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RESOLUTION 91-20384 RESOLUTION NO. 91-20384 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH DECLARING THE CITY OWNED PARKING LOT LOCATED AT 27TH STREET AND COLLINS AVENUE IN MIAMI BEACH TO BE SURPLUS PROPERTY, SUBJECT TO A FURTHER PUBLIC HEARING BEFORE THE PLANNING BOARD PURSUANT TO RESOLUTION 86- 18491, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE PURCHASE AND SALE AGREEMENT FOR THE SALE OF THE PROPERTY TO KURT SCHWEIZER, MARGARITA RADEMACHER AND ANDRE WALLISER. WHEREAS, the City of Miami Beach is the owner in fee simple of the parking lot located at 27th Street and Collins Avenue in Miami Beach, the legal description of which is attached hereto as Exhibit "A" (The "City Property") ; and WHEREAS, KURT SCHWEIZER, MARGARITA RADEMACHER AND ANDRE WALLISER, are the owners of the property immediately to the south of City Property and they plan to build a 216 unit hotel/condominium project and would like to purchase the City Property for the purpose of providing structured parking for their project; and WHEREAS, the parking lot on the City property is greatly under utilitized and City property is therefore surplus to the needs of the City; and WHEREAS, the City has had two appraisals conducted on the City property, and the purchase price is the average of the two appraisals; and WHEREAS, the City has negotiated an agreement with Kurt Schweizer, Margarita Rademacher and Andre Walliser whereby the City will convey fee simple in the City property in return for: - $1. 394 million to be paid to the City at closing - the Purchaser shall construct 55 municipal parking spaces on the ground level of the City Property the Purchasers grant the City a 99-year lease for the municipal parking spaces. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, as follows: 1. That the foregoing recitals are hereby incorporated by reference. 2 . That the City property located at 27th Street and Collins Avenue, the legal description of which is attached hereto as Exhibit "A" , is hereby declared to be surplus property. 3 . The Mayor and City Clerk are hereby authorized to execute the Purchase and Sale Agreement with Kurt Schweizer, Margarita Rademacher and Andre Walliser, a copy of which is attached hereto. 4 . This Resolution shall not become effectiv- until a further public hearing before the Plannng Board is co c uded. lf PASSED and ADOPTED the 23 : day of ()closer , 1991. Ali Pr MAYOR 1r ATTEST: ,------a4 _ -s,„___ f CITY CLERK (C:\resolutio\fontana) FORM APPROVED LEGAL DEPT. By ...„.......?Li....,457,0"S...—., a Date /7/9 9 2 2 • LOTS 5, 6, 7 AND 8, BLOCK 7, OF AN AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 5, AT PAGE 7 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, TOGETHER WITH THE OUTLOTS WESTERLY OF INDIAN CREEK DRIVE, BOUNDED AS FOLLOWS: ON THE EAST BY THE WESTERLY LINE OF SAID INDIAN CREEK DIME: ON THE WEST BY THE EASTERLY SHORE LINE OF INDIAN CREEK, SAID SHORE LINE BEING AT THE WATER FACE OF A CONCRETE BULKHEAD, SAID WATER FACE BEING THE WESTERLY LINE OF THE ABOVE REFERENCED OUTLOTS: BOUNDED ON THE SOUTH PY THE EXTENSION WESTERLY OF THE SOUTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 8 AND BOUNDED ON THE NORTH BY THE EXTENSION WESTERLY OF THE NORTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 7 . v EXHIBIT A i r PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT is made and entered into as of this day of Decd , 1991, by and between the CIT1' OF MIAMI BEACH, a Florida municipal corporation (the "City") , and KURT SCHWEIZER, MARGARITA RADEMACHER and ANDRE WALLISER (the "Developers" ) . In consideration of the mutual covenants and promises hereinafter set forth, the parties agree as follows: WITNESSETH: WHEREAS, the City is the owner in fee simple of the following describedP roperty (the "City Property") : 5, 6, 7 AND 8, BLOCK 7 , OF AN AMENDED MAP OF THE LOTS OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN 11! PLAT BOOK 5, AT PAGE 7 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, TOGETHER WITH THE OUTLOTS WESTERLY OF INDIAN CREEK DRIVE, BOUNDED AS FOLLOWS: ON THE EAST BY / THE WESTERLY LINE OF SAID INDIAN CREEK DRIVE; ON THE WEST IP / BY THE EASTERLY SHORE LINE OF INDIAN CREEK, SAID SHORE LINE BEING AT THE WATER FACE OF A CONCRETE BULKHEAD, SAID WATER FACE BEING THE WESTERLY LINE OF THE ABOVE REFERENCED OUTLOTS: BOUNDED ON THE SOUTH BY THE EXTENSION . � WESTERLY OF THE SOUTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 8 AND BOUNDED ON THE NORTH BY THE EXTENSION WESTERLY OF THE NORTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 7 . WHEREAS, the Developers are the owners in fee simple of the following described property which abuts the City Property to the South (the "Abutting Property") : LOT 4 , AND THE NORTH 25 FEET OF LOT 3 ; AND LOT 9, AND THE NORTH 25 FEET OF LOT 10; IN BLOCK 7 , OF AMENDED MAP OF OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 5, AT PAGE 7 AND 8, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA) ; ALSO ALL OF THAT LAND WHICH LIES WEST OF INDIAN CREEK DRIVE AND IS BOUNDED ON THE NORTH BY THE NORTH LINE OF SAID LOT 9, IN SAID BLOCK 7 , OF OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, (PLAT BOOK 5, AT PAGE 7 AND 8, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA EXTENDED WESTERLY TO THE WATERS OF INDIAN CREEK, AND IS BOUNDED ON THE SOUTH BY A LINE WHICH IS PARALLEL TO AND IS 100 FEET SOUTH OF THE NORTH LINE JUST HEREINABOVE DESCRIBED; AND IT IS BOUNDED ON THE EAST BY INDIAN CREEK DRIVE, AND ON THE WEST BY THE WATERS OF INDIAN CREEK; TOGETHER WITH ANY AND ALL COMMON LAW AND STATUTORY RIPARIAN RIGHTS THEREUNTO APPERTAINING OR BELONGING. WHEREAS, the Developers intend to construct, and under the terms of this Agreement have agreed to construct, a hotel/condo- , otel/condo- A minium project (the "Project") on the Abutting Property and the City Property, generally as follows: (a) On the Abutting Property: A 31 story hotel/condominium structure containing one floor of lobby/restaurant and meeting room space, 180 hotel suites and 36 apartment condominium units. (b) On the City Property: A 403 space, 4 level structured parking facility, including 55 municipal parking spaces on the ground level. All as generally depicted in "Concept Plans, " which are attached hereto as Exhibit A. WHEREAS, the parties wish to enter into an Agreement whereby the City would convey to Developers the City Property subject to the fulfillment of certain enumerated conditions precedent. 1 . Purchase and Sale. City agrees to sell to Developers, and Developers agree to purchase from City, the City Property. 2 . Purchase Price. The purchase price to be paid by Developers to City for the City Property is One Million Three Hundred Thousand Ninety Four and No/100 ($1, 394 , 000) Dollars (the "Purchase Price") . 3 . Additional Consideration. As additional consideration for the sale of the City Property to the Developers, the Developers z agree, to provide to the City, in addition to the Purchase Price set forth above the following: a) A 99 year lease at $1 per year, for 55 municipal parking spaces, as more fully described in Paragraph 19 herein and attached hereto as Exhibit B, (the "Lease") . The parties hereby agree that the present value of the leasehold interest is $570 , 000. 00. (b) The Developers shall construct at their sole cost and expense, the 55 municipal parking spaces on the ground level of the City Property, all as more fully described in the "Concept Plans" and the Lease. 4 . Deposit. To secure the performance by Developers of their obligations under this Agreement, within two (2) business days following receipt by Developers of written notice of execution 2 w __ 1 1 4 4 of this Agreement by City, Developers shall deliver to Kurt R. Klaus, Jr. , Esq. , (the "Escrow Agent") , the sum of One Hundred Thirty Nine Thousand Four Hundred and No/100 ($139, 400) Dollars (the "Deposit") by check, the proceeds of which shall be held as an earnest money deposit. The Escrow Agent shall invest the Deposit in an interest- bearing account, certificate of deposit or repurchase agreement maintained with or issued by a commercial bank or savings and loan association doing business in Dade County, Florida. All interest accrued or earned thereon shall be paid or credited to Developers, except as otherwise set forth in this Agreement or in the event of a default by Developers, without any default of City, in which event the interest shall be disbursed to City, together with the Deposit, as liquidated damages in accordance with paragraph 12 below. 5 . Terms of Payment. The Purchase Price shall be paid to City as follows: 139 , 400 being the Deposit referred to in paragraph 3 of this Agreement. $ 1 , 254 , 600 in current funds, at time of Closing, sub- ject to prorations and adjustments as hereinafter provided, to be paid by cashier's check drawn on a banking institu- tion with offices in D4de County, Florida, or by wire transfer of immediately available federal funds. $_ 1,394,000 Total Purchase Price. 6 . Title. Developers ' attorney has reviewed a complete abstract of title setting forth all matters of record affecting the title to the Realty from the earliest public records to July 30, 1991 at 8 : 00 a.m. (the "Abstract") . Developers agree to accept title to the Property subject to all of the matters disclosed in the Abstract. The Abstract shall be recontinued within thirty (30) days before Closing. The continuation of the Abstract shall show City to continue to be vested with good, marketable and insurable fee simple title to the Realty, free and clear of all liens, encum- - 3 - , brances and other matters, except only the following (the "Permitted Exceptions") : (a) Ad valorem real estate taxes for the year of Closing and subsequent years; (b) All applicable zoning ordinances and regulations; and (c) Restrictions or matters appearing on the plat or other- wise common to the subdivision. Developers have obtained a commitment from Attorney' s Title Insurance to issue an Owner' s ALTA Form B Marketability Policy effective as of Closing, at standard marketability rates, without any guarantees and without any exceptions, standard or otherwise, other than the Permitted Exceptions. Developers may raise as additional objections, any matters first shown by the continuation of Abstract to be delivered as provided above. If Developers have given City timely written notice of any new defect (s) and the defect (s) render the title other than as provided for in this Agreement, City shall use reasonable diligence to promptly cause such defects to be cured. In that regard, City agrees to remove by payment, bonding or otherwise any lien against the Property capable of removal by the payment of a liquidated amount. Further, City shall bring suit, if necessary, to cure any other defect or buy-out or settle any other claim or lien against the Property. At either party' s option, the cure period set forth above may be extended for a period not to exceed 180 days for purposes of eliminating any title defects. In the event that City does not eliminate any defects within the cure period, as the same may have been extended, Developers shall have the option of either: (i) proceeding with this transaction and accepting the title "as is, " except that Developers may deduct from the Purchase Price the amount of any lien which can be satisfied by a liquidated amount; or, alternatively (ii) canceling this Agreement, in which event Escrow Agent shall immediately return the Deposit, together with all interest accrued there, ,,, to Developers; whereupon both parties shall be released from all further obligations under this Agree- ment, except those obligations set forth in paragraph 17 below, unless such defects were caused by City's willful act or willful - 4 - • omission, in which event, City shall remain liable to Developers for damages caused thereby, which damages shall in no event exceed the total sum of $10, 000 . 00. City shall execute appropriate docu- ments as required for "gap coverage" by Developers ' title insurer. 7 . Conditions Precedent. The parties ' obligation to close the transaction provided for in this Agreement shall be subject to the following conditions precedent to closing: (a) Receipt by the City of a determination by the City ' s Finance Director that the sale of the Property will not impair the rate coverage or current coverage test as set forth in City of Miami Beach Resolution No. 88-19468 ($12 Million Parking Revenue Bonds) . This is a non- waivable condition precedent to Closing. (b) Developers shall have obtained all governmental approvals and permits (including any necessary zoning and environmental approvals and/or variances and general building permits) necessary for constructing of the Project in accordance with the approved Construction Plans therefore except only for those separate permits which are generally obtained directly by the trade subcontractors (such as elevator permits) and except for any permits for ancillary work; (c) The City shall have approved the schematic design plans, the design development plans and the construction plans, as defined in and provided by Paragraph 15 below. (d) The City shall have approved the commitment (s) for the construction financing of the Project, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, City may not disapprove any such financing commitment(s) , if they are from Institutional Investors and if they contain terms and conditions generally prevailing in the then current market place. In addition, Developers may, at its (or their) option, self-finance all or a portion of the Project and may not disapprove any such financing; provided, however, that Developers have not requested an interest rate in excess of then current market rates for similar loans being made by Institutional Investors and the terms and conditions of said self-financing shall be those generally prevailing in the then current market place. The total financing for the construction of the Project from all sources may not exceed the Development Costs. Upon receipt of a request for approval of the construction financing (which request shall include either a copy of the commitment or application therefor or otherwise a description of the material business terms thereof) , the City shall have a period of fifteen (15) days to review same and notify Developers in writing of its approval or disapproval of such proposed financing. If no written response is received within such fifteen (15) day period, then the request shall automatically be deemed approved. Any disapproval must be in writing and must state the reasons therefor, including a specific designation of which conditions and - 5 - terms are not prevailing in the then current market place. e) Developers shall have closed and obtained initial funding of the approved construction financing for the Project. f) Developers shall have confirmed that there are no abnormal soil or subsurface conditions on the City Property which could interfere with typical construction reasonably anticipated for the construction described in the "Concept Plans" for the City Property. In that regard, Developers shall be given reasonable access to the City Property for the purpose of making inspections, test borings and performing subsurface engineering generally required under sound and prudent engineering practices, and developers will correlate the results of their inspections, borings and engineering with the requirements for construction of the Project and make the same available to the City. Developers shall restore, at Developers ' s Cost, the City Property to its original condition after all testing and Developers shall indemnify and hold the City harmless from all liabilities, costs and damages for injury to persons or property that arise as a result of any such inspections or tests. (g) Developers shall have obtained an environmental audit of the City Property from Dames & Moore or another recognized environmental inspection company which confirms that there is not now nor has there ever been (i) the presence of any "Hazardous Substance" (as defined below) on the CityProperty,p y, (ii) any present or past generation, recycling, reuse, sale, storage, handling, transport, and/or disposal of any Hazardous Substance on the City Property, nor (iii) any failure to comply with any applicable local , state or federal environmental laws, regulations, ordinances or administrative or judicial ordinance relating to the generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance. The term "Hazardous Substance" as used herein shall mean any substance or material defined or designated as a hazardous or toxic waste material of ,substance, or other similar term, by any federal , state or local environmental statute, regulation or ordinance presently or hereafter in effect, as such statute, regulation or ordinance may be amended from time to time. Developers shall be given access to the City Property for the purpose of conducting the environmental audit. Developers shall restore the City Property to its original condition after the environmental audit. Developers shall have the sole responsibility to pay for the cost of the environmental audit. (h) Developers shall have entered into a construction contract with an approved contractor for constructic n of the Project in accordance with the provisions of Paragraph 16 below. (i) Developers shall have obtained and provided to City ( in accordance the requirements of Paragraph 17) the one hundred percent (100%) payment and performance bonds relating to the construction of the Project. (j ) Developers shall have entered into a Lease with the City for the 55 municipal parking spaces, as more fully described in Paragraph 19 below, and attached hereto as Exhibit B. - 6 - (k) Developers shall have entered into the Development Agreement with the City, as described in Paragraph 20, and as attached hereto as in Exhibit C. (1) Developer shall provide to the City financial and background information acceptable to the City. Y Additionally, the developer shall alsop rovide information regarding any other hotel projects in which they have participated. The parties shall cooperate with each other and use their good faith efforts to promptly satisfy the aforesaid conditions precedent. It is recognized by the parties hereto that it is not the intention of any party to encumber the City Property with this Agreement for an indefinite period of time during the period of satisfaction of the conditions precedent. Either party shall have the right to terminate this Agreement if all of thr aforesaid conditions precedent are not satisfied on or before twelve (12) months following the date hereof. In the event the foregoing conditions precedent are timely satisfied or waived in writing by the parties, then: (i) the parties shall promptly execute a certificate in recordable form acknowledging the satisfaction of same (the date of such certificate being hereinafter referred to as the "Satisfaction Date") , (ii) all of the parties ' obligations under this Agreement shall thereafter be in full force and effect; and (iii) the parties shall be governed by the terms, covenants and agreements hereinafter set forth. In the event the `foregoing conditions precedent are not timely satisfied, then this Agreement shall be deemed terminated and of no further force or effect, the Deposit and all accrued interest shall be returned to the Developers and the parties shall be released from all further obligations hereunder and thereunder. 8 . City Property Conveyed "As Is" . It is understood and agreed that, except as otherwise herein specifically provided, the City is not making and specifically disclaims any warranties or representations of any kind or character, express or implied, with respect to the Property, including, but not limited to, warranties or representations as to matters of title (other than the City ' s _ -� _ warranty of title set forth in the special warranty deed to be delivered at closing, zoning, tax consequences, physical or environmental conditions, availability of access, ingress or egress, operating history or projections, valuation, governmental approvals, governmental regulations or any other matter or thing relating to or affecting the property including, without limitation: (i) the value, condition, merchantability, marketability, profitability, suitability or fitness for a particular use or purpose of the property, ( ii) the manner or quality of the construction or materials incorporated into any of the property and (iii) the manner, quality, state of repair or lack • of repair of the property. Developers agree that with respect to the property, it has not relied upon and will not rely upon, either directly or indirectly, any representation or warranty of City or any agent of City. The Developers represent that they are knowledgeable developers of real estate and that they are relying solely on their own expertise and that of their consultants, and that they will conduct such inspections and investigations of the property, including, but not limited to, the physical and environmental conditions thereof, and shall rely upon same, and, upon closing, shall assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by its inspections and investigations. The Developers acknowledge and agree that upon closing, the City shall sell and convey to the Developers and the Developers shall accept the Property "as is, where is" , with all faults, and there are no oral agreements, warranties or representations (except as herein specifically provided) , collateral to or affecting the property by the City, any agent of the City or any third party. The terms and conditions of this paragraph shall expressly survive the closing and not merge therein and shall be incorporated into the special warranty deed. The City is not liable or bound in any manner by any verbal or written statements, representations, or information pertaining to the Property furnished by any real estate broker, agent, employee, - 8 servant or other person, unless the same are specificallyset forth rth or referred to herein. 9 . Prorations. Real estate and personal property taxes , assessments, improvement liens, rents (whether or not actually collected) , interest and costs, if any, and all other proratable items shall be prorated as of midnight on the daterecedin P g the Closing. In the event the taxes for the year of Closing are unknown, the tax proration will be based upon the taxes for the prior year, and at the request of either party, the taxes for the year of Closing shall be reprorated and adjusted when the tax bill for such year is received and the actual amount of taxes is known. The provisions of this paragraph 1 . 9 shall survive the Closing. 10. Improvement Liens. Certified, confirmed or ratified liens for governmental improvements which are completed as of the date of Closing, if any, shall be paid in full by City. Certified, confirmed or ratified liens for governmental improvements which have not been completed as of the date of Closing, and pending liens for governmental improvements as of the date of Closing, shall be assumed by the Developers. 11. Closing Costs. The parties shall bear the following costs: (d) The Developers shall be responsible for payment of the following: (i) the cost of examining title and obtain- ing the Abstract, any continuation thereof, any title insurance policy update or report on the Property, and the premiums and any other related fees and costs for any owner' s title insurance policies update and/or report, (ii) any and all costs and expenses associated with studies and reports incident to Developers ' inspections of the Property, and (iii) those costs provided to Developers under paragraph 1 . 12 below. (e) The City shall be responsible for payment of those costs provided to City under paragraph 15 below. (f) Each party shall pay its own legal fees. 12 . Documentary Stamps and Intangible Taxes. At Closng, City shall pay: (i) the documentary stamps and any surtax or _ 9 surcharge due on the special warranty deed of conveyance, and (ii) the recording costs on documents necessary to clear title. Developers shall pay the documentary stamps and intangible taxes due on the Note and Mortgage. Each party shall bear the recordin g costs of any instruments received by that party. 13 . Closing. The closing (the "Closing") shall be held at City Hall in the City of Miami Beach on that date which is within thirty (3 0) days following fulfillment of all conditions precedent, but not later than 13 months after execution of this Agreement. At Closing, City shall execute and deliver to Developers the following closing documents: (i) a good and sufficient special warranty deed subject only to the Permitted Exceptions; (ii ) an appropriate mechanic ' s lien affidavit; (iii) an affidavit of exclusive possession; (iv) a non-foreign affidavit or certificate: (v) appropriate evidence of City' s authority to sell and convey the Property, and such other evidence of authority and good standing with respect to City as may be reasonably required by Developers ' title insurer; and (vi) an appropriate "gap" affidavit as required by Developers ' s title insurer. At Closing, Developers shall execute and deliver to City: (a) the balance of the cash portion of the Purchase Price as set forth in paragraph 5 above; (b) the Lease; (c) the Leasehold Title Policy; (d) the Development Agreement; and (e) the Payment and Performance Bond. City and Developers shall each execute counterpart closing statements and such other documents as are reasonably necessary to consummate this transaction. 14 . Brokers. The parties each represent and warrant to the other that there are no real estate broker(s) , salesman (salesmen) or finder(s) involved in this transaction. If a claim for brokerage in connection with this transaction is made by any - 10 - broker, salesman or finder, claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor") , Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee") , and Indemnitee' s officers, directors, agents and representatives, from all liabilities, damages, claims, costs, fees and expenses whatsoever ( including reasonable attorney' s fees and court costs at trial and all appellate levels) with respect to said claim for brokerage. The provisions of this paragraph 17 shall survive the Closing and any cancellation or termination of this Ag reemei x t... 15. Approval of Project Plans. 15 . 1 Concept Plans. The City hereby approves the concept plans for the project which are the plans entitled "Swiss Tower" consisting of 11 pages, prepared by Beilinson Architects, P.A. , dated October 23 , 1991, which are attached hereto as Exhibit A. 15. 2 Schematic Plans. Developers shall submit to the City on or before the ninetieth (90th) day following the date hereof, five (5) sets of Schematic Plans for approval in accordance with the City Plan Approval Process described in Paragraph 15 . 5 below. The City ' s right to disapprove the Schematic Plans submitted shall be limited to: (i) matters depicted in the Schematic Plans which do not conform substantially to the Concepts Plans; or ( ii) new elements riot presented in the Concept Plans which are not reasonably necessary for the construction of the Project; or (iii) matters which are violations of this Agreement or of applicable governmental ordinances, codes, laws or regulations. The term "Schematic Plans" as used in this Agreement shall mean site plans and structure elevations of the Project in sufficient detail to show site planning, architectural design and layout, landscape design, access, streets, and sidewalks and such other matters as may be necessary to obtain zoning and site plan (but not building) approvals for construction of the Project , including appropriate written scope descriptions relating thereto. - 11 - 0 15. 3 . Design Development Plans. On or before the one hundred twentieth (120th) day following obtaining of the necessary zoning and site plan approvals for construction of the Project, Developers shall submit to the City Design Development Plans in accordance with the City Plan Approval Process described in Paragraph 15 . 5 below, provided, however, said 120 day period shall be extended day-for-day by the number of days in excess of five (5) days taken by the City ' s "design consultant" to respond to each of Developers ' requests for comments or information in the course of Developers ' preparation of the Design Development Plans. The City' s right to disapprove the Design Development Plans submitted shall be limited to: (i) matters depicted in the Design Development Plans which do not conform substantially to the approved Schematic Plans or previously approved Design Development Plans for other phases of the Project; or (ii) new elements not presented in the approved Schematic Plans; or (iii) matters which are violations of this Agreement or of governmental ordinances, codes, or regulations. The term "Design Development Plans" as used in this Agreement shall mean (a) schematic architectural floor plans of each area showing arrangement of rooms and spaces along with access and exiting; (b) sections indicating basic vertical heights and general materials of construction; and (c) descriptions of engineering systems to be provided including structural , heating, ventilation and air conditioning, fire protection, and electrical , and including appropriate written scope descriptions relating thereto. 15. 4 Construction Plans. On or before the ninetieth (90th) day following the City ' s final approval of the Design Development Plans, Developers shall submit to City Construction Plans in accordance with the City Plan Approval Process described in Paragraph 15 . 5 below; provided, however, said 90-day period shall be extended day-for-day by the number of days in excess of five (5) days taken by the City ' s "design consultant" to respond to each of Developers ' requests for comments or information in the course of Developers ' preparation of the Construction Plans. City' s right to disapprove the Construction Plans submitted shall be limited to: - 12 - (i) matters depicted in the Construction Plans which do not conform substantially to the approved Schematic Plans, the approved Design g Development Plans, or previously approved Construction Plans for other phases of the Project; or (ii) new elements not presented in the approved Schematic Plans or the approved Design Development Plans; or (iii) matters which are violations of this Agreement or of governmental ordinances, codes, or regulations. No approval by City of any Construction Plans, Design Development Plans or Schematic Plans pursuant to this Paragraph 15 shall rcli ve Developers of any obligation they may have at law to file the Construction Plans with any department of the City of Miami Beach or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. The term "Construction Plans" as used in this Agreement shall mean final working plans and specifications for the Project including the following information: (a) definitive architectural drawings, (b) definitive foundation and structural drawings, (c) definitive electrical and mechanical drawings including plans for all lighting facilities affecting the exterior appearance of the Project; and (d) final specifications, but excluding drawings and specifications relating to tenant improvements, and including appropriate written specifications and/or scope descriptions relating thereto. The Construction Plans shall also include a projected progress schedule for completion of the various phases of the Project. 15 . 5 City Plan Approval Process. The City shall have a period of thirty (30) days after receipt of the Schematic Plans, the Design Development Plans or the Construction Plans to advise Developers in writing of their approval or disapproval of same. If no written disapproval is received by Developers within such thirty (30) day period, then said plans shall automatically be deemed approved. The City shall notify Developers on or before the this. t i eth (30th) day following their receipt of the Schematic Plans, the Design Development Plans or the Construction Plans of any 13 disapproval of said plans together with the specific reasons therefore in accordance with the standards for review provided in this agreement and the steps necessary to correct same. In the event of a proper disapproval of which developers are dully notified, Developers shall , within thirty (30) days after the date Developers receive the notice of such disapproval , resubmit such Plans to the City, altered to meet the grounds of disapproval . Any resubmission shall be subject to review and approval by City pursuant to the foregoing City Plan Approval Process, until the same shall be finally approved by City (except that all of the time periods afforded for review of any resubmissions by developers shall be one-half the length of time otherwise provided for in the original submission) . City and Developers shall all in good faith attempt to resolve any disputes concerning the plans and City shall not unreasonably withhold its consent to any such requested approval . Developers acknowledge that any plan approval given by City shall not constitute an opinion by City that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no approval shall impose any liability on the City, other than the rights of approval granted to City pursuant to this Paragraph 15. All plans as finally approved by City shall be initialled by City and Developers, and shall be and are incorporated into this Agreement by this reference. 15 . 6 Final Plans. Developers agree that they shall provide City with copies of all final "as-built" plans and specifications used in the construction of the Project within 90 days atter issuance of a certificate of occupancy. The terms of this Paragraph 15. 6 shall survive the Closing. 15. 7 Conformity of Plans. Schematic Plans and Construction Plans and all work by Developers with respect to the Project and the construction thereof shall be in conformity with this Agreement and all applicable state, county and local laws and regulations. - 14 - 9M 16. Construction Contract.act. Upon final approval of the Construction Plans and satisfaction of • the other conditions precedent set forth in Paragraph 7 aboveother ( than Subparagraph (h) thereof) , Developers shall enter into construction contract with a general contractor reasonably acceptable to the City for the construction of the Project, which construction contract shall be bonded as to both payment and performance in favor of each of the parties hereto and Developers ' construction lender, as their interests may appear, such bonds to be issued asrovided below, w, and such bonds to cover substantially all of the Project. The City shall not unreasonably withhold or delay their consent to the proposed general contractor and shall in any event give their approval or disapproval within five (5) days following receipt of a request for same. Any disapproval shall be accompanied with the reasons therefor. Failure to disapprove in writing within such five (5) day period shall automatically be deemed an approval of the general contractor. Anything to the contrary notwithstanding, any general contractor which has been approved by a Leasehold Mortgagee which is an Institutional Lender (except the developers) shall not require the approval of the City. The construction contract with the general contractor shall include a provision to the effect that the general contractor will not discriminate on the basis of race, color, religion, sex, age, or national origin in subcontracting for the construction of the Project. 17 . Payment and Performance Bonds. At Closing, Developers shall provide the City with one hundred (100%) percent payment and performance bonds (in a form acceptable to the City and Developers ' Institutional Lender providing construction funding) to the City with respect to the construction of substantially all of the work under the approved construction contract. 18 . Permits and Approvals. Developers shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Project. - 15 - 19 . Execution of Ninety-Nine Year Lease for 55 Parking Spaces. At Closing the parties shall execute a Ninety-Nine Year Lease for 55 municipal parking spaces on the ground level of the Property (the "Lease") , said Lease to be in a form approved by the City Attorney and contain, at a minimum the essential terms set forth on Exhibit B attached hereto. Developers shall provide City at Closing with an ALTA form B Marketability Policy, effective at Closing, at Developers ' cost and at no cost to City, insuring City's interest in the Lease. This Lease shall be superior to the interest of any mortgagee. 20. Execution of Development Agreement. At Closing the parties shall execute a Development Agreement for the Project in substantially the same form and substance as set forth on Exhibit C, subject to such changes as may be required by the City Attorney. 21 . Default Provisions. In the event of the failure or refusal of the Developers to close this transaction, without fault on City' s part and without failure of title or of the conditions precedent set forth in Paragraph 7 above, City at its option shall have the right to either, as City ' s sole and exclusive remedy for the default of Developers: (i) receive the Deposit, together with all interest accrued thereon, as agreed and liquidated damages for said breach, whereupon the parties shall be relieved of all further obligations hereunder, except those obligations set forth in Paragraph 14 above; or, alternatively, (ii) seek specific performance of the Developers ' obligations hereunder. In the event of a default by City and/or of any misrepresen- tation made by City under this Agreement, Developers at their option shall have the right to either: (i) receive the return of the Deposit, together with all interest accrued thereon, whereupon the parties shall be released from all further obligations under this Agreement, except those obligations set forth in Paragraph 14 above; or, alternatively, (ii) seek specific performance of the City' s obligations hereunder and/or any other equitable remedies, -- 16 -- without thereby waiving damages, provided, however, that Developers shall not be entitled to recover any damages hereunder g in excess of $10, 000. 00. 22 . Assignability. Developers shall be entitled to assign all of their rights hereunder, with City' srior written en consent, which consent shall not be unreasonablywithheld d or delayed. Provided, however, that Developers shall have the right, without the prior consent of the City , to assign this Agreement to g a legal entity in which the three individual Developers together p g r hol d an interest of greater than 50% . 23 . Notices. Any notices required or permitted to beg iven under this Agreement shall be in writing and shall be deexneu to have been given if delivered by hand, sent by recognized overnight lght courier (such as Federal Express) or mailed bycertified or registered mail , return receipt requested, in a osta e p g prepaid envelope, and addressed as follows: If to the Developers at: Kurt Schweizer, Margarita Rademacher and Andre Wail icer c/o Kurt R. Klaus, Jr. , Esq. 1507 N.W. 14th Street Miami, FL 33125-2611 If to the City at: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager With a copy to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U. S . mails. 24 . Risk of Loss. The Property shall be conveyed to Dev- elopers in the same condition as on the date of this Agreement, -- 17 -- ordinary wear and tear excepted, free of all tenancies or occupan- cies. In the event that the Property p Y or any material portion thereof is taken by eminent domain prior to Closing,, Developers shall have the option of either: ( i) canceling this i s Agreement and receiving a refund of the Deposit, together with all i ntere� t accrued thereon, whereupon both parties shall be relieved of all further obligations under this Agreement, except thoseobligations set forth in paragraph 18 above, or (ii) Developers P may proceed with Closing in which case Developers shall be entitled to all. condemnation awards and settlements. 25. Miscellaneous. (a) This Agreement shall be construed andoverned in accor- dance with the laws of theg State of Florida. All of the parties to this Agreement have participated fully p in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (b) In the event any term or provision of this Agreement meat bedetermined by appropriate judicial authority to be illegalor otherwise invalid, such provision shall be its ts nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) Any controversy or claim for money damages arising - of or relatingto this Agreement, g out , or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal , and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbi- trator, but to the extent the parties cannot agree upon the arbitrator, then theg American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having g or application may be made to such court for and an order of enforcement. Any controversyor claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. The provisions of this subparagraph shall survive the Closing coextensively with other surviving provisions of this Agreement. (d) In construing this Agreement, the singular shall be held to include the plural , the plural shall include the singular, the use of any gender shall include every other and all genders, and captions p and paragraph headings shall be disregarded. - 18 - (e) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (f) Time shall be of the essence for each and every provi- sion hereof. (g) Neither this Agreement nor a memorandum hereof may be recorded in the public records of Dade County, Florida. (h) City desires to enter into this Agreement only if in so doing the City can place a limit on City' s liability for any cause of action for money damages due to an alleged breach by City of this Agreement, so that its liability for any such breach never exceeds the sum of $10, 000. 00. Developers hereby expresses its willingness to enter into this Agreement with a $10, 000. 00 limitation on recovery for any damage action for breach of contract. Accordingly, Developers hereby agree that the City shall not be liable to Developers for damages in an amount in excess of $10, 000 . 00 for any action or claim for breach of contract arising out of the performance or nUnperformance of any obligations imposed upon the City by this Agreement. The foregoing provisions shall not preclude an action by Developers for specific performance. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City' s liability as set forth in Florida Statutes, Section 768 . 28 . 26. Escrow Agent. The Escrow Agent shall not be liable for any actions taken in good faith, but only for its gross or willful negligence. The parties hereby hold the Escrow Agent harmless from and against any loss, liability, claim or damage whatsoever (including reasonable attorney' s fees and court costs at trial and all appellate levels) the Escrow Agent may incur or be exposed to in its capacity as escrow agent hereunder except for gross negli- gence or willful misconduct. If there be any dispute as to dis- position of any proceeds held by the Escrow Agent pursuant to the terms of this Agreement, the Escrow Agent is hereby authorized to interplead said amount or the entire proceeds with any court of competent jurisdiction and thereby be released from all obligations hereunder. The Escrow Agent shall not be liable for any failure of the depository. 27 . Entire Agreement. This Agreement constitutes the entire agreement between the parties and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an - 19 - instrument in writing signedby the party against whom enforcement of such change would be sought.. g This Agreement shall be binding upon the parties hereto and their respective p ive successors and assigns. EXECUTED as of the date first above written in several coun- terparts, each of which shall be deemed an original ,g but all constituting only one agreement. Signed in the presence of: City• CIT MIAMI BEA•, , a Flo ida muni ci•al corporate.on / 1 9 By: ATTEST: --- � Name.I s yMoa�664-ter/ --C-- Tit '� • City. t,_,),),JA, E__-?-,c...0.„,___Clerk 4 IP ' Witness: Developers:. o,, 11 urt 1 hweize / / icl,-- - -- € 1 (As to Developers) r•arit. "ademacher k\\ FORM APPROVED • �' 46--,, //Ai,2. . LEGAL DEPT. .. �► .17 . Andre Wali iser [� I��r NB: lm Y Date C agreements\purchsal.fon No 1rnber 4, 1991 LEy LIZATION I, thii undersigned Notary Public Stephan Cueni at Basel/Switzerland, herebycertifyth authe icity of the above signatures signed in mypresence byMr. Schweizer, n Septe er 24 1950, Kurt born Swiss citizen, domiciled Rotacher 17, CH-4457 Diegten, witzerland, identified by his passport, Mrs. Margarita Rademacher, born Septem r 3, 1949, German citizen, domiciled Im Proli 24, D-7889 Grenza - her passport, andch Wyhlen/ rmany, identified b Y p p Mr. André Walliser, born October 10, 1959. Sw Os citizen. domiciled Schulgasse 2, CH-4106 Therwil, identified by his passport. Basel, this lith day of December, 1991 Leg.Prot. 19%1761 1, (/(14 t t „. Nuj Oc/ - 20 -- 10 \\ --.... r . ...---.....-...--„, .0 ..._ .......... r i c vi 1 n[1,1. .. .:. EOBV4 ii L it- 1 1 '-, .,,,‘1# t t... ,.. 1 ' 44 1 8 • 7,p 1.4 ( 0;:-.' 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'Is ,..,,,.. 14:!ii le:711:1 11I1IIIIiIIIIf _____ 1./__ ■SII � iiiiiiikri I i , ,.„,.........,,,r_, ..... * lif moll' il-:"-zifillii Teami mina 1111 I II ____ — 'ill' ' im--1111 .A_ _.. .. ..,„..., ,... ,211A6,21 roumummuimmi '------- SWISS TOWER 2642 COLLINS AVE. MIAMI BEACH, FL. BEILINSON ARCHITECT P.A. 700 N.W. 107TH. AVE. MIAMI, FL. 33172 559-1250 OCTOBER 23, 1991 EXHIBIT A PAGE 1 OF 11 PAGES MAY NTIrJ ( simm,„-- -\ lig 0 i . . IT o I ,c,,4, . lt .. ittligs.....4,., frii --- pi......,0.•.. ..• 4, i ..... . .. 4A :". „,, I 1. 0.-iiild „ olliorri•I:;:",::h,,Aor3p . i ) 1 g i , I • I ill a !: ...1 OA s Ii li....--::: N . c-- 1_ ....___ .........„,..-----------4 1 ..---' ..--- ..--- ".--- . iik . ,---' Ii\"”' ,-------. i ltt)81'0 PAGE 2 OF 11 PAGES H L r 1 , , - I I i .! IIII o I Ng . . ,,,,'' _ 14 'PP \,.. \t - 1 r_4•711111111111 7 7 7 . ;"." 11 KAMM g.i.I.I., A • • .....•.... ....L................I \ Iii lai lialati. - Al ! 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A , _ A4PA-- g %. _ 1 S 0 A dols a 4 I 1=1 rt'fS:r;1 t=1 •==if E---/ A o Q* PAGE 10 OF 11 PAGES H L I /11110V,,, — it .,N,, „ , --'-'t- iin, \ • g r% 4 0___ Ir . # / Ik-A11=itkp \ . / .-44 w N. \ #\ /4 Aipoi-'"-fi \,. \ ift * l'i rai Ao, 1111\ i LIN------7----nl-- El 11i I \ 00 \ !fccs,., -- ' 1 : V /NW 1 % 0 .0,1,,,, 1 ' ' it a*/ ‘ * d f 2 * / 4 i la_ii±s / 4, / \\# \ \ *N '. , \ * 4-gig 1111W4 4 / \ 4-- .-- * / \4 *7 Oar g 4 Q� �V.k, :4;'=1 ,... , R'N PAGE 11 OF 11 PAGES L J LEASE Lease document to be provided at closing,, and shall , at a minimum, contain the following ng essential terms: 1. A 99 year term. 2 . Use restricted to municipal parkinggarage. g ge. 3 . To provide a legal description for the demised shown as Cityparkingon premises • Exhibit A, for 55 municipal parking spaces with vehicular andedestrian p access. 4 . Rental shall be $1. 00 per year. 5. Lease to be superior to any mortgagee interest. 6. Landlord maintenance obligations. 7 . Insurance and indemnity provisions. 8 . Condemnation provisions. 9. Arbitration and limitation of liabilityprovisions. p ns. 10. Miscellaneous provisions, including, but not limited g to, municipal parking signage on 27th Street. EXHIBIT B DRAFT DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT is made and entered into as of this day of , 1991, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation (the "City") , and KURT SCHWEIZER, MARGARITA RADEMACHER and ANDRE WALLISER (the "Developers") . WITNESSETH: WHEREAS, the City has simultaneously with the execution of this Agreement conveyed to Developers the following described property (the "Former City Property") : LOTS 5, 6, 7 AND 8, BLOCK 7, OF AN AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 5, AT PAGE 7 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA, TOGETHER WITH THE OUTLOTS WESTERLY OF INDIAN CREEK DRIVE, BOUNDED AS FOLLOWS: ON THE EAST BY THE WESTERLY LINE OF SAID INDIAN CREEK DRIVE; ON THE WEST BY THE EASTERLY SHORE LINE OF INDIAN CREEK, SAID SHORE LINE BEING AT THE WATER FACE OF A CONCRETE BULKHEAD, SAID WATER FACE BEING THE WESTERLY LINE OF THE ABOVE REFERENCED OUTLOTS: BOUNDED ON THE SOUTH BY THE EXTENSION WESTERLY OF THE SOUTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 8 AND BOUNDED ON THE NORTH BY THE EXTENSION WESTERLY OF THE NORTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 7 . WHEREAS, the Developers are also the owners in fee simple of the followingdescribed property which abuts the City Property to the South (the "Abutting Property") : LOT 4, AND THE NORTH 25 FEET OF LOT 3; AND LOT 9, AND THE NORTH 25 FEET OF LOT 10; IN BLOCK 7, OF AMENDED MAP OF OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 5, AT PAGE 7 AND 8, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA) ; ALSO ALL OF THAT LAND WHICH LIES WEST OF INDIAN CREEK DRIVE AND IS BOUNDED ON THE NORTH BY THE NORTH LINE OF SAID LOT 9, IN SAID BLOCK 7 , OF OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, (PLAT BOOK 5, AT PAGE 7 AND 8, OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA EXTENDED WESTERLY TO THE WATERS OF INDIAN CREEK, AND IS BOUNDED ON THE SOUTH BY A LINE WHICH IS PARALLEL TO AND IS 100 FEET SOUTH OF THE NORTH LINE JUST HEREINABOVE DESCRIBED; AND IT IS BOUNDED ON THE EAST BY INDIAN CREEK DRIVE, AND ON THE WEST BY THE WATERS OF INDIAN CREEK; TOGETHER WITH ANY AND ALL COMMON LAW AND STATUTORY RIPARIAN RIGHTS THEREUNTO APPERTAINING OR BELONGING. WHEREAS, the Developers intend to construct, and under the terms of this Agreement have agreed to construct, a hotel./condominium project (the "Project") on the Abutting Property and the Former City Property, generally as follows: EXHIBIT C (a) On the Abutting Property: A 31 story hotel/condominium structure containing one floor c�or of lobby/restaurant and meeting room space, 180 hotel suites and 36 apartment condominium units. (b) On the Former City Property: A 403 space, 4 level structured parking facility, including 55 municipal parking spaces on the ground level (the "Parking Garage") . All as more fully set forth in the Construction Plans prepared P by Beilinson Architect P.A. and dated October 23 , 1991, which are by reference hereto made a part of this Agreement (the "Construction Plans") ; and WHEREAS, a part of the consideration for transfer of the Former City Property to the Developers is the construction of the Project by the Developers; and WHEREAS, simultaneously with entering into this Agreement, the g parties have entered into a 99 year lease for 55 municipal parking spaces (the "City Space") , located on the ground floor of the Parking Garage to be located on the Former City Property; and WHEREAS, Developers have provided the City with payment and performance bonds for construction of the project ("Payment and Performance Bonds") ; and WHEREAS, the parties wish to enter into an Agreement whereby the Developers bind themselves to construction of the Project in accordance with the terms set forth herein. NOW, THEREFORE, in consideration of $10. 00 and other good and valuable consideration, the receipt of which is hereby acknowledged, and of the mutual covenants and promises hereinafter set forth, the parties agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Agreement. 2 . Commencement of Construction. Within thirty (30) days after the date of execution of this Agreement, Developers shall commence construction of the Project in substantial accordance with the approved Construction Plans. All Construction Costs shall be at the sole cost and expense of Developers. 2 3 . Progress of Construction. Developers • p rs shall diligently proceed with said construction in accordancewith with the progress schedule approved as part of the Construction Plans. Developers shall keep City apprised of the progress of g the Project. During such period the work of Developers shall be available for reasonable inspection by representatives of City, provided that City give Developers reasonable advance writtennotice notice thereof and do not interfere with the progress of developers construction nstruction work. 4 . Compliance with Laws. In causingthe Project sect construction work to be performed by the approved contractor, ractor, Developers will use their good faith efforts in accordance with pith reasonable standards for similar construction work in Dade County, Florida, to see that the contractor complies with applicable ' pp lcable federal, state, and local statutes, laws, ordinances, rules, regulations, and orders, provided that, nothing herein shall limit the right of Developers or contractor to contest the validity y Or enforceability of any such statute, law, ordinance, rule, regulation, or order with which Developers or Contractor may be required to comply. 5. Certificate of Final Completion. Upon completion of all stages of the Project, as evidenced by a certificate of completion made by the Project architect, and delivery of the "as-built" p i ans therefor, City shall furnish Developers with an appropriate instrument certifying the completion of the Project and evidencing City' s acceptance of that portion of the Project located on the City Property, which includes the City Space, (the "Certificate of Final Completion") . The Certificate of Final Completion shall be conclusive evidence of the full compliance by Developer of all requirements of Paragraphs and of this Agreement, which Paragraphs, together with Paragraphs and of this Agreement, shall thereafter be deemed terminated and of no further force or effect. The Certificate of Final Completion shall be in such form as will enable it to be recorded among the Official - 3 - Records of Dade County, Florida. If City shall refuse or fail to timely provide such Certificate of Final Completion in accordance herewith, City shall , within ten (10) days after written requast from developers, provide Developers with a written statement indicating in adequate detail in what respects Developers have failed to complete the Project in accordance with the provisions of this Agreement, and what measures and acts, in the opinion of City, are reasonably necessary for Developers to take or perform in order to obtain such certificate of Final Completion. Any dispute among the parties as to whether the Project has been completed as required by this Paragraph 5 shall be resolved by Arbitration in the manner provided in Paragraph 10 (c) hereof; except that all members appointed to the Arbitration Panel to resolve a dispute as to whether the Project has been properly completed shall be architects licensed by the State of Florida familiar with projects similar to the Project. The date of the completion of the Project as evidenced by the certificate of final Completion or as determined by Arbitration shall be the "Completion Date" . 6 . Final "As-Built" Plans. Developers agree that they shall provide City with copies of all final "as-built" plans and specitications used in the construction of the Project within 90 days after issuance of a certificate of occupancy. 7 . 0 Insurance and Casualty 7 . 1 Insurance. During the period between commencement of construction of the Project and throughout the period of such construction work until the Completion Date, Developers shall maintain or cause to be maintained: (a) Property Insurance. Builder' s Risk Insurance on the Project against all risks of physical loss or damage to the Project. The insurance shall be written on a full replacement cost basis in form satisfactory to Developers ' Institutional Lender providing construction funding. - 4 - ; (b) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non-owned, and hired vehicles used in connection with any construction work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1, 000, 000 per occurrence. (c) Liability Insurance. Comprehensive general liability, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Project or any elevator, escalator, or hoist used for the construction of the Project. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $5, 000, 000 per occurrence. (d) Worker' s Compensation. Worker' s Compensation and Employer' s Liability Insurance in compliance with Florida Statutes §440. 4 (e) Copies. On or before the commencement of construction, Developers shall furnish Certificates of Insurance to City which shall clearly indicate that Developers have obtained insurance in the type, amount and classifications required by this Agreement. Certificates for renewal policies replacing any policies 4 expiring during the term of this Agreement shall be delivered at least thirty (3 0) days prior to the date of expiration of any policy together with proof that all premiums have been paid. 7 . 2 Responsible Companies - Blanket Insurance Permitted. All insurance provided for in this Paragraph 7 shall be effected under valid and enforceable policies issued by insurers of recognized responsibility which are licensed to do business in the State of Florida. Anything in this Agreement to the contrary notwithstanding, Developers shall be required to carry insurance only in amounts and having deductibles which are commercially reasonable for similar properties in the geographic area of the Project. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength on the latest edition of Best ' s Insurance Guide, published by Alfred M. Best Co. , Inc. , 75 Fulton Street, New York, N.Y. The insurance required by this Paragraph 7 may be part of another policy or policies of the Developers or may be provided by the contractor performing the construction work so long as the amount of insurance available to pay losses is at least the minimum required by this Paragraph 7 , and said amount cannot be reduced in any manner by losses occurring at other properties or locations. - 5 - t 7 . 3 Named Insureds * Notice to Cit of Cancellation. All policies of insurance required this by this Paragraph 7 shall indicate dicate � as named or additional insureds Developers,p rs, City and any Mortgagee as their respective interests mayappear. • pp ar. Notwithstanding any such inclusion, thearties p hereto agree that any losses under such � policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed in accordance with the provisions of this insurance h 7 . All Paragraph policies shall provide that no material change, cancellation lation or termination shall ]_1 be effective until at least thirty30 ( ) days after written notice to the additional and named insureds. Each • policy shall contain an endorsement to the effect that no act or omission mission of Developers shall affect the obligation of the insurer to pay the full amount of any loss sustained. 1 7 . 4 Insurance Does Not Waive Developers, Obligations. No acceptance or approval of any insurance byCity • shall relieve or release Developers from any liability, duty or obligation on under this Agreement. 7 . 5 Loss or Damage Not To Terminate Rental or This Lease. Any loss or damage by fire or other casualtyto the Project Project shall not operate to terminate this Agreement. 1 7 . 6 Proof of Loss. Whenever any part of the ParkingGarage --- Portion of the Project shall have been damaged or destroyed toyed by fire or other casualty, Developers shall promptlymake 4 proof of loss in accordance with the terms of the applicable insuranceolici p es and shallpromptly prosecute all valid claims which mayhave arisen against insurers or others based an upon such p y damage or destruction. Developers shall promptly give City written notice ce of any damage or destruction to the Parking Garage Portion of the he Project. - 6 - 7 . 7 Property Insurance Proceeds. (a) Authorized Payment. Except as otherwise provided in subsection 7 . 7 (c) , all sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable: (i) Directly to Developers, if the total recovery is less than $100, 000. 00 ; except that, if Developers are then in default under this Agreement, such proceeds shall be paid over to City, who shall apply the proceeds first to the rebuilding, replacing and repairing of the Parking Garage, and then to the curing of Developers ' default. Any remaining proceeds shall be paid over to Developers. (ii) To the Insurance Trustees if the total recovery is $100, 000. 00 or more, to be disbursed to Developers pursuant to subsection 7 . 7 (b) . * (b) Disposition of Insurance Proceeds for Reconstruction. Subject to the requirements of Developers ' Institutional Lender providing construction funding, all insurance proceeds shall be used, to the extent required, for the reconstruction, repair or replacement of the Project, so that the Project shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work") with the Parking Garage receiving priority status for reconstruction work. From the insurance proceeds received by the Insurance Trustee, there shall be disbursed to Developers such amounts as are required for the Reconstruction Work. Developers shall submit invoices or proof of payment to the Insurance Trustee for payment or reimbursement in accordance with an agreed schedule of values reasonably approved in advance by City. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to Developers. (c) Leasehold Mortgagees May Have Benefit of Insurance Proceeds for Reconstruction. In the event Developers shall at any time authorize an Institutional Investor Mortgagee to enter upon the Project and undertake on Developers ' behalf the reconstruction or repair of any part of the Project damaged or destroyed by casualty and to have and receive insurance proceeds for such purpose, said insurance proceeds shall be equally available to such Institutional Investor Mortgagee in the manner provided in Paragraph 7 . 7 (a) and (b) above. 7 . 8 Covenant for Commencement and Com•letion of Reconstruction. Subject to the provisions of this Paragraph 7 Developers covenants and agree to promptly submit any claim for damage to the insurer and to commence the Reconstruction Work as soon as practicable (but in any event within two (2) months alter the insurance proceeds have been received) , and to fully complete such Reconstruction Work as expeditiously as reasonably possible. - 7 7 . 9 Waiver of Subrogation Rights.. A g nything in this Agreement to the contrary notwittistandin City y and Developers each hereby waive any and all rights of recovery, claim, action,actior cause of actions against the other, its agents,g nts, officers, directors, partners, investors, or employees, for any • liability, loss or damage that may occur in, on, about or to the properties that are the subject of this agreement and/or anyimprovements provements f rom time me to time existing thereon, or to anyportion orportions portions thereof, or to any personal property brought thereon, by • reason o f fires,, the elements or any other cause(s) which are insuredagainst aga Inst under the terms of valid and collectible insurance policies did P ies carried for the benefit of theart entitled p y to make such claim, regardless of cause or origin, including negligence o f another party hereto, its agents, officers, directors, partners, investors, or employees; provided that such waiver does not limit in any way any party ' s right to recovery under such insuranceo ' p licies, and provided further that the insurer pays such claims. City and Developers shall each obtain an endorsement to all of their insurance policies relating to or covering the Property, or anyportions p ions thereof, to effect the provisions of this Paragraph 7 . 9, provided pp ovided that such endorsements are available at no additional cost. 4 8 . 0 Default. 1 8 . 1 Developers' Default. In the event of the failure of Developers to perform any of the covenants, conditions dations or agreements which are to be performed by Developers under this this Agreement, and the continuance of such failure for ae ' p riod of sixty (6 0) consecutive days after written notice in adequate detail from City to Developers provided, however, if such failure lure cannot reasonably be cured within sixty (60) days, and Developers, within hire said sixty ' (60) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure; 4 re, said failure shall not constitute a default hereunder andprovided provided further that any Institutional Lender holding a Mortgage - 8 e ' encumbering the Project shall have such rights of notice and cure with respect to the obligations of Developers granted herein as are made available to such lender under the Project for any default by Developers as tenant thereunder then City shall , to the fullest extent permitted by law, have the right to pursue any and all remedies available at law or in equity , including the right to sue for and collect damages and to specifically enforce their rights, and to enjoin Developers. 8 . 2 Unavoidable Delay. The time for any party' s performance of the covenants, provisions and agreements of this Agreement: shall. 4 be extended for the period of any Unavoidable Delay; provided, however, that any party seeking the benefit of Unavoidable Delay shall , within fifteen (15) days after such party shall have become 0 aware of such Unavoidable Delay, give written notice to the other parties of the Unavoidable Delay and its reasonably estimated duration. 8 . 3 obligations, Rights and Remedies Cumulative. The rights and remedies of the parties, whether provided at law, in equity or i under this Agreement, shall be cumulative. The exercise by any party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, or any othc.r such 4 remedies for the same default or for any other default or breach by the other party. No waiver made by either party with respect to performance, manner or time of any obligation of any other party or any condition to its own obligation under this Agreement shall be considered a waiver of any rights of said party with respect to the particular obligations of any other party or condition to its own obligation, or a waiver in any respect in regard to any other rights of said party. 9 . 0 Mechanics' Liens; No Interference - 9 - 9 . 1 Developers to Discharge Mechanics' Liens. During the period of construction of the Parking Garage Project (i .e. , commencing on the date hereof and ending on the Completion Date) , Developers shall make or cause to be made prompt payment of all money due and legally owing to all persons and entities doing any work or providing any materials or supplies for the Project. as Developers will not permit to be created or to remain undischarged OF any lien, encumbrance or charge arising out of work done or RT materials or supplies furnished by any contractor, subcontractor, he mechanic, laborer or materialman which might become a lien, nd encumbrance or charge upon the Parking Garage or any income therefrom. All work which Developers are permitted or required to do shall be deemed to be for the immediate use and benefit of 1g Developers, and no mechanics ' or other lien shall be allowed against the estate of any other party in the Parking Garage as a result thereof. If any such lien or encumbrance shall at any time be filed against the Parking Garage as a result of Developers ' construction of the Project, then Developers shall file a bond satisfactory to cause same to be removed as a cloud on title (to the extent any bond is required over and above the payment bonds which have been provided by Developers within thirty (30) days of the filling of the lien or claim and shall promptly take and diligently prosecute appropriate action to have the same discharged or to contest in good faith the amount or validity thereof, and if unsuccessful in such contest, to have the same discharged. Upon Developers ' failure so to do, City in addition to any other right or remedy either may have, may take such action as may be reasonably necessary to protect its interests and Developers shall pay City any amount reasonably paid by City in connection with such action and all reasonable legal fees, costs and expenses incurred by City in connection therewith (including reasonable counsel fees, court costs, costs of appeal and other necessary disbursements) . Any such amounts not disbursed by Developers within thirty (30) days after the date Developers receive written notice from City of the amount thereof and demand for payment of the same shall bear - 10 - interest at the Default Rate from the date of therecei• pt by Developers of the aforesaid written notice. 9 . 2 Obligations of City. • The City shall cooperate with Developers during the course of co • nstruction of the Parking Garage e so as not to materially interfere with or ' hinder the progress of construction. In addition, the Cityshall all not order any work to be performed on the Parking Garage which would in n any way materially V interfere with or hinder the progress of construction on by Developers of the Parking Garage. 1 10. 0 Condemnation I 10. 1 Entire Property Taken by Condemnation. In the event that all of the property upon which the Project 7 is to be constructed or a "material" portion thereof is taken for any public use or purpose by the exercise of the power of eminent domain (or deed given in contemplation thereof) then all of theobligati' ons of the Developers under this Agreement shall fullyterminate erminate as of the taking and all awards payable on account thereof • shall be paid as follows: (a) First, to the Developers, and Citya pari peso in such amounts as are necessary: to fully reimburse the Developers for all construction financing (both by an proceeds theretofore disbursed y y institutional lender and/or bybehalf or on hal f of Developers) and all costs and attorneys ' fees incurred in connection withY the Project and condemnation proceeding. (b) Second, the balance shall be disbursed to the parties in accordance with their respective losses as determined bythe e court or jury in its condemnation award. The City shall not in any way cooperate with, seek or ' aid, directly or indirectly, any condemnation with respect toProject. p the Anything to the contrary notwithstanding, the provisions provisions of the last sentence shall survive the Completion Date andbinding be binding upon City throughout the full term of the Lease. The term "material"material" a:, used in this Paragraph 10 shall mean a condemnation of such portion of the Project as, in the good faith opinion of Developers, renders ender_. - 11 -- it economically infeasible for Developers continue to continue with the Project. 10 . 2 Partial Taking by Condemnation. In the event of a nonmaterial condemnation prior to the Completion Date, then all of the obligations of the parties shall continue and Developer shall take such action as is reasonably necessary to restore the Project to as close a condition as is reasonably feasible to the originally approved Project. To the extent any portion of the Project is not feasibly restorable, then such portion shall be deemed omitted from i the Project. All condemnation awards for an nonmaterial condemnation shall be paid as follows: (a) First, to the expense of the parties reasonable attorneys ' fees and costs of the parties in connection with the condemnation proceeding; (b) Second, to the cost of restoration as required by this Section 10. 2 ; and (c) Third, the balance shall be disbursed to the parties in accordance with their respective losses as determined by the court or jury in its condemnation award. 11 . Assignability. Developers shall be entitled to assign all of their rights hereunder, with City' s prior written consent, which consent shall not be unreasonably withheld or delayed. 12 . Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail , return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the Developers at: Kurt Schweizer, Margarita Rademacher and Andre Walliser c/o Kurt R. Klaus, Jr. , Esq. 1507 N.W. 14th Street Miami , FL 33125-2611 - 12 - If to the City at: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager With a copy to: City of Miami Beach 1700 Convention Center Drive 3 Miami Beach, Florida 33139 Attn: City Attorney V Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days Y after deposit in the U.S. mails. J 13 . Miscellaneous. (a) This Agreement shall be construed and governed in accor- dance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (b) In the event any term or provision of this Agreement be determined by appropriate judicial authority tc be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select three arbi- trators, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for and an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. (d) In construing this Agreement, the singular shall be held to include the plural , the plural shall include the singular, the use of any gender shall include every other and all genders, and captions and paragraph headings shall be disregarded. - 13 - (e) All of the exhibits attached to this Agreement are e incorporated in, and made a part of, this Agreement. (f) Time shall be of the essence for each and every provi- sion hereof. (g) Neither this Agreement nor a memorandum hereof maybe recorded in the public records of Dade County, Florida. (h) City desires to enter into this Agreement onlyif in so doing the Citycanplace a limit' • • it on City' s liability for any cause of action for money damages due to an alleged breach by City of this Agreement, so that its liability T for any such breach never exceeds the sum of $10, 000. 00, Buyer hereby expresses its willingness to enter into this Agreement with a $10, 000. 00 limitation on recover for any damage action for breach of contract.Y Accordingly Buyer hereby agreesthat the Cit y shall not be liable to Buyer for damages in an amount in excess of $10, 000. 00 for any action for breach of contract arising out of the performance or nonperformance p formance of any obligations imposed upon the City by this Agreement. The foregoing provisions shall not preclude an action by Buyer for specificperformance. • Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City' s liability as set forth in Florida Statutes, Paragraph 768 . 28 . - 14 - 14 . Entire Agreement. This Agreement constitutes the entire agreement between the parties and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. EXECUTED as of the date first above written in several coun- terparts, each of which shall be deemed an original, but all constituting only one agreement. Signed in the presence of: City: CITY OF MIAMI BEACH , a Florida municipal corporation By: Name: Title: (As to City) [SEAL] Witness: Developers: By: Kurt Schweizer By: (As to Developers) Margarita Rademacher By: Andre Walliser PNB: lm FORM APPROVED C.agreement\developm.fon November 4, 1991 LEGAL DEPT. DEPT. By Date - 15 - ummimm RESOLUTION NO. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH DECLARING THE CITY OWNED PARKING LOT LOCATED AT 27TH STREET AND COLLINS AVENUE IN MIAMI BEACH TO BE SURPLUS PROPERTY, SUBJECT TO A FURTHER PUBLIC HEARING BEFORE THE PLANNING BOARD PURSUANT TO RESOLUTION 86- 18491, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE PURCHASE AND SALE AGREEMENT FOR THE SALE OF THE PROPERTY TO KURT SCHWEIZER, MARGARITA RADEMACHER AND ANDRE WALLISER. WHEREAS, the City of Miami Beach is the owner in fee simple of the parking lot located at 27th Street and Collins Avenue in Miami Beach, the legal description of which is attached hereto as Exhibit "A" (The "City Property") ; and WHEREAS, KURT SCHWEIZER, MARGARITA RADEMACHER AND ANDRE WALLISER, are the owners of the property immediately to the south of City Property and they plan to build a 216 unit hotel/condominium project and would like to purchase the City Property for the purpose of providing structured parking for their project; and WHEREAS, the parking lot on the City property is greatly under utilitized and City property is therefore surplus to the needs of the City; and WHEREAS, the City has had two appraisals conducted on the City property, and the purchase price is the average of the two appraisals; and WHEREAS, the City has negotiated an agreement with Kurt Schweizer, Margarita Rademacher and Andre Walliser whereby the City will convey fee simple in the City property in return for: $1 . 394 million to be paid to the City at closing - the Purchaser shall construct 55 municipal parking spaces on the ground level of the City Property the Purchasers grant the City a 99-year lease for the municipal parking spaces. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, as follows: 1. That the foregoing recitals are hereby incorporated by reference. 2 . That the City property located at 27th Street and Collins Avenue, the legal description of which is attached hereto as Exhibit "A" , is hereby declared to be surplus property. 3 . The Mayor and City Clerk are hereby authorized to execute the Purchase and Sale Agreement with Kurt Schweizer, Margarita Rademacher and Andre Walliser, a copy of which is attached hereto. 4 . This Resolution shall not become effective until a further public hearing before the Planning Board is concluded. PASSED and ADOPTED the day of 1991 . I MAYOR ATTEST: FORM APPROVED LEGAL DEPT. CITY CLERK (C:\resotutio\fontana) /1/4/f1 fl Date2 4 LOTS 5, 6, 7 AND 8, BLOCK 7, OF AN AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT LS COMPANY, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 5, AT PAGE 7 OF THE PUBLIC RECORDS OF DADE )F COUNTY, FLORIDA, TOGETHER WITH THE OUTLOTS WESTERLY OF INDIAN CREEK DRIVE, BOUNDED AS FOLLOWS: ON THE EAST BY :T THE WESTERLY LINE OF SAID INDIAN CREEK DRIVE; ON THE WEST BY THE EASTERLY SHORE LINE OF INDIAN CREEK, SAID SHORE Le LINE BEING AT THE WATER FACE OF A CONCRETE BULKHEAD, SAID WATER FACE BEING THE WESTERLY LINE OF THE ABOVE id REFERENCED OUTLOTS: BOUNDED ON THE SOUTH BY THE EXTENSION WESTERLY OF THE SOUTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 8 AND BOUNDED ON THE NORTH BY THE EXTENSION WESTERLY OF THE NORTHERLY LINE OF THE PREVIOUSLY MENTIONED LOT 7 . g • EXHIBIT A , ... . . --7, ,,,,,,,.,,,...\--,,,, . , k. 'N ,,,,,,, 1 ...'.',N 1.4 1 ...... A. 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