compensation insurance for all employees in compliance with the "Workers Compensation Law" of the State of Florida and all applicablè federal laws. Such insurance policies (except for workers compensation insurance) shall: () name the City as an additional insured thereunder; (y) be written by insurance companies licensed to do business in Florida; and (z) not be subject to cancellation or non-renewal without a minimum of thirty (30) days' notification by the insurer to the City (except for non-payment of premium, which shall be subject to ten (10) days' notice) with a copy to the attention of Risk Manager, 1700 Convention Center Drive, Miami Beach, Florida 33139. The Developer shall provide the City with one or more certificates of insurance evidencing all such insurance coverages set forth above. 6. Representations of the City. The City hereby represents, warrants and covenants to and with the Developer that the City is the fee simple owner of the Park/Streetscape Site and has the right, title, capacity and authority to grant the easements granted herein, subject only to the Encumbrances. 7. Indemnification. The Developer shall indemnify, defend and hold harmless the City from and against any actual, out-of-pocket damages, losses, liabilities, fees, costs and expenses (collectively, "Losses") incurred by the City in any action, suit or proceeding brought against the City by any third- party as a result of any negligent act or omission of the Developer in exercising its rights under this Easement which first occurred prior to the Termination Date of this Easement, except for any Losses that arise out of or are related to the gross negligence or willful misconduct of the City, the City's elected and appointed officials (including, without limitation, the City's Mayor and City Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns, agents, consultants, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals, invitees, affiliates, or the general public. The Developer shall directly pay all actual, out-of-pocket costs and expenses related to any covered Losses, or legal defense required by the City for any covered Losses, using legal counsel that is selected by the Developer and which is reasonably acceptable to the City, pursuant to the foregoing. The City shall reasonably cooperate and collaborate (but at no expense to the City) with the Developer in connection with any legal proceeding in which the Developer is defending the City. 8. Miscellaneous. 8.1 This Easement shall be governed by, enforced and construed under the laws of the State of Florida. Venue for all actions, litigation and/or other proceedings arising out of this Easement shall be exclusively in Miami-Dade County, Florida. The parties hereby knowingly and voluntarily waive the right to a trial by jury of any claim, controversy or disputed matter between them arising under, out of or in connection with this Easement. The Prevailing Party in any action, litigation Qr other proceeding that is based on any claim, controversy or other disputed matter arising under, out of\or in connection with this Easement shall recover from the non-prevailing party all fees, costs ªº1 _ej: ses (including, without limitation, reasonable attorneys' fees and costs through all tria\appepat~~ ost- e 49495785,2 .os: g- E X H IBIT "S" judgment levels and proceedings) incurred by the Prevailing Party in such action, litigation or other proceeding. As used herein, the term "Prevailing Party" means the party who receives substantially the relief sought upon final, non-appealable judgment, order, or other disposition of a court of competent jurisdiction. The provisions of this Section shall survive the termination or expiration of this Easement. 8.2 The parties hereby acknowledge and agree that each has had an opportunity to be represented by or consult with independent legal counsel and that any rule of construction which provides that ambiguities are to be construed against the drafter shall not apply in the interpretation or construction of this Easement. If any term, provision or portion of this Easement is for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such term, provision or portion of this Easement shall be given it nearest valid, legal and enforceable meaning, or construed as deleted, whichever such court .may determine, and the same shall not invalidate the remaining. terms, provisions and/or portions of this Easement, which remaining terms, provisions and portions of this Easement will remain in full force and effect. 8.3 This Easement includes all exhibits attached hereto. This Easement, together with all such exhibits, contains the entire agreement and understanding between the parties relating to the subject matter of this Easement, and all prior or contemporaneous terms, covenants, conditions, representations, warranties, statements, agreements and understandings made by or on behalf of the parties, whether oral or written, are merged herein. ) 8.4 This Easement may not be amended, modified or terminated except by a written instrument executed by the Owner and the City through its Public Works Director, or his designee, or the successor administrative officer with jurisdiction over the matter, and which is recorded in the Public Records of Miami-Dade County, Florida. This Easement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. 8.5 The failure of any party to insist in any one or more instances upon strict performance of any term, covenant, condition or other provision of this Easement will not be construed as a waiver or relinquishment of the future enforcement of such term, covenant, condition or other provision of this Easement. 8.6 Wherever appropriate in this Easement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of each gender shall be deemed to comprehend either or both of the other genders. The section and paragraph headings in this Easement are for convenience only and shall not affect the meaning, interpretation or scope of the terms or provisions set forth therein. 8.7 This Easement may be executed in multiple counterparts, each of which individually shall be deemed an original, but when taken together shall be deemed to be one and the same Easement. 8.8 This Easement shall never be construed as a conveyance in any manner whatsoever of fee simple title to any portion of the Park/Streetscape Site, it being intended by the parties that this Easement conveys only an easement interest with respect to the Park/Streetscape Site for the specific uses and purposes set forth herein. 8.9 AIl of the rights, easements, and interests herein created and granted are and shall be limited to and utilized solely for the uses and purposes expressly set forth in .¡ ement. Notwithstanding anything to the contrary contained in this Easement, the City shall not, ,$€ ptinjtied to e# fi i g Il] 8 .l) ·2. 49495785,2 E XH IB IT "S" use or grant others the right to use, all or any portions of the Park/Streetscape Site so long as this Easement remains in effect without the prior written consent of the Developer. 8.1 O This Easement and the rights, easements, and interests herein created and granted shall only become effective upon the recordation of this Easement in the Public Records of Miami-Dade County, shall run with the land, and shall be binding on all persons holding title to said lands. 9. Notice. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by either the Developer or the City pursuant to this Easement shall be in writing and addressed as follows: If to Developer at: With a copy to: 1035 N. Miami Avenue, Suite 201 Miami, Florida 33136 Attn: Sandor Scher sscher@clarocorp.com AkermanLLP 98 SE 7 Street, Suite 1100 Miami, FL 33131 Attn: Neisen O. Kasdin, Esq. neisen.kasdin@akerman.com Ifto the City: With copies to: City of Miami Beach Attn: City Manager 1700 Convention Center Drive, 4th Floor Miami Beach, Florida 33139 City of Miami Beach Attn: Public Works Director 1700 Convention Center Drive, 4th Floor Miami Beach, Florida 33139 Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Any notice or other communication (i) sent by certified United States mail, postage prepaid, return receipt requested will be deemed effectively given or received on the third (3rd) business day following the postmark date of such notice or other communication; (ii) sent by overnight courier or by hand will be deemed effectively given or received upon receipt or refusal, as the case may be; and (iii) sent by electronic mail will be deemed effectively given or received on the day of transmission of such notice if sent on a business day before 6:00 P.M. Eastern Standard Time, or on the following business day if sent after 6:00 P.M. Eastern Standard Time or on a non-business day. Any notice or other communication given in the manner provided above by counsel for either party will be deemed to be notice or such other communication from the party represented by such counsel. 10. Enforcement. The rights, privileges, and remedies granted by this Easement are enforceable exclusively by the City in its municipal capacity. Nothing in this Easement, whether express or implied, confers upon the general public any enforcement rights against the Owner. Notwithstanding anything to the contrary, neither party will be in breach of this Easement, and no enforcement may be sought against a party through any means, unless such party (ú) receives a written notice from the other party,,detailing with specificity the ways in which such party is in breach of this Easement, and (ii) fails to "[dy, such \? breach within thirty (3 O) days from the date of such written notice, or, if the breach is suscept'~~ t~ ~" ,.i 49495785,2 è -..;;;:-:, E XH IB IT "S" but cannot reasonably be cured within thirty days, then within sixty (60) days from the date of such written notice, provided the breaching party promptly commences and diligently pursues the curing of such breach within the initial thirty (30) day period. 11. Remedies. The parties may enforce the terms of this Easement by injunctive relief, mandamus, and by any other remedies available at law or in equity. All rights, remedies, and privileges granted to any party under this Easement are cumulative, and the exercise of any one or more such rights, remedies, or privileges will not preclude the exercising party from exercising any other rights, remedies, or privileges available to such party under this Easement or at law or in equity. (Signature pages to follow) ) 49495785,2 EXH IBIT "S" IN WITNESS WHE REOF, the undersigned have caused this Easement to be executed by execution of this instrument as of this _day of 20l_. Witnesses: CITY OF MIAMI BEACH, FLORID A, a municipal corporation 1gn fame. [rit [am €., By: _ Mayor 1gn [am @. [rit [am e. ATTEST: City Clerk STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this d ay of _ 2U_ Dy ds OÍ • He is personally known to me or has produced a s identification and who did ( did not) take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Comm ission Expires: Seria] No,, ifany. 1 49495785;2 E XH I BI T "S" ACKNOWLEDGED AND ACCEPTED this day of 20_ by Witnesses: DEVELOPER: Sign Name: _ Print Name: _ By: _ Sign Name: _ Print Name: _ Print name: _ ) ST ATE OF FLORIDA COUNTY OF DADE ) ) SS: ) .. The foregoing instrument was acknowledged before me this __day of 2 O _ Dy as of • He is personally known to me or has produced as identification and who did ( did not) take an oath. NOTARY PUBLIC Typed or Printed Name of Notary My Commission Expires: _ Serial No., if any: _ 49495785,2 EXHIBIT "S" Exhibit "A" Park/Streetscape Site 49495785;2 O K: E K 3 1 5 6 3 F G 1 3 3 55 t_S T F G E EXHIBIT "S" Exhibit "B" Legal Description for the Developer Property [see attached] 49495785,2