Resolution 2025-33803 RESOLUTION NO. 2025-33803
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA APPROVING, FOLLOWING A
SECOND READING/PUBLIC HEARING, A DEVELOPMENT
AGREEMENT, AS AUTHORIZED UNDER SECTION 2.11.1 OF THE
MIAMI BEACH RESILIENCY CODE, AND SECTIONS 163.3220 —
163.3243, FLORIDA STATUTES, BETWEEN THE CITY AND WEST
HOSPITALITY OWNER LLC AND 1250 WEST AVE OWNER LLC
(COLLECTIVELY THE "DEVELOPER"), WHICH DEVELOPMENT
AGREEMENT DELINEATES THE TERMS AND CONDITIONS FOR THE
DEVELOPMENT OF THE PROPERTY LOCATED AT 1250 WEST
AVENUE (THE "DEVELOPMENT PROPERTY") AND 1247 - 1255 WEST
AVENUE AND 1234 13TH STREET (THE "HOSTEL PROPERTY")
LOCATED IN MIAMI BEACH, FLORIDA CONSISTING OF THE
FOLLOWING USES ON THE DEVELOPMENT PROPERTY: (1) A
MAXIMUM OF 125 RESIDENTIAL UNITS, (2) GROUND FLOOR
RETAIL/COMMERCIAL, AND (3) ACCESSORY USES; AS WELL AS (4)
THE CONVEYANCE AND POSSIBLE CONSTRUCTION OF A PUBLIC
PARK ON THE HOSTEL PROPERTY, AND DEVELOPMENT OF THE
SEGMENTS OF THE BAYWALK ADJACENT TO THE PROPERTIES
LOCATED AT 800 WEST AVENUE, 1228 WEST AVENUE, AND 1450
LINCOLN ROAD (THE "PROJECT"); AND MEMORIALIZES CERTAIN
PUBLIC BENEFIT COMMITMENTS MADE BY THE DEVELOPER, AS
WELL AS CERTAIN REQUIREMENTS AND DEADLINES WITH
RESPECT TO ACQUISITION OF THE HOSTEL PROPERTY AND
CONVEYANCE TO THE CITY, AND DEVELOPMENT OF THE BAYWALK
SEGMENTS, AMONG OTHER PUBLIC BENEFITS; AND FURTHER
AUTHORIZING THE CITY MANAGER TO FINALIZE THE
DEVELOPMENT AGREEMENT, IN A FORM ACCEPTABLE TO THE
CITY ATTORNEY AND, FINALLY, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AND RECORD THE DEVELOPMENT
AGREEMENT.
WHEREAS, 1250 West Ave Owner LLC, a Florida limited liability company (the
"Private Project Developer") controls the property at 1250 West Avenue identified by
Miami-Dade County reference Folio No. 02-3233-048-0001 (a.k.a. the "Developer
Property") within the City; and
WHEREAS, West Hospitality Owner LLC, a Florida limited liability company (the
"Public Project Developer") is the contract purchaser of the property located at 1247 West
Avenue, 1255 West Avenue, and 1234 13 Street identified by Miami-Dade County Folio
Nos. 02-3233-018-0110, 02-3233-018-0090, and 02-3233-018-0100 (a.k.a. the "Hostel
Property"); and
WHEREAS, the Private Project Developer has applied to amend the City's 2040
Comprehensive Plan and Land Development Regulations to establish the Alton Beach
Bayfront Overlay District (the "Overlay Ordinances"); and
WHEREAS, the Overlay Ordinances establish the parameters for development of
a project that is compatible with its surroundings and sensitive to neighboring properties,
as well as provide for floor area and height bonuses if the development meets certain
benchmarks such as reductions in density, prohibition of short term rentals, capital
improvements in the West Avenue neighborhood, and other public benefits; and
WHEREAS, in order to memorialize certain public benefits proffered by the
Developer and associated with the benefit of additional floor area and height, as well as
certain requirements and deadlines with regard thereto, the Private Project Developer
and the City intend to enter into a Development Agreement for capital improvements
along the West Avenue corridor, defined as the area bounded by 5th street on the south,
17th Street on the north, Alton Court on the east, and Biscayne Bay on the west, and other
public benefits that could be applied on a City-wide basis, including:
1 . Acquisition of property containing a transient use within the West Avenue
Corridor;
2. Designing, permitting, and constructing the portions of the Bay Walk located at
800 West Avenue, 1228 West Avenue, and 1450 Lincoln Road, or, in the event
the requisite easements from upland owners cannot be obtained, contribute
funds to the City for construction of the Bay Walk or other capital improvements;
and
WHEREAS, on April 23, 2025, the City Commission unanimously approved the
Overlay Ordinances at First Reading; and
WHEREAS, on April 23, 2025, the City Commission adopted Resolution No. 2025-
33639, directing the City Administration to negotiate a development agreement related to
the Overlay Ordinances with West Hospitality Owner LLC with respect to acquisition of
the Hostel Property and conveyance to the City as well as development of the Baywalk
Segments, and other public benefits (the "Development Agreement"); and
WHEREAS, on June 9, 2025, following a duly noticed public hearing, the City
Commission approved the Development Agreement at First Reading; and
WHEREAS, on June 25, 2025, following a duly noticed public hearing pursuant to
the Development Agreement Act set forth in Chapter 163, Florida Statutes, and Section
2.11.1 of the Resiliency Code, the Mayor and City Commission approved the
Development Agreement at 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
2
Commission hereby approve, following Second Reading/Public Hearing, a Development
Agreement as authorized under Section 2.11.1 of the Miami Beach Resiliency Code and
Sections 163.3220 — 163.3243, Florida Statutes, between the City and West Hospitality
Owner LLC and 1250 West Ave Owner LLC (collectively the "Developer"), which
Development Agreement delineates the terms and conditions for the development of the
property located at 1250 West Avenue (the "Development Property") and 1247, 1255,
West Avenue and 1234 13th Street (the "Hostel Property") located in Miami Beach,
Florida, consisting of the following uses on the Development Property: (1) A maximum of
125 residential units; (2) ground floor retail/commercial, and (3) accessory uses; as well
as (4) the conveyance and possible construction of a public park on the Hostel Property,
and development of the segments of the Bay Walk located adjacent to the properties
located at 800 West Avenue, 1228 West Avenue, and 1450 Lincoln Road (the "Project")
and memorializes certain public benefit commitments made by the Developer, as well as
certain requirements and deadlines with respect to acquisition of the Hostel Property and
Conveyance to the City, and development of the Baywalk Segments, among other public
benefits, and further authorize the City Manager to finalize the Development Agreement,
in a form acceptable to the City Attorney; and, finally, authorizing the Mayor and City Clerk
to execute and record the Development Agreement.
PASSED and ADOPTED this a7 day of itene , 2025.
ATTEST:
JUL 0 2 2025 Steven Meiner, Mayor
e . ranado, City Clerk
47 REGIS BARBOU '•.IN(oRPioRATEo'
S Commissioner JosephMa '�- .. V"
(Sponsored b y g azine) 94CH 26,�� APPROVED AS TO
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&FOR EXECUTION
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City Attorney Date
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Resolutions - R7 A
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Eric Carpenter, City Manager
DATE: June 27, 2025 2:03 p.m. Second Reading Public Hearing
TITLE: ALTON BEACH BAYFRONT OVERLAY - DEVELOPMENT AGREEMENT
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA APPROVING, FOLLOWING A SECOND
READING/PUBLIC HEARING, A DEVELOPMENT AGREEMENT, AS
AUTHORIZED UNDER SECTION 2.11.1 OF THE MIAMI BEACH RESILIENCY
CODE, AND SECTIONS 163.3220 — 163.3243, FLORIDA STATUTES, BETWEEN
THE CITY AND WEST HOSPITALITY OWNER LLC AND 1250 WEST AVE OWNER
LLC (COLLECTIVELY THE "DEVELOPER"), WHICH DEVELOPMENT
AGREEMENT DELINEATES THE TERMS AND CONDITIONS FOR THE
DEVELOPMENT OF THE PROPERTY LOCATED AT 1250 WEST AVENUE (THE
"DEVELOPMENT PROPERTY")AND 1247 - 1255 WEST AVENUE AND 1234 13TH
STREET (THE 'HOSTEL PROPERTY") LOCATED IN MIAMI BEACH, FLORIDA
CONSISTING OF THE FOLLOWING USES ON THE DEVELOPMENT PROPERTY:
(1) A MAXIMUM OF 125 RESIDENTIAL UNITS, (2) GROUND FLOOR
RETAIL/COMMERCIAL, AND (3) ACCESSORY USES; AS WELL AS (4) THE
CONVEYANCE AND POSSIBLE CONSTRUCTION OF A PUBLIC PARK ON THE
HOSTEL PROPERTY, AND DEVELOPMENT OF THE SEGMENTS OF THE
BAYWALK ADJACENT TO THE PROPERTIES LOCATED AT 800 WEST AVENUE,
1228 WEST AVENUE, AND 1450 LINCOLN ROAD (THE "PROJECT"); AND
MEMORIALIZES CERTAIN PUBLIC BENEFIT COMMITMENTS MADE BY THE
DEVELOPER. AS WELL AS CERTAIN REQUIREMENTS AND DEADLINES WITH
RESPECT TO ACQUISITION OF THE HOSTEL PROPERTY AND CONVEYANCE
TO THE CITY, AND DEVELOPMENT OF THE BAYWALK SEGMENTS, AMONG
OTHER PUBLIC BENEFITS; AND FURTHER AUTHORIZING THE CITY
MANAGER TO FINALIZE THE DEVELOPMENT AGREEMENT, IN A FORM
ACCEPTABLE TO THE CITY ATTORNEY AND, FINALLY, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE AND RECORD THE DEVELOPMENT
AGREEMENT.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission (City Commission)
provide direction on the few remaining matters and adopt the Resolution, approving the
development agreement. This recommendation is predicated on the approval of the
companion amendments to the Land Development Regulations (LDRs) and Comprehensive
Plan, revised in accordance with the recommendations set forth in the corresponding
Commission Memorandums for each item.
The developer has addressed most of the previous issues and concerns raised by the
Administration and the City Attorney's office. The revised development agreement that is
attached for Second Reading has been carefully reviewed, and the Administration is generally
supportive of the agreement. The value of the public benefits proposed (approx. $47 million)
is commensurate with a development that complies with the FAR, height and setbacks as
recommended by the Planning Department. Administration's ultimate recommendation on
the expected public benefit value may be influenced by any revisions to the economic analysis
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that may result from the collaboration between the City's consultant and the Developer.
While supportive of the adoption of the development agreement, the Administration continues
to recommend that the LDR and Comprehensive Plan amendments be modified in
accordance with the recommendations set forth in the corresponding memorandums. In
addition, Administration will continue to work with the Developer to refine the terms associated
with the completion of the Baywalk Segments in relation to final approvals of the private
development project.
BACKGROUND/HISTORY
Amendment Application
On August 11, 2024, 1250 West Ave Owner LLC, applied to modify the Land Development
Regulations of the City Code (LDRs) and the 2040 Comprehensive Plan, with respect to the
property located at 1250 West Avenue. This is a private application filed pursuant to Sections
2.4.1 and 7.1.10 of the Resiliency Code and proposes to create the Alton Beach Bayfront
Overlay within the City's Future Land Use Map, the text of the City's 2040 Comprehensive
Plan, and the City's Resiliency Code.
On March 4, 2025, the Planning Board transmitted the proposed Comprehensive Plan and LDR
Amendments to the City Commission with an unfavorable recommendation (4-3). These
proposed amendments (Items R5AE and R5AF, respectively) were approved by the City
Commission at First Reading on April 23, 2025, and Second Reading / Adoption of these
amendments was set for June 25, 2025.
ANALYSIS
Proposal Summary
The applicant is proposing to create a new overlay. entitled the Alton Beach Bayfront Overlay,
as well as amend the RM-3 development regulations specific to properties in the overlay. The
proposed amendments to the Comprehensive Plan and the LDRs would enable the
construction of a luxury housing development, including an accessory restaurant. located at
1250 West Avenue.
Existing Property (1250 West Avenue)
• Lot size: 83.706 square feet
• Current Number of Units: 239 Residential Apartment Units
• Current maximum allowable residential density: 288 Residential Units (based on a
maximum density of 150 units per acre). However, when taking into consideration
common area requirements, it is likely that the maximum number of residential units
could not exceed 244.
• Current maximum hotel density: Hotels are not permitted in the West Avenue Overlay.
Proposed Amendments to LDRs
• A proposed increase in maximum FAR from 2.75 up to 5.75. which would result in an
increase of 251,121 square feet. through bonuses.
• A maximum building height increase from 150 feet to 330 feet, through bonuses.
• Modifications to minimum setback requirements and allowable encroachments into
required yards.
• Removal of Planning Board review of mechanical parking systems.
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• A maximum density of 75 units per acre is proposed, which equates to a maximum of
up to 144 residential units.
Proposed FAR and Height Bonuses:
• FAR bonus of .25 for not exceeding a density of 75 apartments per acre.
• FAR bonus of.25 for executing a covenant prohibiting short term rentals in perpetuity.
• FAR bonus of .50 for the design and construction of baywalk extensions at adjacent
properties on West Avenue.
• FAR bonus of 2.0 for acquiring an existing property on the east side of West Avenue
that has a transient use and conveyance of the property to the city.
• A building height bonus of 180 feet above the current maximum height of 150 feet for
a project that implements all the above bonuses, allowing for a maximum height of 330
feet.
Development Agreement Terms
At the April 23, 2025, City Commission meeting, pursuant to item C7 AZ, sponsored by
Commissioner Joseph Magazine, the Administration was directed to commence negotiations
with the developer, 1250 West Ave Owner LLC, and First Reading of the proposed
development agreement was set for May 21, 2025. On May 6, 2025, the developer provided
a draft development agreement, in substantial form, to the Administration and the City
Attorney's office.
The development agreement is proposed to be entered into by the City of Miami Beach and
the developer of the property at 1250 West Avenue (1250 West Ave Owner LLC). The
developer has represented that they would be obligated to comply with certain requirements
as public benefits to the city, provided the developer obtains approval of the proposed
amendments to the Comprehensive Plan and LDRs, as well as final approval for the proposed
future development project on the site.
At a special meeting on June 9. 2025, the City Commission approved the development
agreement at First Reading, which included revised terms proposed by the Administration and
the City Attorney's office. The following is a general summary of the key draft terms of the
proposed development agreement, which were discussed by the City Commission on June 9,
2025:
Definitions
General updates and clarifications have been proposed, which are mostly non-
substantive.
Hostel Property Demolition.
The developer has proposed that within 120 days (4 months) after the legislative approvals of
the amendments to the Comprehensive plan and LDRs becoming final and unappealable. the
developer has agreed to do the following:
1. Acquire the Hostel Site located at 1247-1255 West Avenue.
2. Ensure compassionate relocation of the population of unhoused individuals that may be
residing at the Hostel Site.
3. File a demolition permit application with the City seeking to demolish all improvements
on the Hostel Property and, within thirty (30) days of the issuance of all necessary
approvals, commence demolition of the existing improvements on the Hostel Property and
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diligently pursue the demolition.
4. Within thirty (30)days of the completion of the demolition, bring the Hostel Property into
compliance with Section 14-501 of the Miami Beach Code of Ordinances, governing the
maintenance of vacant lots after demolition.
Waiver of Applicable Fees
Implementation of Baywalk Project.
1. Concept Plan Approval. Within sixty (60) days after approval of the private project at
1250 West Avenue has become final and unappealable the developer shall submit to the
City a concept plan for the baywalk project for the City to approve, provided that the City
shall not require a scope, design or specifications that include the relocation or
harmonizing of existing boat slips and dock or such that the aggregate hard and soft costs
for the development and construction of the baywalk project exceeds $5,000,000.00
including the costs of the baywalk easements, as determined by Developer.
The City shall review and either confirm, approve or disapprove the baywalk concept Plan
within thirty (30) days after receipt of the same. If the City fails to confirm, approve or
disapprove such concept plan within such thirty (30) day period, then such concept plan
shall be deemed confirmed/approved by the City. However, if the City timely disapproves
such concept plan, the developer shall. at its election, either (i) submit the City's
disapproval to the expedited arbitration process to be set forth in Section 29 of the
development agreement or (ii) within sixty (60) days after such disapproval. submit
proposed modifications to such concept plan, and then re-submit the concept plan to the
City pursuant to the foregoing process until such concept plan has been or is deemed to
have been confirmed/approved by the City.
2. Final Construction Documents and Proprietary Review. Following approval of the
baywalk concept plan the developer shall prepare construction documents, including the
preparation of design and permit plans, and the preparation of materials necessary for any
development permits required by the City, County, and State. The developer shall submit
such final construction documents to the city to confirm that such final construction
documents conform in all material respects with the approved baywalk concept plan. The
final construction documents, once confirmed/approved or deemed approved by the City,
shall be the documents submitted for building permit for the baywalk improvements.
3. Permitting of Baywalk Project.
The City shall be responsible for the following:
a. Obtaining all necessary permits for the baywalk project based on the approved
baywalk concept plan.
b. At its sole cost and expense. the City shall obtain all necessary joinders and
consents from the owners of 800 West Avenue and 1450 Lincoln Road, provided
however. to the extent any such owner of any such upland parcel is the developer.
in which case the developer shall deliver such joinders or consents to the City upon
request for same.
The Developer shall be responsible for all permit fees associated with the Baywalk Project.
4. Construction of Baywalk Project. After the City obtains the baywalk permits, the City
shall deliver same to the developer, who shall then be responsible, at the developer's sole
cost and expense, to complete or cause to be completed the construction of the baywalk
project pursuant to the baywalk permits. The developer shall complete or cause to be
completed the construction of the baywalk project within twenty-four (24) months after the
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City delivers the Baywalk Permits to the Developer.
5. Payment in Lieu for Missing Baywalk Segments. The developer shall make good faith
efforts to secure the baywalk easement for 1228 West Avenue. If the developer is unable
to obtain a baywalk easement for 1228 West Avenue, or the City is unable to obtain a
suitable baywalk easement for 800 West Avenue, or the City is unable to obtain the
baywalk permits, then upon the later of: (i) forty-eight (48) months after the effective Date
of this Agreement, or(ii)the date on which Developer obtains a TCO for the private project
at 1250 West Avenue, the developer shall provide a payment to the City in the amount of
$1,250.000.00 per baywalk segment that cannot be constructed to fund the future
improvement of that baywalk segment and that segment shall be removed from the
baywalk project scope. The Developer shall thereafter have no further responsibility for
that segment(s) of the baywalk project.
Development and Implementation of a Park Protect at the Hostel Site and Transfer to City.
The developer shall design and construct a park on the hostel property (1247-1255 West
Avenue) at the developer's sole cost and expense, not to exceed $2.000,000.00. The park
project. which will be transferred to the City upon completion, shall be governed as follows:
1. Concept Plan Approval. Within 120 days (4 months)of the private project at 1250 West
Avenue approval becoming final and unappealable, the developer shall present a concept
plan to the City Manager or designee for the creation of the park for the City to approve.
The City may not require a scope, design or specifications such that the aggregate hard
and soft costs for the development and construction of the park project
exceeds$2,000,000.00. The City Manager shall review and either confirm, approve or
disapprove the park concept plan within thirty (30)days after receipt of the same. If the
City Manager fails to confirm, approve or disapprove the park concept plan within such
thirty (30) day period, the plan shall be deemed confirmed/approved by the City.
However. if the City Manager timely disapproves of the park concept plan. specific and
detailed reasons for such rejection shall be provided, in which event the developer shall,
at its election, either (i) submit the City's disapproval to the expedited arbitration process
to be set forth in Section 29 of the agreement or (ii) within sixty (60) days after such
disapproval, submit proposed modifications to such concept plan, and then re-submit the
concept plan to the City pursuant to the foregoing process until such concept plan has
been or is deemed to have been confirmed/approved by the City.
2. Schematic Plans/Hearing Approval. The developer, at their sole cost and expense,
shall be responsible for preparation and processing of all necessary materials for review
and approval of schematic design plans by the DRB to implement the park concept plan.
The developer shall prepare and submit the DRB application within 120 days of the City's
approval of the park concept plan, and the City shall timely execute all necessary
application materials upon the written request by the developer. In the event the DRB
requires changes to the proposed design. the developer will be responsible for preparing
all necessary modifications.
3. Final Construction Documents and Proprietary Review. Within 365 days of the DRB
approval of schematic design plans, the developer shall prepare and submit to the City
Manager the final construction documents, including the preparation of design and permit
plans, and the preparation of materials necessary for any development permits required
by the City, County, and State, it being understood and agreed that the developer's design
professionals shall be responsible for preparing the construction documents in
consultation with the City. The developer shall submit such final construction documents
to the City Manager for the sole and limited purpose of verifying that the final construction
documents conform in all material respects with the applicable approved Park Plans. The
City shall review and either confirm/approve or disapprove such final construction
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documents within thirty (30)days after receipt of the same. but for avoidance of doubt, the City
may disapprove the final construction documents only if they do not conform in all material
respects to the applicable approved schematic design plans.
If the City fails to confirm/approve or disapprove such final construction documents within such
thirty (30) day period. then such final construction documents shall be deemed
confirmed/approved by the City. However, if the City timely disapproves such final
construction documents, it shall give the specific and detailed reasons for such rejection, in
which event. the developer shall, at its election, either (i) submit the City's disapproval to the
expedited arbitration process to be set forth in Section 29 of the agreement or (ii) within sixty
(60) days after such disapproval, submit proposed modifications to such final construction
documents so that they conform in all material respects to the approved park concept plan and
DRB approval and then re-submit them to the City pursuant to the foregoing process until
such final construction documents have been or are deemed to have been
confirmed/approved by the City. and such final construction documents, once
confirmed/approved or deemed approved by the City, shall be the documents submitted for
building permit for the Park Project.
4. Processing of Construction Permit. Within ninety (90) days of the City's proprietary
approval of the final construction documents for the park, the developer shall, at its sole
cost and expense, submit the building permit plans to the City. The City shall waive any
permit fees associated with the submittal, unless mandated by state law. The developer
shall diligently pursue the issuance of a building permit for the improvements. including
making timely revisions and resubmittals until the permit for the improvements is issued.
5. Temporary Sales Center. The Developer shall be permitted to utilize the Hostel Property
for a temporary sales center for the Project.
6. Transfer of Hostel Site:
a. Upon completion of the park improvements. the developer shall provide notice to
the City, and the parties will thereafter set a mutually-agreed upon date for the
closing of the conveyance of the Hostel Site to the City, but no earlier than
sixty(60) days following the developers receipt of of temporary certificate of
occupancy for the private project at 1250 West Avenue.
b. At the Closing, the developer shall deliver to the City a warranty deed conveying to
the City fee title to the Hostel Site free and clear of all liens and encumbrances as
well as a customary title affidavit reasonably required by the title company.
c. The City shall be responsible at its sole cost and expense for the operations,
maintenance, repair, replacement. restoration of the Hostel Site from and after the
closing. and all obligations and liabilities of the developer with respect to the Hostel
Site shall terminate at the closing except for the warranties in the deed.
Rental Assistance for Lessees of the Existing Building at 1250 West Avenue
Prior to the City's issuance of a permit to demolish the existing building at 1250 West Avenue
(Bay Garden Manor) the developer shall demonstrate that it has offered financial assistance
in the amount of $7,500 for one-bedroom units or $10,000 for two-bedroom units to all bona
fide lessees of the property to assist those lessees in securing new residential leases.
For purposes of this provision, bona fide lessees shall mean leaseholders meeting the
following requirements:
a. Resides full time in the unit.
b. Is a lessee under a written lease with a term exceeding six (6) months entered into
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between the Bona Fide Lessee and the relevant unit owner.
c. Is not currently subject to eviction proceedings pursuant to Chapter 83 of the Florida
Statutes.
d. Provides documentation in a form acceptable to the Developer demonstrating intent
to relocate within the City of Miami Beach.
The developer shall provide an affidavit to the City affirming compliance with this Section
before a demolition permit may issue for the existing building on the Development Property.
UPDATE
The first draft of the development agreement was provided to the Administration and the City
Attorney's Office less than a week prior to the printing deadline for the May 21. 2025 City
Commission agenda. Although the Administration and City Attorney's office were able to
review and provide suggested modifications within the limited review period prior to the print
deadline for the May 21, 2025 Commission agenda, a comprehensive review of the entirety of
the document was not able to be completed.
On May 21, 2025, First Reading of the subject development agreement was continued to a special
City Commission meeting date in June; the special meeting was eventually set for June 9, 2025.
Additionally, the proposed development agreement is tethered to the companion amendments
to the LDRs and the Comprehensive Plan. both of which were approved at First Reading on
April 23. 2025 and are set for Second Reading on June 25, 2025.
On June 9. 2025, the development agreement was approved at First Reading. Subsequent to
the June 9, 2025 City Commission meeting, the developer provided an updated version of the
development agreement. which is attached for consideration at Second Reading. The
developer has substantially addressed most of the remaining outstanding issues with the
revised agreement, including the following:
• The developer has agreed to post a bond or letter of credit, should the remaining sections
of the bay walk not be completed by the time a TCO is requested for the proposed new
residential project at 1250 West Avenue. The City Manager shall authorize issuance of a
TCO for the Private Project if the Developer has obtained the Baywalk Permits.
commenced construction of the Baywalk Segments. is diligently pursuing construction of
the Baywalk Segments. and all other requirements have been satisfied. Administration
continues to work with the Developer to refine the terms of the completion of the Baywalk
Segments in relation to final approvals of the private development project.
• The developer has agreed to provide rental assistance for the residents of the existing
building at 1250 West Avenue. In summary, the Developer shall demonstrate that it has
provided financial assistance in the amount of$5,000 for studio apartment, $7,500 for one-
bedroom units, and $10.000 for two-bedroom units. For renters that provide proof of
relocation with the City, the Developer shall demonstrate that it has provided financial
assistance in the amount of$9,000 for studio apartment, $12,500 for one-bedroom units.
and $15,000 for two-bedroom units.
• The developer has agreed to a no variance provision related to front and rear tower
setbacks, as well as the requirement for below grade parking. This will ensure that the
future residential tower will have a limited footprint.
At the time of the printing of the June 25, 2025 commission agenda, the developer had not
yet provided a copy of the Purchase and Sale agreement (PSA) for the Bikini Hostel property,
as requested by the City Commission. However, the developer has represented to the
Administration that a copy of the PSA will be provided prior to the June 25, 2025 City
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Commission meeting. Notwithstanding. based upon previous testimony. the purchase price
for the Bikini Hostel site is estimated to be approximately $20 million dollars.
At the June 9. 2025 City Commission meeting. the attached economic analysis prepared by
Miami Economic Associates (MEA) regarding the value of the additional FAR and height
contemplated in the proposal was discussed. On June 17, 2025. a workshop was held with
the developer and Mr. Andrew Dolkhart from MEA, to discuss the findings in the economic
analysis. This meeting was conducted in a hybrid format, with attendees participating in
person and virtually (zoom). The workshop was productive and focused on the following:
1. The amount of floor area (FAR)that should be included in the analysis. In the initial analysis
prepared by MEA, a standard efficiency of 85°% of the bonus FAR was used to calculate the
value of the additional zoning rights. The developer contends that the proposed building for
1250 West Avenue, which is limited in footprint and efficiency by the proposed amendments
to the LDRs, has much less of an efficiency, and therefore the value of the additional FAR is
lower than what MEA has calculated.
2. The comparables used by MEA to estimate the per square foot value of the additional FAR
were limited to the recently completed building to the north (Monad Terrace). The developer
put together a more comprehensive set of comparables that, collectively. result in a lesser per
square foot value than that estimated by MEA.
Mr. Dolkhart agreed to consider the points raised by the developer and to further study his
analysis. The developer and Mr. Dolkhart agreed to meet again prior to the June 25, 2025
City Commission, to reach consensus on these issues. Administration's ultimate
recommendation on the expected public benefit value may be influenced by any revisions to
the economic analysis that may result from the collaboration between the City's consultant
and the Developer.
•
SUMMARY
The developer has addressed most of the previous issues and concerns raised by the
Administration and the City Attorney's office. The revised development agreement that is
attached for Second Reading has been carefully reviewed. and the Administration is generally
supportive of the agreement. The value of the public benefits proposed (approx. $47 million)
is commensurate with a development that complies with the FAR, height and setback as
recommended by the Planning Department.
However, as the development agreement is tethered to the proposed amendments to the
LDRs and Comprehensive Plan, all three of these components must be looked at collectively.
Planning Department staff have expressed concerns with the proposed amendments
pertaining to increases in intensity (FAR) and building height, as well as the proposed
modifications to minimum setbacks. As noted in the analysis for the companion LDR and
Comprehensive Plan amendments. the Administration has recommended the following:
1. The existing setback requirements should remain, with no modifications. The proposed
setback modifications would result in the width of the proposed tower increasing from a
maximum of 100 feet in width to 148 feet in width. Additionally, the pedestal portion of
the building, at all levels, should fully comply with the minimum side setbacks of 16 feet.
2. The proposed FAR bonuses, collectively, should not exceed 2.0 and the aggregate
increase in FAR should not exceed 4.75.
3. The proposed height bonus should be limited to 150 feet and the maximum allowable
height should not exceed 300 feet.
While supportive of the adoption of the development agreement. the Administration continues
to recommend that the LDR and Comprehensive Plan amendments be modified in
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accordance with the recommendations set forth in the corresponding memorandums. In
addition, Administration will continue to work with the Developer to refine the terms
associated with the completion of the Baywalk Segments in relation to final approvals of the
private development project.
FISCAL IMPACT STATEMENT
No Fiscal Impact Expected
Does this Ordinance require a Business Impact Estimate?
(FOR ORDINANCES ONLY)
If applicable, the Business Impact Estimate (BIE) was published on:
See BIE at: https:l/www.miamibeachfl.gov/city-hall/city-clerk/meeting-notices/
FINANCIAL INFORMATION
Not Applicable
CONCLUSION
The Administration recommends that the City Commission provide direction on the few
remaining matters and adopt the Resolution, approving the development agreement.
Applicable Area
South Beach
Is this a "Residents Right to Know" item, Is this item related to a G.O. Bond
pursuant to City Code Section 2-17? Project?
Yes No
Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481,
includes a principal engaged in lobbying? No
If so, specify the name of lobbyist(s) and principal(s):
Department
Planning
Sponsor(s)
Commissioner Joseph Magazine
Co-sponsor(s)
Condensed Title
2:03 p.m. 2nd Rdg. Alton Beach Bayfront Overlay-Development Agreement. (Magazine) PL
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Previous Action (For City Clerk Use Only)
Continued from 06/25/2025 - R7 B
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Prepared by and Return to:
Bercow Radell Fernandez Larkin & Tapanes
Attn: Michael Larkin
200 South Biscayne Boulevard, Suite 300
Miami, Florida 33131
(Space Reserved for Clerk)
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of the day of 2025, by and among the CITY OF MIAMI BEACH, a Florida
municipal corporation (the "City"), and jointly and severally, 1250 WEST AVE OWNER LLC,
a Florida limited liability company (the "Private Project Developer") and WEST
HOSPITALITY OWNER LLC, a Florida limited liability company (the "Public Project
Developer," and collectively with Private Project Developer, the "Developer").
Introduction
A. The properties that are the subject of this Agreement lie 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 Chapter 2, Article XI of the City's Land Development
Regulations.
B. The City is a Florida municipal corporation with powers and authority
conferred under the Florida Constitution, the Municipal Home Rule Powers Aci, Florida
Statutes, the Miami Beach City Charter and the Miami Beach City Code of Ordinances (the
"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.
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C. Private Project Developer controls the Bay Garden Manor Condominium
located at 1250 West Avenue and intends to own 100%of the units in such Condominium,
which Condominium is more specifically described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Development Property").
D. Private Project Developer seeks to redevelop the Development Property
with the "Private Project" (as such term is defined in this Agreement).
E. Public Project Developer intends to acquire fee simple title to the property
located at 1247-1255 West Avenue and 1234 13th Street, which is more specifically
described in Exhibit "B" attached hereto and incorporated herein by this reference (the
"Hostel Site").
F. Developer intends to provide certain public benefits to the City as follows:
(i) demolish the existing improvements on the Hostel Site and thereafter improve the site
as a public park to be conveyed to the City in fee simple (the "Park Project"); and (ii)
construct missing segments of the City of Miami Beach Baywalk (the "Baywalk") adjacent
to the properties located at 800 West Avenue, 1228 West Avenue and 1450 Lincoln Road
or, alternatively provide the City with a financial contribution for future Baywalk
improvements (the"Baywalk Project").
G. The development of the segments of the Baywalk adjacent to 800 West
Avenue, 1228 West Avenue and 1450 Lincoln Road (the "Baywalk Segments") as part of
the Baywalk Project, wilt require the agreement of upland property owners. In the event
the owners (or authorized representative of the owners such as a condominium
association) of the properties located at 1228 West Avenue, 1450 Lincoln Road; or 800
West Avenue decline to provide the necessary easements and consents (the "Baywalk
Easements") (as such term is defined in this Agreement) for the Baywalk Project,
Developer will provide the City with a financial contribution (the "Baywalk Payment") (as
such term is defined in thi'Agreement) with respect to the 800 West Avenue, 1228 West
Avenue, and 1450 Lincoln Road Baywalk Segments.
H. The Park Project and Baywalk Project are each a "Public Project" and
collectively are the "Public Projects."
Having fully considered this Agreement at two (2) duly noticed public
hearings in compliance with Section 163.3225 of the Florida Statutes and having
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determined that the Private Project, the Public Projects, and this Agreement are in
compliance with the City's Comprehensive Plan and Land Development Regulations (as
may be amended by the "Legislative Approvals" more specifically defined below) 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; the City has
agreed to enter into this Agreement with Developer.
1. The City has determined that the Private Project and the benefits to be
provided to the City by the Public Projects will benefit the City and the public through,
without limitation, the redevelopment of the Development Property with a modern low-
impact residential use, the demolition of the existing improvements on the Hostel
Property, the construction of a public park on the Hostel Property, and completion of the
Baywalk Project or financial contribution toward the same.
K. All capitalized terms used in this Introduction are defined in Section 3 of this
Agreement or elsewhere in this Agreement.
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 2.11.1 of the City's Land Development
Regulations (the "LDRs")..
3 Definitions. All capitalized terms used in this Agreement shall have the
definitions set forth in this Section 3 unless such terms are defined elsewhere in the
body of this Agreement.
3.1 "Act" shall mean the "Florida Local Government Development
Agreement Act" (Sections 163.3220 - 163.3243, Florida Statutes (2024)).
3.2 "City of Miami Beach Baywalk" shall mean the public pedestrian
pathways along the Biscayne Bay shoreline beginning at 540 West Avenue and ending at
1450 Lincoln Road, including gaps which the City seeks to have completed.
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3.3 "Baywalk Easements" shall mean such easements or riparian rights
from the fee owner(s) of the Baywalk Segments, with joinders by all applicable
mortgagees and other third parties, all in form and substance reasonably acceptable to
Developer, as required to acquire a title-insurable interest for the benefit of Developer
and the City, under, over and on the Baywalk Segments, as necessary or desirable to (a)
design, permit, and construct the Baywalk Project and (b) use, maintain and operate the
Baywalk Segments and Baywalk Improvements. The Baywalk Easements shall provide that
Developer shall not be required to maintain, repair, restore, operate or insure the Baywalk
Segments. Instead, ongoing maintenance and repair obligations for the Baywalk
Segments, once constructed, shall be the responsibility of the City.
3.4 "Baywalk Improvements" shall mean the specific improvements to
the Baywalk Segments as contemplated by the Approved Baywalk Concept Plan.
3.5 "Baywalk Project" is defined in the recitals.
3.6 "Baywalk Segments" is defined in the recitals.
3.7 "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.
3.8 "Business Day" shall mean any day other than a Saturday, Sunday,
any federal or state holiday and the following Jewish holidays: Passover (the first two (2)
days and last two (2) days only), Shavuot (two (2) days), Rosh Hashanah (two (2) days),
Yom Kippur (one (1) day), and Sukkot (the first two (2) days and last two (2) days only). If
any period expires on a day which 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 which is not a
Business Day, 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.
3.9 "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 the event the City exercises its regulatory authority as a governmental
body, the exercise of such regulatory authority and the enforcement of any laws, rules,
regulations, ordinances, and plans (including through the exercise of the City's building,
fire, code enforcement, police department or otherwise) shall be deemed to have
occurred pursuant to the City's regulatory authority as a governmental body and shall not
be attributable in any manner to the City as a party to this Agreement or in any way
deemed in conflict with, or a default under, the City's obligations hereunder.
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3.10 "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.
3.11 "Developer" shall mean the entities defined in the preamble to this
Agreement, and any permitted successors, assigns, or heirs thereof.
3.12 "Development Order" shall mean any order granting, denying, or
granting with conditions, an application for a Development Permit.
3.13 "Development Property" shall mean the property more specifically
described in Exhibit "A" attached hereto and incorporated herein by this reference.
3.14 "Development Permit" shall have the meaning set forth in Section
163.3221(5), Florida Statutes (2024).
3.15 "Effective Date" shall mean 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 (2024).
3.16 "Execution Date" shall mean the date on which the last of the
required parties executes this Agreement.
3.17 "Land Development Regulations (LDRs)" shall have the meaning
set forth in Section 163.3221(8), Florida Statutes (2024) and shall also include, without
limitation, the definition of "land development regulations" in Section 1.2.1 of the City's
Resiliency Code.
3.18 "Laws" shall mean all laws, rules, regulations, ordinances, plans,
resolutions, comprehensive plans and land development regulations, specifically
including the City's Comprehensive Plan and the LDRs.
3.19 "Maximum Private Project Elements" has the meaning assigned
such term in the definition of Private Project.
3.20 "Park Project" is defined in the recitals.
3.21 "Park Improvements" shall mean the specific improvements to the
Hostel Site as contemplated by the Approved Park Concept Plan.
3.22 "Private Project" shall mean the demolition of the existing
improvements on the Development Property and construction on the Development
Property of a new high-rise residential building containing a maximum height of 330 feet
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a maximum square footage of 481,316 square feet of floor area, maximum number of
residential condominium units of 125 units, and a maximum of 4,000 square feet of
commercial unit(s), a tower front setback no less than 150 feet, and a tower rear setback
of no less than 63 feet, and subterranean parking, except for loading spaces, valet
circulation, and a maximum of ten (10) visitor parking spaces (collectively, the "Maximum
Private Project Elements"), it being understood that Private Project Developer may in its
sole discretion seek approvals for development parameters more restrictive than the
Maximum Private Project Elements), however the Developer may not seek variances from
these Maximum Private Project Elements. These maximums are subject to City
Commission approval of LDR amendments requested by the Developer. The following
uses shall not be allowed in the Private Project (1) entertainment establishments
(indoor/outdoor), (2) adult entertainments or bookstores, (3) tobacco/vape/medical
marijuana or paraphernalia stores, (4) accessory outdoor bar counters, (5) hostels, hotels,
and apartment hotels, (6) neighborhood impact establishments, (7) bars, (8)
establishments providing exterior alcohol service or interior alcohol service after 12 a.m.,
(9) liquor stores, (10)dance halls, (11) any use selling gasoline, (12) storage and/or parking
of commercial vehicles, (13) pawnshops, (14), secondhand dealers of precious metals, (15)
check-cashing stores, (16) convenience stores or grocery stores, (17) occult science
establishments, (18) souvenir/t-shirt shops, (19) tattoo studios, fortune tellers, psychics,
palm readers, and body piercing shops, (20) sale of insurance salvage stock, fire sale stock,
merchandise damaged by or held out to be damaged by fire; (21) bankruptcy/going-out-
of-business/liquidation or any similar sale, (22) coin box entertainment, (23) casino
gambling or games of chance establishments, (24) medical facilities (including veterinary
medicine), (25) the sale of firearms, (26) places of worship or related stores, (27) political
offices, (28)consular, legation or any other offices of foreign governments, (29) tire sales,
(30) pet shops, (31) major appliance sales stores, and (33) pharmacies.
3.23 "Private Project Baywalk" shall mean that portion of the City of
Miami Beach Baywalk that is within the Developer's Property and which shall be
constructed by the Private Project Developer having a minimum width of fifteen (15) feet.
3.24 "Private Project Developer" shall mean the entity defined in the
preamble to this Agreement, and any permitted successors, assigns, or heirs thereof.
3.25 "Public Projects" are defined in the recitals.
3.26 "Public Project Developer" shall mean the entity defined in the
preamble to this Agreement, and any permitted successors, assigns, or heirs thereof.
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3.27 "Temporary Sales Center Amendments" shall mean the
amendments to the City's Comprehensive Plan and Land Development regulations
necessary to authorize use of the Hostel Site as a temporary sales center.
4 Approvals Required for Projects.
a) Developer and the City acknowledge and agree that development of
the Private Project will require the following approvals (collectively,
the "Private Project Approvals"):
i. Amendments to the City's Comprehensive Plan and to the City's
Resiliency Code as contemplated by the City's Planning Board
("PB") File Nos. are PB24-0698 and PB24-0703 (collectively the
"Legislative Approvals");
ii. the City's Design Review Board ("DRB") approval;
iii. Miami-Dade County Shoreline Review approval, as necessary;
and
iv.Confirmation from the Miami-Dade Aviation Department and
the Federal Aviation Administration that there are no aviation-
related issues.
b) Developer and the City acknowledge and agree that the Baywalk
Project may require independent review and approval by and permits
from the United States Army Corps of Engineers ("ACOE"), and/or the
Florida Department of Environmental Protection ("FDEP"), and/or the
Miami-Dade County Regulatory and Economic Resources Department
Division of Environmental Resource Management ("DERM")
(collectively, the "Baywalk Project Approvals"). Developer shall be
responsible for obtaining the Baywalk Project Approvals from the
ACOE, FDEP, and/or DERM, as applicable, at its sole cost and expense,
with respect to the Baywalk Segments, as defined this Agreement. The
City shall execute all documents necessary for such permitting,
provide technical assistance, and generally cooperate with respect to
such permitting, including by considering in good faith approving
modifications to the Concept Plan that are necessary to obtain the
Baywalk Project Approvals from the ACOE, FDEP, and/or DERM
c) Developer and the City acknowledge and agree that the Park Project
will require DRB approval for the design of the improvements.
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d) Developer acknowledges that nothing contained in this Agreement
will obligate the City to cause the approvals by the DRB or limit the
DRB's quasi-judicial authority to impose conditions or take any action
on such applications, except as otherwise provided by the City Code.
Without limiting the generality of the foregoing, all considerations of
and actions by the City shall be undertaken in accordance with
established requirements of state statutes, if applicable, and the City
Code, in the exercise of the City's jurisdiction under its police power.
The City hereby reserves all of its rights to exercise its police powers
with respect to the aforementioned actions, and 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 Hostel Site, the
Baywalk Segments, or the Development Property.
5 Hostel Property Demolition Following Legislative Approvals. If Developer (i)
obtains the Legislative Approvals, and the time period for all appeal periods with respect
to the Legislative Approvals has expired with no appeals or other third-party challenge
having been filed (or, in the event an appeal or third-party challenge is filed, the same
has been resolved (by judgment, settlement or otherwise in a final non-appealable
manner) on terms and conditions acceptable to Developer in its sole discretion)
(collectively, the "Legislative Approval Conditions"), or (ii) waives the Legislative
Approval Conditions in its sole discretion, then after the Legislative Approvals become
effective or any pending third-party challenges to the validity of the Legislative
Approvals are resolved or are in a status that allows the Developer to obtain financing
reasonably acceptable to Developer, Developer will comply with the following:
a. Within ninety (90) days of the adoption of the Legislative Approvals by the City
Commission, but no later than September 15, 2025, the Developer shall close on
the acquisition of the Hostel Property and at the time of closing shall execute and
record a Declaration of Restrictive Covenants, substantially in the form of Exhibit
"C" attached hereto, against title to the Hostel Property, providing that, for a term
of thirty (30) years following the recording of the Declaration of Restrictive
Covenants, and renewing automatically for ten (10) year extensions, unless the City
agrees to release the Restrictive Covenant, (i) prohibiting transient uses of any kind,
(ii) prohibiting any alcoholic beverage establishments, and (iii) providing that no
residential units shall be leased or rented for a period of less than six (6) months
and one (1) day.
b. Within fourteen (14) days of the Developer Closing on the Hostel Site, the
Developer shall certify in writing to the City that all individuals residing at the
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Hostel Site have been relocated, including relocation of any unhoused individuals
that may be residing at the Hostel Site Any unhoused individuals residing at the
Hostel Site at the time of the closing shall be compassionately relocated by the
Developer or the Developer's designee to a facility authorized by applicable law to
provide temporary housing and services to such individuals located outside of the
City.
c. Within thirty (30) days of the Developer closing on the Hostel Site, the Developer
shall file a demolition permit application with the City to demolish all existing
buildings and improvements at the Hostel Site.
d. Within thirty (30) days from the issuance of a demolition permit for the Hostel
Site, the developer shall commence demolition of all existing buildings and
improvements at the Hostel Site.
e. Within thirty (30) days of the completion of the demolition, the Developer shall
bring the Hostel Site into compliance with all applicable provisions of the Miami
Beach Resiliency Code and the Code governing the maintenance of vacant lots
after demolition, including without limitation Section 7.5.1.6 of the Resiliency Code
and Section 14-501 of the Code.
If the Developer cannot successfully consummate closing on Hostel Site for any reason,
prior to terminating the purchase and sale agreement with the seller of the Hostel Site,
the Developer shall make a good faith effort to secure the right from the seller of the
Hostel Site to assign the purchase and sale agreement to the City sat the same purchase
price offered to the Developer, less any deposits forfeited or paid by the Developer to the
seller. For the avoidance of doubt, the Developer's right to purchase the Hostel Site is
unassignable and only the seller of the Hostel Site, at its sole discretion, may allow
assignment of the purchase right. If the Developer does not successfully consummate the
closing of the acquisition of the Hostel Site in breach of its obligations under this
Agreement, then this Agreement shall terminate. .
6 Public Projects Conditioned on Private Project Approvals / Termination. If
Developer: (a) obtains all Private Project Approvals for not less than the Maximum
Private Project Elements without the imposition of terms, conditions or obligations that
could have a material adverse effect on the Private Project, and the time period for all
appeal periods with respect to each Private Project Approval has expired with no appeals
having been filed (or, in the event an appeal is filed, the same has been resolved (by
judgment, settlement or otherwise in a final non-appealable manner) on terms and
conditions acceptable to Developer in its sole discretion) (collectively, the "Private
Project Conditions"); or (b) waives the Private Project Conditions in its sole discretion,
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then Public Project Developer will proceed with each Public Project subject to the terms
of this Agreement. If any of the Private Project Conditions are not satisfied (or not waived
by Developer in its sole discretion), then this Agreement shall terminate.
For avoidance of doubt if Developer is unable to obtain the Private Project
Approvals, is able to obtain the Private Project Approvals but the Private Project Approvals
contain terms, conditions or obligations that could have a material adverse effect on the
Private Project or that could materially increase Developer's budgeted costs for the
development and construction of the Private Project, then Developer may, in its sole
discretion, elect to (i) diligently prepare a revised application for the Private Project, so
long as same still conforms to the terms of this Agreement; (ii) exercise any rights of
appeal; (iii) revise the scope of the Private Project to conform ,; or (iv) abandon its
applications for the Private Project and terminate this Agreement.
7 Developer agrees that the DRB's imposition of conditions requiring
architectural changes to the Private Project would not alone constitute a material adverse
effect on the Private Project. Terms, conditions, or obligations imposed by the DRB that
would have a material adverse effect on the Private Project shall be limited to those
mandating or resulting in any reduction in height, any more than de minimis reduction in
floor area or more than de minimis increase in setbacks.
8 Live Local Act and Preemptions. Upon the Effective Date of this Agreement,
the Developer voluntarily covenants and agrees that Developer shall not avail itself of
the Live Local Act, codified under Section 166.04151, Fla. Stat (2025), any amendment
thereto, or any other state statute that preempts local land development regulations
concerning maximum permitted height, maximum permitted floor area ratio, or
maximum permitted density.
9 Public Project Requirements. Each Public Project shall be undertaken as
follows:
a) Developer shall select and engage one or more Florida licensed
design professionals, as necessary, and general contractor(s) (each, a
"Public Project Contractor") and enter into appropriate contract(s)
for the Public Projects (each, a "Public Project Construction
Contract"). Except as expressly set forth in this Agreement, Developer
shall be solely responsible for the design, permitting and construction
of each Public Project, at Developer's sole cost and expense. Each
Public Project Construction Contract shall, among other things: (i)
require that the City be named as an additional or named insured on
all insurance coverages required by such Public Project Construction
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Contract and under which Developer is an additional or named
1 insured with coverage amounts acceptable to the City; (ii) require that
the City be named a co-obligee under any payment and performance
bonds (if any) required by such Public Project Construction Contract;
and (iii) subject to rights of lenders, be assignable to the City, at the
City's option, in the event of a default by Developer under such Public
Project Construction Contract or this Agreement that remains
uncured after the expiration of all applicable cure and grace periods.
b) For the avoidance of doubt, Developer acknowledges and
understands that the City may not waive land use board application
fees and costs related to the development of the Public Projects,
applicable Building Department fees, Mobility Fees, or Art in Public
Places fees.
c) Developer and the City shall mutually agree to project oversight and
administration responsibilities for the Public Projects, it being
understood and agreed that Developer (or a consultant engaged by
Developer) will have primary responsibility for the oversight and
administration of the Public Projects, and the City may, at its option in
its sole discretion, assign staff members (or a consultant engaged by
the City) to participate in the oversight and administration of the
Public Projects.
10 Implementation of Baywalk Project.
a) Concept Plan Approval Within sixty (60) days after the Private Project
Approval has become final and the appeals period has run (subject to
Developer's acceptance or waiver of the Private Project Conditions in
Developer's sole discretion), Developer shall submit to the City a
concept plan for the Baywalk Project for the City to approve (the
"Concept Plan"). The Concept Plan shall include, at a minimum, the
materials and specifications set forth in Exhibit "D" and shall be in
substantial conformance with the concept drawings included in such
Exhibit. In its proprietary capacity, the City shall review and either
confirm, approve, or disapprove the Concept Plan within forty-five
(45) days after receipt of the same. If the City fails to confirm, approve,
or disapprove such concept plan within such forty-five (45) day
period, then such concept plan shall be deemed confirmed/approved
by the City. However, if the City timely disapproves such concept plan,
it shall give the specific and detailed reasons for such rejection, in
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which event, Developer shall within sixty (60) days after such
disapproval, submi* proposed modifications to such concept plan,
and then re-submit the concept plan to the City pursuant to the
foregoing process until such concept plan has been or is deemed to
have been confirmed/approved by the City (once
confirmed/approved or deemed confirmed/approved by the City,
such concept plan, the "Approved Baywalk Concept Plan").
b) Final Construction Documents and Proprietary Review. Within three
(3) months of approval of the Baywalk Concept Plan Developer shall
prepare construction documents, including the preparation of design
and permit plans, and the preparation of materials necessary for any
development permits required by the City, County, and State, it being
understood and agreed that Developer's design professionals shall be
responsible for preparing the construction documents in consultation
with the City. Developer shall submit such construction documents to
the City for the City to confirm, in its proprietary capacity, that such
construction documents conform in all material respects with the
Approved Baywalk Concept Plan. The City shall review and either
confirm/approve or disapprove such final construction documents
within forty-five (45) days after receipt of the same, but for avoidance
of doubt, the City may disapprove the final construction documents
only if they do not conform in all material respects to the Approved
Baywalk Concept Plan or applicable law. If the City fails to
confirm/approve or disapprove such final construction documents
within such forty-five (45) day period, then such final construction
documents shall be deemed confirmed/approved by the City.
However, if the City timely disapproves such final construction
documents, it shall give the specific and detailed reasons for such
rejection, in which event, Developer shall, within sixty (60) days after
such disapproval, submit proposed modifications to such final
construction documents so that they conform in all material respects
to the Approved Baywalk Concept Plan and then re-submit them to
the City pursuant to the foregoing process until such construction
documents have been or are deemed to have been
confirmed/approved by the City, and such construction documents,
once confirmed/approved or deemed approved by the City, shall be
the deemed the final construction documents and be submitted for
permitting of the Baywalk Improvements.
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c) Permitting of Baywalk Project. The De/eloper shall be solely
responsible for obtaining all necessary pers for the Baywalk Project
based on the Approved Baywalk Concept Plan (the "Baywalk
Permits") and shall make commercially reasonable best efforts to
obtain such permits within eighteen (18) months from the date the
construction documents are approved (or deemed approved) by the
City The Developer shall be responsible, at its sole cost and expense,
for obtaining for the benefit of the City, all necessary easements,
joinders, and consents (in such form(s)as is/are approved by the City),
from the owners of 800 West Avenue, 1228 West Avenue, and 1450
Lincoln Road within twelve (12) months from the Effective Date of this
Agreement, provided however, to the extent any such owner of any
such upland parcel is the Developer, then the Developer shall deliver
such joinders or consents to the City upon request for same. The
Developer shall be responsible for all permit fees associated with the
Baywalk Project. The City shall reasonably cooperate with the
Developer in the process of obtaining the necessary joinders and
consents from the affected property owners, provided, the City shall
not be required to make any payments or incur any expenditures of
any kind or nature in connection with such cooperation, and the
Developer shall be solely responsible for all costs and expenses arising
from same.
d) Construction of Baywalk Project. After the Developer obtains a
Baywalk Permit in respect of each Baywalk Segment, the Developer
shall then be responsible, at Developer's sole cost and expense, to
complete or cause to be completed the construction of such Baywalk
Segment, it being understood and agreed that the Developer shall
proceed with all deliberate speed with respect to each Baywalk
Segment as soon as the Baywalk Easement and Baywalk Permit in
respect of such Baywalk Segment have been obtained.. The Developer
shall complete or cause to be completed the construction of each
Baywalk Segment within eighteen (18) months after the Developer
obtains the Baywalk Permit in respect of each such Baywalk Segment,
in compliance with all applicable laws, including the City's Art in Public
Places requirements. Upon written request by the Developer, the City
Manager may, at its sole discretion, issue extensions of the deadline
to construct each Baywalk Segment in six (6) month increments
provided that Developer is diligently pursuing construction of each
permitted Baywalk Segment and there are circumstances outside of
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Developer's control impacting construction of the Baywalk Segments.
Within sixty (60) days fromIthe date of substantial completion of eich*
Baywalk Segment, the Developer shall transfer any and all rights the
Developer holds with respect to the improvements in an instrument
reasonably acceptable to the City, constituting each such Baywalk
Segment to the City and shall deliver all of the items specified in
Exhibit "E".
e) Payment in Lieu of Missing Baywalk Segment. Developer shall secure
the Baywalk Easements and Baywalk Permits, within the time periods
described herein. If Developer is unable to obtain a Baywalk Easement
for any of the Baywalk Project Properties within twelve (12) months of
the Effective Date (the "Baywalk Easement Deadline") or the
Developer is unable to obtain the Baywalk Permits within thirty (30)
months from the Effective Date (the "Baywalk Permit Deadline"),
then the Developer shall either: (i) pay the City on the earlier of the
Baywalk Easement Deadline or the Baywalk Permit Deadline, as
applicable, the amounts set forth below in respect of any Baywalk
Segment for which a Baywalk Easement or a Baywalk Permit is not
obtained by the Baywalk Easement Deadline or the Baywalk Permit or
(ii) at Developer's option, but only if Developer has entered into all
necessary contracts including reasonable estimated contingency for
the design and construction of a Baywalk Segment for which
Developer has been unable to obtain a Baywalk Easement or a
Baywalk Permit with design professionals and contractors acceptable
to the City in its sole discretion, then in lieu of the payments described
in subparagraph (i), the Developer may assign to the City such
contract(s) and pay the City the funds to necessary cover all amounts
remaining to be paid (including for permit fees and costs relating to
those agreements), plus a 15 percent (15%) contingency payment
(with such assignment and payment to the City to be made within
thirty (30) days from the Baywalk Easement Deadline or Baywalk
Permit Deadline, as applicable). The amounts due under
subparagraph (i) are:(x) $18,000,000 in respect of the 800 West
Avenue Baywalk Segment, (y) $5,000,000 in respect of the 1228 West
Avenue Baywalk Segment and/or (z) $2,000,000 in respect of the 1450
Lincoln Road Baywalk Segment to fund the future improvement of
that Baywalk Segment and any Segment in respect of which a
payment is made shall be removed from the Baywalk Project scope.
The Developer shall thereafter have no further responsibility for that
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segment(s) of the Baywalk Project. Upon writtep request by the
Developer, the City Manager may, at its sole disAetion, extend the
Baywalk Permit Deadline in six (6) month increments provided that
Developer has submitted applications for the Baywalk Permits and
diligently pursued approval of the Baywalk Permits
11 Implementation of Park Project / Transfer of Hostel Site to City.
a) Environmental Assessment of Park. Developer shall procure a Level II
Environmental Assessment within thirty (30) days of the Effective Date
and shall provide said Assessment to the City within ten (10) days of
receiving it. Developer shall be responsible for the cost of the
Assessment. The Developer shall also be solely responsible for the
cost of any remediation required for the development of the Hostel
Site as a park. For the avoidance of doubt, this requirement shall
apply whether or not the City has decided to proceed with the
development of a park by the Developer.
b) Development of Park.The City shall decide, by written notice delivered
to Developer within twenty-four (24) months of the Effective Date,
whether the City would like the Developer to build a park or to make
a payment in lieu thereof as set forth in Section 11(g) (with failure to
timely provide such written notice being deemed an election by the
City to accept the Park Project. If the City elects not to proceed with
the development of a park by the Developer, then Developer shall
transfer the Hostel Site to the City following the expiration of such
twenty-four (24) month period in accordance with Section 11(j)(i) (i).
In addition, if the City elects not to proceed with the park, Developer
shall record or cause to be recorded a Declaration of Use setting forth
the permitted uses for the Hostel Site, substantially in the form
attached hereto as Exhibit "F", prior to conveying the Hostel Site to
the City and the City shall take title to the Hostel Site subject to said
Declaration of Use. If the City elects to proceed with the park,
Developer shall design and construct a park on the Hostel Property at
Developer's sole cost and expense at a cost not to exceed
$2,000,000.00. The Park Project shall be governed as follows.
c) Concept Plan Approval. If the City elects to proceed with the Park,
within one hundred twenty (120) days from the date upon which the
Private Project Approval has become final and the appeals period has
run (subject to Developer's acceptance or waiver of the Private Project
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Conditions in Developers sole discretion), Developer shall present a
concept plan to the City Managerbr designee for the creation of the
park (the "Park Concept Plan") for the City's review. The City Manager
shall review and either confirm, approve or disapprove the Park
Concept Plan within forty-five (45) days after receipt of the same. If
the City Manager fails to confirm, approve or disapprove the Park
Concept Plan within such forty-five (45) day period, the plan shall be
deemed confirmed/approved by the City. However, if the City
Manager timely disapproves of the Park Concept Plan, he/she shall
give the specific and detailed reasons for such rejection, in which
event, Developer shall, within sixty (60) days after such disapproval,
submit proposed modifications to such concept plan, and then re-
submit the concept plan to the City pursuant to the foregoing process
until such concept plan has been or is deemed to have been
confirmed/approved by the City (once confirmed/approved or
deemed confirmed/approved by the City, such concept plan, the
"Approved Park Concept Plan").
d) Schematic Plans/ Hearing Approval. Developer, at Developer's sole
cost and expense shall be responsible for preparation and processing
of all necessary materials for the City s DRB review and approval of
schematic design plans implementing the Park Concept Plan.
Developer shall prepare and submit the DRB application within one
hundred twenty (120) days of the City's approval of the Park Concept
Plan. The City shall timely execute all necessary application materials
upon the written request by Developer. In the event the DRB requires
changes to the proposed design, Developer will be responsible for
preparing all necessary modifications.
e) Final Construction Documents and Proprietary Review. Within six (6)
months of the DRB approval of schematic design plans, Developer
shall prepare and submit to the City Manager the final construction
documents, including the preparation of design and permit plans, and
the preparation of materials necessary for any development permits
required by the City, County, and State, it being understood and
agreed that Developer's design professionals shall be responsible for
preparing the construction documents in consultation with the City.
Developer shall submit such final construction documents to the City
Manager for the sole and limited purpose of verifying that the final
construction documents conform in all material respects with the
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applicable approved Park Plans. The iity shall review and either
I confirm/approve or disapprove such &al construction documents
within forty-five (45) days after receipt of the same, but for avoidance
of doubt, the City may disapprove the final construction documents
only if they do not conform in all material respects to the applicable
approved schematic design plans. If the City fails to confirm/approve
or disapprove such final construction documents within such forty-
five (45) day period, then such final construction documents shall be
deemed confirmed/approved by the City. However, if the City timely
disapproves such final construction documents, it shall give the
specific and detailed reasons for such rejection, in which event,
Developer shall, within sixty (60) days after such disapproval, submit
proposed modifications to such final construction documents so that
they conform in all material respects to the Approved Park Concept
Plan and DRB approval and then re-submit them to the City pursuant
to the foregoing process until such final construction documents have
been or are deemed to have been confirmed/approved by the City,
and such final construction documents, once confirmed/approved or
deemed approved by the City, shall be the documents submitted for
building permit for the Park Project.
f) Processing of Construction Permit and Final Construction. Within
thirty (30) days of the City's proprietary approval of the final
construction documents for the Park, Developer shall, at its sole cost
and expense, submit the building permit plans to the City. Developer
shall diligently pursue the issuance of a building permit for the
improvements, and shall secure a building permit within twelve (12)
months of submission of the building permit application. Developer
shall complete the Park Project within sixteen (16) months from the
issuance of the building permit._If the City chooses for the Developer
to proceed with the Park Project, the_Developer shall make
commercially reasonable best efforts to complete the Park Project,
within the time periods described herein.
g) Payment in Lieu of Park Project. If the City or the DRB requires
modifications to the Concept Plan or imposes conditions that require
modifications to the Concept Plan that will cause the estimated cost
of the Park Project, as reasonably determined by the Developer, to
exceed $2,000,000.00, the Developer may elect to forego completion
of the Park Improvements and convey the Hostel Site to the City in
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accordance with Section 11(j)(i) and the Developer shalt pay the City
$2,000,000.00 to fund the Park Project, less any reasonable fists
expended by the Developer in furtherance of the Park Project, up to a
maximum of $300,000.00. If the City elects not to proceed with the
Park Project following the twenty-four (24) month period in
subsection (b), the Developer shall pay the City $2,000,000.00 within
thirty (30) days of conveyance of the Hostel Site to the City in
accordance with Section 11(j)(i). In either case, after the Hostel Site is
conveyed to the City and the payment is made, the Developer shall
have no further responsibility for the Park Project.
h) Temporary Sales Center. Within ninety(90) days of the Effective Date,
the Developer shall initiate, prepare, and submit the Temporary Sales
Center Amendments to authorize temporary use of the Hostel Site as
a sales center for the Private Project during the time period between
acquisition of the Hostel until Developer transfers the Hostel Site to
the City. However, nothing herein guarantees that the proposed
amendments will be authorized by the City Commission, acting in its
legislative capacity. All improvements made to the Hostel Site by the
Developer in connection with development of the temporary sales
center shall be excluded from the cost estimates for development of
the Park Project and shall be conveyed to the City upon transfer of the
Hostel Site to the City. The City may, at its sole discretion, request
that the Developer remove all or part of the improvements made to
the Hostel Site in connection with the temporary sales center. Upon
such a request, Developer shall remove the improvements made to
the Hostel Site in connection with temporary sales center within
ninety (90) days.
i) Public Access to Hostel Site and Temporary Sales Center During the
time period that the Hostel Site is used as a temporary sales center,
the Developer shall allow reasonable access to the Hostel Site to the
genera/public for passive enjoyment between the hours of 11:00 AM
and sunset. The Developer may restrict this public access for
maintenance, or improvements, or repairs to the temporary sales
center or the Hostel Site, or for private events. In addition, the
Developer shall permit reasonable use of the temporary sales center
structure for up to four (4) hours once per month by a registered
neighborhood association comprised of members living in the West
Avenue neighborhood, provided that an authorized representative of
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the peighborhood association makes a written equest for such use at
least two (2) weeks prior to the proposed rikeeting date, and the
proposed meeting date does not conflict with the Developer's
planned period of restricted access.
j) Transfer of Hostel Site:
i. If the City elects not to proceed with the park, following the twenty-
four (24) month decision period in subsection (b), or the Developer
elects Payment in Lieu of the Park Project as provided in Section
11(g), the Developer may remain in possession of the Hostel Site
for not less than (30) months following expiration of the twenty-
four(24) month to allow for development and temporary use of the
Hostel Site as a sales center for the Private Project for fifty-four (54)
months, subject to the approval of the Temporary Sales Center
Amendments. Following the expiration of the thirty (30) month
period, the Developer shall convey the Hostel Site to the City within
one-hundred twenty(120)days of the City's written request. During
this -hundred twenty (120) day period, the Developer shall wind
down operations of the temporary sales center and remove any
improvements, if requested, as required by subsection (h).
ii. If the City elects to proceed with the park, within ninety (90) days
of the completion of the Park Improvements, Developer shall
provide notice of such completion (the "Park Completion Notice").
The parties will thereafter set a mutually-agreed upon date for the
closing of the conveyance of the Hostel Site to the City (the
"Closing"), but no earlier than sixty (60) days following the date of
the Park Completion Notice.
iii. At the Closing, Public Project Developer shall deliver to the City the
following: (i) a Special Warranty Deed (the "Deed") conveying to
the City fee title to the Hostel Site free and clear of all liens and
encumbrances other those reasonably acceptable to the City at the
City's sole discretion (ii) customary title affidavit reasonably
required by the title company; (iii) a "marked-up" title commitment
issued by the title insurer specified by the City committing to issue
an owner's policy to the City with an effective date as of the date
and time of recording the Deed in the Public Records of Miami-
Dade County, Florida, with an insured amount equal to the
estimated market value of the Hostel Site as of the Closing. At
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Closing, the Public Project Developer shall also deliver to the City
all of the items specified in; xhibit "G". 4,
iv. The City shall be responsible at its sole cost and expense for the
operations, maintenance, repair, replacement, restoration of the
Hostel Site from and after the Closing, and all obligations and
liabilities of Developer with respect to the Hostel Site as of the
Closing dateshall terminate at the Closing except for (A) the
warranties in the Deed, (B) any envilronmental conditions existing
at the Hostel Site, and (C) Developer's indemnification obligations
pursuant to this Agreement.
12 Conditions Precedent to Issuance of Certificate of Occupancy or Temporary
Certificate of Occupancy for the Privates Project. The Developer acknowledges that
construction of the Baywalk Project or payment in lieu of said Project, conveyance of
the Hostel Site, and completion of Park Improvements or payment in lieu of said
Improvements, are additional and essential considerations of the City's processing of
the approvals required for the Private Project. Except as otherwise provided in this
Agreement, the Developer shall not apply for, and the City shall not issue, any temporary
certificate of occupancy, final certificate of occupancy, and/or certificate of completion
for the Project (in whole or in part) until the following has occurred:
(a) Unless a bond or letter of credit is provided as set forth below in this
clause (a), Developer shall have completed construction of the Baywalk Project,
substantially in accordance with the Approved Baywalk Concept Plan and Baywalk
Permits (as evidenced by the issuance of one or more temporary certificates of
occupancy, final certificates of occupancy, or certificates of completion that individually
or collectively encompass the Baywalk Project).Alternatively, Developer shall have made
the payment(s) in lieu as set forth in subparagraph (i) in section 10(e) or assigned the
design professional and construction contracts and made the necessary payments in
accordance with the provisions set forth in subparagraph (ii) in Section 10(e). If the
Baywalk Segments are not substantially completed at the time of application for TCO
for the Private Project,the City Manager shall authorize issuance of a TCO for the Private
Project under this Agreement if the Developer has obtained the Baywalk Permits,
commenced construction of the Baywalk Segments, is diligently pursuing construction
of the Baywalk Segments, and all other requirements of this Section have been satisfied,
provided that the Developer posts a letter of credit or bond in an amount equal to the
Baywalk Segment Construction Cost (as hereinafter defined) for the Baywalk
Segment(s)remaining to be completed, which letter of credit or bond: (A) is
unconditional, irrevocable, and payable to the City on site at an office of the issuing
financial institution in a single draw equal to the then remaining Baywalk Segment
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` construction Cost, (B) is in form and content reasonably acceptable tothe Developer
and the City, and (C) shall contain an "evergreen" provision which providA that the letter
of credit or bond is automatically renewed on an annual basis (unless the issuer delivers
sixty (60) days prior written notice of cancellation to the City) until the outstanding
Baywalk Segment(s) shall have been completed (as evidenced by the issuance of one or
more temporary certificates of occupancy, final certificates of occupancy, or certificates
of completion) and accepted by the City, and which City shall have the right to present
for payment in accordance with its terms in the event of Baywalk Segment Construction
Default (as hereinafter defined). For the purpose of this subsection, Baywalk Segment
Construction Cost shall mean an amount equal to one hundred percent (100%) of the
then remaining cost to complete the construction of the applicable Baywalk Segment
then remaining to be completed based on the applicable Baywalk Segment
Construction Contract, defined as the cost to construct the remaining Baywalk
Segment(s) as initially set forth in the construction contract, less any amounts paid
towards construction of the applicable Baywalk Segment. Baywalk Segment
Construction Default shall mean any of (I) the failure of the Developer to complete
construction of any Baywalk Segment in accordance with this Agreement which default
remains uncured after the expiration of all applicable grace, cure and notice periods
and/or (II) institution of any foreclosure proceedings by any lender (including without
limitation any mezzanine lender) of Developer or any of its members with respect to the
Baywalk Project.
The Developer shall have the right to reduce the amount of the letter of credit or bond
to reflect the then remaining cost to substantially complete the applicable Baywalk
Segments(s) on a quarter calendar basis by delivering to the City Manager
documentation supporting such a reduction (including at a minimum a completion
certificate by the applicable Public Project Contractor, certifying the percentage
completion of the Baywalk Segment(s) based on the schedule of values within the
applicable Baywalk Segment contract(s). The City shall cooperate with Developer in
reducing the amount of the letter of credit or bond (including, without limitation,
promptly providing an original instruction letter, duly signed by the City Manager or
designee, authorizing the applicable financial institution to reduce the amount of the
letter of credit or bond and otherwise complying with any requirements of the issuer of
the letter of credit or bond in order to reduce the amount of same. The City shall return
the letter of credit or bond together with an original instruction lender duly signed by
the City Manager or designee, authorizing the applicable financial institution to cancel
the letter of credit and otherwise comply with the requirements of the issuer of the letter
of credit or bond to cancel same.
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Following any Baywalk Segment Construction Default by the Developer under this
Agreement that s not cured by the Developer or any ler►der within any applicable notice
and cure period, the City shall have the right, but not the obligation, to draw all funds
under the letter of credit or bond. The right to draw funds under the letter of credit
shall be the City's sole and exclusive remedy with respect to a Baywalk Segment
Construction default by the Developer that is not cured by the Developer or any lender
within any applicable notice and cure period under this Agreement. Upon drawing of
funds by the City under the letter of credit or bond, then all conditions precedent to the
issuance of a TCO, CO, or Certificate of Completion for the Private Project (whether in
whole or in part) whether or not construction of the applicable Baywalk Segment(s)has
been completed or accepted by the City, in which case the City's issuance of a TCO, CO,
or Certificate of Completion for the Private Project shall only be subject to the regulatory
authority that may be required by any agencies having jurisdiction over the Private
Project (or such part thereof for which a TCO, CO, or Certificate of Completion is sought).
If the City draws funds under the letter of credit and there are any excess funds
remaining after the City completes construction of the outstanding Baywalk Segment(s),
the City shall return any such excess funds to the Developer promptly after the City
completes such construction of the Baywalk Segment(s).
(b) The Developer shall have conveyed the Hostel Site to the City as set
forth in section 11(j)(i).
(c) The Developer shall have completed construction of the Park
Improvements, substantially in accordance with the Approved Park Concept Plan (as
evidenced by the issuance of one or more temporary certificates of occupancy, final
certificates of occupancy, or certificates of completion that individually or collectively
encompass the Park Improvements). Alternatively, Developer shall have made the
payment(s) in lieu as set forth in section 11(g).
(d) Upon final non-appealable approval of a Design Review Board
approval for the Private Project, the Developer shall cause a Declaration of Restriction
Covenant encumbering the Development Property, in a form acceptable to the City
Attorney, to be recorded in the public records providing that the Developer shall not
avail itself of the "Live Local Act," codified under Section 166.04151, Fla. Stat (2025), any
amendment thereto, or any other state statute that would preempt local land
development regulations concerning maximum permitted height, maximum permitted
floor area ratio, or maximum permitted density, and further prohibiting residential units
within the Private Project to be rented or leased for a period of less than six (6) months
and one (1) day.
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13 Rental Assistance for Lesselis of Development Property. Prior to the City's
W, issuance of a permit to demolish the Aisting building on the Development property,
Developer shall demonstrate that it has provided financial assistance in the amount of
$5,500 for studio apartment, $7,500 for one-bedroom units or $10,000 for two-bedroom
units to all Bona Fide Lessees of the Development Property to assist those Lessees in
securing new residential leases. For Bona Fide Lessees that provide proof of relocation
within the City reasonably acceptable to the Developer, the Developer shall demonstrate
that it has provided financial assistance in the amount of $9,000 for studio apartment,
$12,500 for one-bedroom units, and $15,000 for two-bedroom units instead of $5,500
for studio apartment, $7,500 for one-bedroom units or$10,000 for two-bedroom units.
"Bona Fide Lessees" shall mean leaseholders meeting the following requirements at the
time of termination of the existing building's condominium association:
a) Resides full time in the unit.
b) Is a lessee under a written lease with a term exceeding six (6) months
entered into between the Bona Fide Lessee and the relevant unit
owner.
c) Is not currently subject to eviction proceedings pursuant to Chapter
83 of the Florida Statutes.
A Bona Fide Lessee that does not claim the rental assistance offered in this
subsection shall have been deemed to forfeit the rental assistance twelve (12) months
after the termination of the existing building's condominium association. Following twelve
(12) months from the date of termination of the existing building's condominium
association, Developer shall calculate the rental assistance that would have otherwise
been paid to the Bona Fide Lessees that were entitled to rental assistance but did not
claim such rental assistance, assuming such Bona Fide Lessee did not intend to continue
residing in the City, and thereafter pay such calculated amount to the City within one
hundred-eighty (180) days of the termination of the existing building's condominium
association. Developer shall provide an affidavit to the City affirming compliance with this
Section before a demolition permit may issue for the existing building on the
Development Property.
14 Applications for Private Project Approvals and the Baywalk Project
Approvals. This Agreement contemplates that Developer will expeditiously file
applications for the Private Project Approvals and the Public Project Approvals. In
exchange for the public benefits provided by Developer, the City shall schedule all
required public hearings as soon as reasonably practicable. The City shall designate a
point of contact within the City Administration to facilitate processing of all Private
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Project and Public Project Approvals. Notwithstanding the foregoing, Developer shall
be solely responsible fir obtaining all final, non-appealable Priv4e Project Approvals
and the Public Projects Approvals for the Private Project and the Public Projects. No
extension of any time period herein shall be deemed to be an extension of any time
periods contained within the Private Project Approvals or the Public Projects Approvals.
The expiration of Private Project Approvals and the Public Projects Approvals shall be
subject to Section 2.11.2 of the Resiliency Code.
15 Laws Governing this Agreement. For the entire Term of this Agreement, the
City hereby agrees that the City's Resiliency Code (as may be amended by the Legislative
Approvals) governing the development of the Development Property, as they exist as of
the Execution Date of this Agreement, shall govern the development of the Property
(including the Private Project and the Public Projects) during the entire Term of this
Agreement. Notwithstanding the foregoing, the City may apply subsequently adopted
laws or policies of general applicability to the Property (including the Private Project and
the Public Projects) (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 law or policies in a manner that requires any alterations or
modifications to the Private Project and the Public Projects or any amendments or
modifications to the Private Project Approvals or the Public Projects Approvals.
16 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. 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 Effective Date shall not relieve Developer of the necessity of complying with any
such permit, approval, procedure, condition, fee, term or restriction, subject however to
the terms and provisions of this Agreement.
17 Reservatio _of Rights. This Agreement shall not affect any rights that may
have accrued to any party to this Agreement under any applicable law, rule or regulation
and each party hereto reserves any and all of such rights.
18 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 Property (including the Private Project
and the Public Projects) are consistent with the City's Comprehensive Plan and Resiliency
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Code (as may be amended by the Legislative Approvals), subject to all applicable a
requirements, permits and approvals. k .
19 Concurrency. Developer shall be solely responsible for obtaining, at its sole
cost and expense, all land use permits for the Public Projects and Private Project,
including, but not limited to, all permits and approvals required pursuant to Section
163.3180, Florida Statutes (2024), with respect to concurrency requirements for roads,
sanitary sewer, solid waste, drainage, potable water, parks and recreation, and schools
(the "Concurrency Requirements"). Prior to applying for the Initial Building Permit for
the Private Project, Developer shall apply to the appropriate governmental authorities
and obtain letters or other evidence that Developer has satisfied all applicable
Concurrency Requirements with respect to the Private Project, and shall diligently and
in good faith obtain such letters or other evidence that the Private Project meets all
applicable Concurrency Requirements, and shall pay such impact fees or mobility fees
as may then be due or applicable to meet Concurrency Requirements.
20 Effective Date; Duration; and Term.
a) Within fourteen (14) days following approval of this Agreement
at two (2) public hearings and the execution of this Agreement by
all parties, the City shall record this 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. Developer agrees that it shall be
responsible for all recording fees related to the recording of this
Agreement.
b) The initial Term of this Agreement shall be a total of ten (10)years
from the Effective Date. The Term of this Agreement shall be
automatically extended by five (5) years provided (i) the Park
Project is completed or the applicable payment is made, (ii) the
Closing occurs, and (iii) either the Baywalk Project is completed
or the applicable Baywalk Payment is made, all within the time
frames set forth in this Agreement. The Term of this Agreement
shall be subject to the force majeure provisions of Section 38. Any
further extension of the Term of this Agreement will only be by
the mutual consent of the City and Developer subject to a public
hearing pursuant to Section 163.3225, Florida Statutes. 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
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Agreement, except for those obligations that expressly survive
the expiltition of this Agreement.
c) The City shall review this Agreement at least once every twenty
(20) months, to determine if there has been demonstrated good
faith compliance with the terms of the development agreement
pursuant to Section 163.3235, Florida Statutes. Any action to
modify or revoke this Agreement pursuant to this Section must
be undertaken following the public hearing process required by
Section 163.3225, Florida Statutes, and based on substantial
competent evidence that Developer is not in compliance with its
obligations and responsibilities under the Agreement.
21 Permitted Development.
a) Permitted Development and Uses. The Development Property is
designated as "High Density Multi Family Residential" (RM-3) according
to the City's adopted Comprehensive Plan Future Land Use Map. The
"Residential multifamily, high intensity" (RM-3) zoning district permits
multi-family residential buildings, hotels,and related accessory uses.The
Development 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 Resiliency Code and Comprehensive Plan, as
amended by the Comprehensive Plan Amendment and the Legislative
Approvals.
b) Density, Building Heights, Setbacks and Intensities. The maximum
density, heights, setbacks and intensities for any development on the
Development Property shall be regulated by the City's Resiliency Code,
Comprehensive Plan (as amended by the Legislative Approvals) and any
applicable Federal, State or County laws, rules and regulations. Subject
to the restrictions set forth in the Residential Multifamily Medium
Density land use designation, following the adoption of the Legislative
Approvals, the maximum residential density for the Development
Property shall be seventy-five (75) dwelling units per acre.
22 Public Facilities to Serve the Development Property. A description of the
public facilities that will service the Development Property, 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
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of the Development Property, is set forth in Exhibit "H" attached hereto and
incorporated herein by this reference.
23 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 set forth in Exhibit "I" attached hereto and incorporated herein by
this reference.
24 Required Development Permits. A listing and description of all local
development permits approved or needed to be approved for the development of the
Private Project and the Public Projects is set forth in ichibit "J" attached hereto and
incorporated herein by this reference.
25 Developer's Right to Terminate. Developer shall have the option to
terminate this Agreement in its sole and absolute discretion in the following events:
a) If the Private Project Conditions (including, without limitation, the
Legislative Approval Conditions) are not satisfied;
b) If the Public Project City Approvals are not obtained; or
c) Public Project Developer does not successfully consummate the
closing of the acquisition of fee simple title to the Hostel Site free and
clear of liens and encumbrances (other than liens or encumbrances
that can be released through the payment of moneys not to exceed
$500,000).
26 Default. Each of the following shall be an "Event of Default" by Developer
hereunder.
a) If Developer shall fail to acquire title to the Hostel Site as required
under Section 5 (the "Hostel Acquisition Failure").
b) 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 (i) thirty (30) days of Developer's receipt of
written notice from the City with respect to monetary defaults, or
(ii) sixty(60) days of Developer's receipt of written notice from the
City with respect to non-monetary defaults (each, a "Default
Notice"). If such non-monetary default is susceptible to cure but
cannot reasonably be cured within such sixty(60) day period, then
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Developer shall have such additional time as is necessary to cure
such failure and no Event of Default shall be deemed tm exist
hereunder so long as Developer commences such cure within
such initial sixty (60) day period and diligently and in good faith
pursues such cure to completion.
c) If 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 in writing to the
appointment of a receiver or trustee or liquidator of all or
substantially all of its property; or if all or substantially all of the
assets of Developer are attached, seized, subjected to a writ or
distress warrant, or are levied upon, and the same is not
dismissed, discharged or satisfied within one hundred fifty (150)
days after such attachment, seizure, subjection or levy occurs.
d) If 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 the same is 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 in any proceeding under the Bankruptcy
Code and such custodian is not discharged or dismissed within
one hundred fifty (150) days after such appointment; or
Developer consents in writing or joins in an application for the
appointment of a custodian in any proceeding under the
Bankruptcy Code; 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 (an "Other Insolvency Proceeding") relating to
Developer; or there is commenced against Developer any such
Other Insolvency Proceeding and the same is not dismissed or
stayed within one hundred fifty (150) days; or a custodian, trustee
or person of similar capacity is appointed for or takes charge of
all or substantially all of the property of Developer in any such
Other Insolvency Proceeding and such custodian, trustee or
person of similar capacity is not discharged or dismissed within
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one hundred fifty (150) days after such appointment; or
Developer consents in writing or joins in an application for the
appointment of a custodian, trustee or person of similar capacity
in any such Other Insolvency Proceeding.
In the event the City shall claim any Event of Default shall have occurred under this
Agreement, the City's Default Notice shall state with specificity the provisions of this
Agreement under which the Event of 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 Event of Default by the date set forth in such Default Notice will result in the City
having the right to terminate this Agreement.
27 Enforcement of Performance: Damages; and Termination. If an Event of
Default occurs under this Agreement, and such Event of Default has not been cured
within any applicable notice and cure period, the City may elect (subject to the terms,
conditions and limitations set forth in this Agreement) any one or more of the following
remedies:
a) Other than with respect to the Hostel Acquisition Failure, enforce
strict performance by Developer;
b) Terminate this Agreement;, provided that the City shall have
delivered a copy of the City's Default Notice to any lender
providing financing with respect to the Project that has provided
the City written notice of its name and address, and the City shall
not terminate this Agreement if such lender is diligently
prosecuting cure of any curable Event of Default, or with respect
to Events of Default that are not susceptible to cure by such
lender (e.g., bankruptcy with respect to the Developer) or that are
not susceptible to cure without possession of or title to the
applicable property, or ownership of Developer (directly or
indirectly), such lender is diligently prosecuting enforcement
proceedings to obtain possession or title, and after obtaining
possession and title diligently proceeds to prosecute cure of
those Events of Default that are susceptible to cure; or
c) Other than with respect to a Hostel Acquisition Failure, pursue
any other remedy available to the City at law or in equity.
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The City's election of a remedy under this Agreement with respect to any one or
more Eviients of Default shall not limit or otherwise affect the City's right to elect any of
the remedies available to it under this Agreement with respect to any other Event of
Default.
In the event the City elects to terminate this Agreement after the occurrence of an
Event of Default that was not cured within any applicable notice and cure period, and such
termination is stayed by order of any court having jurisdiction of any matter relating to
this Agreement, or by any federal or state statute, then following the expiration of any
such stay, the City shall have the right, at its election, to terminate this Agreement with
five (5) Business Days' written notice to Developer, Developer as debtor in possession, or
if a trustee has been appointed, to such trustee.
Notwithstanding anything to the contrary contained in this Agreement, in no event
whatsoever shall Developer be liable to the City or any other person for any indirect,
special, incidental, consequential, punitive, economic damages (including, without
limitation, diminution of property value) lost profits or similar damages, whether or not
foreseeable or advised of the possibility of the same, in connection with, arising from or
as a result of any Event of Default by Developer under this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, in no event
shall the City have the right to terminate this Agreement after Developer has conveyed
the Hostel Site to the City in accordance with the terms of this Agreement, unless the
Event of Default is a "Material Event of Default" (as more specifically defined below). The
term "Material Event of Default" means (i) Developer's breach of any term or provision
contained in Section 35 (Transfer and Assignment) of this Agreement and such breach is
not cured within the notice and cure period set forth in subsection [22(a)] of this
Agreement; and (ii) failure to comply with the indemnification obligations pursuant to
Sections 37 and 38 of this Agreement and such failure is not cured within the notice and
cure period set forth in subsection [22(a)] of this Agreement.
The City hereby acknowledges and agrees that, from and after the date upon which
the Developer has conveyed the Hostel Site to the City in accordance with the terms of
this Agreement, the City's sole and exclusive remedy for any Event of Default by
Developer under this Agreement that is not a Material Event of Default shall be limited to
an action for damages and/or specific performance to the extent such remedies are
available and permitted to the City under this Agreement and applicable law.
28 Termination Outside of Default. In the event either party chooses to exercise
its right to terminate this Agreement under any of Sections [INSERT] this Agreement
(apart from the City's right to terminate under Section 25 [?] of this Agreement as a
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result of an Event of Default byDeveloper), each party shall bear its own f es, costs and
expenses incurred in connectidb with this Agreement, the Private Project td the Public
Projects, and neither party shall have or owe any further obligation or liability to the
other party.
29 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 hereunder shall constitute a waiver of any such default or of such other covenant,
agreement, term or condition hereunder.
30 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 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 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
If to Developer at: 1250 WEST AVE OWNER LLC
c/o JDS Development, LLC
120 NE 27 Street, Suite 200
Miami, FL 33137
Attn. Michael Stern and Serena Rakhlin
With a copy to: Bercow Radell Fernandez & Larkin
200 S. Biscayne Boulevard
Miami, Florida 33131
Attn: Michael W. Larkin
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Notices personally delivered or sent by overnight kurier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall be
deemed givenupon receipt or refusal to accept delivery. The terms of this Section shall
survive the expiration or earlier termination of this Agreement.
JINTENTIONALLY OMITTED WITHOUT IMPLICATION.]
31 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. 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; and 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 expiration or earlier
termination of this Agreement.
32 Severabiliy. 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.
33 Time of Essence. Time shall be of the essence for each and every provision
hereof.
34 Entire Agreement. This Agreement, together with the 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
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by any agreement, condition, warranty nor representation other than as expressly stated
in this Agreement. This Agreement mAy not be changed, altered or modified exctept by
an instrument in writing signed by both parties hereto, subject to the requirements for
the amendment of development agreements in the Act.
35 Other Agreements. This Agreement has no effect on any other agreement,
the City's development orders, or declaration of restrictions otherwise encumbering the
Property. Any and all agreements currently in the public records remain valid. The parties
incorporate by reference each and every requirement set forth in the Act.
36 Binding Effect. The obligations imposed pursuant to this Agreement upon
Developer and upon the Property shall run with and bind the Property as covenants
running with the Property, and this Agreement shall be binding upon and enforceable
by and against the parties hereto and their respective successors, assigns and heirs.
37 Transfer and Assignment. Developer shall not be entitled to assign or
transfer this Agreement or any of the rights and obligations hereunder prior to the later
of a) the date of Closing; b) completion of the Baywalk Improvements; or c) making of
the Baywalk Payment, if applicable, without the prior written consent of the City (which
consent may be withheld, conditioned or delayed in the sole and absolute discretion of
the City), except as hereinafter provided. Developer shall have the right at any time and
from time to time to sell, transfer and convey all or any portion of the Development
Property to any person or entity (a "Subsequent Owner") and assign and transfer this
Agreement and the rights and obligations hereunder in whole or in part to any
Subsequent Owner in connection with such sale, transfer or conveyance of the Property
or any portion thereof without the prior consent or approval of the City, provided that
a "Stern Entity" (as more specifically defined below) shall at all times (a) hold, directly or
indirectly, not less than a 10% ownership interest in the Development Property, (b) serve,
directly or indirectly, as a manager of the entity/entities that is/are developing the
Private Project and the Public Projects, and (c) exercise, directly or indirectly, day-to-day
operational control of the entity as the manager of the entity/entities that is/are
developing the Private Project and the Public Projects; provided, further, that this
Agreement and the rights and obligations hereunder can be assigned and transferred
at any time and from time to time to any lender, lender designee or non-lender affiliated
purchaser (any of the foregoing being referred to herein as a "Foreclosure Purchaser")
who acquires the Development Property or any portion thereof through a foreclosure
sale or deed-in-lieu of foreclosure without the prior consent or approval of the City.
Direct and indirect owners of Developer shall also be entitled at any time and from time
to time to pledge their direct and indirect ownership interests in Developer to one or
more lenders, and any such lender, its designee and a non-lender affiliated purchaser
(any of the foregoing being referred to herein as a "Mezzanine Foreclosure
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Purchaser") shall be permitted to acquire all or any portion of the direct and/or indirect
ownership interests iri Developer through foreclosure of any sucf pledge or acceptance
of an assignment-in-lieu of foreclosure, and/or to exercise control over Developer
(directly or indirectly), without the prior consent or approval of the City.
This Section 37 and the restrictions, limitations and prohibitions contained herein shall
automatically terminate, extinguish and be of no further force or effect immediately upon
the earlier of the following events to occur (x) the later of the date of Closing or
completion of the Baywalk Improvements or making of the Baywalk Payment, if
applicable, (y) the acquisition of the Development Property or any portion thereof by any
Foreclosure Purchaser through a foreclosure sale or deed-in-lieu of foreclosure or (c) the
acquisition of all or any portion of the direct and/or indirect ownership interests in
Developer by any Mezzanine Foreclosure Purchaser through foreclosure of any such
pledge or acceptance of an assignment-in-lieu of foreclosure; whereupon, Developer, any
Subsequent Owner and/or any Foreclosure Purchaser and/or any Mezzanine Foreclosure
Purchaser shall have the absolute and unconditional right to sell, transfer and convey all
or any portion of the Development Property to any person or entity and to assign and
transfer this Agreement and the rights and obligations hereunder in whole or in part to
any person or entity in connection with such sale, transfer or conveyance of the Property
or any portion thereof without the prior consent or approval of the City whether or not a
Stern Entity (aa) holds, directly or indirectly, any ownership interest in the Development
Property, (bb) serves, directly or indirectly, as a manager of the entity/entities that is/are
developing the Project and the Hostel Project, or (c) exercises, directly or indirectly, day-
to-day operational control of the entity as the manager of the entity/entities that is/are
developing the Project or the Hostel Project. Any assignee or transferee (including, any
Subsequent Owner or Foreclosure Purchaser) shall assume all remaining obligations of
Developer under this Agreement at the time of such assignment or transfer of this
Agreement. For purposes of this Section 35, the term "Stern Entity" shall mean: (ww)
Michael Stern; (xx) any spouse, child, grandchild, brother, sister, niece, nephew or first
cousin of Michael Stern, or of any combination of the foregoing; (yy) any trust established
for the benefit of Michael Stern, or any spouse, child, grandchild, brother, sister, niece,
nephew or first cousin of Michael Stern, or of any combination of the foregoing; and/or
(zz) any entity owned, directly or indirectly, one hundred percent (100%) by Michael Stern,
or any spouse, child, grandchild, brother, sister, niece, nephew or first cousin of Michael
Stern, or any trust established for the benefit of Michael Stern, or any spouse, child,
grandchild, brother, sister, niece, nephew or first cousin of Michael Stern, or of any
combination of the foregoing.
38 Force Majeure and Third-Party Challenges. All time periods and deadlines
set forth in this Agreement and in any approval or permit issued in connection with the
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Project will be tolled due to force majeure events (including, without limitation, strikes,
lockos, acts of God, pandemics, hurricanes and severe weather, and other causes 5
beyond the control of either party), and due to delays in obtaining permits and
approvals from governmental agencies, during the pendency of any "Lawsuit" (as
hereinafter defined) and any unexpired appeal period thereof. For the avoidance of
doubt, (a) any tolling of time periods pursuant to Section 252.363, Florida Statutes, shall
apply only to the expiration date of this Agreement, but not to any other time periods
set forth herein, except for any period during which Developer is unable to complete
any work or take any action due to the force majeure or other event triggering the
declaration of a state of emergency and (b) with respect to any other force majeure
event or Lawsuit, time periods and deadlines in this Agreement shall similarly be tolled
only during such period as Developer is unable to complete any work or take any action
due to such other force majeure event or Lawsuit. In the event that a third party
unrelated to or unaffiliated with the City or Developer institutes any action, suit or
proceeding against the City relating to the Private Project or any Public Project,
including, without limitation, any action, suit or proceeding challenging the validity or
issuance of this Agreement, Private Project Approvals (including, without limitation, the
Legislative Approvals), or any permit issued by the City or other agency(in each instance,
including any related appeals, a "Lawsuit"), then Developer shall defend the City in any
such Lawsuit at its sole cost and expense using legal counsel reasonably acceptable to
the City. Developer shall further indemnify and hold the City harmless from and against
all actual damages, losses, liabilities, fees, cost and expense (including attorneys' fees,
costs and expenses)of any and every kind arising out of or relating to any such Lawsuit.
This Section shall survive the expiration or any earlier termination of this Agreement.
39 Indemnification of City.
a) To the fullest extent permitted by law, and without limiting any other
indemnity obligations of Developer set forth elsewhere in this
Agreement, Developer hereby agrees to defend, indemnify and hold
harmless the City and its former, current and future elected officials,
directors, attorneys, appointed officials, administrators, consultants,
agents,and employees (collectively, "City Indemnified Parties")from
and against all claims, damages, losses, and expenses, direct or
indirect, (including but not limited to fees and charges of attorneys
and other professionals and court and mediation costs) arising out of
or resulting from (i) the City's adoption of any resolution or ordinance
or the taking of any other action relating to this Agreement, the
Private Project or the Public Projects, (ii) the City's granting of
permission for any activity performed under the terms of this
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Agreement and (iii) the construction and/or maintenance of the
Private Projector the Public Projects (including all easements) and
caused, in whole or in part, by any willful, reckless, or negligent act
and/or omission of Developer or any person, employee, agent, or
third party acting on Developer's behalf (including any contractor,
subcontractor, or any person or organization directly or indirectly
employed by any of them or anyone for whose acts any of them may
be liable) (collectively "Losses"). The foregoing indemnity provision
includes, subject to the sovereign immunity monetary limitation
described below, if applicable, Developer's agreement to fully
indemnify the City Indemnified Parties from any Losses alleged to
have been caused, in whole or in part, by the negligent acts or
omissions of the City or any person, employee, agent, or third party
acting on City's behalf(including any contractor,subcontractor, or any
person or organization directly or indirectly employed by any of them
or anyone for whose acts any of them may be liable)(collectively "City
Agents"), other than any willful, reckless, or grossly negligent act or
omission of City or any other City Agent("Excluded Act"). In the event
that any City Agent is determined to be solely responsible for causing
damage, loss or injury to a third party for any Excluded Act, Developer
shall not be obligated to defend, indemnify or hold any City
Indemnified Parties harmless. If both Developer and any City Agent
are determined to be jointly liable for Losses for such a willful, reckless
or grossly negligent act or omission, Developer shall pay its share of
the Losses, and, in addition, shall indemnify the City Indemnified
Parties to the maximum amount to which the City Indemnified Parties
are liable after application of the "sovereign immunity" limitation on
damages provided by Section 768.28, Florida Statutes.
b) In any and all claims against the City or any of its consultants, agents,
or employees by any employee of Developer or any employee of any
person, employee, agent, or third party acting on Developer's behalf
(inclutfng contractors, subcontractors, or any person or organization
directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable), the indemnification obligation of this
section shall not be limited in any way by any limitation on the amount
or type of damages, compensation, or benefits payable by or for
Developer or by or for any person, employee, agent, or third party
acting on Developer's behalf (including contractors, subcontractors,
or other persons or organizations directly or indirectly employed by
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any of them or anyone for whose aq any of them may be liable)
under workers' or workman's compe ation acts, disability benefit
acts, other employee benefit acts or any other service of law.
This indemnification provision shall survive the termination of any City permit and
this Agreement, however terminated.
40 Corporate Obligations. It is expressly understood that this Agreement and
the obligations issued hereunder are solely corporate obligations, and that no personal
liability will attach to, or is or shall be incurred by, the incorporators, stockholders,
officers, directors, managers, members, partners, trustees, beneficiaries, elected or
appointed officials (including, without limitation, the Mayor and City Commissioner of
the City) or employees , as such, of Developer, the City, or any successor or assign of 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 incorporators, stockholders, officers, directors, managers,
members, partners, trustees, beneficiaries, elected or appointed officials (including,
without limitation, the Mayor and City Commissioner of the City) or employees, 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.
41 No Conflict of Interest. Developer represents and warrants that 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 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.
42 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.
43 Limitations of Liability and Waiver of Consequential Damages.
a) 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,
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as may be amended, which statutory limitations shall be applied as if the
parties had not entered into this Agreement, and City expressly doefnot
waive any of its rights and immunities thereunder.
b) The 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 the City, its agents, contractors or employees), nor for any
injury or damage to the Development Property (unless caused by the
gross negligence or willful misconduct of the City, its agents, contractors
or employees).
c) The City will not be liable to Developer for any injury or damage to the
Development Property 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 any
part of the Development Property, or leakage of gasoline or oil from
pipes, appliances, sewer or plumbing works therein (unless caused by
the gross negligence or willful misconduct of the City, its agents,
contractors or employees).
d) 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 Project by the City under this
Agreement, shall render the City liable for its failure to discover any
defects or nonconformance with any governmental requirement.
e) No member, official, elected representative or employee of the City shall
be personally liable to Developer or any successor, assign or heir thereof
in the event of any default or breach of this Agreement by the City or for
any amount which may become due to Developer or successor, assign
or heir thereof under this Agreement.
44 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. 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
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this Agreement shall entitle Developer to compel the City to take
any such actions, save and except for thexecution of consents
(if applicable) to the filing of applications for the Private Project
Approvals, the Baywalk Project Approvals, Development Permits
and/or Development Orders as more fully set forth herein and to
timely process such applications.
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 Property, the Hostel Site or the
Baywalk Segments.
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EXECUTED as of the date first above written in several counterparts, each of
which`shall be deemed an original, but all constitbting 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 by means of 0 physical
presence or ❑ online notarization, this day of
202J 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:
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11
West Hospitality Ownei LLC, a Florida
Limited Liability Company
By:
By:
Print Name:
Address:
By:
Print Name:
Address:
STATE OF FLORIDA
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of 0 physical
presence or 0 online notarization, this day of 202_ by
, as a of LLC, a
limited liability company, 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
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1250 West Ave Owner LLC, a Florida
• Limited Liability Company
By:
By:
Print Name:
Address:
By:
Print Name:
Address:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me by means of 0 physical
presence or 0 online notarization, this day of , 202_ by
, as a of LLC, a
limited liability company, 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
42
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6/17/25 - PM Version
TABLE OF EXHIBITS
EXHIBIT "A" - LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
EXHIBIT "B" - LEGAL DESCRIPTION OF HOSTEL PROPERTY
EXHIBIT "C" - FORM OF RESTRICTIVE COVENANT
EXHIBIT "D" - BAYWALK MATERIALS AND SPECIFICATIONS - MINIMUM REQUIREMENTS
EXHIBIT "E" - BAYWALK CONVEYANCE DELIVERABLES
EXHIBIT "F" - DECLARATION OF USE FOR HOSTEL SITE
EXHIBIT "G" - PARK CLOSING DELIVERABLES
EXHIBIT "H" - DESCRIPTION OF PUBLIC FACILITIES
EXHIBIT "I"- DESCRIPTION OF PUBLIC RESERVATIONS
EXHIBIT "J" - DESCRIPTION OF REQUIRED DEVELOPMENT PERMITS FOR PROJECT
43
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Miami Economic
Associates , Inc.
•
May 20. 2025
Mr. Thomas Mooney
Planning Director
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Re: 1250 West Avenue
Dear Mr. Mooney:
in accordance with our proposal dated April 30, 2025, which was accepted by the City of
Miami via Purchase Order 20252671, Miami Economic Associates, Inc. ("MEAT") has
performed an analysis to estimate the increased value that would be realized by West
Ave Owner LLC (`the Developer") if the City of Miami Beach Mayor and City Commission
approved an LDR amendment with respect to the Alton Beach Bayfront Overlay District
with the stated purpose of creating development regulations that incentivize non-
transient development on the Subject Property, which is currently occupied by the Bay
Garden Manor Condominium. It would increase the allowable intensity of development
on the Subject Property from FAR 2.75 to FAR 5.75 and the allowable height of
development on the Subject Property from 150 feet to 330 feet. According to a
memorandum dated April 23, 2025, from City Manager Eric Carpenter to the Mayor and
Members of the City Commission, a summary of proposed bonuses is as follows:
• FAR bonus of 25 for not exceeding a density of 75 apartments per acre
• FAR bonus of .25 for executing a covenant prohibiting short term rentals on the
Subject in perpetuity.
• FAR bonus of 50 for the design and construction of a bay walk extension at adjacent
properties on West Avenue.
• FAR bonus of 2.0 for acquiring an existing property across the street from the
Subject Property (1247 — 1255 West Avenue and 1234 13th Street) that has a
transient use and conveyance of that property to the City of Miami Beach.
• A height bonus of 180 feet above the current maximum height of 150 feet for a
project that implements all the above bonuses, allowing for a maximum height of 330
feet.
The purpose of this letter is to provide you with the results of our analysis. The
conclusions presented in the letter are based on the professional research and analysis
of the undersigned whose resume accompanies this letter.
6861 S.W. 89th Terrace Miami, Florida 33156
Tel:: (3051 669-0229 Fax: (8661 496-6107 Email: meaink<tbellsouth.net
312 of 430
Mr. Thomas Mooney
Planning Director
City of Miami Beach
May 20, 2025
Page 2 P
According to information provided to MEAT by the Developer. the current plans for the
redevelopment of Subject Property, which are conceptual and subject to further
refinement during design review and the permitting process. contain a total of 273,212
sellable residential square footage including 125.951 square feet that would under 150
feet. the current height limit, and 147,261 square feet that would above 150 feet_
However, based on MEAl's review of the plans and assuming an efficiency factor of 85
percent, we estimate the proposed building will have 401,863 sellable square feet
including 174,625 under 150 feet and 227,239 above 150 feet
The Developer estimates that the sellable square feet above 150 will achieve an
average price per square foot of $2,000. with the average price per square foot. Based
on that figure, MEAT has calculated that the Developer is assuming that the square
footage under 150 feet would sell of an average price of S1,826 per square foot, which
approximates the average price per square foot of the eleven sales that have occurred
since 2023 at the adjacent Madan Terrace Condominium project in which all the units
are on floors below 150 feet. It should, however, be noted that eight of those eleven
sales occurred at prices per square foot less than $1,663. MEAT believes that it is
reasonable to believe that units in the proposed project on the floors under 150 feet
would sell at a higher price than those in a building that was completed in 2021. Finally,
the Developer estimates that the units on floors above 150 feet would sell at an average
price per square foot of$2,150. MEAT was unable to identify any units in the Alton Beach
Bayfront Overlay District that would be comparable with the units in the proposed
building on floors above 150 feet; however based on review of the conceptual plans for
the proposed project, we believe that they are likely to sell for an average price per
square foot in the range of $2,300 to $2,500 say $2,400. On that basis, the gross
revenues realized on that square footage would be in the range of$545,373,600
To estimate the value of the bonus square footage above 150 feet to the Developer. it is
necessary to estimate the cost to develop that square footage and subtract that amount
from the gross proceeds just estimated According to the Developer, the hard and soft
costs exclusive of the cost of site acquisition would total $1,200 per square foot. Based
on discussions with architects, contractors and other developers, MEAT determined that
the range for hard and soft costs for comparable projects is between $1,000 and $1,300
per square foot with a number of factors contributing to differences between projects
including, among others, site conditions, the specific level of quality intended for the
finished product, the existence of unusual design features, the cost of construction
financing and commissions rates paid. Given that the Developer's estimate is within the
stated range, MEAT decided to use it for its analysis. On that basis, the total cost to
produce the bonus square footage would be S272,686,800.
In summary, the value of the bonus square footage to the Developer would be in the
range from $272,686,800, minus the cost of constructing the bay walk extension and
acquiring the transient facility property across the street from the Subject Property MEAT
has not been provided an estimate of the costs to the Developer of those proffers.
Miami Economic Associates, Inc. 6861 S.W. 89th Terrace Miami, Florida 33156
Tel: (305) 669-0229 Fax: (866) 496-6107 Email: meainkgbellsouth.net
313 of 430
Mr. Thomas Mooney
Planning Director
City of Miami Beach
May 20, 2025
Page 3
MEAT is available to respond to any questions you may have with respect to the contents
of this letter
Sincerely,
Miami Economic Associates. Inc.
‘Z.- W --
Andrew Dolkart
President
Miami Economic Associates, Inc. 6861 S.W. 89th Terrace Miami, Florida 33156
Tel: (305) 669-0229 Fax: (866) 496-6107 Email: meainki bellsouth.net
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Andrew Dolkart
President
Miami Economic Associates, Inc.
Mr. Dolkart has provided real estate consulting services to developers. investors and
governmental entities during a period of more than 50 years. His many consulting
assignments have involved all major uses of real estate including residential. office,
retail. industrial and hotel and resort development. His professional activities have been
primarily focused on real estate projects in Florida. the Caribbean, Mexico, Central and
South America.
Throughout his consulting career, Mr. Dolkart has performed many assignments
involving market and financial feasibility analysis for all uses of real estate including
residential, office, retail. industrial and hotel projects. He also has extensive experience
analyzing destination resort projects in Florida. Arizona, New Mexico, Mexico and the
Caribbean
Mr. Dolkart is considered one of the leading experts in the State of Florida with respect
to the economics of community redevelopment and tax increment financing In this
regard, he assisted Miami-Dade County in formulating its policies and procedures for
establishing new Community Redevelopment Districts within its jurisdiction. Among the
CRA's that Mr. Dolkart has consulted in recent years has been the Southeast Overtown
Park West CRA. In this regard, he assisted in the preparation of the Application for
Development Approval for Increment III of the Southeast Overtown Park West DRI and
more recently assisted the CRA in preparing an application to Miami-Dade County to
extend the life of the CRA itself Mr Dolkart also assisted Brightline in obtaining the
recently activated right-of-way between Cocoa Beach and Orlando and in obtaining its
financing.
In recent years, a substantial portion of Mr. Dolkart's practice has involved estimating the
fiscal and economic benefits generated by new real estate projects. In this regard, he
has done several engagements for Brightline He has also worked on a proposed hotel
adjacent to the recently renovated and expanded Miami Beach Convention Center and
numerous privately developed multi-family, mixed-use and industrial projects throughout
South Florida.
Mr Dolkart has also worked extensively for both public and private sector clients on
issues relating to the provision of affordable housing. He chaired two task forces
appointed by the Miami-Dade County Board of County Commissioners to address issues
relating to affordable housing.
Mr. Dolkart is a graduate of Harvard College and received an MBA from Harvard
Business School_ He has served as a member of the Board of Directors of Habitat for
Miami of Greater Miami and the Ransom Everglades School.
315 of 430
Andrew Dolkart
Page 2
Education:
1963 - 1967 Harvard College - Bachelor of Arts, Cum Laude
1967 - 1969 Harvard Business School - Master of Business Administration
Previous Positions:
1991 - 1995 Kenneth Leventhal & Company - Director, Real Estate Advisory Services
Florida/Caribbean
1988 - 1990 Laventhol & Horwath - Director, Real Estate Advisory Services
Florida/Caribbean
1986 - 1988 GA/Partners - Vice President in Charge Florida Office
1983 - 1986 Gulfstream Land & Development Corp. - Director, Commercial
Development
1980 - 1983 Laventhol & Horwath - Director, Real Estate Advisory Services
Florida/Caribbean
1976 - 1980 Jandy, Inc - Owner/President
1972 - 1976 Gladstone Associates - Senior Associate
1969 - 1972 U. S. Navy - Commissioned Officer. Office of Legislative Affairs
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